Harold R. Magnuson v. Burlington Northern, Inc., D. S. Nelson, J. H. Woolford, and G. J. O'COnnell

BONSAL, District Judge

(dissenting):

I would reverse and direct the district court to remand appellant’s claim for the intentional infliction of emotional distress to the Montana court. Federal labor relations law was not developed in a vacuum but “within a larger context of state law *1371 creating rights of property, bodily security, and personality, preserving public order, and promoting public health and welfare. . It is only where the state law . is based upon an accommodation of the special interests of employers, unions, employees, or the public in employee self-organization, collective bargaining, or labor disputes that the likelihood that its application to persons under NLRB [or RLA] jurisdiction will upset the balance struck by Congress . . . requirpng the] exclusion of state law. . . . ” Cox, Labor Law Preemption Revisited, 85 Harv.L.Rev. 1337, 1355-56 (1972).

The Supreme Court has clearly recognized this in its recent decisions. It recently noted:

“Our cases indicate . . . that inflexible application of the [preemption] doctrine is to be avoided, especially where the State has a substantial interest in regulation of the conduct at issue and the State’s interest is one that does not threaten undue interference with the federal scheme.” Farmer v. United Brotherhood of Carpenters & Joiners, Local 25, 430 U.S. 290, 302 , 97 S.Ct. 1056, 1064 , 51 L.Ed.2d 338 (1977); accord, Sears, Roebuck and Co. v. San Diego County District Council of Carpenters, - U.S. -,-, 98 S.Ct. 1745 , 56 L.Ed.2d 209 (1978).

These two factors — a significant state interest and the risk of interference with the federal scheme — have been invoked in justifying state courts’ entertainment of defamation actions, Linn v. United Plant Guard Workers of America, 383 U.S. 53 , 86 S.Ct. 657 , 15 L.Ed.2d 582 (1966), actions for intentional infliction of emotional distress, Farmer v. United Brotherhood of Carpenters & Joiners, Local 25, supra, and actions for trespass, Sears, Roebuck and Co. v. San Diego County District Council of Carpenters, supra. In Linn, supra, the Court refused to preempt a defamation action against, inter alia, a union and two of its officers for circulating a defamatory statement about the plaintiff during an organizational campaign although an unfair labor practice under § 8 of the NLRA might have also been made out. Last term in Farmer v. United Brotherhood of Carpenters & Joiners, Local 25, supra, the Court permitted an action for intentional infliction of emotional distress to be brought in state court although it stemmed from a venomous campaign against plaintiff entailing hiring hall referral discrimination, an unfair labor practice under the NLRA. In holding that the claim for emotional distress was not preempted, the Court ruled, “Simply stated, it is essential that the state tort be either unrelated to employment discrimination or a function of the particularly abusive manner in which the discrimination is accomplished or threatened rather than a function of the actual or threatened discrimination itself.” (Emphasis added.) Id. 430 U.S. at 305 , 97 S.Ct. at 1066 . The gist of appellant’s case is not; that he was wrongfully discharged but the “particularly abusive manner in which it was accomplished.”

Finally, that a state action here would risk little interference with the federal scheme is underscored by contrasting it with Andrews v. Louisville & Nashville R.R, 406 U.S. 320 , 92 S.Ct. 1562 , 32 L.Ed.2d 95 (1972), which the majority finds controlling. There a railroad employee brought an action for breach of contract because, upon his recovery from an accident, he was not reinstated to the position that he had previously held. The Court in Andrews ruled that the claim involved a question of construction of the collective bargaining agreement — whether under the agreement the employer’s conduct amounted to a wrongful discharge and thus was a minor dispute which had to be submitted to arbitration. Clearly, if a state court had entertained that action, it would necessarily have had to accommodate employer-employee relations and thus interfered with the Adjustment Board’s jurisdiction over the interpretation of such agreements, 45 U.S.C. § 153 First (i); Congress had made the judgment that a Board familiar with industry practices could better interpret a collective bargaining agreement. However, in the instant case, no such special expertise is needed. *1372 No construction of labor agreements or weighing of labor interests is necessary. A state court can easily determine if the appellees deliberately placed the blame on appellant here and whether their conduct was sufficient to rise to the tort of intentional infliction of emotional distress.