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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1059

## Text

®eprtor 'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
WILL BE ISSUED.

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SY Bupreme Court, 0.9.
FILED
No.
NOV 22 199
IN THE OFFICE OF THE CL

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

JANET BARBE,
Petitioner,
V.

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

i
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.

ii
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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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

v

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.

2
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

3

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

4

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

6

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.

7

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.

8

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).

9

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.

© McCormick v. AT&T, 934 F.2d 531 (4th Cir. 1991); Johnson v.
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).

10

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

11

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.

12

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

13

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

14

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

15

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

16

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.

17

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

18

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

19

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.

20

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

21

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.

22

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

23

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.

I.

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:

3a

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-

se

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-

Sd

Sa

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).

6a

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.

I,

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-
ka

Ta

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.

Il

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

9a

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.

1b
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

2b

Relations Act when the employment relationship is
governed by a collective-bargaining agreement.

I

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

3b

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

4b

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.

I]

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

Sb

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

6b

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

7b

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

8b

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

9b

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

EN

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,

ee

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2096%3A1. Public record. Not legal advice.