Kimbro, Lonnie v. Pepsico Incorporated

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2823
Lonnie Kimbro,
Plaintiff-Appellant,
v.
Pepsico, Inc., et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 97 C 935--Paul E. Riley, Judge.
Argued February 15, 2000--Decided June 2, 2000
Before Posner, Chief Judge, and Easterbrook and Diane
P. Wood, Circuit Judges.
Posner, Chief Judge. Lonnie Kimbro sued his
former employer, Frito-Lay, for having violated
the federal age discrimination law by firing him,
allegedly on account of his being over 40. He
joined with this claim a supplemental claim under
state law against two of his supervisors at
Frito-Lay, plus Super Valu, Inc., doing business
under the name of Shop ’N Save, and a Shop ’N
Save store manager named Ansell, for tortious
interference with his employment contract with
Frito-Lay. (Other defendants have fallen by the
wayside.) The district court granted summary
judgment for the defendants.
With regard to the age discrimination claim, the
judgment is unexceptionable; far from having
presented evidence of age discrimination, Kimbro
claims that his discharge was brought about by
the hostility of the store manager to him on
grounds unrelated to age, and this is virtually
an admission that his age was not a factor in
Frito-Lay’s decision to fire him. More
interesting is the tort claim. The district judge
held it preempted by section 301 of the Taft-
Hartley Act, 29 U.S.C. sec. 185, which has been
construed to make federal law the exclusive
remedy not only for claims based on collective
bargaining contracts but also for claims that
cannot be adjudicated without interpreting such a
contract. E.g., United Steelworkers of America v.
Rawson, 495 U.S. 362, 368-69 (1990); Lingle v.
Norge Division of Magic Chef, Inc., 486 U.S. 399,
407, 410 n. 10 (1988); Int’l Brotherhood of
Electrical Workers v. Hechler, 481 U.S. 851, 857-
89 (1987); Allis-Chalmers Corp. v. Lueck, 471
U.S. 202, 220 (1985). The judge thought this such
a case. It may seem that an alternative mode of
disposition, ordinarily preferable when as here
the federal claim (the claim of age
discrimination) drops out before trial, would
have been to dismiss the tort claim without
prejudice. 28 U.S.C. sec. 1367(c)(3); Groce v.
Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir.
1999); Hedges v. Musco, 204 F.3d 109, 123 (3d
Cir. 2000). But a peculiarity of section 301, as
it has been interpreted by the courts, is that
any claim within its scope, even if denominated
as a state law claim, is deemed to arise under,
and only under, section 301, that is, under
federal law. E.g., United Steelworkers of America
v. Rawson, supra, 495 U.S. at 368-69; Caterpillar
Inc. v. Williams, 482 U.S. 386, 392-94 (1987);
Franchise Tax Board v. Construction Laborers
Vacation Trust for Southern California, 463 U.S.
1, 22-24 (1983); In re Amoco Petroleum Additives
Co., 964 F.2d 706, 709 (7th Cir. 1992). So if the
district judge was correct that section 301
occupies the field sought to be traversed by
Kimbro’s tort claim, the claim arose under
federal law and federal jurisdiction was
therefore secure even though the only explicit
federal claim dropped out before trial.
Here are the facts, construed as favorably to
the plaintiff as the record permits: Kimbro was a
route sales merchandiser for Frito-Lay whose
duties included servicing several retail stores
including the Shop ’N Save store managed by
Ansell. Ansell was furious at Frito-Lay for delay
in shipping goods that he had ordered and took
his fury out on Kimbro. For when he noticed
Kimbro eating a cookie taken from a package in
the store’s receiving room, and discovered that
Kimbro had not paid for the cookie, he reported
to Frito-Lay that Kimbro had violated Super
Valu’s "no grazing" rule, even though the cookie
was stale. Ansell told Kimbro’s supervisors (the
other defendants in the tortious-interference
claim along with Super Valu and Ansell) not to
let Kimbro service any Shop ’N Save stores.
Frito-Lay then discharged him. Kimbro alleges
that his supervisors effected his discharge in
order to conceal their own incompetence in
failing to keep Ansell’s store supplied with
Frito-Lay products, which had infuriated Ansell.
Kimbro’s employment had been governed by a
collective bargaining contract between Frito-Lay
and a teamsters local, but the union did not
press his grievance that he had been fired
without cause. He claims that Frito-Lay’s
employee handbook gave him a contractual right to
progressive discipline that Frito-Lay violated by
firing him for a first offense of being excluded
from a customer’s stores because of violating the
customer’s rule. Interference with that
contractual entitlement is the tort that he says
Ansell (and Ansell’s employer, by virtue of the
doctrine of respondeat superior) and Kimbro’s two
supervisors at Frito-Lay committed.
Assuming without having to decide that Kimbro
has presented a prima facie case of tortious
interference with contract under Illinois law, on
which see Poulos v. Lutheran Social Services of
Illinois, Inc., No. 1-98-3057, 2000 WL 306857, at
*7 (Ill. App. Mar. 24, 2000); Strosberg v.
Brauvin Realty Services, Inc., 691 N.E.2d 834,
845 (Ill. App. 1998); Reuben H. Donnelley Corp.
v. Brauer, 655 N.E.2d 1162, 1172 (Ill. App.
1995), we consider whether such a claim is
superseded by the exclusive federal jurisdiction
created by section 301. The defendants argue that
no claim of tortious interference may be
maintained by an employee who is covered by a
collective bargaining contract. But the only
appellate cases they cite in support of this
argument are ones in which the employee was
trying to sue his employer, not a third party.
When a worker is covered by a collective
bargaining contract, he must (with immaterial
exceptions, such as the discrimination claim that
Kimbro also but fruitlessly presses here, e.g.,
Lingle v. Norge Division of Magic Chef, Inc.,
supra, 486 U.S. at 412-13; McKnight v. General
Motors Corp., 908 F.2d 104, 112 (7th Cir. 1990);
Tisdale v. United Ass’n of Journeymen &
Apprentices, 25 F.3d 1308, 1311-12 (6th Cir.
1994)) litigate any legal dispute with his
employer as a breach of that contract. He cannot
sue for breach of contract under state law; nor
may he recharacterize his claim as one of tort
law in order to circumvent the exclusive
jurisdiction of federal law over claims for
breach of a collective bargaining contract. E.g.,
United Steelworkers of America v. Rawson, supra,
495 U.S. at 369, 371-72; Int’l Brotherhood of
Electrical Workers v. Hechler, supra, 481 U.S. at
857-89; Smith v. Colgate-Palmolive Co., 943 F.2d
764, 768 (7th Cir. 1991).
One of the forbidden recharacterizations is
recasting a breach of contract suit as a suit for
tortious interference with contract. E.g., Lingle
v. Norge Division of Magic Chef, Inc., 823 F.2d
1031, 1047, 1049 (7th Cir. 1987) (en banc), rev’d
on other grounds, 486 U.S. 399 (1988); Beidleman
v. Stroh Brewery Co., 182 F.3d 225, 234-35 (3d
Cir. 1999); Oberkramer v. IBEW-NECA Service
Center, Inc., 151 F.3d 752, 756 (8th Cir. 1998);
Turner v. American Federation of Teachers Local
1565, 138 F.3d 878, 884 (11th Cir. 1998); Int’l
Ass’n of Machinists & Aerospace Workers v.
Tennessee Valley Authority, 108 F.3d 658, 667
(6th Cir. 1997); Magerer v. John Sexton & Co.,
912 F.2d 525, 530-31 (1st Cir. 1990); Scott v.
Machinists Automotive Trades Dist. Lodge No. 190,
827 F.2d 589, 591-92 (9th Cir. 1987) (per
curiam). There is some contrary authority in the
Sixth and Eighth Circuits, see Meyer v. Schnucks
Markets, Inc., 163 F.3d 1048, 1051 (8th Cir.
1998); Fox v. Parker Hannifin Corp., 914 F.2d
795, 800-01 (6th Cir. 1990); Dougherty v. Parsec,
Inc., 872 F.2d 766 (6th Cir. 1989), though not a
circuit split, since both circuits are on both
sides of the issue. Only in the last-cited case,
moreover, was the defendant not the plaintiff’s
employer; and it is not a tort for one party to a
contract to interfere with the other party’s
contractual rights, as distinct from interference
by a stranger to the contract. Knickman v.
Midland Risk Services-Illinois, Inc., 700 N.E.2d
458, 461-62 (Ill. App. 1998); Douglas Theater
Corp. v. Chicago Title & Trust Co., 681 N.E.2d
564, 567 (Ill. App. 1997); Fox v. Parker Hannifin
Corp., supra, 914 F.2d at 800.
But here we do have interference by a third
party, and this can, one might think, make a big
difference. Suppose that Kimbro hadn’t stolen the
cookie and that Ansell, acting from entirely
private motives (such as a romantic interest in
Kimbro’s wife), had framed Kimbro for the theft,
fooling the union and Frito-Lay and thus (in an
up-to-date version of the story of David, Uriah,
and Bathsheba) dooming Kimbro. It seems odd to
think that a suit against Ansell would be barred
by the Taft-Hartley Act. The employer would not
be involved in the suit, and the terms of the
collective bargaining contract--even the fact
that there was such a contract--would be
irrelevant. Successful invocation of section 301
in such a case would thus leave the plaintiff
remediless, Brazinski v. Amoco Petroleum
Additives Co., 6 F.3d 1176, 1179-80 (7th Cir.
1993); Int’l Union, United Mine Workers of
America v. Covenant Coal Corp., 977 F.2d 895,
897-900 (4th Cir. 1992); Jackson v. Kimel, 992
F.2d 1318, 1328 n. 1 (4th Cir. 1993) (concurring
opinion); see also Loss v. Blankenship, 673 F.2d
942, 946 (7th Cir. 1982); United Food &
Commercial Workers Union v. Quality Plus Stores,
Inc., 961 F.2d 904 (10th Cir. 1992), without
advancing any federal labor policy that we can
think of. It is true that a number of decisions
bar on section 301 grounds tortious interference
suits against third parties, DeCoe v. General
Motors Corp., 32 F.3d 212 (6th Cir. 1994); Int’l
Union, United Mine Workers of America v. Covenant
Coal Corp., supra, 977 F.2d at 899-900; Milne
Employees Ass’n v. Sun Carriers, Inc., 960 F.2d
1401, 1411-12 (9th Cir. 1991); Johnson v.
Anheuser Busch, Inc., 876 F.2d 620, 624 (8th Cir.
1989), see also Baylis v. Marriott Corp., 906
F.2d 874, 877 (2d Cir. 1990) (Railway Labor Act),
but they are cases in which the suit, even though
against a third party, might have required the
court to interpret the collective bargaining
agreement (the contract allegedly interfered
with), in derogation of the arbitration
procedures that most such agreements establish
for interpreting the agreement. That concern, we
have suggested without deciding, might be
accommodated by referring any interpretive issues
to arbitration, with the suit to abide the
arbitration, see Brazinski v. Amoco Petroleum
Additives Co., supra, 6 F.3d at 1179-81; the
analogy is to the doctrine of primary
jurisdiction in administrative law.
A few cases fill the remedial gap by holding
that section 301 creates a tort right against
interference with a collective bargaining
contract, e.g., Antol v. Esposto, 100 F.3d 1111,
1117 (3d Cir. 1996); Xaros v. U.S. Fidelity &
Guaranty Co., 820 F.2d 1176 (11th Cir. 1987);
Painting & Decorating Contractors Ass’n of
Sacramento, Inc. v. Painters & Decorators Joint
Comm. of East Bay Counties, Inc., 707 F.2d 1067,
1070-72 (9th Cir. 1983), but that can’t be right,
as section 301 creates a right of action only for
breach of a collective bargaining agreement; it
is not a tort statute. The suggestion in
Brazinski, in contrast, places no strain on the
statutory language, although it leaves unresolved
how the interpretation of the agreement by the
arbitrators is to be evoked, and with what
binding effect, in a case such as this in which
none of the defendants is a party to the
agreement.
It will not be necessary to pursue these
questions further in order to decide this case.
Consider first the joinder as defendants of
Kimbro’s two supervisors at Frito-Lay. It is a
transparent effort to get around the exclusive
federal-law jurisdiction created by section 301.
The difference between suing your employer for
breach of contract and calling it tortious
interference, and suing your supervisors for
tortious interference, is one of form rather than
of substance. For if supervisors are exposed to
such liability the employer will have either to
pay them higher wages to compensate them for the
risk of being sued, or to agree to indemnify them
for the costs of such a suit. In either case the
burden of the liability will come to rest on the
employer, making it the de facto defendant in a
de facto suit under state law for breach of a
collective bargaining contract. And this section
301 does not permit. E.g., Baker v. Farmers
Electric Co-Op., Inc., 34 F.3d 274, 283-84 (5th
Cir. 1994); Hillard v. Dobelman, 774 F.2d 886,
887 (8th Cir. 1985) (per curiam).
The question whether the suit can be maintained
against Ansell and his employer is more
difficult, but the answer is ultimately the same.
It was inevitable that the collective bargaining
contract between Frito-Lay and Kimbro’s union
would be brought into this suit had it been
allowed to proceed to trial. The reason is that
the trier of fact would have had to decide
whether Kimbro had a contractual right not to be
fired for "grazing" (more precisely, for being
banished permanently from a customer’s premises
because of grazing), an issue that depends on
whether grazing is good cause for termination,
within the meaning of the contract. The
jurisdiction conferred by section 301 is, as we
have said, exclusive not only against state-law
suits based on such contracts but also against
state-law suits to which the interpretation of
such a contract is germane. It is true that in a
case in which the defendant is not a party to the
contract, the extinction of state causes of
action is questionable because it could leave the
plaintiff remediless. We have suggested that a
possible way to preserve those causes of action
in such a case might be somehow to refer any
issues of contract interpretation to the
arbitrators, the suit to abide their decision.
But the plaintiff has not picked up on this
suggestion in our Brazinski decision, and it is
therefore waived.
Affirmed.