Kline v. Security Guards Inc ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
10-6-2004
Kline v. Security Guards Inc
Precedential or Non-Precedential: Precedential
Docket No. 03-3404
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PRECEDENTIAL B RI AN DOERRMAN; KENN ETH
ECKERT; BERNARD EHRETS;
IN THE UNITED STATES COURT AN TO NI O E S P I N O S A ; JO S E P H
OF APPEALS ESSICK; GARY ETTEL; BART FAUST;
FOR THE THIRD CIRCUIT STEPHEN FAUST; EDWARD FELEGI;
BRUCE FISH BU RN ; W ILLIA M
F I SH E R ; G E R A L D F O G A R T Y ;
NOS. 03-3404, 03-3610, 03-3620 RAYMOND FOLK, JR.; MICHAEL
FREY; RICHARD FRITZ, JR., DERK
FRONHEISER; CASEY GANSTER;
DAULPH KLINE; TERRY KLINE, JOHN GASPERETT I; JA M ES
individually, and On Behalf of All Others GASPERETTI; SANDRA GAWNE;
Similarly Situated; DAVID J. BIGG; DENNIS GAY; DONALD GEDDIO;
JOSEPH T. COULSON; ROBERT L. GEORGE GEIGER; RONALD GOREY;
LASH; JOHN M . SPEARS, JR., CARL GRAEFF; RITCHIE GRETH;
WILLIAM ALLEN; JAMES ALLEN; PERRY GRIESEMER; GILL GROVE;
JOHN ALSVAN; EDWARD JOE GUIDO; JEFFREY HANNAHOE;
ANDERSON; KENNETH ARTERS, JR.; D O U G L A S H A R R I S ; RI C HA R D
T O N Y A Z Z A R EL L O ; T E R RY HARRIS; JAY HARTMAN; JOHN
BACHERT; GLENN BALTHA SER; HEFT; RODERICK HELLER; GLENN
THOMAS BARTASHUS; FRANCIS HELMAN; RICH HERB; JAMES HESS;
BEIERSCHMITT; GERALD BENDER; ROSE MARIE HESSLER; PATRICK
JOE BICKELMAN; BRETT BILLINGS; HOLLYWOOD; THOMAS HOLT; JOHN
JOSEPH BISCANTI; VERNON BLOOM, HORNBERGER; MICHAEL HUBIAK;
JR.; MICHAEL BODOLUS; KEVIN IMPINK; GARY JAMES; CHRIS
CHRISTOPHER BORN; PATRICIA JONES; EDWIN JONES; MARVIN
BORRELL; JEFFREY BOSTON; DAVID KACHEL; JOHN KAHN, JR.; WALTER
M. BRAMLEY; THOMAS BRENEMAN; KATCHUR; HARRY KAUFFMAN;
WILLIAM BROWN; JOHN BUGERA; ALLAN KEHL; MARK KERBER;
A N T H O N Y B U O N O ; A N T HON Y LARRY KLINE; WILLIAM KOCUR;
CALCAGNO, JR.; JOSEPH CARDELL; MARK KRAM MES; ALBERT KUKLIS;
RICHARD CARL; WILLIAM GARY LECHNER; TERRY LEESE;
C A R P E N T E R ; ALAN CLOUSE R ; BYRON LEIBY; GRANT LEONTI;
FRANK CRAMM ER, JR.; ALFRED TODD LESHER; JOHN LISA; ROBERT
CRAMMER, JR.; TERRY CROSSELY; LONG; WALTER LOOSE; EDWARD
ROB E R T C R U P I; ANDREW L U B A S ; D A V I D LU C A R E L L I;
CUCCARO, JR.; LEE DALTON; MINH R A Y M O N D L U T Z , I II ; G A R Y
DAO; ROBERT DAVIDSON; BRENT MADARA; JAMES MARKUS; KARL
DAVIS; TIMOTHY DEBECK; MATTERN; JEFFREY MAULICK;
MARGARE T DECKER; MARK JESSE MAY; EUGENE M CCLURE;
DETTERLINE; KENNETH DEW ALD; RICHARD MERSINGER; LAWRENCE
THOMAS DIETRICH; JOHN DILALLO; MICCICKE, JR.; WALTER MILLER;
RICHARD M IL LE R; T HO M AS W A W R Z Y N IA K , JR.; LARRY
MOYER; RICHARD MULHOLLAND; W E B B E R ; K E N N E T H
MICHAEL MULLIGAN; THOMAS WE IDENHEIMER; KENNETH
MULUTZIE; R. MUNDELL; JOHN WEIKEL; VICTOR WELLER, JR.;
MURRAY; CHRISTOPHER CALVIN WILLIAMS; LAWRENCE
NEITHAMER; RAYMOND WILLIAMS, JR.; ROBERT
NEUHEIMER; DAWN NIEDZIELSKI; WILLIAMSON; RICHARD WOLF;
VITO NINFO; RAY OVERTON, JR.; MARC WO LFE ; MIK E XAV IOS;
GEORGE PALM, JR.; HOWARD TERRY ZERBE; JOHN ZIATS; STEVE
PALMER; DONALD PAPP; CRAIG ARTHUR; WIL LLIA M BANGS;
P A W L I NG ; DA VID P H I L L I P S; WILLIAM BARNHART; THOMAS
WILLIAM PIANO; TIM PONATOSKI; BARRETT; RAYMOND BARTON;
RONALD PORRINO; RORY QUINTER; MARLIN BASHORE; BRIAN BATES;
TERRY RAEZER; DANIEL REEVES; PETER BECKER; RON BESSIL, JR.;
KE IT H R E IC H A R T ; S H IR L E Y HELEN BILLM AN; JAY
REICHART; JEFFREY REIFSNYDER; B L A N K E N B I L L E R ; B R A D F O RD
DE NN IS RE MP ; LOU IS REYES; BOLL; ROBERT BORD; PAUL BOYER;
FLOYD RHODES, IV; LOUIS RODINO; GREGORY BOYER; SAM BROBST;
JEFFREY ROTHERMEL; GEORGE R O B E R T C H ILA , SR .; L E W I S
SALTZMAN, 3RD; RANDY SANDERS; COLLINS; BRIAN CONRAD; FERRELL
SAMUEL S CH A EF ER ; M ICHAEL COOPER; GARY COOPER; ROBERT
SCHAEFFER; TERRY SCHAEFFER, COULTER; MICHAEL DAVIDSON;
SR.; JOHN SCHAICH; RANDY SCHIES; DAVID DEANGELO; PAUL DELBO,
L IN D A S C H L E G E L ; D A R R E L L SR .; RICH AR D D IEH L; L ARRY
SCHLEGEL, SR.; DALLAS DURHAM; GLENN FISHER; EVAN
SCHLIECHER; THOMAS SCHWARTZ; FOURNRIS; ANTHONY GATTO, JR.;
ANTHONY SEDOTI; EUGENE STEPHEN GERA S; A LFRED
SEDOTI; JAMES SELTZER; TIMOTHY GIAC OM INI; GEORGE GRENUS;
SHERMAN; GENE SHIMP; GEORGE LAFAYETTE HAYES; JOHN
SHIREY, JR.; CHRISTOPHER HECKMAN, SR.; RANDY HERTZOG;
SHOEMAKER; GEORGE SHUPP; PAUL DENNIS HILL; JOHN HORNING;
SILK; JOSEPH SPICA; RICHARD S H AW N INGRAM; STANLEY
S T IC H T E R ; CU RT IS ST IE LY ; JOHNSON; RUSSELL KLINE; LESTER
DOUGLAS STROHL; THEODORE KLOCK; RICHARD KOHARCHECK;
SULLIVAN; NORMAN SUNDAY; KEITH KRAMMES; ROBIN KRICK;
JOSEPH TOKONITZ; FR EDERICK STEVEN KRUSZEWSKI; RAYMOND
TRATE, JR.; WALTERS VACULA; KUBACKI, JR.; S. KEITH KULP;
R I CH A RD VALENTINE; BARRY PA TR I CI A L A Y T O N ; T H O M A S
WALTERS; DAVID WALTERS; BRIAN L E C H N E R ; TH EO DO RE LEW IS;
W A L T E R S ; R I C H A R D JOSEPH LISA; ROSALIE LONG;
2
JOSEPH MARONE; GEORGE MICHAEL R. HANSFORD; STEVEN J.
MATALAVAGE; JAMES MAY; JACK HAUGER; DENIS J. HEYDT; JOHN J.
MCNERNY, JR.; WILLIAM HOMKA, JR.; MARC HUNTZINGER;
MERRIWEATHER; H. DAVID MILLER; THOMAS C. ISETT; CHRISTOPHER W.
JANE MILLER; WILLIAM MOLINA; JONES; ROBERT C. JONES; Individually
ANDREW MOORE; GARY MOYER; and in his capacity as Pottstown Borough
SCOTT NEITHAMER; GLENN Manager; TIMOTHY O. KAHL; DIANE
NEWCOMB; MAURIO PETA; GERARD L E F F L E R ; G E R A L D E. L U T Z;
PETERKA; RANDALL PHILLIPS; WILLIAM M. MCANDREW; SCOTT R.
R I C HA R D P H ILLIP S; W ILLIA M MELL; JEFFREY S. NOLL; GEORGE R.
PICKUP, JR.; MIKE PINKASAVAGE; O'NEILL; R IC K Y C. O S WA LD;
R O N A L D P R E SS L E Y ; JEFFRE Y KENNETH A. PLANER; WILLIAM H.
PRINCE; DON QUIR E; STEVEN RAVERT; SALVATORE L. RIZZO;
REICHART; WIN FR E D R O MAN; GREGORY C. SANCINELLA;
KEVIN RORKE; BARRY SCHAEFFER; RICHARD D. TOLLAND; KENNETH
DONALD SCHIEN; TODD SWARTZ; WARFIELD; GARY L. WEISS; LARRY
GENE SEDOTI; WILLIAM SHUPP, III; L. WOLFE; JOSEPH E. YAKAITIS;
ANNETTE SICENAVAGE; JAMES F R ANC IS M . ZE L L ER ; J O HN
S IM M O N S ; B A R R Y S NY D E R ; CONTSICOS; HAROLD J. FASIG;
ROBERT SN YD ER , JR., D. CHARLES E. FELTY, JR.; DALE FOX;
STUBBLEBINE; ANGELO TADDEO; CARL FURILLO; MICHAEL GROSS;
S T E P H E N T H O M P S O N ; T ER R Y TOM HOLLAND; MARK K. OUDINOT;
TRAYER; JOHN W ALCHAK, JR.; JEFFREY G. RACZKA, SR.; GERALD
ROBERT WALLACE; ARLAN B. RHOADS; ANTHONY W.
WEAVER; TERRY WENZ; RON ROTKISKE, JR.; RICHARD J. SEISLER,
W E S S N E R ; WADE W E S S N ER; II; JOSEPH F. SHOUMLISKY,
RICHARD WOLF; ROBERT YENSER;
CHARLES ZAMBIASI; GREGORY D. Appellants in No. 03-3404
ARTERS; AARON C. AUGHTRY; Cross Appellees in Nos. 03-3610
KENNETH BAIR; GLENN D . and 03-3620
BEARSTIER; DALE A. BENDER;
M A R I O B I SB A N O ; HA R R Y E. v.
BOWERS, JR.; JIMMIE CALDWELL;
JOSEPH T. COULSTON, JR.; HOWARD SECURITY GUARDS, INC.
C. CRAWFORD, JR.; KURT D. DAHMS; Appellant in No. 03-3610
GREGORY L. DUFFIN; PATRICK J. Cross Appellee in No. 03-3404;
DUGGAN; ROY M . FLOWERS; LEROY
G. FREY; MICHAEL J. GALAVAGE; DANA CORPORATION
NATHAN A. GARBER; DERRICK L. Appellant in No. 03-3620
GRAVES; ARNEL C. GRETH; Cross Appellee in No. 03-3404
3
Scott F. Cooper (Argued)
Scott A. Mayer
On Appeal From the United States Blank Rome
District Court One Logan Square
For the Eastern District of Pennsylvania Philadelphia, PA 19103
(D.C. Civil Action No. 00-cv-00566) Attorneys for Dana Corporation
District Judge: Hon. Franklin S. Appellant in No. 03-3620
VanAntwerpen Cross Appellee in No. 03-3404
Magistrate Judge: Hon. Linda K.
Caracappa
OPINION OF THE COURT
Argued June 29, 2004
BEFORE: AMBRO, ALDISERT and
STAPLETON, Circuit Judge:
STAPLETON, Circuit Judges
Daulph Kline and Terry Kline
(Opinion Filed: October 6, 2004) brought suit in the Court of Common Pleas
of Berks County, in the Commonwealth of
Pennsylvania, against Dana Corporation
Joseph F. Roda (Argued) (“Dana”), Security Guards, Inc. (“SGI”),
Roda & Nast and Radio Maintenance, Inc. (“RMI”;
801 Estelle Drive collectively, the “Defendants”) asserting
Lancaster, PA 17601 n u m e r o u s c l a im s a r i s in g u n d e r
Attorney for Daulph Kline, et al. Pennsylvania law. Defendants thereafter
Appellants in No. 03-3404 removed the case to the United States
Cross Appellees in Nos. 03-3610 District Court for the Eastern District of
and 03-3620 Pennsylvania, contending that Appellants’
claims were completely preempted by §
Scott L. Vernick 301 of the Labor Management Relations
Joshua Horn (Argued) Act (“LMRA”), 29 U.S.C. § 185. RMI
Emil J. Kiehne was ultimately dismissed as a party and
Fox Rothschild judgment was entered in favor of Dana and
2000 Market Street SGI. This appeal followed. Because we
10th Floor conclude that the District Court did not
Philadelphia, PA 19103 have subject matter jurisdiction over any
Attorneys for Security Guards, Inc. of the state law claims asserted in the
Appellant in No. 03-3610 complaint, we will vacate the judgment
Cross Appellee in No. 03-3404 and remand to the District Court with
instructions to return this case to the
4
Pennsylvania Court of Common Pleas. employees at the Reading facility, Terry
and Daulph Kline, learned from certain
I.
SGI guards operating the guard booth that
This case arises out of Dana’s the surveillance system had the capacity to
alleged surveillance of its hourly transm it to the mo nitor oral
employees at one of its facilities in communications taking place in the
Reading, Pennsylvania. Dana, a Virginia entryway. The Klines then reported this
corporation, is a manufacturer of fact to their Union representatives. Over
a u to m ob i l e a n d t r u c k a s s e m b l y the course of the following weeks, the
components. During the relevant period, Union made inquiries of Dana’s
its hourly employees working at the management concerning its use of the
facility were represented by the United surveillance system. These inquiries
Steel Workers of America, Local 3733 (the resulted in the removal of the system on
“Union”) and were subject to a Collective October 29, 1998.
Bargaining Agreement (“CBA”) between
Terry and Daulph Kline filed a
Dana and the Union.
complaint against Defendants in the Court
On September 28, 1998, Dana of Common Pleas of Berks County, in the
installed an audio and video surveillance Co mm onw ealth o f P e n n s y lv a nia ,
system in an entryway at its Reading asserting, in sixty-nine counts, (1) claims
facility. The system was allegedly under the Pennsylvania Wire Tapping and
purchased from, and installed by, RMI. It Electronic Surveillance Control Act (the
consisted of two cameras with built-in “Wiretap Act”), 18 Pa. Cons. Stat. § 5725;
microphones, a monitor with a built-in (2) claims under the Pennsylvania Private
speaker, and a twenty-four hour video Detective Act of 1953 (the “Detective
cassette recorder. The system enabled Act”), Pa. Stat. Ann. tit. 22, § 26; and (3)
Dana to monitor the entryway, which was various Pennsylvania common law tort
the location at which its hourly employees causes of action, including invasion of
were required to “punch-in.” The cameras privacy.1 Shortly thereafter, Defendants
automatically sent video and audio signals
to the monitor, which was located in a
1
guard booth adjacent to the entryway. The Thirty of those counts were asserted
guard booth was operated by employees of against Defendants under § 5725 of the
SGI, a Pennsylvania corporation, which Wiretap Act, which provides a civil cause
had contracted with Dana since 1989 to of action for any person whose oral
provide it with security services. The SGI communications are intercepted, disclosed,
guards operating the booth reported to, and or used, to recover against any person who
were supervised by, Dana managers. intercepts, discloses, or uses such oral
communications in violation of the
Approximately one week after
Wiretap Act. Four of the counts asserted
installation of the system, two hourly
civil conspiracy claims under § 16 of the
5
removed the case to the District Court for appeal was filed following the entry of
the Eastern District of Pennsylvania and final judgment
filed motions to dismiss. The Klines filed
II.
a motion to remand. The District Court,
without opinion, denied both the We are presented with a final order
Defendants’ motions to dismiss and the of a District Court to review. Accordingly,
Klines’ motion to remand. Accordingly, we have appellate jurisdiction. 28 U.S.C.
the District Court retained jurisdiction and § 1291. It is not clear, however, that the
allowed the matter to proceed.2 This District Court had subject matter
jurisdiction to enter that judgment, and we
are obliged to raise and resolve that
Detective Act, alleging that Dana, SGI, jurisdictional issue before addressing the
and RMI violated, and conspired to merits of this appeal. Exxon Mobil Corp.
violate, this statute by forming a scheme to v. Saudi Basic Industries Corp., 364 F.3d
intercept and disclose Plaintiffs’ oral 102, 104 (3d Cir. 2004).
communications to the detriment of their
rights to form, join, or assist a labor union, According to Dana and SGI, the
and their constitutional rights to District Court possessed subject matter
association, collective bargaining, and jurisdiction because at least three
assembly. Six counts asserted tort claims categories of Appellants’ claims were
against Defendants for invasion of privacy. completely preempted by § 301 of the
Twelve counts asserted that Defendants Labor Management Relations A ct
had negligently or recklessly supervised (“LMRA”), 29 U.S.C. § 185: (1) the
their duly authorized officers, agents, Wiretap Act claims; (2) the tort law
servants, or employees, thereby causing invasion of privacy claims; and (3) the tort
harm to Plaintiffs. Eight counts asserted law negligent or reckless supervision
that Defendants had negligently or claims. Appellants insist, however, that
recklessly supervised the premises or the LMRA was not implicated in any of
instrumentalities under their control. Six their claims. We agree with Appellants
counts asserted a respondeat superior that subject matter jurisdiction was
theory against Defendants for the actions lacking.3
of their employees. Two counts asserted
that Dana had failed to exercise reasonable
care to protect Appellants as business who were hourly employees at Dana’s
invitees. The final count asserted class Reading facility.
action allegations.
3
“We exercise plenary review in
2
The District Court denied the Klines’ determining whether the District Court had
motion for class certification, and they subject matter jurisdiction.” Bracken v.
were subsequ en tly j o i n e d by Matgouranis, 296 F.3d 160, 162 (3d Cir.
approximately 370 additional plaintiffs 2002) (citing Wujick v. Dale & Dale, Inc.,
6
A. which provides that federal
jurisdiction exists only when
“Only state-court actions that
a fede ral question is
originally could have been filed in federal
presented on the face of the
court may be removed to federal court by
plaintiff’s properly pleaded
the defendant.” Caterpillar Inc. v.
complaint. See Gully v.
Williams, 482 U.S. 386, 392 (1987). If
First National Bank, 299
Appellants’ case could not have been filed
U.S. 109, 112-113, 57 S. Ct.
originally in federal court, then removal
96, 97-98, 81 L. Ed. 70under 28 U.S.C. § 1441 was improper and
(1936). The rule makes the
Appellants would be entitled to the remand
plaintiff the master of the
they initially requested. See Roxbury
claim; he or she may avoid
Condo. Assoc., Inc. v. Anthony S. Cupo
federal jurisdiction by
Agency, 316 F.3d 224, 227 (3d Cir. 2003)
exclusive reliance on state
(“Removal jurisdiction under section 1441
law.
is . . . wholly derived from original federal
jurisdiction.”); see also 28 U.S.C. § Id. As we have indicated, Appellants’
1447(c) (“If at any time before final complaint in this case indeed sounded
judgment it appears that the district court entirely in state law. That does not,
lacks subject matter jurisdiction, the case however, end our analysis.
shall be remanded.”). Here, diversity
There is an exception to the well-
jurisdiction under 28 U.S.C. § 1332 was
pleaded complaint rule that precludes a
unavailable because SGI is a Pennsylvania
plaintiff from “avoid[ing] a federal forum
corporation and the Klines were both
by ‘artfully pleading’ what is, in essence,
Pennsylvania citizens. Accordingly, we
a federal claim solely in terms of state
must determine whether federal question
law.” Tifft v. Commonwealth Edison Co.,
jurisdiction existed under 28 U.S.C. §
366 F.3d 513 (7th Cir. 2004) (citing
1331. See Caterpillar, 482 U.S. at 392
Franchise Tax Bd. of State of Cal. v.
(“Absent diversity of citizenship, federal-
Construction Laborers Vacation Trust for
question jurisdiction is required [for
Southern California, 463 U.S. 1, 22
removal].”).
(1983)). This exception, described as an
As the Supreme Court explained in “independent corollary” to the well-
Caterpillar: pleaded complaint rule is the so-called
“ c o m p l e t e p r e e m p t io n ” d o c t r in e .
The presence or absence of
Caterpillar, 482 U.S. at 393. In
federal-question jurisdiction
Caterpillar, the Supreme Court articulated
is governed by the “well-
this doctrine as follows:
pleaded complaint rule,”
On occasion, the Court has
concluded that the pre-
43 F.3d 790, 792 (3d Cir.1994)).
7
emptive force of a statute is defined in this chapter, or
so “extraordinary” that it between any such labor
“converts an ordinary state organ izations, m ay b e
common-law complaint into brought in any district court
one stating a federal claim of the United States having
for purposes of the well- jurisdiction of the parties,
pleaded complaint rule.” without respect to the
Metropolitan Life Ins. Co. amount in controversy or
[v. Taylor, 481 U.S. 58, 65 without regard to the
(1987)]. Once an area of citizenship of the parties.
state law has been
29 U.S.C.§ 185(a). We have previously
completely pre-empted, any
had occasion to review extensively the
claim purportedly based on
Supreme Court’s jurisprudence regarding
that pre-empted state law is
the complete preemption of state law
c o n s i d e re d , f r o m i t s
claims under § 301 of the LMRA. See,
inception, a federal claim,
e.g., Voilas v. General Motors Corp., 170
and therefore arises under
F.3d 367, 373-76 (3d Cir. 1999); Trans
federal law. See Franchise
Penn Wax Corp. v. McCandless, 50 F.3d
Tax Board, supra, 463 U.S.,
217, 228-30 (3d Cir. 1995); Berda v. CBS,
at 24, 103 S. Ct., at 2854
Inc., 881 F.2d 20, 22-25 (3d Cir. 1989).
(“[I]f a federal cause of
Accordingly, we will review the relevant
action completely pre-empts
principles only briefly.
a state cause of action any
complaint that comes within In Allis-Chalmers Corp. v. Lueck,
the scope of the federal 471 U.S. 202 (1985), the Supreme Court
cause of action necessarily set forth the standard for determining
‘arises under’ federal law”). when a state law claim is completely
preempted by § 301: “[W]hen resolution of
Id.
a state-law claim is substantially
Section 301 of the LMRA has been dependent upon analysis of the terms of an
held to possess this preemptive force. See agreement made between the parties in a
Franchise Tax Bd., 463 U.S. at 23. It labor contract, that claim must either be
provides: treated as a § 301 claim or dismissed as
pre-empted by federal labor-contract law.”
Suits for violation of
Id. at 220 (citation omitted). In that case,
contra cts b e t w e e n a n
the plaintiff brought a state tort claim
employer and a labor
against his employer for the bad-faith
organization representing
processing of an insurance claim. The
employees in an industry
Court concluded that this cause of action
affecting commerce as
was completely preempted by § 301
8
because “[t]he duties imposed and rights collective agreement, and
established through the state tort . . . derive could have brought suit
from the rights and obligations established under § 301. As masters of
by the [collective-bargaining] contract,” the complaint, however,
and resolution of the dispute would they chose not to do so.
therefore “inevitably . . . involve contract
Moreover, . . . respondents’
interpretation.” Id. at 217-18. The
complaint is not
Supreme Court noted, however, that “it
substantially dependent
would be inconsistent with congressional
upon interpretation of the
intent under [§ 301] to pre-empt state rules
collective-bargainin g
that proscribe conduct, or establish rights
agreement. It does not rely
and obligations, independent of a labor
upon the co llective
contract.” Id. at 212.
agreement indirectly, nor
Subsequently, in Caterpillar, 482 does it addre ss the
U.S. 386, the Court considered whether § relationship between the
301 permitted employees, who were individual contracts and the
covered by a collective bargaining collective agreement.
agreement, to bring state law contract
Id. at 394-95. We have described
claims for breach of individual contracts
Caterpillar as standing for the proposition
between each employee and their
that “employees have the option of
employer. After reiterating that § 301
vindicating their interests by means of
“governs claims founded directly on rights
either a section 301 action or an action
c r e a te d b y c o ll e c ti v e -b a r g a i n i n g
brought under state law, as long as the
agreements, and also claims substantially
state-law action as pleaded does not
dependent on analysis of a collective
require interpretation of the collective
bargaining agreem ent,” the Court
bargaining agreement.” Voilas, 170 F.3d
concluded that the employees’ state claims
at 373-74 (citing Caterpillar, 482 U.S. at
for breach of their individual employment
394-95).
contracts were not preempted. Id. at 394
(internal quotation omitted). The Court The Supreme Court next addressed
reasoned: § 301 in Lingle v. Norge Division of Magic
Chef, Inc., 486 U.S. 399 (1988), where it
Section 301 says nothing
considered whether that provision
about the content or validity
completely preempted an employee’s state
of individual employment
law retaliatory discharge claim against her
contracts. It is true that
employer. The Court’s analysis focused
respondents, bargaining unit
first upon the elements necessary to make
members at the time of the
a prima facie retaliatory discharge claim
plant closing, possessed
under the relevant state law: (1) discharge
substantial rights under the
9
or a threat of discharge, and (2) a motive agreements. In other words,
to deter the employee from exercising her even if dispute resolution
rights. These elements, the court noted, pursuant to a collective-
constituted “purely factual questions bargaining agreement, on
pertain[ing] to the conduct of the employee the one hand, and state law,
and the conduct and motivation of the on the other, would require
employer,” neither of which “require[d] a addressing precisely the
court to interpret any term of a collective- same set of facts, as long as
bargaining agreement.” Id. at 407. the state-law claim can be
Accordingly, the Court concluded that the resolved without
employee’s state claim was “independent” interpreting the agreement
of the relevant collective-bargaining i t se l f , t h e c la i m i s
agreement for purposes of § 301 because “ i n depe nden t” o f th e
“resolution of the state-law claim d[id] not agreement for § 301 pre-
require construing the collectiv e emption purposes.
bargaining agreement.” Id. Morever, the
Id. at 409-410.
Court found it irrelevant that “the state-law
analysis might well involve attention to the The Supreme Court addressed §
same factual considerations as the 301 preemption most recently in Livadas v.
contractual determination of whether [the Bradshaw, 512 U.S. 107 (1994). There,
employee] was fired for just cause [under the Court was required to consider whether
her collective-bargaining agreement].” Id. § 301 preempted a plaintiff’s state law
at 408. “[S]uch parallelism,” according to claim to recover a statutory penalty arising
the Court, would not “render[] the state- from her former employer’s payment of
law analysis dependent upon the late wages. The Court began its analysis
contractual analysis.” The Court opined by summarizing the relevant controlling
that the reason for this was that principles:
§ 301 pre-emption merely [T]he pre-emption rule has
ensures that federal law will been applied only to assure
be the basis for interpreting that the purposes animating
collective-bargainin g § 301 will be frustrated
a g r e e m e nts, and s a ys neither by state laws
nothing about the purporting to determine
substantive rights a State “questions relating to what
may provide to workers the parties to a labor
when adjudication of those agreement agreed, and what
rights does not depend upon legal consequences were
the interpre tation of intended to flow from
[colle ctive-barg ainin g] breaches of that agreement,”
10
nor by parties’ efforts to [t]he only issue raised by
renege on their arbitration [the plaintiff’s] claim ,
promises by “relabeling” as whether [her employer]
tort suits actions simply “willfully fail[ed] to pay”
alleging breaches of duties her wages promptly upon
assumed in colle ctive- severance, was a question of
bargaining agreements . . . . state l a w , e n t i re ly
independent of any
In [Allis-Chalmers] and in
understanding embodied in
Lingle . . . , we underscored
the collective-bargaining
the point that § 301 cannot
agreement betw een the
be read broadly to pre-empt
union and the employer.
n onn egotia ble r i g h ts
There is no indication that
conferred on individual
there was a “dispute” in this
employees as a matter of
case over the amount of the
state law, and we stressed
penalty to which [the
that it is the legal character
plaintiff] would be entitled,
of a claim, as “independent”
and Lingle makes plain in so
of rights u nder the
many words that when
collective-b argain ing
liability is governed by
agreement (and not whether
independent state law, the
a grievance arising from
mere need to “look to” the
“precisely the same set of
collec tive-barg aining
facts” could be pursued) that
agreement for damages
decides whether a state
computation is no reason to
cause of action may go
hold the state-law claim
forward. Finally, we were
defeated by § 301.
clear that when the meaning
of contract terms is not the Id. at 124-25. Accordingly, the Court
subject of dispute, the bare concluded that the plaintiff’s state law
fact that a collective- claim was not completely preempted by §
bargaining agreement will 301 of the LMRA.
be consulted in the course of
B.
state-law litigation plainly
does not require the claim to At the outset, we address Dana’s
be extinguished. and SGI’s general contentions with respect
to Appellants’ state law claims. According
Id. at 122-24 (internal citations and
to Dana and SGI, the state claims go to the
footnotes omitted). Applying these
“core” of Dana’s management rights, a
principles, the Court reasoned that
subject of collective bargaining. They also
11
argue that Appellants’ state claims
“necessarily implic ate” th e
“Management’s Rights” and “Shop Rules”
condition suspend work.
clauses of the CBA between Dana and the
U n i o n . 4 D a n a a n d Section 2. Promotions –
Discipline – Discharge
The right to promote,
4
The relevant portion of the CBA and the right to discipline
provides: and discharge for proper
cause are likewise the sole
A R T I C L E 1 1 .
responsib ility of th e
MANAGEMENT’S
Management. Provided, the
RIGHTS
claims of discriminatory
Section 1. General promotions and of wrongful
or unjust discipline or
T h e U n i o n
discharges shall be subject
recognizes the rights and
to the Grievance Procedure
responsibilities belonging
herein provided.
solely to the Company, such
as the rights to decide the Proper cause for
number and location of discipline and discharge
plants, the machine and tool shall be determined in
equipment, the products to accordance with the rules
b e m anuf acture d, th e and procedures outlined in
method of manufacture, the Exhibit B, Shop Rules and
schedules of production, the violations of Shop Rules. If
processes of manufacturing no rule exists under the
or assembling, together with Shop Rules then
all designing engineering management’s rights would
and the control of raw apply.
materials, semi-
Section 3. Order and
manufactured, and finished
Efficiency
parts w hich m ay b e
i n c o rpor a t e d into th e (a) The right to hire
products manufactured. and to maintain order and
efficiency is the sole
When required by
r e s p o n s i b i l i ty o f t h e
Management, employees
Management.
n ecessary to maintain
protection of the Company’s (b) There will be no
property shall under no hiring of part-time or
12
SGI therefore contend that the claims was that the “foundation” of the state law
cannot be analyzed without reference to tort and contract claims was “job security
the CBA. While it is true that the CBA in the face of layoffs or discharge,” a
may be consulted in the course of litigating mandatory subject of collective bargaining
Appellants’ claims, it does not follow that and a subject covered in the collective
their claims are completely preempted. bargaining agreement. Id. at 230.
Consequently, the employer argued, the
In Trans Penn Wax Corp. v.
claims were dependent upon the applicable
McCandless, 50 F.3d at 230-31, we
collective-bargaining agreement and
addressed, and rejected, a similar argument
should be preempted by § 301. We
in support of finding complete preemption
rejected this argument, reasoning that
under § 301. In that case, the plaintiff
employees were subject to a collective- [t]he employees have not
bargaining agreement between their alleged [that the employer]
employer and their union, but had also violated the terms and
entered into individual employment conditions of the collective
contracts in which the employer b a r g a i n in g a g r e em e n t .
guaranteed their job security. Several of While the state law claims
the employees were later terminated and here relate to job security,
thereafter brought state law claims against they are grounded in the
their employer for breach of contract, guarantee given the
fraud, and intentional infliction of em p l o ye e s by [ the
emotional distress, relating to the employer]. The collective
representations made by the employer in bargaining agreement does
their individual employment contracts. not mention the individual
One of the arguments advanced by the employment contracts, nor
employer in favor of finding preemption does [the employer] explain
h o w t h e c l a i m s a re
substantially dependent on
temporary employees analysis of the collective
to do any work that bargaining agreement. The
is performed by fact that job security is
bargain ing unit addressed in the collective
employees. bargaining agreement is “of
no consequence, because
App. at 605. The “Shop Rules” exhibit to
[the employees] need not
the CBA prescribes conduct that covered
refer to ... the collective
employees are prohibited from engaging
bargaining agreement in
in, as well as procedures for dealing with
order to make out [their]
the prescribed infractions.
claim.” Berda, 881 F.2d at
13
27. bargaining agreement, so long as the state
claim does not require interpretation of the
Id. at 230-31 (footnote omitted). In
collective bargaining agreement.”).
rejecting the employer’s argument, we also
noted that “‘there is nothing novel about Although Dana and SGI rely upon
recognizing that substantive rights in the the “Management’s Rights” and “Shop
labor relations context can exist without Rules” clauses of the CBA, they do not
i n t e rp r e t in g c o l l ec t i v e- b a r g a i n in g point to any specific provision of these
agreements.” Id. at 231 (quoting Lingle, clauses that must be interpreted in order to
486 U.S. at 411). resolve Appellants’ claims. Nor can we
identify any provision that would require
Similarly here, Appellants have not
interpretation. A finding of § 301
alleged a violation of any term or
preemption is not mandated simply by the
condition of the CBA. Nor does it appear
contention that Appellants’ state law
from the face of their complaint that any of
claims “necessarily implicate” the CBA.
their state claims are founded upon rights
That is, the mere fact that we must look at
created by the CBA. Although their state
the CBA in order to determine that it is
claims relate to conduct that Defendants
silent on any issue relevant to Appellants’
engaged in at Appellants’ workplace, those
state claims does not mean that we have
claims, as in Trans Penn Wax, are
“interpreted” the CBA. As the Ninth
nonetheless grounded in substantive rights
Circuit Court of Appeals has recently
granted under state law. Moreover, the
stated in applying Livadas:
CBA itself makes no mention of the use of
video cameras, microphones, or other [A]lleging a hypothetical
surveillance of any kind. Like Trans Penn connection between the
Wax, the essential question is not whether [state law] claim and the
Appellants’ claims relate to a subject – terms of the CBA is not
management’s rights – contemplated by enough to preempt the
the CBA. In fact, Caterpillar and Lingle claim: adjudication of the
both recognize that a finding of claim must require
preemption under § 301 is not required interpretation of a provision
even if the same set of facts may give rise of the CBA. A creative
to a state law claim as well as an action for linkage between the subject
violation of the CBA. Rather, the matter of the claim and the
dispositive question here is whether wording of a CBA provision
Appellants’ state claims require any is insufficient; rather, the
interpretation of a provision of the CBA. proffered interpreta tion
Id. at 229 (“[A] plaintiff may bring a state argument must reach a
law tort action against an employer, even reasonable level o f
where he could have brought a similar credibility. Cf. Livadas, 512
claim based on a provision in his collective U.S. at 124-25, 114 S. Ct.
142068. The argument does expectation of privacy is one that society is
not become credible simply prepared to recognize as reasonable,”
because the court may have which “is necessarily an objective
to consult the CBA to standard.” Id.evaluate it; “look[ing] to”
Dana and SGI insist that this claim
the CBA merely to discern
is completely preempted by § 301 of the
that none of its terms is
LMRA because the justifiable expectation
reasonably in dispute does
of Appellants cannot be determined
not require preemption. Id.
without reference to Dana’s bargained-for
at 125, 114 S. Ct. 2068.
management rights to direc t the
Cramer v. Consolidated Freightways Inc., supervision of employees. We regard this
255 F.3d 683, 691 (9th Cir. 2001) (en argument as foreclosed by our decision in
banc). Trans Penn Wax. As we have noted, the
employees in that case alleged that the
With this background, we turn to
employer’s breach of its guarantees of job
each of the Appellants’ state law claims to
security, granted in individual contracts
d e t e r m in e wh ether th e y r equir e
with the employees, constituted fraud and
interpretation of the CBA.
the intentional infliction of emotional
1. distress. Under Pennsylvania law, one of
the elements required for a fraud claim
Appellants claim that Defendants
was that the plaintiff justifiably relied on
violated § 5725 of the Wiretap Act. Such
the defendant’s misrepresentations. One
a claim requires a plaintiff to demonstrate:
of the essential elements of a cause of
“(1) that he engaged in [an oral]
action for intentional infliction of
communication; (2) that he possessed an
emotional distress was a showing that the
expectation that the communication would
defendant’s conduct was “extreme and
not be intercepted; (3) that his expectation
outrageous.” Much like Dana and SGI, the
was justifiable under the circumstances;
employer in that case argued that the only
and (4) that the defendant attempted to, or
way to determine whether the employees
success fully intercep ted the
were justified in relying upon its
communication, or encouraged another to
representations guaranteeing job security
do so.” Agnew v. Dupler, 717 A.2d 519,
or whether its conduct had been “extreme
522 (Pa. 1998). In Agnew, the Supreme
and outrageous” was to interpret the
Court of Pennsylvania held that “a
applic able collec tive barg ainin g
conversation amounts to a protected ‘oral
agreement. In both instances, the
communication’ under the Wiretap Act
employer suggested, the collective
only where the speaker possessed a
bargaining agreement was part of the
reasonable expectation of privacy in the
context in which the issue had to be
conversation.” Id. at 523. Moreover, the
addressed. Arguably, for example, the
Court decided that “the standard for such
15
collective-bargaining agreement could consulted in the course of state law
have contained provisions that undermined litigation plainly does not require the
the employees’ allegation that their claims to be extinguished.” Livadas, 512
reliance upon the separate guarantees was U.S. at 124.
justified. Nonetheless, we rejected the
Dana and SGI insist that their
employer’s argument, holding that neither
argument is supported by numerous cases
of these two tort claims was completely
that have found state law invasion of
preempted by § 301. We pointed out that
privacy claims completely preempted by §
the “justifiable reliance” and “extreme and
301. See, e.g., In re General Motors
outrageous conduct” were “purely factual
Corp., 3 F.3d 980, 982 (6th Cir. 1993);
questions,” the resolution of which did not
Mock v. T.G. & Y . Stores Co., 971 F.2d
“require[] interpretation of the collective
522 (10th Cir. 1992); In re Amoco
bargaining agreement [or] substantially
Petroleum Additives Co., 964 F.2d 706depend[] on its construction.” Trans Penn
(7th Cir. 1992); and Kirby v. Allegheny
Wax, 50 F.3d at 232. The fact that a
Beverage Corp., 811 F.2d 253 (4th Cir.
collective bargaining agreement was part
1987). We find these cases either
of the context in which an employee’s
inapposite or lacking in continued vitality
claim must be addressed thus did not
following the Supreme Court case law we
trigger complete preemption in the absence
have earlier discussed. Moreover, to the
of some substantial dispute over the
extent any of them is in tension with Trans
meaning of the collective bargaining
Penn Wax, we must, of course, remain
agreement.
faithful to that decision.
Based on Trans Penn Wax, we must
In Kirby v. Allegheny Beverage
reject Dana and SGI’s contention that the
Corp., a plaintiff brought a state law
only way to determine whether Appellants
invasion of privacy claim against his
had a justifiable expectation of privacy is
employer after he was forced to submit to
by interpreting the CBA. Appellants’
a search of his person and then forced to
justifiable expectations can be determined
resign after refusing to submit to a search
by a state court simply by considering the
of his automobile. The employer removed
conduct of Dana and the facts and
the case to federal court and sought
circumstances of Appellants’ workplace.
dismissal on grounds of complete
Dana has provided no reason to believe
preemption by § 301 of the LMRA; the
that such a determination will require the
Court of Appeals for the Fourth Circuit
resolution of any dispute concerning rights
agreed. It reasoned that “the issues
or obligations contained in the CBA, and
presented by the search in this case are
we are unable to perceive one. “[W]hen
‘grist for the mill of grievance procedures
the meaning of contract terms is not the
and arbitration.’” Id. at 256 (quoting
subject of dispute, the bare fact that a
Strachan v. Union Oil Co., 768 F.2d 703,
collective bargaining agreement will be
705 (5th Cir. 1985)). According to the
16
Court, it was clear that the plaintiff could state law claims did not depend on the
refuse to submit to the search, and if meaning of the applicable collective-
dismissed, could have challenged the bargaining agreement. Although the
t e r m i n at i on u nder the grieva nce employee conceded that the collective-
procedures provided for in his CBA. bargaining agreement could have
Furthermore, the Court noted, if his union authorized the surveillance, he noted that
had refused to submit a grievance, the nothing in the agreement actually
plaintiff could have then sued his union for mentioned cameras, locker rooms, or
breach of the duty of fair representation, surveillance in general. The Court agreed
under the Supreme Court’s decision in with Am oco, h ow ever, th at the
Vaca v. Sipes, 386 U.S. 171 (1967). management-rights provision of the
According to the Court, “the availability of parties’ collective bargaining agreement
remedies under the labor contract could fairly be read as a “residual clause”
precludes appellant’s pursuit of those commuting “everything that [was] neither
remedies in a state law tort action.” Kirby, regulated nor forbidden by the . . .
811 F.2d at 256. agreement . . . to [the] discretion” of the
employer. Since this arguable reading
We are unable to reconcile this
wo uld a u t h o r iz e t h e c h a ll e n ge d
conclusion with the Supreme Court’s
surveillance, the Court concluded that a
decision in Caterpillar, which was decided
“state court could not award damages
four months after Kirby. As we noted
without first construing the collective
above, Caterpillar holds that an employee
bargaining agreement and rejecting
has the option of vindicating his interests
Am oco’s interpretatio n of the
by seeking a remedy available under a
management-rights clause.” Id. at 709.
collective-bargaining agreement or by
bringing a state court action, as long as the The Amoco Court relied primarily
state law action does not require on Kirby and Stikes v. Chevron USA, Inc.,
interpretation of the collective-bargaining 914 F.2d 1265 (9th Cir. 1990). Just as we
agreement. 482 U.S. at 394-95. Thus, have concluded that Kirby did not survive
Kirby’s holding – that the availability of a Caterpillar, an en banc Ninth Circuit
labor contract remedy precluded a state Court of Appeals has concluded that Stikes
tort action brought to vindicate the same did not survive the ensuing Supreme Court
interests – did not survive Caterpillar. j u r i s pr uden c e . See Cram er v.
Consolidated Freightways, Inc., 255 F.3d
In In re Amoco Petroleum Additives
683, 692 (9th Cir. 2001) (en banc). Given
Co., an employee sued for invasion of
that jurisprudence, it is not clear to us that
privacy and intentional infliction of
we would have reached the same result
emotional distress after Amoco installed a
reached by the Amoco Court. In any event,
camera outside of the women’s locker
it is clear to us that the “Management
room. With respect to complete
Rights” article of the agreement before us
preemption, the employee argued that his
17
cannot arguably be read as a residual program participation was to remain
clause committing everything not covered confidential. The Court concluded that the
in the agreement to management’s duty of confidentiality alleged to have
discretion. For that reason, Amoco is been violated arose from the collective-
inapposite here. bargaining agreement, and the invasion of
privacy claim was therefore completely
In Mock, an employee brought suit
preempted. Thus, the right allegedly
against T.G. & Y. for invasion of privacy
violated – the right to confidential use of
and intentional infliction of emotional
an employee drug and alcohol abuse
distress resulting from an investigation
counseling program – arose out of a
conducted by T.G. & Y. into employee
collective-bargaining agreement and,
misconduct and the employee’s subsequent
accordingly, the plaintiff was necessarily
termination. The Court held these claims
relying on the terms of the labor contract.
preempted, reasoning as follows:
Appellants in our case have made no
Under the CBA, T.G&Y. reference, nor need they make reference, to
could conduct such an any provision of the CBA.
investigation and could
2.
terminate any employee for
“just cause.” An analysis of Appellants also claim that
whether T.G.&Y . acted Defendants committed the tort of invasion
p ro p e rly or no t wil l of privacy. “An action for invasion of
inevit a b l y r e q u i r e an privacy is comprised of four distinct torts:
analysis of what the CBA (1) intrusion upon se clusion, (2)
permitted. appropriation of name or likeness, (3)
publicity given to private life and (4)
Mock, 971 F.2d at 530. Thus, in Mock, as
publicity placing the person in a false
in Amoco, provisions of the collective
light.” Harris v. Easton Publishing Co.,
bargaining agreement could fairly be read
483 A.2d 1377, 1383 (Pa. Super. Ct. 1984)
to authorize the employer’s conduct.
(citing Marks v. Bell Tel. Co. of Pa., 331
Finally, in In re General Motors A.2d 424 (Pa. 1975); Vogel v. W.T. Grant
Corp., an employee brought suit against Co., 327 A.2d 133, 136 (Pa. 1974)).
General Motors for invasion of privacy Although the state law complaint does not
after General Motors, during the course of specify which privacy tort Appellants
the employee’s grievance proceeding, advance, the only cause of action arguably
allegedly revealed that the employee had relevant to the interception of oral
sought drug and alcohol abuse counseling communications in this case is intrusion
through an employee assistance program upon Appellants’ seclusion. The
prescribed by the applicable collective- Pennsylvania courts have defined this
bargaining agreement. Under the claim, in accordance with the Restatement
collective-bargaining agreement, such (Second) of Torts (1977), as follows: “One
18
who intentionally intrudes, physically or business invitees – Dana and SGI argue
otherwise, upon the solitude or seclusion that we must find these claims completely
of another or his private affairs or preempted under Electrical Workers
concerns, is subject to liability to the other (IBEW) v. Hechler, 481 U.S. 851 (1987),
for invasion of his privacy, if the intrusion and Steelworkers v. Rawson, 495 U.S. 362,
would be highly offensive to a reasonable 364 (1990).
person.” Harris, 483 A.2d at 1383
Neither Hechler nor Rawson is
(quoting Restatement (Second) of Torts §
applicable to Appellants’ tort claims. In
652B). Like Appellants’ Wiretap Act
Hechler, an employee of Florida Power
claim, this cause of action also requires
and Light Company sued her union after
that the plaintiff have a reasonable
she was injured performing a repair to an
expectation of privacy. See id. (“The
electrical substation. The basis of her
defendant is subject to liability under this
claim was that the union had breached a
section only when he has intruded into a
duty it assumed, pursuant to the relevant
private place, or has otherwise invaded a
collective-bargaining agreement, to ensure
private seclusion that the plaintiff has
that she would not be required or allowed
thrown about his person or affairs.” (citing
to take undue risks in the performance of
Restatement (Second) of Torts § 652B cmt.
her duties which were not commensurate
c)).
with her training and experience. The
With respect to Appellants’ Court held that this claim was completely
invasion of privacy claim, Dana and SGI preempted by § 301 of the LMRA because
present arguments identical to those they it was not sufficiently independent of the
raise in favor of extinguishing the Wiretap c o l l ec t i v e- b a r g a in i n g a g re e m en t .
Act claims – namely that the expectation According to the Court, the plaintiff’s tort
of privacy issue and the “highly offensive claim was based on her allegation that her
to a reasonable person” issue must be union owed her a duty of care, but
determined in the light of the collective “[u]nder common law . . . it is the
bargaining agreement. Again, based on employer, not a labor union, that owes
Trans Penn West, we reject these employees a duty to exercise reasonable
arguments. care in providing a safe workplace.” Id. at
859. Accordingly, the Court reasoned, the
3.
plaintiff’s “allegations of negligence
As for Appellants’ remaining tort assume significance if – and only if – the
claims – negligent or reckless supervision Union, in fact, had assumed the duty of
of Defendants’ officers, agents, servants; care that the complaint alleges the Union
negligent or reckless supervision of breached.” Id. at 861. In order to
Defendants’ premises or instrumentalities determine the union’s tort liability, a court
under their control; and failure to exercise would have to examine the duty assumed
reasonable care to protect Appellants as by the union in the collective-bargaining
19
agreement and the scope of that duty. delegates are accused of
This, according to the Court, was precisely acting in a way that might
the type of contract interpretation that v i o l a te t h e d u ty o f
implicated the complete preemption reasonable care owed to
doctrine. As in Allis-Chalmers, the Court every person in society.
held, the plaintiff was “precluded from There is no allegation, for
evading the pre-emptive force of § 301 by example, that members of
casting her claim as a state tort action.” Id. t h e s a f e ty comm itte e
negligently caused damage
Similarly, in Rawson, the plaintiffs,
to the structure of the mine,
survivors of four miners who were killed
an act that could be
in an underground mine fire, brought state
unreasonable irrespective of
law wrongful death actions against the
who committed it and could
deceaseds’ union alleging that the deaths
foreseeably cause injury to
were caused by the union’s fraudulent and
any person who might
negligent acts. The plaintiffs’ claims were
possibly be in the vicinity.
based on the contention that the union had,
through a collective-bargaining agreement . . . If the Union failed to
with the mine operator, caused to be perform a du ty in
established a management-labor safety connection with inspection,
committee. The plaintiffs argued that the it was a duty arising out of
union representatives had negligently the collective-bargaining
performed inspections that the union had agreement signed by the
promised to conduct, failing to uncover Union as the bargaining
obvious deficiencies. The Supreme Court, agent for the miners.
as in Hechler, again held that the wrongful Clearly, the enforcement of
death claim against the union was that agreement and the
completely preempted. The Court noted remedies for its breach are
that, like Hechler, the plaintiffs’ pleadings matters governed by federal
indicated that the duty of care relied on as law. . . . Pre-emption by
the basis of their tort suit was one federal law cannot be
allegedly assumed by the union in a avoided by characterizing
collective bargaining agreement. The the U nion’s negligent
Court further reasoned: performance of what it does
on behalf of the members of
As we see it . . . , [the
the bargaining unit pursuant
plaintiffs’] tort claim cannot
to the term s of th e
be described as independent
c o l l ec t i v e- b a r g ain in g
of the collective-bargaining
contract as a state-law tort.
agreement. This is not a
situation where the Union’s Id. at 371-72. Accordingly, the Court
20
held, the plaintiffs’ suit could only go form, join, or assist any
forward under federal law. labor organization of their
own choosing, to interfere
In relying on Hechler and Rawson,
or hinder the lawful or
Dana and SGI refuse to acknowledge that
peaceful collective
the duty of care in both of those cases was
bargaining between
alleged to have arisen from a collective-
employees and employers,
bargaining agreement. In both of those
to pay, offer, or give any
cases, the unions, which did not otherwise
money, gratuity, favor,
have any duty of care under state law, were
consideration, or other thing
the defendants being sued. In this case,
of value , dire ctl y or
however, Appellants’ claims did not
indirectly, to any person, for
invoke any duty of care prescribed by the
any verbal or written report
CBA, and no consultation with the CBA is
of the lawful activities of
necessary in order to define the scope of
employees in the exercise of
the duties alleged to have been breached.
their right of self-
Accordingly, whatever duties Dana was
organization, to form, join,
alleged to have had with respect to
or assist labor organizations,
supervision its employees, agents and
and to bargain collectively
premises, or protection of business
through representatives of
invitees, those duties are independent of
their own choosing, . . . .
the CBA. As such, Appellants’ claims
arising from negligent or reckless breach Pa. Stat. Ann. tit. 22, § 26. In order to
of those duties are not completely state a cause of action for civil conspiracy
preempted by § 301 of the LMRA. under Pennsylvania law, a plaintiff must
allege: “(1) a combination of two or more
4.
persons acting with a common purpose to
Section 16 of New Jersey’s do an unlawful act or to do a lawful act by
Detective Act provides, in relevant part: unlawful means or for an unlawful
purpose; (2) an overt act done in pursuance
It is unlawful for the holder
of the common purpose; and (3) actual
of a license issued under this
legal damage.” McGuire v. Shubert, 722
act, or for any employee of
A.2d 1087, 1092 (Pa. Super. Ct. 1998)
such licensee, knowingly to
(citing Kadel v. McMonigle, 624 A.2d
commit any of the following
1059, 1063 (Pa. Super. Ct. 1993)).
acts, within or without the
Commonwealth of Ap pella n t s ’ De tecti v e A ct
Pennsylvania: . . . to conspiracy claim is not based on any right
interfere with, restrain, or or duty created by the collective
coerce employees in the bargaining agreement, and litigation of
exercise of their right to that claim will not require interpretation of
21
that agreement. It necessarily follows that This did not provide the District Court
§ 301 does not completely preempt this with subject matter jurisdiction, however.
claim.
In San Diego Building Trades
This conclusion is not inconsistent Council v. Garmon, 359 U.S. 236, 244
with San Diego Building Trades Council v. (1959), the Supreme Court held that
Garmon, 359 U.S. 236 (1959), and its “[w]hen it is clear or may fairly be
progeny. It is true that to the extent assumed that the activities which a State
Appellants assert that Defendants purports to regulate are protected by § 7 of
interfered with their rights to form, join, or the National Labor Relations Act, or
assist a labor union, as well as their rights constitute an unfair labor practice under §
to collective bargaining, these claims 8, due regard for the federal enactment
appear to be preempted by §§ 7 and 8 of requires that state jurisdiction must yield.”
the National Labor Relations Act Thus, §§ 7 and 8 of the NLRA may
(“NLRA”), 29 U.S.C. §§ 157 and 158.5 provide Defendants with a preemption
defense to Appellants’ claims under § 16
of the Detective Act upon remand to the
5
Section 7 of the NLRA provides: state court. Such preemption, however, is
Employees shall have the not the type of complete preemption that
right to self-organization, to would provide Defendants with a basis for
form, join, or assist labor federal question jurisdiction. See Ethridge
organizations, to bargain v. Harbor House Restaurant, 861 F.2d
collective ly through 1389, 1396-1401 (9th Cir. 1988) (holding
representatives of their own that “sections 7 and 8 [of the NLRA] do
choosing, and to engage in not confer original federal question
other concerted activities for jurisdiction on the federal district courts”);
the purpose of collective U nite d A ss’n of Journeymen &
bargaining or other mutual Apprentices of Plumbing & Pipe Fitting
aid or protection, and shall Indus., Local No. 57 v. Bechtel Power
also have the right to refrain Corp., 834 F.2d 884, 886-87 (10th Cir.
from any or all of such 1987) (same); see also Caterpillar, 482
activities except to the U.S. at 392-93 (distinguishing between
extent that such right may preemption as a defense to a state law
be affected by an agreement claim and complete preemption as a basis
requiring membership in a for federal question jurisdiction).
labor organization as a
condition of employment as
a u t h o r iz e d in sectio n labor practice for an employer to interfere
158(a)(3) of this title. with, restrain, or coerce employees in the
29 U.S.C. § 157. Section 8(a)(1) provides, exercise of the rights guaranteed in section
in relevant part that “[i]t shall be an unfair 157 of this title.” 29 U.S.C. § 158(a)(1).
22
C.
In summary, Appellants’ claims do
not involve rights or duties created by the
collective bargaining agreement. Nor do
those claims raise “‘questions relating to
what the parties to a labor agreement
agreed, and what legal consequences were
intended to flow from breaches of that
agreement.’” Livadas, 512 U.S. at 122-23(quoting Lueck, 471 U.S. at 211). Rather,
our analysis indicates that the state laws
invoked by Appellants confer upon them
substantive rights that are independent of
any rights available under the CBA.
Under such circumstances, the Supreme
Court has held, it would be inconsistent
with Congress’ intent under § 301 to find
complete preemption. See Allis-
Chambers, 471 U.S. at 212.
III.
For the foregoing reasons, the
judgment of the District Court will be
vacated and this case will be remanded to
the District Court with instructions to
remand it to the Court of Common Pleas
of Berks County, Pennsylvania.
23