Petition for Writ of Certiorari — Barbe v. Great Atlantic & Pacific Tea Co.

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FILED

No.

NOV 22 199

IN THE OFFICE OF THE CL

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

JANET BARBE,

Petitioner,

THE GREAT ATLANTIC & PACIFIC

TEA COMPANY, INC., ET AL.,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

Michael Lewis Freilich

Michael Lewis Freilich,

Chartered

408 Bosley Avenue

Towson, Maryland 21204

(410) 321-0040

Counsel for Petitioner

QUESTION PRESENTED

1. Whether garden variety common law torts of

intentional infliction of emotional distress and defamation

are preempted by §301 of the Labor Management Act, 29

U.S.C. §185, when the defendant seeks to use the

collective bargaining agreement as a defense to the action.

PARTIES

Janet Barbe,

Petitioner,

versus

The Great Atlantic & Pacific Tea Co., Inc. and W.

E. Zentgraf,

Respondents.

iil

TABLE OF CONTENTS

QUESTIONS PRESENTED ........ So yerere. i

TABLE OF AUTHORITIES .................. iv

MU gc tte tee eee 2

SST eee 2

STATUTES INVOLVED ..................... 2

STATEMENT OF THE CASE................. 3

SS TRECs 8

I. The Courts are Split as to Whether

Preemption of a State Law Claim Under

§301 Should Turn On The Plaintiffs

Reliance on the Collective Bargaining

Agreement for the Cause of Action, as

Opposed to the Defendant’s Reliance on

the Collective Bargaining Agreement as a

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en te eh eee eeevessencé la

EE 1b

TABLE OF AUTHORITIES

CASES:

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) .... 18

Douglas v. American Information Technologies, 877

BSF ae, oe. Baer ere 14

Fox v. Parker Hannifin Corp., 914 F.2d 795 (6th

| Re rer or oe re ee ee 9, 17

Franchise Tax Bd. v. Laborers Vacation Trust, 463

SB REE A 6 G68 oA eA 0 ORE oo ees ee 18

Gulden v. Crown Zellerbach Corp., 890 F.2d 195

a . 9, 12

Hanks v. General Motors Corp., 859 F.2d 67 (8th

Rath: SERisee cskws Wis EWA SW ce os 9, 12

Jackson v. Southern California Gas Co., 881 F.2d

Og, fe I er a ee 9, 12

Johnson v. Anheuser Busch, Inc., 876 F.2d 620 (8th

PRE WSS eo hak ME wie Asse 8 + 9, 11

Keehr v. Consolidated Freightways of Delaware, Inc.,

age Re Rg Ce a. 5) i rn 13

Krashna v. Oliver Realty, Inc., 895 F.2d 111 (3rd

eer paren Seer eee 15

Lingle v. Norge Division, Magic Chef, 486 U.S. 399

CRE Grae len eG rotirg Soe en ere A he oa ys 20

Linn v. United Plant Guard Workers, 383 U.S. §3

UR pene i a ee 13

Local No. 57 v. Bechtel Power Corp., 834 F.2d 884

eg ee ee ae 9, 18

McCormick v. AT&T, 934 F.2d 531 (4th Cir.

NT aig ay 6S tk 6 kOe in sae ene 6, 9, 10

O’Shea v. Detroit News, 887 F.2d 683 (6th Cir.

Ps 6a ae vaeeN eee ess keeee ce 9, 16

Pantoja v. Texas Gas and Transmission Corp., 890

Pat See AOU Ges AOE owe bck cawe se wes 18

Smolarek v. Chrysler Corp., 879 F.2d 1326 (6th Cir.

I ial ant dren s uly ee ip cn Hace eee 9,17

Tellez v. Pacific Gas & Electric. Co., 817 F.2d 536

Pee NG RIED. Bras’ d Souew 6 We bas Ow 9, 13

Wells v. General Motors Corp., 881 F.2d 166 (Sth

NS oe 5 0 vd a eae eee 9

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No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

JANET BARBE,

Petitioner,

Vv.

THE GREAT ATLANTIC & PACIFIC

TEA COMPANY, INC., ET AL.,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court Of Ap. zals

For The Fourth Circuit

Peutioner Janet Barbe hereby petitions this Court

to issue a writ of certiorari to review the judgment and

opinion of the United States Court of Appeals for the

Fourth Circuit.

OPINIONS BELOW

The unreported opinion of the United States Court

of Appeals for the Fourth Circuit in Barbe v. The Great

Atlantic & Pacific Tea Co., Inc., et al. No. 89-1566, is

reproduced in Appendix A. The unreported opinion of

the United States District Court for the District of

Maryland in Barbe v. The Great Atlantic & Pacific Tea Co.,

Inc., et al. Civil No. PN-88-1316, is reproduced in

Appendix B.

JURISDICTION

The Fourth Circuit of the United States Court of

Appeals issued its decision and judgment on July 26, 1991.

On October 16, 1991, the Chief Justice of the Supreme

Court signed an order granting an extension of time

within which to file a petition for writ of certiorari to and

including November 23, 1991. This Court has jurisdiction

under 28 U.S.C. 1254(1).

STATUTES INVOLVED

§301(a) of the Labor Management Relations Act.

29 U.S.C. §185 provides:

Suits for violation of contracts between an

employer and a labor organization representing employees

in an industry affecting commerce as defined in this

chapter, or between any such labor organizations, may be

brought in any district court of the United States having

jurisdiction of the parties, without respect to the amount

in controversy or without regard to the citizenship of the

parties.

28 U.S.C. §1441 provides:

Except as otherwise expressly provided by Act of

Congress, any civil action brought in a state court of

which the district courts of the United States have origina!

jurisdiction, may be removed by the defendant or

defendants, to the district court of the United States for

the district and division embracing the place where such

action is pending...

STATEMENT OF THE CASE

I. Statement of the Facts

Petitioner Janet Barbe (Barbe) began her

employment for The Great Atlantic & Pacific Tea

Company, Inc. (A&P) on September 24, 1984 as a bakery

clerk. On or about April 7, 1987, W.E. Zentgraf

(Zentgraf) was employed by A&P as the Director of

Personnel of the Mid-Atlantic Group. Barbe was covered

by a collective bargaining agreement which included

representation by Local 27, United Food and Commercial!

Workers Union.

Barbe filed a Workmen’s Compensation Claim

against a previous employer, Dunkin Donuts, for an injury

to her back. She appeared for a hearing regarding the

claim on March 30, 1987. Zentgraf knew the hearing

involved Barbe’s previous employer and not A&P.

On March 31, 1991, Barbe’s employment was

terminated by Zentgraf for allegedly falsifying A&P

documents presumably regarding her workman’s

compensation claim. Zentgraf sent a letter on April 7,

1987, which provides: "This is to advise you that effective

March 31, 1987 you are terminated for falsification of [a]

company document." This letter was sent to Barbe at her

home, to Barbe’s two supervisors, and to the union who

represented her under the Agreement.

When Barbe received the letter, other individuals

were present and learned of the contents of the letter.

Zentgraf also placed a copy of the letter in Barbe’s

employment file.

When advised by the union representative that

Barbe was wrongly accused of falsifying company

documents, A&P responded immediately, stating: "Please

be advised that the letter date April 7, 1987, concerning

your termination has been rescinded. Your file has been

purged of any reference to the termination .. ."

Barhe’s job was reinstated. but because of her back

injury, she was given a six month leave of absence until

October 7, 1987 by written notification from A&P on May

28, 1987. On October 8, 1987, She was given an extension

to the leave of absence until April 8, 1988. On April 5,

1988, Barbe filed her claims against A&P and Zentgraf in

the Circuit Court of the State of Maryland.

II. Previous Proceedings

A. District Court Proceedings

Barbe filed a complaint containing two counts,

defamation and intentional infliction of emotional distress

in the Circuit Court of Maryland against A&P and

Zentgraf, for damages.

The defamation count alleged Zentgraf, as agent

for A&P, intentionally and maliciously composed and

published a false and defamatory letter stating Barbe

falsified a company document. As a direct result of the

publication of the defamatory letter, Barbe was held up to

public ridicule, scorn, dishonor and embarrassment.

Barbe’s intentional infliction of emotional distress

claim alleged Zentgrafs wrongful termination of Barbe

and the accusation that Barbe falsified company

documents was intentional and reckless, extreme and

outrageous, and the proximate cause of Barbe’s severe

emotional distress.

A&P removed the case to federal court and

motioned for summary judgment alleging Barbe’s claims

were preempted by §301(a) of the Labor Management

Relations Act (LMRA), 29 U.S.C. § 185, and therefore

barred by the statute of limitations of §301. Barbe

motioned for remand to the state court, and opposed the

motion for summary judgment. The district court refused

to remand the case to state court and granted A&P’s

motion for summary judgment ruling Barbe’s claims were

preempted by §301 and ruled her claim barred by the

statute of limitations contained in §301.!

B. The United States Court of Appeals for the Fourth

Circuit

1. The Majority Opinion: The Fourth Circuit

affirmed the district court’s ruling by an unpublished per

curium opinion. The majority followed the analysis for

determining §301 preemption in McCormick v. AT&T, 934

F.2d 531 (4th Cir. 1991) stating:

We thus examine "whether resolution of the cause

of action requires interpretation by a collective

bargaining agreement." We note, however, that if

"the state law claim can be resolved without

interpreting the agreement itself, the claim is

‘independent’ of the agreement for §301 pre-

emption purposes."

Using the analysis of the district court, the majority

ruled that whether A&P’s conduct rose to the level of

"extreme and outrageous” behavior depended on whether

Barbe’s conduct was in violation of the clause of the

Agreement that provides "the employer has the right to

discharge or to discipline any employee for good cause,

including but got limited to, proven or acknowledge

dishonesty..."? The majority concluded:

' Appendix B.

? Appendix A, pages 3a-4a.

> Appendix A, Page 4a.

We agree with the district court that the

defamation claim cannot be resolved without first —

determining whether ’publication’ occurred.

However, whether the,employer’s notice to the

union of an employee’s termination constituted

’publication’ requires an interpretation of the

CBA4

y The Dissenting Opinion: Judge Sprouse,

dissenting from the majority opinion, stated:

State law actions are preempted by §301 only if a

collective bargaining agreement is meaningfully

involved. Here, at most, the interpretation of the

labor contract between A&P and United Food

Workers Local 27 could be only peripherally

related to defenses to the state law claims.°

Judge Sprouse declared: "A&P has the same duty

as every citizen of Maryland not to defame another and

not to intentionally inflict emotional distress on another.

Barbe makes no claim these duties were incurred or the

breaches occasioned by any provision of the collective

bargaining agreement.”

The dissent noted "the importance of core

preemption principles-the promotion of . collecuve

bargaining processes and uniformity in interpreting

* Appendix A, Pages 4a-Sa.

* Appendix A, Page Sa.

* Appendix A, page 6a.

agreements resulting from them. However, in my view,

overextended preemption rulings intrude into the domain

of state law courts and invade the retained prerogatives of

states to regulate individual conduct."’ Preemption

should ". . . follow only when a dispute is meaningfully

dependent upon interpretations of collective bargaining

agreements.”

ARGUMENT

"Federal preemption of state labor law has been

one of the most confused areas of federal court

litigation." The confusion is generated because the

courts cannot decide whether preemption under §301

should be based on the plaintiffs reliance on the

collective bargaining agreement for its state law claim, or

the defendant’s reliance on the collective bargaining

agreement for its defense.

The Fourth, Eighth and Ninth Circuits hold a

defendant can defeat a state cause of action by declaring

it intends to rely upon a collective bargaining agreement

” Appendix A, Page 9a.

* Appendix A, Page 9a.

* Note, The Need for a New Approach to Federal Preemption of

Union Members’ State Law Claims, 99 Yale LJ. 209 (1989). Galvez v.

Kuhn, 933 F.2d 773 (9th Cir. 1991).

for its defense."° The Third, Sixth and Tenth Circuit

have ruled a state law cause of action is not preempted

only because the defendant chooses to use the collective

bargaining agreement as a defense."

The confusion of §301 preemption cases has led to

conflicts between the federal courts and therefore it is

crucial this Court end the confusion and issue a clear

mandate in §301 preemption cases.

I. The Courts are Split as to Whether Preemption of

a State Law Claim Under §301 Should Turn On

The Plaintiffs Reliance on the Collective

Bargaining Agreement for the Cause of Action, as

Opposed to the Defendant’s Reliance on the

Collective Bargaining Agreement as a Defense.

Anheuser Busch, Inc., 876 F.2d 620 (8th Cir. 1989); Hanks v. General

Motors Corp., 859 F.2d 67 (8th Cir. 1988); Jackson v. Southern California

Gas Co., 881 F.2d 638 (9th Cir. 1989); Gulden v. Crown Zellerbach Corp.,

890 F.2d 195 (9th Cir. 1989); Tellez v. Pacific Gas & Electric. Co., 817

F.2d 536, 539 (9th Cir. 1987).

" Krashna v. Oliver Realty, Inc., 895 F.2d 111 (3rd Cir. 1990); Wells

v. General Motors Corp., 881 F.2d 166 (Sth Cir. 1989); O’Shea v. Detroit

News, 887 F.2d 683, 687 (6th Cir. 1989); Smolarek v. Chrysler Corp., 879

F.2d 1326, 1334 (6th Cir. 1989); Fox v. Parker Hannifin Corp., 914 F.2d

795, 800 (6th Cir. 1990); Local No. 57 v. Bechtel Power Corp., 834 F.2d

884, 889 (10th Cir. 1987).

A. Federal Circuit Court Decisions

The First, Fourth, Eighth and Ninth Circuits have

held that by raising the collective bargaining agreement as

a defense, the state law claim is automatically preempted

by §301 without consideration of the merits of the

defense. However, these rulings depend on the court’s

analysis of the state law claims and in some situations the

courts have not ruled the state law claims automatically

preempted. -

The Fourth Circuit considered McCormick v. AT&T

Technologies Inc., supra, which involved a state law

intentional infliction of emotional distress claim, among

other claims, by an employee covered under a collective

bargaining agreement. The employee, McCormick, was

terminated by AT&T because of an unexplained absence.

AT&T then removed and disposed of the personal

property in McCormick’s locker. McCormick’s personal

property included a personal letter containing very

sensitive information about McCormick. Other AT&T

employees were able to learn the contents of the personal

letter because of AT&T’s method of disposing

McCormick’s personal property. After a meeting with

AT&T and a union representative, McCormick was

reinstated but walked off the job when other AT&T

employees made references to the contents of

McCormick’s personal letter. AT&T terminated

McCormick’s employment on the basis of job

abandonment.

The court ruled: "the question in preemption

analysis is not whether the source of a cause of action is

state law, but whether resolution of the cause of action

requires interpretation of a collective bargaining

agreement." Jd. at535. Applying the question of whether

the resolution of McCormick’s claim requires

interpretation of the collective bargaining agreement the

court held: "If the management’s actions in disposing of

the contents of McCormick’s locker were authorized

under the collective bargaining agreement, those actions

could not simultaneously be consider ’outrageous and

intolerable’ under Virginia law." Jd. at 537.

The Eighth Circuit, in Johnson v. Anheuser Busch,

Inc., 876 F.2d 620 (8th Cir. 1989) addressed the issue of

whether state law claims for slander, libel and intentional

infliction of emotional distress, among other claims, were

preemption by §301. The case involved an investigation

of a report filed by a co-employee who alleged his tires

were slashed. Johnson was arrested following the

investigation. Although the charges were later dismissed,

Anheuser Busch terminated Johnson as a result of the

incident.

.The court ruled the alleged libelous statements

involve the ongoing employment relationship and as such

relate to a dispute over an event occurring at the work

place and is governed by the collective bargaining

agreement. he intentional infliction of emotional

distress arises out of Anheuser’s conduct regarding the

discharge of Johnson therefore the collective bargaining

agreement is necessary to determine if the conduct was

warranted. The court held Johnson’s claims preempted by

§ 301.

However, Hanks v. General Motors Corp., 859 F.2d

67 (8th Cir. 1988) held §301 does not preempt a state law

intentional infliction of emotional distress claim where

General Motors assigned an employee covered by a

collective bargaining agreement to work under a foreman

whom General Motors knew had sexually assaulted the

employee’s daughter. The court remanded the claim to

the district court to determine whether resolution of the

state law claim would require a construction of the

collective bargaining ‘agreement stating: "The factual

background of the entire case must be examined against

an analysis of the state tort claim and a determination

made whether the provisions of the collective bargaining

agreement come into play." 859 F.2d at 70.

In Jackson v. Southern California Gas Co., 881 F.2d

638 (9th Cir. 1989), Jackson alleged he was defamed by

statements made by several Southern California Gas

Employees accusing him of embezzlement, sexual

harassment and poor work performance. The court ruled

the claim did not assert rights gained from the collective

bargaining agreement, and does not require interpretation

of the agreement’s terms because "the accusations do not

appear to have been made pursuant to any requirements

of the disciplinary procedures." 881 F.2d at 645.

However, the court ruled Jackson’s intentional infliction

of emouonal distress claim was preempted because "the

collective bargaining agreement here contains detailed

provisions governing the types of activities alleged by

Jackson in support of his intentional and negligent

infliction of emotional distress claims." Jd. at 646. See

also Gulden v. Crown Zellerbach Corp., 890 F.2d 195 (9th

Cir. 1989) (holding state law fraud claim is not preempted

when neither based on or dependant upon an

interpretation of the collective bargaining agreement).

However, TJellez v. Pacific Gas & Electric. Co., 817

F.2d 536, 539 (9th Cir. 1987) ruled the claims of

intentional infliction of emotional distress was not

preempted because the "collective bargaining agreement

does not envision such [outrageous] behavior" by its

employer and “its grievance mechanism is not equipped to

redress it."

The Seventh Circuit has ruled disparately on §301

preemption, depending on the standard by which it

scrutinizes the claims. For example, in Keehr v.

Consolidated Freightways of Delaware, Inc., 825 F.2d 133

(7th Cir. 1987), involved an employee, Bruce, covered by

a collective bargaining agreement who brought a state law

defamation and intentional infliction of emotional distress

action against his employer for remarks made by his

supervisor. Bruce alleged the employer was harassing him

and other employees in order to force the employees to

leave or be discharged. The court stated:

To preclude preemption, a claim foi intentional

infliction of emotional distress must be either

unrelated to employment discrimination or a

function of the particular abusive manner in which

the discrimination is accomplished or threatened

rather than a function of the actual or threatened

discrimination itself. 825 F.2d at 136.

The court relied on Linn v. United Plant Guard

Workers, 383 U.S. 53, 65 (1966), when it considered the

defamation claim, and concluded that defamation is not

preempted by §301 if plaintiff "can show that the

defamatory statements were circulated with malice and

caused him damage", requiring that malice be shown to

minimize the possibility that labor debate will be chilled

by the threat of state libel suits.

The court ruled the employer "has not suggested

that Bruce’s claims are in any way derived from rights or

duties provided for under the contract. Because the

resolution of Bruce’s tort claims in no way depends on an

interpretation of the labor contract. we conclude that

Bruce’s claims are not preempted by section 301." 825

F.2d at 137.

In contrast, the Seventh Circuit ruled on an

employee’s state law claim for intentional infliction of

emotional distress and stated: "The fact that a particular

provision of the collective bargaining agreement may not

explicitly address the conduct underlying Ms. Douglas’

complaint does not mean that resolution of an intentional

infliction of emotional distress claim does not require

interpretation of the agreement." Douglas v. American

Information Technologies, 877 F.2d 565, 572 (7th Cir.

1989). The court ruled the employee’s claim was

preempted by §301 because: "A court wil! be required to

determine whether her employer’s conduct was authorized

by the explicit or implicit terms of the agreement." 877

F.2d at 573.

The Fifth, Sixth and Tenth Circuits have ruled that

§301 preemption depends upon the plaintiffs reliance on

the collective bargaining agreement and not necessarily on

the defendant’s reliance on the collective bargaining

agreement as a defense.

In Krashna v. Oliver Realty, Inc., 895 F.2d 111 (3rd

Cir. 1990), an employee, Krashna, covered under a

collective bargaining agreement allegedly suffered carbon

monoxide poisoning while on the job and filed for

worker’s compensation. The following day Krashna was

terminated from his employment. The employee filed a

state law action alleging intentional infliction of

emotional distress, wrongful discharge, and tortious

interference with contract. The court noted: "removal is

proper if §301 completely preempts Krashna’s stat law

claims." 895 F.2d at 114. Therefore, the court concluded:

"Krashna’s claims of intentional infliction of emotional

distress, and tortious interference with contract are clearly

outside the scope of the collective bargaining agreements

and §301 of the LMRA." Jd. at 114.

Wells v. General Motors Corp., 881 F.2d 166 (Sth

Cir. 1989), involved a claim regarding the fraudulent

misrepresentation of a rehiring procedure where General

Motors offered employees, covered under a collective

bargaining agreement, an option of a severance payment

in lieu of preserving their seniority and rehire rights.

Under the option, the emplovees could be rehired if new

jobs were created. When new jobs were created, the

employees who had opted for the severance payment were

told they were not eligible to be rehired. The court ruled

the claim was not preempted by §301 because "it is not

the case that section 301 preemption occurs whenever a

collectively-bargained agreement become relevant to a

dispute of this nature; rather the resolution of the

particular dispute must be substantially dependant upon

analysis of the terms of the collective bargaining

agreement.” 881 F.2d at 173. The court stated:

Therefore, we hold that where, as here, the

employee/plaintiffs’ state law claims are founded

upon contractual rights or common-law rights

independent of those which the collectively-

bargained agreement creates, a defense that relies

upon the provisions of a collectively-bargained

agreement does not invoke federal preemption

unless that agreement contains provision that

govern, or reasonable might be construed as

governing, the circumstances at hand. Contrary to

GM’s assertions here, a court’s perusal of the

agreement to determine whether such provision are

contain within it does not constitute "Interpretation’

of that agreement." /d. at 174.

The Sixth Circuit has ruled "it is irrelevant to the

preemption question whether or not the employer can

defend by showing it had the rights under the collective

bargaining agreement to do what it did." O'Shea v. Detroit

News, 887 F.2d 683, 687 (6th Cir. 1989). An elderly

employee covered by a collective bargaining agreement to

a night shift, even though the emplover knew the

employee had health problems. The employer allegedly

was trying to force the employee to retire. When the

employee suffered a heart attack and died, employee’s

wife brought state law claims against the employer, News,

including a claim for intentional infliction of emotional

distress.

The court stated strongly: “The point is that

Michigan employees have the right not to be

discriminated against on the basis of age or handicap

without regard to the collective bargaining agreement’s

language on employee’s rights." 887 F.2d at 687.

On the issue of the emotional distress claim, the

court concluded: "The News could have tortiously caused

O’Shea emotional distress without violating the contract",

and therefore ruled the cause of action was not

preempted by §301. 887 F.2d at 687.

In Smolarek y. Chrysler Corp., 879 F.2d 1326, 1334

(6th Cir. 1989) (en banc) cert. denied 110 S.Ct 539, an

employee covered under a collective bargaining agreement

brought a state law handicap discrimination claim against

the employer, alleging the employer failed to

accommodate his handicap as required by state law. The

court ruled the question of whether the employee was

discriminated against because of his handicap was

separate from any possible defense the employer might

have under the contract. "It is irrelevant to the

preemption question whether or not the employer can

defend by showing it had the right under the collective

bargaining agreement to do what it did." 879 F.2d at

1334. See also Fox v. Parker ai iting 914 F. a 79S,

800 (6th Cir. 1990) (a defendant's reliance on a collective

bargaining agreement term acti as a defense does t not

result in section 301 preemption).

In a retaliatory discharge claim, the Seventh Circuit

ruled: "Thus after Lingle, no state-based cause of action

is preempted by section 301 of the LMRA merely because

a State court might focus upon the same facts which would

be considered when resolving a dispute under a collective-

bargaining agreement.” Pantoja v. Texas Gas and

Transmission Corp., 890 F.2d 955, 959 (7th Cir. 1989).

The court need not determine whether the motive for the

discharge was a legitimate one, "it must simply determine

whether such a motive exists - not whether, as a matter of

law, the collective bargaining agreement justifies such a

motive.” Id. at 959.

The Tenth Circuit held even if a state court"...

would find the collective bargaining agreement relevant to

show waiver or consent as a state law defense to plaintiff's

allegations," there would still be no complete §301

preemption of a state law claim, and no federal court

jurisdiction over such a claim. Local No. 57 v. Bechtel

Power Corp., 834 F.2d 884, 889 (10th Cir. 1987).

B. Supreme Court Decisions

The premise of §301 preemption is stated in

Franchise Tax Bd. v. Laborers Vacation Trust, 463 U.S. 1,

23 (1982), "the pre-emptive force of §301 is so powerful

as to displace entirely any state cause of action ‘for

violation of contracts between an employer and a labor

organization.”

This Court clarified §301 preemption in Caterpillar,

Inc. v. Williams, 482 U.S. 386 (1987), addressing the issue

of whether "§301 preempts a state law claim even when

the employer raises only a defense that requires a court

to interpret or apply a collective bargaining agreement’

and stating: “a plaintiff covered by a collective-bargaining

agreement is permitted to assert legal rights independent

of that agreement, including state-law contract rights, so

long as the contract relied upon is not a collective-

bargaining agreement." 482 U.S. at 396. Caterpillar

declared:

It is true that when a defense to a state claim is

based on the terms of a collective bargaining

agreement, the state court will have to interpret

that agreement to decide whether the state claim

survives, But the present of a federal question,

even a §301 question, in a defensive argument

does not overcome the paramount policies

embodied in the well-pleaded complaint rule - that

the plaintiff is the master of the complaint, that

federal question must appear on the face of the

complaint, and that the plaintiff may, by eschewing

claims based on federal law, choose to have the

cause heard in state court. When a plaintiff

invokes a right created by a collective bargaining

agreement, the plaintiff has chosen to plead what

we have held must be regarded as a federal claim,

and removal is at the defendant’s option. But a

defendant cannot, merely by injecting a federal

question into an action that asserts what is plainly

a State law claim, transform the action into one

arising under federal law. 482 at 398-99.

Caterpillar concluded: “The fact that a defendant

might ultimately prove that a plaintiffs claims are pre-

empted under the NLRA does not establish that they are

removable to federal court.” 482 at 398.

In Lingle v. Norge Division, Magic Chef, 486 U.S.

399 (1988), this Court noted: "Thus, as a general

proposition, a state law claim may depend for its

resolution upon both the interpretation of a collective-

bargaining agreement and a separate state law analysis

that does not turn on the agreement. In such a case,

federal law would govern the interpretation of the

agreement, but the separate state law analysis would not

be thereby pre-empted.” 486 U.S. at 413 n.12. Lingle

involved an employee covered under a collective

bargaining agreement who had been injured in her course

of employment znd requested worker’s compensation.

The employee was then discharged for filing an allegedly

false worker’s ccmpensation claim. On behalf of the

employee, the union filed a grievance but while

arbitration on the grievance was proceeding, the employee

filed at state law claim alleging wrongful discharge. The

Court ruled the employee’s state law claim was not

preempted by §301: "even if dispute resolution pursuant

to a collective-bargaining agreement, on the one hand,

and state law, on the other, would require the same set of

facts, as long as the state-law claim can be resolved

without interpreting the agreement itself, the claim is

‘independent’ of the agreement for §301 preemption

purposes,” 486 at 409.

CONCLUSION

Barbe was wrongfully accused of falsifying company

documents and within the limitations imposed by

Maryland law, Barbe filed suit. Barbe’s cause of action

stated A&P and Zentgraf had a duty under Maryland law

not to defame her or intentionally inflict severe emotional

distress by publishing wrongful accusations.

A&P and Zentgraf argue they acted in good faith

under the Agreement when they sent defamatory letters

to Barbe, her supervisors and the union. They based their

contentions on the collective bargaining agreement which

States the purpose of the agreement is to provide a

channel through which information and problems may be

transmitted from one to the other.

A&P and Zentgraf concede the agreement contains

no specific provision requiring notice to Local 27 of

employee discipline or termination. However, they argue

the agreement establishes mandatory arbitration for

resolution of any dispute concerning the interpretation of

the provisions of the collective bargaining agreement.

The agreement also provides that within three days of

notice from either the employer, employee or union

representatives, the parties will attempt to reach

settlement. This provision, argues A&P and Zentgraf,

supports their contention that the sending of the

defamatory letter was in compliance with the notice

requirement of the agreement. A&P and Zentgraf

conclude if the sending of the defamatory letter was in

compliance with the Agreement. then the sending was not

a publishing, the letter itself was a ‘privileged

communication and their acts in compliance cannot be

extreme or outrageous. Therefore, A&P and Zentgraf

argue, their defense requires an interpretation of the

Agreement and Barbe’s cause of action is preempted by

§301.

This approach to §301 preemption does not take

into consideration whether the defense used is without

merit. Even if A&P and Zentgraf were complying with a

notice requirement in sending the defamatory letter, the

question of whether these actions were extreme and

outrageous still remains. The agreement does not excuse

extreme and outrageous behavior.

With regard to the defamation action, even if A&P

and Zentgraf were complying with an implied notice

requirement in sending the defamatory letter, the

Agreement does not give A&P and Zentgraf the right to

intentionally defame Barbe.

If Barbe’s state law claims were decided by the 3rd,

Sixth or Tenth Circuits and conceivably, the Seventh and

Ninth Circuits, her state law claim would not be

preempted because the claim was not based on the

collective bargaining agreement and resolution of the

claim would not require interpretation of the collective

bargaining agreement. Under Caterpillar and Lingle,

Barbe’s intentional infliction of emotional distress state

law claim would also be allowed to continue. However,

under the Fourth and Eighth, and sometime Ninth

Circuits, Barbe’s state law claims would be preempted

because A&P and Zentgraf have used the collective

bargaining agreement as a detense, therefore preemption

would be automatic and not depend on whether the

defense had merit.

The LMRA does not deprive an employee covered

under a collective bargaining agreement of all state law

rights of action. However, because of the confusion in the

Circuit Courts, employees covered under a collective

bargaining agreement are being deprived of their state law

rights depending upon which Circuit has jurisdiction.

Respectfully submitted,

Michael L. Freilich

408 Bosley Avenue

Towson, Maryland 21204

(410) 321-0040

Attorney for Petitioner

a —

APPENDIX A

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JANET BARBE,

Plaintiff-Appellant,

Vv.

Tue Great ATLANTIC & Paciric TEA No. 89-1566

ComPANY, INCORPORATED; W. E.

ZENTGRAF,

Defendants-Appellees.

}

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Paul V. Niemeyer, District Judge.

(CA-88-1316-PN)

Argued: April 5, 1990

Decided: July 26, 1991

Before MURNAGHAN and SPROUSE, Circuit Judges, and

SMITH, United States District Judge for the Eastern District of

Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion. Judge Sprouse wrote a

dissenting opinion.

COUNSEL

ARGUED: Michael Lewis Freilich, MICHAEL LEWIS FREILICH,

CHARTERED, Towson, Maryland, for Appellant. Peter Francis Hea-

ley, REED, SMITH, SHAW & MCCLAY, Washington, D:C., for

Appellees.

2 BarBE Vv. GREAT A & P Tra Co.

Unpublished opinions are not binding precedent in this circuit. See

1.0.P. 36.5 and 36.6.

OPINION

PER CURIAM:

The case presents the issue of whether an employee's defamation

and intentional infliction of emotional distress claims against an

employer are preempted by § 301 of the Labor Management Relations

Act'("LMRA"). Janet Barbe, the employee, was covered by a collec-

tive bargaining agreement. She sued her employer, the Great Atlantic

and Pacific Tea Company, Inc., ("A & P"') for defamation and inten-

tional infliction of emotional distress after she received a letter from

it stating that she was terminated for falsifying a company document.

The district court granted summary judgment against Barbe’s claims,

reasoning that her cla'ms were preempted by § 301 of the LMRA.

Barbe could not make out a § 301 claim because she failed to exhaust

her administrative remedies and failed to make a timely claim. Barbe

has appealed, arguing that her common law claims are not preempted

by § 301.

Barbe was a bakery clerk for A & P beginning in 1984. On April

7, 1987, personnel director W.E. Zentgraf sent her the following letter

in the belief that Barbe falsified a workers’ compensation claim:

This is to advise you that etfecuve March 3, 1987, you are

terminated for falsification of [a] company document.

Zentgraf forwarded copies of the letter to Barbe’s two supervisors as

well as to the union that represented her, Local 27 of the United Food

& Commercial Workers Union.

The Union had a collective bargaining agreement ("CBA") with A

& P. Article IV, Section 8 of the CBA provided:

BARBE V. GREAT A & P TEA Co. 3

The Employer has the right to discharge or discipline any

employee for good cause, including but not limited to,

proven or acknowledged dishonesty, intoxication during

working hours, provided however, that no employee shall be

discharged or discriminated against because of membership

in the Union or for Union activities.

Article 10 of the CBA provided for a mandatory arbitration and

adjustment mechanism in the event of a dispute "concerning the inter-

pretation of the provisions of th{e] Agreement."

When the Union received the copy of the termination letter that

Zentgraf sent to Barbe, it acted on Barbe’s behalf. A & P agreed to

rescind the letter, to purge Barbe’s files, and to offer her the choice

of either resigning or taking a medical leave of absence rather than

termination. Barbe took a six-month leave of absence, which was later

extended, and sought no further administrative relief.

But Barbe did institute a suit against A & P in Maryland state

court, alleging defamation and intentional infliction of emotional dis-

tress. The suit was removed to the United States District Court for the

District of Maryland. The district court, Judge Paul V. Niemeyer pre-

siding, denied Barbe’s motion to remand the case to state court, hold-

ing that Barbe’s state tort claims were preempted by § 301 of the

_ LMRA. He then granted the defendants’ motion for summary judg-

ment because, as her claim was a § 301 claim, Barbe had failed to

_ exhaust her administrative remedies and had failed to file suit within

the requisite six-month period. Barbe v. Great Atlantic & Pacific Tea

Co., 722 F. Supp. 1257, 1263 (D. Md. 1989). Barbe has argued on

appeal that her state tort claims are not preempted by § 301 of the

LMRA, urging that her claims be remanded to state court.

il.

The analysis for determining § 301 preemption has been recently

articulated in McCormick v. AT&T, _ F.2d _, No. 88-3542 (4th Cir.,

May 28, 1991) (en banc). Although two of us joined the dissent to the

en banc opinion in McCormick, we are now bound to follow

McCormick as this circuit’s law. We thus examine "whether resolu-

tion of the cause of action requires interpretation by a collective bar-

4 BarsE Vv. GREAT A & P TeEa Co.

gaining agreement." Slip op. at 6. We note, however, that if "the state-

law claim can be resolved without interpreting the agreement itself,

the claim is ‘independent’ of the agreement for § 301 pre-emption

purposes." Id. at 7 (quoting Lingle v. Norge Div’n of Magic Chef,

Inc., 486 U.S. 399, 409-10 (1988)).

In Maryland, to establish a prima facie case of defamation, a plain-

tuff must establish that (1) the defendants published a false and defam-

atory statement, (2) by acting with knowledge or reckless disregard

as to its falsity, or by negligently failing to ascertain the truth of the

defamatory statement, (3) which has caused damage to the plaintiff.

See Metromedia, Inc. v. Hillman, 285 Md. 161, 171-72, 400 A.2d

1117, 1123 (1979). The district judge concluded that Barbe’s-defama-

tion claim was preempted by § 301. 722 F. Supp. at 1262. First, he

reasoned, whether or not sending notice of Barbe’s termination to the

union was "publication" would depend upon whether the CBA autho-

rized, or perhaps even anticipated, the sending of such a notice. /d.

at 1261. Thus, interpretation of the CBA would be required. Second,

he reasoned that the state court would have to interpret the agreement

in order to determine whether the communication from the employer

to the union was privileged. /d. at 1261-62.

Under Maryland law, in order to establish a claim for intentional

infliction of emotional distress, a plaintiff must show that the defen-

dant’s conduct (1) was intentional or reckless, (2) was extreme and

outrageous, and (3) caused severe emotional distress. See Harris v.

Jones, 281 Md. 560, 566, 380 A.2d 611, 614 (1977). The district

judge concluded that the determination of whether the conduct was

outrageous or extreme would depend on whether Barbe’s conduct was

in violation of the agreement that provided the basis for the termina-

tion. Id. at 1262. If A & P complied with the agreement, he reasoned,

"Barbe would be hard-pressed to urge that the conduct was outra-

geous.'' Jd. Furthermore, he reasoned, because toruous Conduct may

be privileged if the tortfeasor is merely insisting on his legal rights,

the agreement would have to be interpreted to consider the question

of privilege. /d.

We agree with the district court that the defamation claim cannot

be resolved without first determining whether "publication" occurred.

However, whether the employer’s notice to the union of an employ-

BarsBE Vv. GREAT A & P Tea Co. 5

ee’s termination constituted "publication" requires an interpretation of

the CBA. The district judge’s analysis of the claim for intentional

infliction of emotional distress parallels the McCormick opinion’s

analysis of a state claim for intentional infliction of emotional distress

with respect to outrageous conduct. See slip op. at 11-12. Both claims,

therefore, are preempted.

Accordingly, the district court’s judgment is

AFFIRMED.

SPROUSE, Circuit Judge, dissenting:

I respectfully dissent. The recognition of the Lingle principles by

my brethren in the majority is, of course, correct as far as it goes, but

I dissent because I think the principles have been misapplied. In my

view, state law actions are preempted by § 301 only if a collective

bargaining agreement is meaningfully involved.’ Here, at most, the

interpretation of the labor contract between A & P and United Food

Workers Local 27 could be only peripherally related to defenses to

the state law claims.

The actions here which the majority holds to be preempted by

§ 301 are unadorned "garden variety" state tort actions—defamation

and intentional infliction of emotional distress. The facts of the case,

wees site

_ of course, have not been developed in detail, but it is apparent that A

& P wrongly accused Ms. Barbe of falsifying a workers’ compensa-

‘The Supreme Court cases finding § 301 preemption were concerned with

central involvement of a collective bargaining agreement. For example, the

Supreme Court explained its analysis in Allis-Chalmers as follows:

We began by cxamuning the collective-bargaining agreement, and

determined that it provided the bzsis not only for the benefits, but

also for the right to have paymen’s made in a timely manner. We

then analyzed the Wisconsin tort remedy, explaining that it "exists

for a breach of a ‘duty devolv[ed] upon the insurer by reasonable

implication from the express terms of the contract, the scope of

which, crucially, is ‘ascertained from a consideration of the contract

itself.” "'

Lingle, 486 U.S. at 405 (citations omitted).

6 BaRBE Vv. GREAT A & P TEa Co.

tion claim.’ Neither of Barbe’s state law claims alleged that A & P

violated any duty directly or indirectly arising from the collective bar-

gaining agreement. To the contrary, her claims are asserted under

general provisions of Maryland law. A & P has the same duty as

every citizen of Maryland not to defame another and not to intention-

ally inflict emotional distress on another. Barbe makes no claim that

these duties were incurred or the breaches occasioned by any provi-

sion of the collective bargaining agreement.

Concerning the claim of intentional infliction of emotional distress,

the majority holds that whether A & P’s conduct rose to the level of

"extreme and outrageous" behavior depends on whether Barbe’s con-

duct was in violation of the clause of the collective bargaining agree-

ment that provides "the employer has the right to discharge or to

discipline any employee for good cause, including but not limited to,

proven or acknowledged dishonesty. ...'' The majority adopted the

district court’s reasoning that a discharge justified under this contrac-

tual provision could not be extreme and outrageous; that A & P’s

defense, therefore, was dependent on a demonstration that it complied

with the contract, and, therefore, an interpretation of the collective

bargaining agreement was necessary to the resolution of the state law

claim. In my view, the insistence that such a defense depends on an

interpretation of that provision is essentially premised on a "good

cause" argument, i.e., that a showing of "good cause" under the agree-

ment would be a defense to the emotional distress complaint.

This exact analysis was rejected in Lingle. There, referring to the

*The letter A & P sent to her and to the recipients who received copies

stated: ''This is to advise you that effective March 31, 1987, you are tenni-

nated for falsification of [a] company document." The union representative

wrote his company counterpart, stating: "The above named employee has

informed me that she was terminated on April 7, 1987. We disagree with the

termination and we are requesting a meeting at your earliest conve-

nience....'" The company responded one day later, stating: "Please be

advised that the letter dated April 7, 1987, concerning your termination has

been rescinded. Your file has been purged of any reference to the termina-

BarRBE V. GREAT A & P TEa Co. 7

- Seventh Circuit’s erroneous analysis that ''the just cause provision in

the collective bargaining agreement may well prohibit such retaliatory

discharge," the Court announced the now familiar rule that "if dispute

resolution ._pursuant to a collective-bargaining agreement, on the one

hand, and state law, on the other, would require addressing precisely

the same set of facts, as long as the state-law claim can be resolved

without interpreting the agreement itself, the claim is ‘independent’

of the agreement for § 301 pre-emption purposes." /d. at 409-10.

Lingle involved an alleged retaliatory discharge. In Lingle. the

_ Court described the issue before it as follows: 'The question pres-

ented in this case is whether an employee covered by a collective-

PRI et 2

oes

ee eS ee eae

bargaining agreement that provides her with a contractual remedy for

discharge without just Cause may enforce her state-law remedy for

retaliatory discharge." /d. at 401. The defendant in Lingle could have

stated its principal argument in the same way that A & P does here—

that if a discharge was for "just cause," it could not have been retalia-

tory and, therefore, the resolution of the Lingle state law claim of

retaliatory discharge depended upon the meaning of the collective

bargaining agreement. The Court, however, found that to reach the

issue Of retaliatory discharge, it need not interpret the contractual

meaning of "just cause," because just cause'' might have a different

meaning under the state law of retaliatory discharge. /d at 407

| eee: the Court explained that:

The mere fact that a broad contractual protection against

discriminatory—or retaliatory—discharge may provide a

remedy for conduct that coincidentally violates state law

does not make the existence or the contours of the state-law

violation dependent upon the terms of the private contract.

For even if an arbitrator should — that the contract

does not prohibit a particular reta ry discharge, u

conclusion might or might not be consistent with a " proper

interpretation of state law.

Id. at 412-13.

That reasoning applies with equal force to the instant case. Further,

even if an arbitrator concluded that the contract included an implied

notice requirement or that the contract permitted such investigations

- Barpe v. Great A & P Tea Co.

into employee misconduct, it would not resolve the state-law inquiry

of whether A & P’s actions were extreme and outrageous under

Maryland law. As the Lingle Court ruled, the existence of a private

contractual remedy against the employer's wrongful conduct "does

not make the existence ... of the state-law violation dependent upon

the terms of the private contract." /d. at 413.

Whether the defamation action is preempted presents a closer ques-

tion, but on balance, | think it is not. A & P asserts that the agreement

could be interpreted to require notice to the union of Barbe’s dis-

charge, thus, implicating the defense of privilege for the publication.

In the first place, the contract has no explicit notice provisions for

employee discipline, discharge or otherwise. A & P asserts, however,

that such notice has been customary between the parties to the agree-

ment and that its inclusion in the contract could be inferred. Regard-

less of that, and regardless of whether such inclusion would, under

Maryland law, be considered sufficient grounds for establishing privi-

lege, | think the implication of the collective bargaining agreement iri

this manner is too attenuated. This kind of "interpretation defense"

obviously could be raised against any action by an employee against

her employer if the employment relationship is covered by a collec-

tive bargaining agreement. However, as the Court noted in Lingle,

"*not every dispute... tangentially involving a provision of a

collective-bargaining agreement, is pre-empted by § 301.’ " /d. at 413

n.12 (quoting Allis-Chalmers, 471 U.S. at 271.) | agree that we must

be cognizant of the purposes underlying the doctrine of preemption.

But that presents no problem in the instant dispute. The Supreme

Court could not have described those purposes more clearly than it

did in Lingle. It emphasized that

the subject matter of § 301(a) "is peculiarly one that calls tor

uniform law." ... The possibility that individual contract

terms might have different meanings under state and federal

law would inevitably exert a disruptive influence upon both

the negotiation and administration of collective agreements.

Because neither party could be certain of the rights which

it had obtained or conceded, the process of negotiating an

agreement would be made immeasurably more difficult by

BarBe Vv. Great A & P Téa Co. 9

the necessity of trying to formulate contract provisions in

such a way as to contain the same meaning under two or

more systems of law which might someday be invoked in

enforcing the contract. Once the collective bargain was

made, the possibility of conflicting substantive interpreta-

tion under competing legal systems would tend to stimulate

and prolong disputes as to its interpretation. Indeed, the

existence of possibly conflicting legal concepts might sub-

stantially impede the parties’ willingness to agree to contract

terms providing for final arbitral or judicial resolution of

disputes.

Lingle, 486 U.S. at 404 n.3.

I have quoted this language in some detail because I think it is

important to focus on the purposes of the § 301 preemption doctrine

in deciding whether A & P’s defenses would implicate those con-

cerns. I submit that they would not. Consideration by a state court of

such peripheral effects of a collective bargaining agreement could not

"exert disruptive influence" upon negotiations in administration of

collective agreements nor impede the parties’ willingness to agree to

arbitration provisions. In my view, the sweep of the Supreme Court's

opinion included these kinds of circumstances when it stated that

"*not every dispute... tangentially involving a provision of a

collective-bargaining agreement, is pre-empted by § 301.’ " Lingle,

486 U.S. at 413 n.12 (citation omitted). The Court simply recognized

again the critical constraint imposed by concern for comity. and feder-

alism in this sensitive area of federal/state law.

I, of course, recognize the importance of core preemption

prin iples the promotion of collective bary unin’ processes and unt

formily if interpreting agreements resuluny trom them. However, in

my view, overextended preemption rulings intrude into the domain of

state law courts and invade the retained prerogatives of states to regu-

late individual conduct. Proper adherence to Lingle would avoid these

dangers while concomitantly preserving the principles of preemption,

for it would require that preemption follow only when a dispute is

meaningfully dependent upon interpretations of collective bargaining

agreements.

10a

10 Barse v. Great A & P Tea Co.

The majority opinion correctly notes that we are, of course, bound

by our en banc opinion in McCormick. While the proposed majority

and dissenting opinions in the case sub judice were retained pending

the opinion in McCormick, the result in that fact-specific case does

not require an alteration of my views expressed in this dissent.

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

JANET BARBE .

v. . CIVIL NO. PN-88-1316

THE GREAT .

ATLANTIC & PACIFIC

TEA COMPANY, INC. *

and

W. E. ZENTGRAF .

Filed: September 27, 1991.

Michael Lewis Freilich, Esq., Towson, Maryland: for

plaintiff.

Peter F. Healey, Esq., R. Stephen Carroll, Esq., and Reed

Smith Shaw & McClay, Washington, D.C.; for defendants.

Niemeyer, United States District Judge.

OPINION AND ORDER

This case presents the question whether an

employee’s state common law actions of defamation and

intentional infliction of emotional distress against her

employer are preempted by §301 of the Labor Management

Relations Act when the employment relationship is

governed by a collective-bargaining agreement.

Janet Barbe, plaintiff, began employment with the

defendant, A&P, in 1984 as a bakery clerk. In the spring

of 1987, A&P sent Barbe a letter, on the belief that she

falsified a worker’s compensation claim, that stated, "This

is to advise you that effective March 31, 1987, you are

terminated for falsification of company document." The

letter, which was dated April 7, 1987, was sent by A&P’s

personnel director Zentgraf to Barbe, to Barbe’s two

supervisors, and to the local union that represented her for

collective-bargaining, United Food and Commercial

Workers Union Local 27. A&P contends that it was

justified in the termination of Barbe because her conduct

amounted to "dishonesty" as that term is used in the

collective- bargaining agreement between A&P and Local

27. The agreement provides, "the employer has the right to

discharge or to discipline any employee for good cause,

including but not limited to, proven or acknowledged

dishonesty."

Barbe agrees that the letter was properly sent to her

supervisors and that communication of an allegedly

defamatory statement was privileged. See Stevenson

Baltimore Baseball Club, Inc, 250 Md. 482 (1968). She

contends, however, that by sending the letter to the union,

A&P published a libelous statement giving rise to her claim

for defamation. Barbe concedes that it was the usual

practice for the employer to notify the union of employee

discipline and agrees that the union would be justifiably

upset if it did not receive such notice. She contends,

however, that receipt of the letter by the union was not

mandated by the collective-bargaining agreement. She

argues therefore that whether a claim for defamation has

been shown may be determined independently of any

interpretation of the collective-bargaining agreement.

Barbe also claims that the sending of the letter gives

rise to damages for intentional infliction of emotional

distress. She alleges in her complaint that the sending of

the letter was "intentional and reckless"i that it was

"extreme and Outrageous” in light of Barbe’s "sensitive

nature" and that it was "the proximate cause of the

emotional distress." Again, she contends that this conduct

is provable independently of any interpretation of the

collective-bargaining agreement.

Following receipt of the termination letter, the

union, acting on behalf of Barbe, adjusted the claim and

#’on for her rescission of the letter and obtained for her

the option to resign or be given a leave of absence if she

were able to present a doctor’s statement. Thereafter,

Barbe elected to take a six-month leave of absence, which

was later extended another six months. She pursued no

other remedy and did not pursue the arbitral process that

is granted to her under the collective-bargaining agreement.

Rather, she elected to file this lawsuit for defamation and

intentional infliction of emotional distress.

This action was originally filed in the Circuit Court

for Baltimore County. The defendants removed the action

to this court, arguing that plaintiffs claims were preempted

by §301(a) of the Labor Management Relations

(Taft-Hartley) Act, 29 U.S.C.

Plaintiff, arguing that her claims are not preempted

by federai law, has filed a motion to remand the action to

state court. Defendants, on the other hand, relying on the

fact that plaintiffs claims were properly removed to this

court, have filed a motion to dismiss or for summary

judgment, based on (1) plaintiffs failure to exhaust her

contractual remedies and (2) the running of the applicable

statute of limitations for a claim under §301. Barbe offered

no defense on the merits of A&P’s motion to dismiss. All

parties agree that the controlling issue is whether Barbe’s

claims are preempted by §301 Of the Labor management

Relations Act.

Section 301(a) of the Labor Management Reiations

Act of 1947, 29 U.S.C. §185(a), provides:

Suits for violation of contracts between an

employer and a labor organization representing

employees in an industry affecting commerce as

defined in this chapter, or between any such labor

organizations, may be brought in any district court

of the United States having jurisdiction of the

parties, without respect to the amount in controversy

or without regard to the citizenship of the parties.

This section not only provides federal jurisdiction

over controversies involving collective-bargaining

agreements, but also "authorizes federal courts to fashion

a body of federal law for the enforcement of these

collective-bargaining agreements." Textile Workers v. Lincoln

Mills, 353 U.S. 448, 451 (1957). The Supreme Court

analyzed §301’s preemptive effect in Teamsters v. Lucas

Flour Co., 369 U.S. 95 (1962), where the Court stated:

The dimensions of §301 require the conclusion that

substantive principles of federal labor law must be

paramount in the area covered by the statute [so

that]. . . issues raised in suits of a kind covered by

§301 [are] to be decided according to the precepts

of federal labor policy.

Id, at 103.

An example of the application of this principle of

§301 preemption is found in 471 U.S. 202 (1985). There,

the Court considered whether the Wisconsin state common

law cause of action for bad-faith handling of an insurance

claim could be applied to the handling of a claim for

disability benefits that were authorized by a

collective-bargaining agreement. The Court concluded that

§301 preempted the state law cause of action because

resolution of the state law claim depended upon an

interpretation of the collective-bargaining agreement, an

interpretation which, to ensure uniformity, should be made

using federal labor law principles. The Court directed the

focus of any preemption analysis to the issue “whether

evaluation of the tort claim is inextricably intertwined with

consideration of the terms of the labor contract." Id. at 213.

Following the decision in Allis-Chalmers, when

applying the standard whether the state tort is "inextricably

intertwined” with collective-bargaining agreements, courts

have tended from time to time to inquire whether the state

court would be "deciding precisely the same issue as would

an arbitrator" under the collective-bargaining agreement or

whether the decisions by a state court and an arbitrator

would "implicate the same analysis of the facts." see e.g.

Lingle v. Norge Div. of Magic Chef, Inc., 823 F.2d 1031, 1046

(7th Cir. 1987), rev'd 486 U.S. 399 (1988). While a

preemption analysis may well focus attention on the same

facts to resolve state claims and arbitration claims, that

parallelism is not the characteristic that reaches the issue

of preemption. Preemption applies if resolution of the

state law claim must impact on the proper interpretation of

the collective-bargaining agreement so as to put at risk the

success of the policy to develop a uniform body of federal

labor law principles. If a state law remedy can be resolved

"independently" of the collective-bargaining agreement,

§301 of the Labor Management Relations Act will not

preempt.

To provide a clearer understanding of the proper

test, the Supreme Court reviewed Lingle, supra, and ruled

specifically that:

State law is preempted by §301 of the Labor

Management Relations Act of 1947 only if such

application requires the interpretation of a

collective-bargaining agreement.

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108

S.Ct. 1877, 1885 (1988). This principle, however, is not to

be isolated from the holdings in Allis-Chalmers, supra, and

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987). In

Caterpillar, for example, the Court noted that preemption

occurs when "claims [are] founded directly on rights created

by collective-bargaining agreements, and also claims

substantially’ dependent on analysis of a

collective-bargaining agreement." 482 U.S. at 394, quoting

Electrical Workers v. Hechler, 481 U.S. 851, 859, n.3 (1987).

In Lingle, an employee brought suit against her

employer in state court, alleging retaliatory discharge. The

employer removed the action to federal court on the basis

of diversity jurisdiction and obtained dismissal on grounds

of preemption. The Court of Appeals affirmed dismissal of

the complaint, concluding that the state law claim was

preempted because both an arbitration and a state-law

adjudication of plaintiffs claims would involve "the same

analysis of the facts." Rejecting this approach the Supreme

Court reversed, stating:

[E]ven if dispute resolution pursuant to a

collective-bargaining agreement, on the one hand,

and state law, on the other, wouid require

addressing precisely the same set of facts, as long as

the state-law claim can be resolved without

interpreting the agreement itself, the claim is

"independent" of- the agreement ffor §301

pre-emption purposes.

108 S.Ct. at 1883.

Lingle thus instructs for this case that in order to

decide whether plaintiffs claims are preempted by §301,

this must determine whether resolution of plaintiffs claims

of defamation and intentional infliction of emotional

distress require an interpretation of the collective-

bargaining agreement.

A similar question was addressed in an analogous

context by the Fourth Circuit in Willis v. Reynolds, 840 F.2d

254 (4th Cir. 1988), which was decided shortly before Lingle

was decided by the Supreme Court. A state court action

which was brought by an employee against her employer

alleging invasion of privacy, slander, and intentional

infliction of emotional distress was removed by the

employer to federal court where summary judgment was

entered for the employer. In deciding on appeal that the

claims were preempted by §301 the Fourth Circuit stated:

While every assertion of a state court claim

does not lead to preemption of jurisdiction, in the

instant case the state tort claims being asserted

purport to give meaning to the terms of the labor

contract.

...[T]he alleged wrong by [the employer] in

the instant case directly dealt with its right pursuant

to a collective bargaining agreement to conduct

investigations into possible harassment of one

employee by a co-worker and the associated right to

confront the suspected employee. (Emphasis added.)

Id. at 25S.

This Court believes that the holding and reasoning

of Willis survive Lingle and apply here, even though Willis

was decided before Lingle. The language used by the Court

in Allis demonstrates that the Fourth Circuit based its

Po Snr eg EU RN

decision that plaintiffs state law claims were preempted by

§301 on the reason that resolution of the claims required

an interpretation of the collective-bargaining agreement.

This was the very test established by Lingle.

Under a proper preemption analysis, therefore, the

first step is to recognize the essential elements of the state

law tort claims, in this case defamation and intentional

infliction of emotional distress, and against the elements so

identified, determine whether the state law claim can be

resolved without interpreting or depending on the proper

interpretation of the collective-bargaining agreement.

To establish her cause of action for defamation

under state law, Barbe must show that the defendants (1)

published a false and defamatory statement (2) with

knowledge or reckless disregard as to its falsity and

defamatory character or negligently failing to ascertain

whether it was false or defamatory, (3) which conduct

caused damage. Metromedia, Inc. v. Hillman, 285 Md. 161,

172 (1979); Jacron Sales Co. v. Sindorf, 276 Md. 580, 596-97

(1976), Restatement (Second) Of Torts, § S80B (1977).

Under certain circumstances a publication may enjoy a

privilege that constitutes a defense, such as one made for

the protection of the publisher’s interest or a common

interest. Restatement (Second) of Torts. §§ 594, 596

(1977); see also Pratt v. Delta Airlines, Inc., 675 F. Supp.

991, 997 (D. Md. 1987).

Turning to the facts of this case, Barbe urges that

the April 7 letter that was sent by A&P to her containing

the statement that she falsified company documents

constitutes the basis for the defamatory claim. The

10b

publication of the alleged defamatory statement was made

when a copy was sent to Local 27. She argues that the

proof of this state law tort claim can be made

independently of any interpretation of the

collective-bargaining agreement between A&P and Local 27

and therefore is not preempted by federal labor law.

The employer contends that resolution of Barbe’s

defamation claim is “inextricably intertwined" with the

interpretation of the collective-bargaining agreement and

that therefore the state claim is preempted. It argues that

the case is in reality a wrongful discharge claim that is

governed by paragraph 4 of the collective-bargaining

agreement which provides that employees may be

discharged only for cause, including "dishonesty." It argues

that the alleged defamatory statement was a statement of

cause provided in compliance with paragraph 4 and

therefore requires interpretation of the collective-bargaining

agreement. The employer also argues that the publication

of the statement to the union was implicitly required by the

agreement and whether this notice was required is a

question of federal common law. Finally, the employer

argues that it was privileged to provide this statement to

the union, another issue that it contends requires

interpretation of the collective-bargaining agreement.

Although it is true that "dishonesty" as used in the

collective-bargaining agreement is a cause for discharge, the

term "dishonesty" as used there may have a special

contractual meaning and need not have the same meaning

or connotation that the term would have when used without

reference to the collective-bargaining agreement. The

letter of April 7 could be scrutinized under the state

et Ae TTP OES 7 STEP

11b

common law standard of what is defamatory, irrespective of

the definition given to the word "dishonest" as used in the

collective-bargaining agreement. Thus, even if the conduct

were not to constitute "dishonesty" as the term is used in

the collective-bargaining agreement, it still might give rise

to a cause of action for defamation. Thus, consideration of

that issue might very well pursue an inquiry that is

independent of any interpretation of the collective-

bargaining agreement. Whether the proper interpretation

of "dishonesty" can be made independently of the collective-

bargaining agreement, however, need not be resolved

because the issues relating to publication and privilege do

require interpretation of the collective-bargaining

agreement.

Counsel for Barbe conceded at the hearing on these

motions that he would expect the union to be notified of

employee discipline and that it was the practice for the

employer to provide that notice. He also recognized that

the union representative might justifiably be upset if he

were not notified and that it was in the interest of the

employer- union relationship that such notice be provided.

He points out, however, the expressed terms of the

agreement do not require notice to the union and therefore

the collective- bargaining agreement would not need to be

interpreted.

The employer contends that notice to the union of

employee discipline that might require union intervention

(as was in fact the case here) is an implicit requirement of

the collective-bargaining agreement. Such notice gives rise

to the first steps of the adjustment and arbitral process that

is provided for in the collective-bargaining agreement.

12b

If the employer were to notify only the employee

the termination, the employer would indeed be able

avoid exposure to a claim for defamation. It mig

however, expose itself to some claim by the union that tl

employer is trying to circumvent the adjustment ai

arbitration process that is provided in tl

collective-bargaining agreement. On the other hand, if tl

employer complies with its understanding of 1!

collective-bargaining agreement that notice of employ:

discipline must be provided to the union, it risks a suit f

defamation. Were the Court to rule that the defamato

claim was independently resolvable, it would necessarily |

concluding that A&P had no duty to notify the union ar

would necessarily be making an interpretation of 1)

collective-bargaining agreement contrary to the positic

taken by the employer. It would be making

determination as to whether the preliminary steps |

adjustment and arbitration as described in the collectiv

bargaining agreement imply a notice requirement ar

whether the custom of the parties involved is to be inferre

as part of the collective-bargaining agreement.

Finally, if the defamation claim were not preempte

the state court would be called upon to determine wheth

the letter to the union was privileged, since that is

defense that has been advanced by the emplover. In ord:

to resolve the privilege defense, the state court would ha‘

to determine the relative interests of the union, tl

employer and the employee in such a communication. |

permitting a state court to make a ruling of this type wou

violate the policy of having the federal courts develop

uniform body of federal labor law as it applies —

collective-bargaining agreements and would therefo

we Vvwremu< 8 fF = &

ee ee er Sr a

13b

undermine the philosophy that gives rise to the preemption

doctrine.

The Court accordingly concludes that two issues in

the defamation suit, i.e. publication and the defense of

privilege require interpretation of the collective- bargaining

agreement, and their resolution is "dependent on analysis

of a collective-bargaining agreement.” Caterpillar, 482 U.S.

at 394. The resolution of the elements of the state law

claim are thus inextricably intertwined with the definition

of the adjustment and arbitration process contained in the

collective-bargaining agreement and with an understanding

of the relative interests of the union, the employer and the

employee in communicating employee discipline actions.

The defamation claim is therefore preempted under §301

of the Labor Management Relations Act of 1947 and the

principles of Allis-Chalmers, and Willis.

The other state common law claim asserted is based

on the allegations that A&P intentionally inflicted

emotional! distress on Barbe by sending the April 7 letter.

To establish a claim for intentional! infliction of emotional

distress, the plaintiff must show (1) that the conduct was

intentional or reckless; (2) that it was extreme and

outrageous; (3) that the wrongful conduct caused emotional

distress; and (4) that the emotional distress was severe

Harris v. Jones, 281 Md. 560, 566 (1977).

Whether the notice of termination for “dishonesty”

was reckless, extreme or outrageous will depend on whether

Barbe’s conduct was in violation of the agreement relied

upon as the basis for the termination. If A&P complied

with and satisfied the terms of the agreement, then Barbe

14b

would be hard-pressed to urge that the conduct was

outrageous. See Douglas v. American Information

Technologies Corp, 877 F.2d 565, 571-72 (7th Cir. 1989).

Similarly, state law recognizes that conduct which otherwise

may give rise to this tort may be privileged if it is shown

that the purported tortfeasor is insisting on his legal rights,

Quoting with approval from the Restatement (Second) of

Torts, the Court of Appeals of Maryland in Young v.

Hartford Accident & Indem., 303 Md. 182, 197 (1985),

Stated:

The conduct, although it would otherwise be

extreme and outrageous, may be privileged under

the circumstances. The actor is never liable, for

example, where he has done no more than to insist

upon his legal rights in a permissible way, even

though he is well aware that such insistence is

certain to cause emotional distress.

A&P maintains that its sending of the April 7 letter was a

permissible exercise of its termination rights under the

collective-bargaining agreement with Local 27. Whether it

is correct in that contention would require the Court to

interpret the collective-bargaining agreement to determine

whether A&P had the legal rights that it claimed.

For the foregoing reasons the Court holds that

Barbe’s claim for intentional infliction of emotional distress

is preempted by §301 of the Labor Management Relations

Act. |

Advancing other bases for avoiding preemption and

obtaining a remand, plaintiff has cited Linn v. Plant Guard

15b

Workers, 383 U.S. 53 (1966), and Farmer v. Carpenters, 430

U.S. 290 (1977). These cases, however dealt with different

criteria for preemption pursuant to §7 and 8 of the

National Labor Relations Act, as articulated in San Diego

Trades Council v. Garmon, 359 U.S. 236 (1959), and

therefore are unpersuasive in the instant case. See Willis v.

Reynolds Metals, 840 F.2d 254 (4th Cir. 1988). See also

Lingle, 108 S.Ct. at 1883 n.8 ("[O]ther federal labor law

principles may preempt state law." (Emphasis added.))

Because plaintiffs claims of defamation and

intentional infliction of emotional distress are preempted by

federal labor law, they were properly removed to this Court

by defendants pursuant to 28 U.S.C. 1441(a). The Court

will therefore deny plaintiff's motion to remand.

Il.

Defendants have moved for dismissal of the

complaint or for summary judgment arguing thai plaintiff

has not satisfied the prerequisites of a §301 claim. Because

defendants’ motion makes reference to exhibits from its

Petition for Removal this Court will treat the motion as

one for summary judgment. See Rule 12(b), F.R. Civ. P.

Before a plaintiff may maintain a suit against his

employer under §301, he must attempt to exhaust any

exclusive grievance and arbitration procedures established

by the collective-bargaining agreement. See, eg.

International Union UAW, 451 U.S. 679 (1981). Article 10

of the collective-bargaining agreement involved in this case

establishes such an arbitration procedure. On April 13,

16b

1987, plaintiffs bargaining agent, United Food and

Commercial Workers Union Local 27, sent A&P a

grievance notice disputing plaintiffs termination. In

response, A&P sent plaintiff a letter dated April 14, 1987,

informing her that the termination letter of April 7 had

been rescinded and that her record would indicate that she

voluntarily resigned. Neither plaintiff nor Local 27 sought

further adjustment of the grievance. If plaintiff was

dissatisfied with the resolution of her grievance, it was

incumbent upon her to exhaust her contractual remedies by

pursuing arbitration as provided in the collective-bargaining

agreement.

Another prerequisite of a §301 claim is that it be

brought within six months after the cause of action accrued.

See, Del Costello v. International Bhd of Teamsters, 462 U.S.

151 (1983); Kirby v. Allegheny Co., 811 F.2d 253, 256 (4th

Cir. 1987). The complaint in this case was filed about one

year after the actions complained of occurred, some six

months after the running of the applicable statute of

limitations.

Because plaintiff failed to exhaust her contractual

remedies before bringing her claim and failed to file her

claims within six months of the time the action complained

of occurred, defendants’ motion for summary judgment will

be granted.

For the foregoing reasons, it is ORDERED this,

27th day of September, 1989, by the United States District

Court for the District of Maryland, that:

17b

1. The motion of the plaintiff to remand this

case to the state court is denied:

2. The motion of the defendants for summary

judgment is granted and judgment is hereby entered in

favor of defendants and against plaintiff, with costs to

abide; and

3. The Clerk is directed to mail a copy of this

Opinion and Order to all parties and-to close this case.

Paul V. Niemeyer

United States District Judge

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