Petition for Writ of Certiorari — Soth v. Baltimore Sunpapers, Inc.

O | FILED

ry ~ 98 SRL NES

OFFICE UF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

-.

>

EDWARD D. SOTH, JR.,

Petitioner,

BALTIMORE SUNPAPERS, INCORPORATED,

THE BALTIMORE SUN COMPANY,

DIANA M. MURPHY, JACK ROSS,

JOHN KIDWELL, JAMES BORN,

Respondents.

y a

—

On Petition for a Writ of Certiorari

_To the United States Court of Appeals For the Fourth Circuit

a

—

PETITION FOR WRIT OF CERTIORARI

a

a al

D. JOSEPH MAY*

GLEN M. FALLIN

Suite 173

549 Ritchie Highway

Severna Park, MD 21146

410-465-3382

*Counsel of Record

QUESTIONS FOR REVIEW

Whether the "total preemption" doctrine of 301 of the

Labor-Management Relations Act applies to a State law

claim of tortious interference with the Plaintiff's

employment relationship that is based on an assertedly

impermissibly motivated discharge, as evidenced by the

employer's failure to discipline other, similarly situated

employees, and is in no way dependent upon any

provision of an existing collective bargaining agreement

between the Plaintiff's union and his employer?

LIST OF PARTIES TO THE PROCEEDING

Petitioner (previous plaintiff and appellant): Edward

D. Soth , Jr.

Respondent (previous defendant and appellee):

Baltimore Sunpapers, Incorporated, a Maryland

Corporation.

Respondent (previous defendant and appellee):

The Baltimore Sun Company, a Maryland

Corporation.

Respondent (previous defendant and appellee):

Diana M. Murphy, individually and in her corporate

capacity as Vice President for Advertising and

Marketing, The Baltimore Sun Company.

Respondent (previous defendant and appellee):

Jack Ross, individually and in his official

corporate capacity as Classified Advertising

Manager, The Baltimore Sun Company.

Respondent (previous defendant and appellee):

John Kidwell, individually and in his corporate

capacity as Automotive Manager, The Baltimore

Sun Company .

Respondent (previous defendant and appellee):

James Born, individually and in his corporate

cacapacity as Automotive Supervisor, The

Baltimore Sun Company.

Questions Presented for Review

List of all Parties

Table of Contents

Table of Authorities

Opinions Below

Jurisdiction

Statute Involved

Statement of the Case

Argument

The lower courts erred in

concluding that review of the

collective bargaining agreement

between Petitioner's union and his

employer was essential to

determining Petitioner's claim of

tortious interference with his

employment.

Conclusion

Appendix

TABLE OF CONTENTS

ii

14

26

Table of Authorities

Cases

Adler v. American Standard

Corp., 291 Md. 31 (1981).............:02:seeeeeeeee eee ees 2,4

Childers v. Chesapeake & Potomac Telephone

Co., 881 F.2d 1259 OE MIR a isivciinsisansvnsnsi 20

Continental Cas. Co. v. Mirabile,

52 Md. App. 387 (1982), cert. denied

294 Md. 652 (1982)............c:ccccee ce ere eee eee eee eeenens 3,24

DeBleecker v. Montgomery County,

292 Md. 498, 438 A.2d 1348 (1982).........ccceeeeeee 20

Finch v. Holliday-Tyler Printing, Inc.,

322 Md. 197, 586 A.2d 1275 (1991).......2..0..:00eeee 20

Frampton v. Central Indiana Gas Company,

260 Ind. 249, 297 N.E.2d 425 (1973).......0..::000c:eeeeees 22

Goldman v. Harford Road Bldg. Ass'n, 150 Md.

677, 133 A. 843 (1926).............. 06sec cee eee cence eee eee ene 16

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246,

114 $04 SRO) cent icin. 1

Lake Shore Investors v. Rite Aid Corp.,

67 Md.App. 743, 509 A.2d 727

(Md.Ct.Spec. App. 1986)...........-...ssecceeee eee eeeee cess 16

iV

Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed. 2d

410 (19D Sian ie ae esas, .oecdeed, TD

Lucke v. Clothing Cutters Assembly,

TT Md. 396, D6 Ai SOS IGS) ii 10

McDonald v. Santa Fe Transportation Systems,

427 US. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493

ON So ccicsuancll a epee, oben, TS

Macklin v. Robert Logan Assoc., 334 Md. 287

(194) as cnsoresstscncesrnisnncannsissecnscengepacedncscetscaee races 4

Marrs v. Marriott oem 830 F. nae 274

(D.Md. 1992).... Lis cle iakeys sits desl Ceyed unva chicane: ae

Natural Design, Inc. v. The Rouse Co.,

302 Md. 45, 485 A.2d 663 (1984).............-..eee eee 4,15

State Farm Mut. v. Nationwide Mut.,

307 Md. 631, 516 A.2d 586 (1986).............: eee y

Trimed, Inc. v. Sherwood Medical Co.,

977 F.2d 885, (4th Cir. 1992), aff g

772 F.Supp. 879 (D.Md. 1991).........:sccceeeeeee eens 16

Statutes

29 U.S.C. § 185(a) (West 1978)............-.. ce eeee passim

Maryland Code Commercial Law, § 11-204................ 2,4

Vv

OPINIONS BELOW

Soth v. Baltimore Sunpapers Incorporated, et al.,.

Nos. 96-2385, 96-2390 (4" Cir., May 4, 1998), 1998-

1 Trade Cases P 72,145, 1998-1 Trade Cases P

72.445, 1998 WL 225140 (4th Cir.(Md.)).

Soth v. Baltimore Sun Co., (NO. CIV. Y-94-1349,

CIV. Y-94-1350 (D.Md., July 18, 1996), 1996 WL

941821 (D.Md.).

STATEMENT OF JURISDICTION

The United States Court of Appeals for the Fourth

Circuit issued on May 4, 1998, the opinion that Petitioner

asks this Court to review. This Court has jurisdiction on

the basis of 28 U.S.C. Sec. 1254(1).

STATUTES INVOLVED IN THE CASE

1. 29 U.S.C. 185(a) (West 1978) (§ 301(a) of the

Labor Management Relations Act).

(a) Venue, amount, and citizenship

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.

2. Md. COMMERCIAL LAW Code Ann. @ 11-204 (1995)

@ 11-204. Prohibited conduct; unlawful contracts,

combinations, and conspiracies

(a) Prohibited conduct. -- A person may not:

(1) By contract, combination, or conspiracy with one or

more other persons, unreasonably restrain trade or

commerce;

Vil

(2) Monopolize, attempt to monopolize, or combine or

conspire with one or more other persons to monopolize any

part of the trade or commerce within the State, for the

purpose of excluding competition or of controlling, fixing,

or maintaining prices in trade or commerce;

(3) Directly or indirectly discriminate in price among

purchasers of commodities or services of like grade and

quality, if the effects of the discrimination may:

(i) Substantially lessen competition,

(ii) Tend to create a monopoly in any line of trade or

commerce; or

(iii) Injure, destroy, or prevent competition with any

person who grants or knowingly receives the benefit of the

discrimination or with customers of either of them;

* * *

(5) Discriminate in favor of one purchaser against |

another purchaser of a commodity bought for resale, with |

or without processing, by contracting to furnish,

furnishing, or contributing to the furnishing of any service

or facility connected with the processing, handling, sale, or

offering for sale of the commodity on terms not accorded to

all purchasers on proportionally equal terms; or

* * *

(b) Conduct not prohibited. — Subsection (a) (3) through

(6) of this section does not prevent:

* * *

(2) A person engaged in selling a commodity or service

from selecting his own customers in bona fide transactions

and not in restraint of trade;

* * *

Statement of the Case

Edward D. Soth, Jr., the Petitioner herein and Plaintiff

and Appellant below, seeks this Court's reversal or vacatur of

the Fourth Circuit's summary affirmance, predicated upon

and supporting the district court's finding of "total preemp-

tion" by Section 301 of the Labor Management Relations Act

(LMRA:), of a grant of summary judgment to his former

supervisors on his claim against them for tortious interfer-

ence with his employment by discharging him from that

employment.

Soth, a former advertising salesman ("account execu-

tive") for the Baltimore Sunpapers, contends that he was

fired for protesting his superiors' decision to offer space for a

full-page ad, at a heavily discounted price, to one of his auto-

dealer clients -- but not to others, and particularly not to the

dealership that previously had held a long-term contract with

the newspaper to run an ad in the space in question. ”

” Before filing the actions that give rise to this present Peti-

tion, Soth attempted unsuccessfully to secure relief from his

discharge through arbitration, pursuant to the collective

bargaining agreement between his union and the Sunpapers,

and filed untimely charges with the National Labor Relations

Soth contends further that the selective manner in

which the ad space was offered constituted price discrimina-

tion, in violation of the Maryland Anti-Trust Act, Maryland

Code Commercial Law, Sec. 11-204. Thus, he contends, his

discharge violated a "clear mandate of public policy" and

gave rise to his claim for an “abusive discharge" under the

doctrine announced in Adler v. American Standard Corp.,

291 Md. 31, 47 (1981).

If the four Defendant management officials who fired

Soth were ac’ing only in further of their own, private inter-

ests and not in furtherance of the employer's interests, then

these individuals are liable for tortious interference with

Soth's employment. See also Marrs v. Marriott Corp., 830 F.

Supp. 274, 282-283 (D.Md. 1992), in which the court rec-

ognized that a managerial employee can take adverse action

against a subordinate for only private reasons and thus be

liable for tortious interference, although, more commonly,

.,.continued...

Board and the U.S. Equal Employment Opportunity Com-

mission. He also filed a complaint in

the U.S. District Court for the District

of Maryland. See, Soth v. Washington-Balti-

more Newspaper Guild, et al., Civ. No.

HAR 91-2762 (D.Md. Oct. 13, 1992), 1992

WL 296726 (D.Md.).

the management official acts in furtherance of his employer's

interests, and within the scope of his employment, and thus

may not be held liable for tortious interference. Continental

Cas. Co. v. Mirabilie, 52 Md.App. 387 (1982), cert. denied

294 Md. 652 (1982).

To reach his abusive discharge claim and other

claims, the district court first found that his tortious interfer-

ence claim against his former superiors was subject to Sec-

tion 301's total preemption. %

Applying an analysis not argued or addressed by

either side, the district court concluded, sua sponte, that a

tortious interference claim requires interference with a con-

tractual relationship: “Soth must prove that a third party

intentionally induced a breach of an existing contract". Dis-

trict Court's Memorandum, at A-18. Furthermore, for this

” As noted infra, the Fourth Circuit's removal jurisprudence

would have allowed the district court to reach the merits cf

Soth's state law claims even in the absence of a determination

of whether it has removal jurisdiction. Soth urges this Court

to address that issue, too, so that any remand by this court on

the preemption issue will be not be vitiated by a decision that

bypasses the jurisdictional issue to address the merits of the

State law claims. In sum, Soth seeks unqualified remand to

the State court.

conclusion the district court purported to rely on authorities

in which the Court of Appeals of Maryland expressly held

that a contractual relationship is NOT essential to a tortious

interference claim. See, Macklin v. Robert Logan Assoc.,

334 Md. 287, 297 (1994) (referring to two varieties of tor-

tious interference), citing Natural Design, Inc. v. The Rouse

Co., 302 Md. 45, 69, 485 A.2d 663, 675 (1984), wherein the

court observed:

[T]he two general types of tort actions for interfer-

ence with business relationships are inducing the

breach of an existing contract and, more broadly,

maliciously or wrongfully interfering with economic

relationships in the absence of a breach of contract.

[Italics supplied.]

In addition to the tortious interference claim against

the individual Defendants, Soth sued all of the Defendants

for an "abusive" or wrongful discharge, brought pursuant to

the doctrine announced in Adler v. American Standard Corp.,

291 Md. 31, 47 (1981). Soth brought claims also for viola-

tion of the Maryland Anti-Trust Act, Maryland Code

Commercial Law, § 11-204; civil conspiracy; and, in only

one of the two actions that were filed initially in the State

court, a claim under 42 U.S.C. § 1981 for his discharge as an

act of retaliation for his opposition to racial discrimination

perpetrated by Defendants against another employee, an

African-American. ”

Ot interest herein are only the tortious interference

claim, which the district court found to be preempted by

Section 301 and thus to confer federal jurisdiction, and, to

suppori Soth's argument against preemption of the tortious

interference claim, the abusive discharge claim.

Soth urges that this Court grant certiorari to reverse

the lower courts' determinations that removal jurisdiction

existed, on the basis of Section 301 “total preemption", and

to order remand to the State court without a ruling on the

merits of his State law claims.

Statement of facts.

Soth was discharged from his employment by the

Baltimore Sunpapers and unsuccessfully arbitrated his dis-

charge through his union and the collective bargaining

¥ As the district court noted, A-23-24, Soth filed two actions

in State court, one with the Section 1981 claim and the other

with only State law claims. This was indeed a tactic invoked

to preserve the Plaintiff's choice of forum, which amounted

essentially to splitting his cause of action. The Court of

Appeals of Maryland has ruled explicitly that splitting causes

of action is permitted. Jones v. Speed, 320 Md. 249, 259

(1990).

agreement (CBA). The issue of why Soth was singled out for

disciplinary action allegedly for engaging in outside activi-

ties, while other Sunpapers employees engaged far more

flagrantly than he in such activities but sie unpunished, was

not raised in the arbitration.

There is substantial support for Soth's contention that

his superiors fired him in an attempt to cover-up their actions

that cost their employer many thousands of dollars in lost

advertising revenue. Further, the Sunpapers had no interest

in violating its own rate structure, as the individual Defend-

ants (Respondents herein) did in offering space for a full-

page, front-of-the-section advertisement on a selective basis.

Soth was employed, until his suspension and dis-

charge on August 3, 1990, to sell advertising space, including

in some instances all of the services that go into production

of advertisements in the newspaper, to automobile dealers in

the Baltimore area.

After approximately two years of employment by the

Sunpapers, in August of 1989 Soth began performing "print

coordination" services -- preparation of "rough layouts" or

instructions for the preparation of advertisements and the

coordination of the placement of these advertisements in

various newspapers other than the Sunpapers -- for the Beal

GMC Truck dealership in Baltimore. Soth turned to outside

activities after being offered, and turning down, a promotion

to a supervisory position.

The materials that Soth prepared in his outside activi-

ties consisted of sheets with instructions thereon for the final

preparation of advertisement, rather than "camera ready" ad

copy. As compensation for the above described services

Soth was given the use of a vehicle.

Soth picked up two additional, outside accounts, so

that his total income from his outside work was approximate-

ly $2,000 per month. But at the same time he was generating

$10,000 per month in advertising revenue to the Sunpapers

from his outside clients. Furthermore, Soth at no time direct-

ed the placement of advertisements in an particular outlet or

media, and he performed no services for his outside clients

that he would have been obliged to perform for them in his

Capacity as an employee of the Sunpapers.

In his capacity as an ad salesman, Soth served the Al

Packer dealerships. In February of 1990, the Packer group,

who had a one-year contract with the Sunpapers that was to

expire on March 11, 1990, sought to negotiate, for the

coming year, a reduction of $750 from its fee of $13,000 per

week for a full-page ad that was published on the front page

of the classified section of the Sunday Sun. The reduction

would be accomplished by dropping the color from the ad.

Initially the Sunpapers management did not respond to

Packer's request. Soth urged that Packer's offer be accepted.

Packer's offer angered Defendant / Respondent

Murphy ("Murphy"), the Sunpapers' vice-president for adver-

tising and marketing, as was apparent to Soth from her

behavior and remarks. Murphy stated to Soth and Defendant

/ Respondent Jack Ross, the Sunpapers' Advertising Depart-

ment Manager, that she had a “philosophical problem with

giving [Packer] any kind of a rate break". Soth urged that

she compromise with Packer. Ross said nothing about

compromising.

Defendant Respondent Born, Soth's immediate supe-

rior, told Soth that he, too, was angered by Packer's proposed

rate reduction. And Defendant Respondent Kidwell, Born's

boss, stated in Soth's presence that "I gave the kike bastard a

- LT

break once, and I'm not going to do it again", or words preci-

sely to that effect.

The enmity toward Packer escalated into a decision,

announced at a sales meeting, to sell to another dealer the

premium ad space that Packer had been enjoying. But the

sales staff was unable to find any other dealer that would pay

the premium price -- approximately $13,000 per week.

Finally, during the week prior to March 18, 1990, which was

the first Sunday after the expiration of Packer's contract, Soth

learned that the premium ad space had been offered to anoth-

er dealer, the Norris Ford dealership, at one-half the price

that Packer had paid for it, and that Packer had not been

offered this opportunity.

Soth vigorously, but unsuccessfully protested this

favored treatment of Norris. Ross told Soth that the decision

would not be changed, and the Norris ad ran on March 18,

1990. Ross testified on deposition that no other advertiser

was offered this opportunity. It is disputed whether the space

could have been sold to any other advertiser in the limited

time available.

Still outraged about the treatment of Norris and

Packer, Soth told another managerial employee -- to whom

he had previously mentioned his outside activities -- what

had occurred. That employee, Vicki Franz, immediately re-

sponded that this favored treatment of Norris was an anti-

trust violation: "It's rate breaking, it's illegal."

Soth continued to complain to Born, Kidwell, and

Ross that their treatment of Packer had been "absurd",

"unethical", and was costing the Sunpapers thousands of

dollars in lost ad revenue -- while Packer presumably re-

mained willing to pay only slightly less than the premium

rate for the subject ad space.

When it continued to be impossible to get other deal-

ers to buy the premium space, Soth approached Packer and

suggested that it could contract for the subject space on a

long-term basis for a "contract rate" of $3,21 per line (at

2,570 lines), versus the "premium rate" that it had been

paying, $4.58 per line (for the same lineage).

As Soth recalled in his affidavit submitted in support

of his opposition to Defendants’ motion for summary judg-

ment, in mid-July of 1990, he proposed to Born and Kidwell

that Packer would purchase the subject space at the above

contract rate. The rejected the proposal, although there was

no alternative that would generate comparable revenue.

Soth protested that their favored treatment of Norris,

back in March, and unfavorable treatment of Packer had

constituted an anti-trust violation, and that he intended to

carry his protests to the Sunpapers' Publisher and possible to

the FTC (referring to the Federal Trade Commission). But

first Soth said he would discuss the issue with Ross, who was

not in his office on the day Soth's above-described conversa-

tion with Born and Kidwell took place.

When Ross returned, Soth renewed his contention

that the treatment of Packer had been unlawful and urged that

Packer be offered the subject space at the contract rate and on

a long-term basis. Ross responded that he would get back to

Soth on this issue. On August 5, 1990, the Packer ad re-

turned the premium space.

On July 31, 1990, Soth was suspended for five days

allegedly for operating an "advertising agency" that created a

conflict of interest with regard to his responsibilities as a

Sunpapers employee. When given a letter announcing his

suspension, Soth also was given a writing that stated the

11

policy he was accused of violating. This writing was a letter

signed by the Sunpapers' General Manager, Richard Basoco,

and dated April 16, 1987 -- which was prior to Soth's being

hired by the Sunpapers.

While at home serving the suspension, Soth received

a call conveying an order from Born to be sure to "get every- )

thing in", referring to all of the advertising material that was )

due to run within the next several days. Although on suspen- ;

sion, Soth telephoned one of the Sunpapers' affiliate newspa-

pers to make sure that the ads for which he was responsible

would run as scheduled. This was precisely what Soth be-

lieved he had been ordered to do. But one of the ads had

been prepared by Soth for an "outside" client, albeit during

the previous week.

On August 3, 1990, Soth was called into Ross office

and handed a letter stating that he was fired, effective that

day, for gross insubordination.

At no time was Soth ever made aware that there was

any provision of the CBA that addressed outside activities,

and during his suspension and at the time of his discharge,

only the Basoco letter was referred to.

The Basoco letter is addressed to “[a]ll Baltimore

Sun employees", and not just to members of the union to

which Soth belonged. The letter begins: “Recently,

questions have come to my attention concerning certain

employees who have engaged in outside business activities."

[Italics supplied. ]

Furthermore, in neither the suspension letter nor the

subsequent discharge letter, which was dated August 3, 1989,

is there any mention of the CBA or any provision of the CBA

concerning outside employment. Indeed, in the discharge

letter Plaintiff is alleged to have violated "The Baltimore Sun

Company policy against conflicts of interest or apparent

conflicts of interest in outside activities". [Emphasis sup-

plied. ]

In the course of the instant litigation, Soth has devel-

oped evidence that at least five other employees who en-

gaged in outside activities and were not discharged and were

not discharged. One such employee for many years had a

paid, outside position in which he was in charge of advertis-

ing at the Baltimore Boat Show while he remained an adver-

tising salesman for the Sunpapers; his Boat Show functions

13

including the sale of advertising in direct competition with

the Sunpapers. This individual also was found to be perform-

ing Boat Show functions while at his work station at the

Sunpapers.

Another co-employee of Soth was reprimanded

for repeatedly soliciting Sunpapers' advertising custom-

ers to buy insurance -- on company time. Another

served as advertising manager of one the Sun's zoned

editions while also advertising in that edition to solicit

business as a real estate agent. And at least two other

Sunpapers employees are well-known columnists who

also appear as commentators on local television and

radio.

ARGUMENT

1. The lower courts erred in concluding that review of

the collective bargaining agreement between Petition-

er's union and his employer was essential to determin-

ing Petitioner's claim of tortious interference with his

employment.

As the district court noted, "[i]f the resolution of a

state tort claim requires interpretation of a CBA [collective

14

bargaining agreement], then that claim is preempted by

section 301." Lingle v. Norge Div. of Magic Chef, Inc., 486

U.S. 399, 405- 406, 108 S.Ct. 1877, 100 L.Ed.2d 410

(1988). The district court then concluded that necessarily a

claim of tortious interference with Soth's "employment"

required interpretation of the CBA, since the CBA gov-

erned Soth's employment relationship.

To reach this conclusion the district court plainly

misstated Maryland law, positing that such a claim of tor-

tious interference required that Soth prove the existence of

a contract, which then would be examined to determine the

scope of the respective duties of the parties to the contract,

i.e., Soth's union and his employer.

But in fact Maryland law does not require proof of

an existing contract as an element of tortious interference:

[T]he two general types of tort actions for interfer-

ence with business relationships are inducing the

breach of an existing contract and, more broadly,

maliciously or wrongfully interfering with economic

relationships in the absence of a breach of contract.

[Italics supplied. ]

Natural Design, Inc. v. The Rouse Co., 302 Md. 45, 69, 485

A.2d 663, 675 (1984).

Curiously, Senior Judge Young, who rendered the

15

district court's opinion, had presided in an case in which he

held that a contract was unnecessary for a claim of tortious

interference with economic relations and expectations.

Furthermore, it is clear in Maryland law that, even if a

contract exists, recovery on a claim of tortious interference

does not require a showing that the contract was breached:

"[P]roof of breach of contract is not an essential

element of the tort." > Lake Shore Investors v. Rite

Aid Corp., 67 Md.App. 743, 509 A.2d 727, 729

(Md.Ct.Spec.App.1986); see also > Goldman v.

Harford Road Bldg. Ass'n, 150 Md. 677, 133 A.

843, 845 (1926) (ruling that right of action existed

against third party where contract terminated with-

out breach); > Lucke v. Clothing Cutters Assembly,

77 Md. 396, 26 A. 505, 508 (1893) (holding u:.uon

liable for wrongful interference in employment

termination despite absence of employment con-

tract).

Trimed, Inc. v. Sherwood Medical Co., 977 F.2d 885, 889 “"

Cir. 1992), affirming 772 F.Supp. 879 (D.Md. 1991), in

which Senior Judge Young, who presided herein, recognized

and quoted the same principles as those quoted supra. Id. at

882-883.

The facts in this case are similar to those addressed by

this Court in McDonald v. Santa Fe Transportation Systems,

427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493, 12 Fair

Empl.Prac.Cas. (BNA) 1577, 12 Empl. Prac. Dec. P 10,997

16

i ee eee eee eee

(1076). There, the employer found that a group of both black

and white employees had committed serious misconduct.

The white employees were fired; the black employee was noi

fired. This court found that these facts made out a claim of

race discrimination in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. 2000e, et seg. (1997) ("Title

VII"), and the Civil Rights Act of 1870, 42 U.S.C. 1981. ¢

Here, it is not the managerial employees’ racial

animus about which Soth complains, * but that his discharge

was impermissibly motivated by his superiors' animus

against him for resisting and protesting what Soth regarded

as price discrimination. Had this Court applied in McDonald

the reasoning applied here by the lower courts, it would have

denied relief to the discharged white employees simply

because they were found to have committed the misconduct

in question, without further analysis. Further analysis,

beyond the simple determination that misconduct was

“ The employees’ union was sued also in McDonald for

acquiescing in the discriminatory discharges of the white

employees.

* There was an initial claim under 42 U.S.C. 1981, which became

determined that the 1991 Civil Rights Act did not apply retroactively.

17

aii

committed, to determine the actual motivation for the dis-

charge. And the fact that other employees of the Sunpapers

committed similar misconduct and were never punished adds

considerable weigh to Soth's contention that he was fired, not

for his outside activities, but for his protests and threats to

report to the publisher and the Fair Trade Commission that

conduct.

Thus, Soth would be claiming that his discharge was

wrongful even if there had never been a CBA. For what is

implicated here is not the CBA bur the public policy that

Soth sought to vindicate, the Maryland Anti-Trust Act.

In Lingle, supra, and Hawaiian Airlines, Inc. v.

Norris, 512 U.S. 246, 114 S.Ct. 2239, 512 U.S. 246, 114

S.Ct. 2239 (1994), this court has given strong support to the

proposition that Section 301 preemption should not be used

to prevent employees from vindicating rights conferred upon

them from sources other than CBAs. Thus in Norvis, this

court said as follows:

"“[P]urely factual questions" about an employee's

conduct or an employer's conduct and motives do

not “requir[e] a court to interpret any term of a

collective- bargaining agreement." *262 [Lingle,]

486 U.S., at 407, 108 S.Ct. at 1882. The state-law

retaliatory discharge claim [in Norris] turned on just

18

- a

this sort of purely factual question: whether the

employee was discharged or threatened with dis-

charge, and, if so, whether the employer's motive in

discharging her was to deter or interfere with her

exercise of rights under Illinois worker's compensa-

tion law.

While recognizing that "the state-law analysis

might well involve attention to the same factual

considerations as the contractual determination of

whether Lingle was fired for just cause," id., at 408,

108 S.Ct., at 1883, the Court disagreed that "such

parallelism render[ed] the state-law analysis de-

pendent upon the contractual analysis. For while

there may be instances in which the National Labor

Relations Act pre-empts state law on the basis of

the **2249 subject matter of the law in question, S

301 pre-emption merely ensures that federal law

will be the basis for interpreting collective-bargain-

ing agreements, and says nothing about the substan-

tive rights a State may provide to workers when

adjudication of those rights does not depend upon

the interpretation of such agreements. In other

words, even if dispute resolution pursuant to a

collective-bargaining agreement, on the one hand,

and state law, on the other, would require address-

ing precisely the same set of facts, as long as the

state- law claim can be resolved without interpret-

ing the agreement itself, the claim is ‘independent’

of the agreement for S 301 pre-emption purposes."

Id., at 408-410, 108 S.Ct., at 1883.

Norris, supra at 512 U.S. 246, 261-262, 114 S.Ct. 2239,

2248-2249.

Soth submits that it is quite telling that the district

court did nor find his common-law abusive discharge to be

subject to Section 301 preemption.

Soth's position herein is almost precisely that spelled

out in the following passage from the decision of the Court of

Appeals of Maryland in Finch v. Holliday-Tyler Printing,

Inc., 322 Md. 197, 586 A.2d 1275, 6 BNA IER CAS 823, 6

BNA IER CAS 823, 124 Lab. Cas. (CCH) P57,219 (1991):

Lingle requires deference to an arbitration

procedure whenever construction of the CBA is at

issue. Lingle, however, does not require initial

resort to arbitration when there is no need to con-

strue the CBA or when the issue of whether or not

the CBA was violated is irrelevant to the abusive

discharge action. Lingle, 486 U.S. at 413, 108 S.Ct.

at 1885, 100 L.Ed.2d at 423; [***13] cf. Childers

v. Chesapeake & Potomac Telephone Co., 881 F.2d

1259 (4th Cir.1989) (court did not address whether

resolution of state-law claim required interpretation

of CBA but instead held that, as a matter of Mary-

land law, an employee who fails to exhaust contract

remedies cannot bring wrongful discharge claim in

state court).

In this tort action, Finch is not claiming that

Employer had no right to discharge him. The nature

of Finch's abusive discharge claim is that Employer

may have had a right to discharge him under the

CBA but that Employer abused that right because

its motivation was solely to retaliate against him for

filing workers' compensation claims. In DeBleeck-

er v. Montgomery County, 292 Md. 498, 506, 438

A.2d 1348, 1352-53 (1982), a case involving

{[**1280] discharge of an at will public employee

for exercising constitutional rights, we said,

"The common law rule, applicable in

Maryland, is that an employment contract

of an indefinite duration, i.e., at will, can

be legally terminated at the pleasure of

20

RE ee gr eee

either party at any time. The rule is inapplicable, however,

if the decision to terminate the public employment was

[***14] made because of the employee's exercise of

constitutionally protected first amendment rights. Thus,

while it was within the power of the defendants to remove

DeBleecker from his position, their decision to discharge

him 'would not have been lawful if it was made because of

[DeBleecker's] exercise of constitutionally protected first

amendment rights." (Citations omitted.)

[*206] The same reasoning applies to an at will "worker

fired for exercising his statutorily conferred right to file a

workmen's compensation claim." Adler, 291 Md. at 37, 432

A.2d at 468 (citing Frampton v. Central Indiana Gas

Company, 260 Ind. 249, 297 N.E.2d 425 (1973)). In the

case of a contract employee, a claim for abusive discharge

begins with the assumption that it is irrelevant whether the

right to discharge exists under the employment contract.

The issue is whether the employer abused that right.

We have recognized in Maryland that "[a]s a general rule,

parties are free to contract as they wish [but a] contractual

provision that violates public policy is invalid . . . to the

extent of the conflict between the stated public policy

[***]5] and the contractual provision." State Farm Mut. v.

Nationwide Mut., 307 Md. 631, 643, 516 A.2d 586, 592

(1986) (citation omitted). In Ewing, we stated that "the

parties to a collective bargaining agreement are not free to

‘opt out' of legitimate state controls simply by agreeing to

impermissible conditions and claiming federal protection

through pre-emption." 312 Md. at 54, 537 A.2d at 1177. By

the same token, an employer may not abuse its right to

discharge employees by manipulating contract provisions

to circumvent the clear mandate of Maryland public policy.

Finch claims that Employer manipulated the terms of the

21

layoff so that it would reach his seniority level with the

insidious intent of wrongfully discharging him in violation

of Maryland public policy. While it is possible, indeed

probable, that Employer comported with the terms of the

CBA, it does not necessarily follow that the discharge was

not abusive. The Supreme Court recognized this fact in

Lingle, where the Court noted, "even if an arbitrator should

conclude that the contract does not prohibit a particular

discriminatory or retaliatory discharge, [***16] that

conclusion might or might not be consistent with a proper

interpretation of state law." Id. at 413, 108 S.Ct. at 1885,

100 L.Ed.2d at 423.

[*207] In the instant case, there is no need to resort to

arbitration because the issue addressed by arbitration,

whether the layoff procedure was accomplished in

conformity with the CBA, would not itself be determinative

of the wrongful discharge claim. Even if all of the

appropriate CBA layoff procedures were followed and

there was no breach of the CBA, Finch could still recover if

the layoff procedures, although permissible under the CBA,

were utilized solely as a pretext to discharge Finch because

he filed workers' compensation claims. It is not necessary

that Finch first exhaust the CBA grievance procedures.

Furthermore, the Fourth Circuit's reliance on the CBA

for the rule that it concluded was applied in the discharge of

Soth ignores the factual basis for concluding that the

authority invoked in the subject discharge was not the

CBA, as noted supra.

2?

ee

—

The lower courts also have discounted the force of the

‘temporal proximity" between Soth's suspension and his

final disagreement with his superiors over the disputed ad

space.

Furthermore, the reason for Plaintiff's discharge as

expressed in the letter of August 3, 1989, was that Plaintiff

had allegedly been “grossly insubordinate and clearly [had]

violated the terms and conditions of your suspension."

[Emphasis supplied.] Surely a determination of whether of

not Plaintiff was "grossly insubordinate" does not depend

upon any interpretation of the CBA. Indeed, there is

absolutely no language in the excerpt from the CBA that is

included in the record, A. 451, et seq., that defines or even

mentions gross or simple insubordination. Rather, there is

a one-sentence subsection of the sectio: ~n "Job Security"

that reads as follows: “Section 8.3 -- Just and Sufficient

Cause. There shall be no other discharges except for just

and sufficient cause." [Emphasis and bold print in

23

original.]

Also, the tortious interference claim set forth in Count

III was brought against only the individual Defendants, not

the corporate Defendants, as such claims are delimited by

Maryland law. See, e.g., Continental Cas. Co. v. Mirabile,

52 Md.App. 387 (1982), cert. denied 294 Md. 652 (1982),

and Marrs v. Marriott Corp., 830 F. Supp. 274, 282-283

(D.Md. 1992).

It is instructive also that Plaintiff never sought relief for

a breach of the CBA, which as noted supra would have

been barred by limitations in any event, but rather for

interference with his "economic and employment

relations."

Petitioner submits that there was never any need to

interpret the CBA in order to determine Plaintiff's tortious

interference claim.

Furthermore, and the court's determination of Section

301 preemption of the tortious interference claims is

24

inconsistent with the court's determination that it had only

supplemental jurisdiction of the abusive discharge claim,

set forth in Count I.

This inconsistency is particularly puzzling when it is

considered that the abusive discharge and tortious

interference claims are identical except that the individual

Defendant-actors are alleged, for the tortious interference

claim, to have acted for their own, private purposes and not

in furtherance of any interest of the corporate Defendants.

Obviously, if the CBA need not be interpreted in order to

determine whether Plaintiff's discharge was motivated by a

desire to retaliate in violation of public policy, then the

same determination, without regard to the CBA, could be

made with respect to acts of the individual Defendants that

are alleged to have been perpetrated for personal reasons.

Finally, the district court's conclusion that the

tortious interference claim was preempted by Section 301

25

would wreak havoc with Maryland's common law doctrine

of abusive discharge. If Section 301 preemption insulates

individual managers from liability, on a tortious

interference theory, for effecting for private purposes a

discharge that violates public policy, then, on what

principled basis could an employer be liable for a discharge

that violates public policy?

In sum, Soth submits that it was error for the district

court to have denied his motion to remand because of the

perceived "total preemption" of Section 301. The court

should have recognized that it lacked subject matter

jurisdiction of the case raising only State law claims.

Conclusion.

This case demonstrates the need for this Court to fortify

the requirement that the standard for removal be strictly

applied, and the further need to buttress the State courts’

opportunity to accommodate variations in the rights of

26

ee ee se

Conclusion.

This case demonstrates the need for this Court to

fortify the requirement that the standard for removal be

strictly applied, and the further need to buttress the State

courts’ opportunity to accommodate variations in the

rights of employees as those rights are conferred in

various jurisdictions.

For the foregoing reasons, Petitioner urges that

this Court issue its writ of certiorari to reverse or vacate

the Fourth Circuit's affirmance and to order remand of

the instant cases to the State court.

D. JOSEPH MAY*

GLEN M. FALLIN

Suite 173

549 Ritchie Highway

Severna Park, MD 21146

410-465-3382

*Counsel of Record

--- F.3d ----

1998-1 Trade Cases P 72,145,

1998-1 Trade Cases P 72,445

Unpublished Disposition

(Cite as: 1998 WL 225140 (4th Cir.(Md.)))

Edward D. SOTH, Jr., Plaintiff-Appellant,

Vv.

BALTIMORE SUNPAPERS, INCORPORATED, a

Maryland Corporation; The Baltimore Sun

Company, a Maryland Corporation; Diana M.

Murphy, formerly known as Diana M. Zinda, individually

and in her corporate capacity as Vice President for

Advertising and Marketing; Jack Ross, individually and in

his official corporate capacity as Classified Advertising

Manager; John Kidwell, individually and in his corporate

capacity as Automotive Manager; James Born, individually

and in his corporate capacity as Automotive Supervisor,

Defendants-Appellees.

Edward D. SOTH, Jr., Plaintiff-Appellant,

v.

BALTIMORE SUNPAPERS, INCORPORATED, a

Maryland Corporation; The Baltimore Sun Company, a

Maryland Corporation; Diana M. Murphy, formerly known

as Diana M. Zinda, individually and in her corporate capacity

as Vice President for Advertising and Marketing; Jack Ross,

individually and in his official corporate capacity as

Classified Advertising Manager; John Kidwell, individually

and in his corporate capacity as Automotive Manager; James

Born, individually and in his corporate capacity as

Automotive Supervisor,

Defendants-Appellees.

Nos. 96-2385, 96-2390.

United States Court of Appeals, Fourth Circuit.

Argued: April 9, 1998.

Decided: May 4, 1998.

Appeals from the United States District Court for the District

of Maryland, at Baltimore, (CA-94-1349-Y, CA-94-1350-Y);

Joseph H. Young, Senior District Judge.

ARGUED: Glen Marcus Fallin, Westminster, Maryland, for

Appellant.

Darrell Robert VanDeusen, KOLLMAN & SHEEHAN, P.A.,

Baltimore, Maryland, for Appellees.

ON BRIEF: Randi A. Klein, KOLLMAN & SHEEHAN,

P.A., Baltimore, Maryland, for Appellees.

Before NIEMEYER, WILLIAMS, and MOTZ, Circuit

Judges.

OPINION

PER CURIAM:

*1 This consolidated appeal arises from two suits originally

filed by Edward D. Soth, Jr., in the Circuit Court for

Baltimore City against his former employer, Baltimore

Sunpapers, Inc. and the Baltimore Sun Company, and four of

the Sunpapers’ former or current managers (collectively the

Defendants). The two suits alleged identical state law claims

of abusive discharge, violations of the Maryland Antitrust

Act, tortious interference with contract, and civil conspiracy.

One of the suits, however, also contained a retaliation claim

pursuant to 42 U.S.C.A. § 1981 (West 1994). The Defendants

A-2

removed both suits on the basis that Soth's state law claims

were completely preempted by § 301 of the Labor

Management Relations Act, 29 U.S.C.A. § 185(a) (West

1978). The district court granted Soth's request to withdraw

his § 1981 claim and consolidated the suits for consideration

of Soth's motion to remand and the Defendants' motion for

summary judgment. Soth appeals the district court's order

denying Soth's motion to remand and granting summary

judgment in favor of the Defendants on all of Soth's claims.

Finding no error, we affirm.

We review a district court's grant of summary judgment de

novo. See Higgins v. E.I. DuPont de Nemours & Co., 863

F.2d 1162, 1167 (4th Cir.1988). Summary judgment is

appropriate "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.' Fed.R.Civ.P. 56(c); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,

91 L.Ed.2d 265 (1986). In considering whether summary

judgment is proper, all inferences to be drawn from the

underlying facts must be viewed in the light most favorabie

to the non-moving party. See Anderson v. _iberty Lobby,

Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202

(1986). Viewed in the light most favorable to Soth, the facts

are as follows.

Soth was employed in September of 1987 by the Sunpapers

as an automotive advertising sales representative. His

primary duty was selling advertising space in the Baltimore

Sun, the Evening Sun, and the Sunday Sun to specific

automotive dealership accounts within a certain geographical

area. Soth's immediate supervisor was James Born. Born

reported to automotive sales manager John Kidwell, who

reported to the classified advertising manager, Jack Ross,

who reported to the vice-president of advertising and

marketing, Diana Murphy-- the four individual defendants

named in Soth's complaint.

Soth's employment was governed by a Collective Bargaining

Agreement (CBA) between the Washington-Baltimore

Newspaper Guild (the union) and the Baltimore Sun

Company. Article VIII of the CBA provided that an

employee may not be discharged except for just and

sufficient cause. Article XX, § 20.1, governing conflicts of

interest and the right to engage in outside activities, provided:

o*2 Employees shall be free to engage in any activities

outside their working hours which do not constitute service

for any interest or publication in competition with the[Sun].

No employee, without permission of the [Sun], shall use in

the course of such activities any material or featured title of

the [Sun] or exploit in any way the employee's connection

with the [Sun].

(3.A. at 402.)

On July 30, 1990, the Sunpapers learned that Soth was

engaging in advertising in violation of the CBA's clause

restricting employees from engaging in outside activities in

competition with the Sunpapers.

Soth was seefi at Brown's Toyota dealership by George

Stinebaugh who handled the Sunpapers' account there. Soth

A-5

ee

_e ee eee ee ee ee lL eee — —_

admitted that he was meeting with the General Manager of

Brown's to discuss the possibility of a future business

relationship in case he ever left the Sunpapers. Soth concedes

that since 1989, he performed "print coordination" services

and prepared “rough layouts" for placement in newspapers

other than the Sunpapers for the Beal GMC Truck, Al Packer

Lincoln Mercury, and Harco Oldsmobile dealerships. In

exchange for these advertising services, Beal provided Soth

with a 1987 GMC Jimmy Truck; Al Packer paid him $1,000

a month; and Harco paid him $750 per month. Soth earned

the equivalent of approximately $24,000.00 per year for his

outside advertising work.

On July 31, Soth was notified in writing that he was being

placed on a five- day suspension without pay. Jack Ross, one

of Soth's supervisors, reviewed the suspension letter with

him. Defendants claim that during his suspension, Soth

placed two advertisements for his personal advertising

clients. Soth claims that the work he did during the

suspension was for the Sunpapers and was in response to a

telephone call made by one of his coworkers, Rich Watkins,

on behalf of Soth's direct supervisor, Born. Soth concedes,

however, that during his suspension he called the Harford

County Sun, one of the Sunpapers' suburban editions, and in

‘structed the newspaper to rerun a Harco Oldsmobile

dealership advertisement that he had prepared a week earlier.

On August 3, 1990, Soth was notified in writing that he was

being discharged immediately for gross insubordination for

violating the terms of his suspension by continuing to engage

in the activity of outside advertising by placing ads in the

Baltimore Sun and the Harford County Sun on behalf of

Harco Oldsmobile.

Soth challenged his discharge through the grievance and

binding arbitration provisions of the CBA. On March 25,

1991, the arbitrator, after a two-day hearing and testimony

from fourteen witnesses, determined that the employer “had

just and sufficient cause" for suspending and discharging

Soth, and that Soth was not deprived of due process by the

employer. (J.A. at 399.) On August 19, 1991, Soth filed an

unfair labor practice charge with the NLRB, claiming that the

Sunpapers had terminated him and refused to reinstate him

A-7

pe

because of his activities on behalf of the

Washington-Baltimore News Guild. The NLRB Regional

Director determined that Soth's charge did not warrant the

issuance of a complaint because it was untimely. Soth

appealed that decision, but the NLRB confirmed the

Regional Director's determination that the charge had not

been timely filed and that further proceedings were therefore

barred. Soth next filed charges with the EEOC and the

American Arbitration Association which were also dismissed

as untimely.

+3 Soth then filed a complaint in the United States District

Court for the District of Maryland. The district court

dismissed Soth's complaint on October 13, 1992, for lack of

subject matter jurisdiction, failure to state a claim pursuant to

Fed.R.Civ.P. 12(b)(6), and for failure to serve the summons

and complaint within 120 days from filing pursuant to

Fed.R.Civ.P. 4(j). Soth then filed the two suits in the Circuit

Court for Baltimore City which were removed by the

Defendants and are presently before us. In those suits Soth

claimed that the real reason for his discharge was retaliation

for his opposition, six months prior to his termination, to the

Sunpapers' decision to offer one automobile dealership a

full-page, front-of-section advertisement at one-half of the

price that another dealership had regularly paid for it, which

Soth believed violated Maryland's Antitrust Act. Specifically,

Soth claims that the placement of this advertisement

constituted price discrimination and that he was discharged

because he threatened to tell the publisher of the Sunpapers

and the FTC.

The district court cenied Soth's motion to remand,

determining that federal jurisdiction over the consolidated

Suits was proper notwithstanding Soth's withdrawal of his §

1981 claim because Soth's claim for tortious interference

with contract was completely preempted by § 301(a) of the

Labor Management Relations Act of 1947, 29 U.S.C.A. §

185(a) (West 1978). [FN*] The district court exercised

supplemental jurisdiction over Soth's remaining state law

claims. See 28 U.S.C.A. § 1367 (West 1999). The district

court held that Soth's claim for tortious interference with

contract was barred by the six month statute of limitations for

§ 301 claims. As to Soth's claims under the Maryland

Antitrust Act, the district court concluded that Soth had not

raised a genuine issue of material fact as to whether a

- monopoly power existed and was maintained im the relevant

market through the Sunpapers' half- price discounting of one

advertisement on one day. Furthermore, the district judge

stated that no evidence of competitive injury had been

introduced in support of Soth's price discrimination claim.

The district court noted that Soth's claim for abusive

discharge required Soth to demonstrate that he was

discharged in violation of a clear mandate of public policy,

see Adler v. American Standard Corp., 291 Md. 31, 432 A.2d

464, 473 (Md.1981), and that his conspiracy claim required a

showing that the Sunpapers had agreed to commit an

unlawful act, see Yousef v. Trustbank Savings, 81 Md.App.

527, 568 A.2d 1134, 1139 (Md.Ct.Spec.App.1990). Because

the district court concluded that the Sunpapers did not violate

the Maryland Antitrust Act, it followed that there was no

violation of public policy and no unlawful act. Accordingly,

the district court granted summary judgment for the

Defendants on all of Soth's claims.

FN* These suits present an exception to the general rule that

"federal preemption defenses do noi ordinarily permit federal

courts to exercise subject matter jurisdiction over claims that

a plaintiff predicates on state law." See Custer v. Sweeney,

89 F3d 1156, 1165 (4th Cir.1996). The exception is

“complete preemption" and that has only been found in a few

cases, including § 301 of the Labor Management Relations

Act. See Avco Corp. v. Aero Lodge No. 735, Int'l Assoc. of

Machinists, 390 U.S. 557, 560, 88 S.Ct. 1235, 20 L.Ed.2d

126 (1968).

We have reviewed the record, briefs, and pertinent case law

in this matter, and we have had the benefit of oral argument.

Our careful review persuades us that the rulings of the district

court were correct. Accordingly, we affirm on the reasoning

set forth in the district court's thorough opinion. See Soth v.

The Baltimore Sun Co., No. Y-94-1349 (D.Md. July 18,

1996).

*4 AFFIRMED

A-11

--- F.Supp. ----

(Cite as: 1996 WL 941821 (D.Md.))

Edward D. SOTH, Jr.

BE *

THE BALTIMORE SUN CO., et al.

Edward D. SOTH, Jr.

Vv.

THE BALTIMORE SUN CO., et al.

No. CIV. Y-94-1349, CIV. Y-94-1350.

United States District Court,

D. Maryland.

July 18, 1996.

Glen M. Fallin, Esquire, Westminster, Maryland, counsel for

Plaintiff.

Darrell R. VanDuesen, Esquire, Baltimore, Maryland;

Charles J. Kesslein, Esquire, Baltimore, Maryland, counsel

for Defendants.

MEMORANDUM OPINION

YOUNG, Senior J.

*] Edward D. Soth, Jr. filed two suits in the Circuit Court

for Baltimore City against his former employer, The

Baltimore Sun Co., and four of its former or current

managers (collectively “The Sun") alleging abusive

discharge, tortious interference with contract, civil

conspiracy, and violations of the Maryland Antitrust Act. In

one of the cases Soth also asserted a claim for discriminatory

retaliation under 42 U.S.C. § 1981. Defendants removed both

cases to this court, arguing that federal jurisdiction existed

over the state law claims because of preemption under 29

U.S.C. § 185{a) or supplemental jurisdiction under 28 U.S.C.

§ 1367. Two motions, Plaintiff's Motion for Remand and

Defendants' Motion for Summary Judgment, are now

pending.

3

Soth was hired by The Sun on September 15, 1987 as an

advertising sales representative. He was a member of the

Washington-Baltimore Newspaper Guild, Local No. 35 of

the National Newspaper Guild, AFL-CIO ("the Guild") and

the terms and conditions of his employment agreement with

The Sun were provided by a collective bargaining agreement

("CBA") between The Sun and the Guild. The CBA provided

that employees could not be discharged without just cause

and provided a procedure for the arbitration of grievances. In

addition, the CBA addressed outside activities by employees

as follows:

Employees shall be free to engage in any activities

outside their working hours which do not constitute

service for any interest or publication in competition

with the Publisher. No employee, without permission

of the Publisher, shall use in the course of such

activities any material or featured title of the

Publisher or explain in any way the employee's

connection with the Publisher.

Team me

i |

Article XX, section 20.1. Soth was assigned to persuade

specific automobile dealers to place advertisements in The

Sun's papers. In this capacity he prepared layouts, handled

proofs, and advised them how to best spend their money in

The Sun.

Beginning in August 1989 Soth prepared advertisements and

coordinated their placement in newspapers that were not

owned by The Sun. On July 30, 1990, Soth visited a

dealership and solicited the preparation and placement of

automobile advertisements in newspapers. He states that he

was exploring the possibility of the dealer hiring him if he

left The Sun. The following day he was suspended by The

Sun. The suspension letter stated in part that "[bly your own

admission, you are attempting to act as an advertising agency

and are soliciting customers of The Baltimore Sun Company

as potential clients." At that time, he was shown a letter dated

April 16, 1987, which forbade employees of The Sun to

“work in any capacity for a company or business with which

the Company is in competition ...." Soth claims that he did

not know of the non-competition rule until he received the

A-14

letter. On August 3, 1990, Soth was discharged for

continuing to violate the non-competition rule during the

probationary period.

*2 Soth challenged the termination through the grievance

and binding arbitration provisions of the CBA. The arbitrator

found that Soth's outside employment conflicted with his

employment as an advertising sales representative for The

Sun and that there was just cause for his Suspension and

discharge. Soth then filed various charges with the-National

Labor Relations Board, the Equal Employment Opportunity

Commission, the American Arbitration Association, and the

United States District Court for the District of Maryland

(Civ. No. HAR-91-2762). Each forum dismissed the charges.

Soth then filed two actions in the Circuit Court for Baltimore

City which were timely removed to this court on May 20,

1994.

II.

A.

Soth seeks remand of case number Y-94-1350, arguing that

it does not set forth a federal claim and the parties are not

A-15

diverse. Soth also seeks to withdraw his claim under 42

U.S.C. § 1981 in Y-94-1349, leaving only state law claims,

and seeks remand on the ground that the Court is without

jurisdiction. This Court will grant Soth permission to

withdraw the section 1981 claim. The two cases now raise

identical claims [FN1] and will be analyzed together.

In response to Soth's motion, The Sun argues that some or

all of the state claims are preempted under section 301 (a) of

the Labor Managemen: Relations Act of 1947, 29 U.S.C. §

185(a), and were properly removed under the "complete

preemption" doctrine. See Avco Corp. v. Aero Lodge No.

735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968),

reh'g denied, 391 U.S. 929, 88 S.Ct. 1801, 20 L.Ed.2d 670

(1968). Section 301(a) grants federal courts jurisdiction over

controversies involving CBAs. 29 U.S.C. 185(a). If the

resolution of a state tort claim requires interpretation of a

CBA, then that claim is preempted by section 301. Lingle v.

Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405- 406, 108

S.Ct. 1877, 100 L.Ed.2d 410 (1988). Applying this test, the

Lingle court held that a claim of retaliatory discharge brought

A-16

-

under a state law protecting employees from discharge for

filing workers' compensation claims was not preempted by

section 301. Id. at 407. The court reasoned that the issue of

whether or not the employer had a non-retaliatory reason for

the discharge raised a factual question that did not involve

interpretation of the CBA itself, even when the agreement

protected employees from discharge except for just cause and

provided a procedure for arbitration of grievances. Id.

In McCormick v. AT & T Technologies, Inc., 934 F.2d 531

(4th Cir.1991) (en banc), cert. denied, 502 U.S. 1048, 112

S.Ct. 912, 116 L.Ed.2d 813 (1992), the Fourth Circuit

applied the Lingle test in holding that section 301 preempted

claims for intentional infliction of emotional distress,

negligent infliction of emotional distress, conversion and

negligence in care of bailment arising out of the employer's

cleaning out of the employee's locker. Noting- that the

plaintiff had to prove wrongful conduct for each claim and

that the required degree of care varies according to the

circumstances of each case, including the contractual

relationship between the parties, the court held the state

A-17

claims referred to implied duties in the contract and were

therefore preempted. Id. at 536-37.

*3 Thus the question before this Court is whether analysis of

the state law claims requires interpretation of the CBA

between The Sun and the Guild.

Count III alleges The Sun tortiously interfered with Soth's

contractual rights. To maintain a claim for intentional

interference, Soth must prove that a third party intentionally

induced a breach of an existing contract. Macklin v. Robert

Logan Assoc., 334 Md. 287, 297, 639 A.2d 112 (1994). The

CBA must be reviewed to determine if it was an existing

contract at the time Soth was discharged and if The Sun

breached any duty provided in the agreement. Because the

intentional interference claim cannot be maintained

independently from the CBA, it is preempted by section 301.

See International Union, UMWA v. Covenant Coal Corp.,

977 F.2d 895, 899 (4th Cir.1992) (intentional interference

claim under Virginia law preempted by section 301).

Accordingly, this Court has jurisdiction over Count III.

A-18

Counts I, [FN2] II, and IV set forth various state law claims

concerning the circumstances under which Soth was

discharged. This Court has supplemental jurisdiction over

these claims under 28 U.S.C. § 1367 because they stem from

"a common nucleus of operative fact." See Shanaghan v.

Cahill, 58 F.3d 106, 109 (4th Cir.1995); White v. County of

Newberry, South Carolina, 985 F.2d 168, 171 (4th Cir.1993).

Accordingly, this Court has jurisdiction over all the claims

and Soth's Motion to Remand will be denied.

B.

The Sun seeks summary judgment on all counts, contending

that the claims are either preempted by 29 U.S.C. § 185(a)

and untimely under that statute or are unsupported by the

undisputed facts in this case. Summary judgment is proper "if

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of

law." Fed.R.Civ.P. 56(c). The party seeking summary

judgment bears the initial burden of showing that there is an

A-19

absence of evidence to support the non-moving party's case.

Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548,

91 L.Ed.2d 265 (1986). In response, the non-moving party, in

this case Soth, “may not rest upon the mere allegations or

denials of the adverse party's pleadings, but ... must set forth

specific facts showing that there is a genuine issue for trial."

Fed.R.Civ.P. 56(e).

As discussed above, Count III is preempted by section

301(a) of the Labor Management Relations Act, 29 U.S.C. §

185(a). Soth filed this suit in state court three and one-half

years after his termination, long after the six-month statute of

limitations for section 301 claims. See DelCostello v. Int'l

Brotherhood of Teamsters, 462 U.S. 151, 169, 103 S.Ct.

2281, 76 L.Ed.2d 476 (1983). Because of the untimeliness of

this claim, The Sun is entitled to summary judgment on

Count III.

Count II alleges violation of Maryland Antitrust Act,

Md.Code Ann. Comm. Law §§ 11-204(a)(2)-(3), stemming

from The Sun's offer of a premium advertisement to Norris

_

A-20

Ford on March 18, 1990, at half the price previously charged

the Al Packer Ford dealership. These sections of the Act

makes it unlawful for a company to "[m]Jonopolize, attempt

to monopolize, or combine or conspire with one or more

other persons to monopolize any part of the trade or

commerce within the State" or to "[d]irectly or indirectly

discriminate in price among purchasers of commodities or

services of like grade and quality" if the discrimination will

substantially lessen competition or tend to create a

monopoly. Id. Federal antitrust law is used to interpret these

provisions, which mirror section 2 of the Sherman Act and

section 13(a) of the Robinson- Patman Act respectively. See

id. § 11-202(a)(2); Natural Design, Inc. v. Rouse Co., 302

Md. 47, 485 A.2d 663 (1984). A monopolization claim

requires a showing of monopoly power in the relevant market

and willful acquisition or maintenance of that power. United

States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct.

1698, 16 L.Ed.2d 778 (1966). The Sun explains that it

offered a full-page advertisement in the classified section to

Norris Ford at half the rate previously charged Packer Ford

because no dealership was willing to pay the previous rate

nT

and a Norris Ford advertisement from the week before was

the only advertisement suitable for adaptation to the full page

format. Soth states in his affidavit that the discount was

offered to secure employment for the spouse of a Sun

employee and to punish Packer Ford for seeking modification

of its contract, but these allegations are not sufficient to

support his theory that one day of discounting one

advertisement was a willful acquisition or maintenance of

monopoly power. his uncorroborated statement does not

present a genuine issue of fact under this prong of Count II.

*4 A price discrimination claim requires a showing of

competitive injury. Texaco, Inc. v. Hasbrouck, 496 U.S. 543,

556, 110 S.Ct. 2535, 110 L.Ed.2d 492 (1990); Md.Code Ann.

Comm. Law § 11-204(a)(3)(i)-(iii). Again, Soth has offered

no evidence to show that the competition between Norris

Ford and Packer Ford has diminished because Norris Ford

was charged a lower price on one advertisement.

Furthermore, the Act sensibly recognizes that price

fluctuations due to market conditions, as here, are not

antitrust violations. Md.Code Ann. Comm. Law §

11-204(b)(5). Because there is no issue of material fact under

this prong of Count II, The Sun is entitled to summary

judgment as to Count II.

Count I alleges abusive discharge, which requires Soth to

show he was discharged in violation of a "clear mandate of

public policy ...." Adler v. American Standard Corp., 291

Md. 31, 47, 432 A.2d 464 (1981). Count IV alleges

conspiracy, which requires Soth to prove that The Sun agreed

to commit an “unlawful act." See Yousef v. Trustbank

Savings, 81 Md.App. 527, 538, 568 A.2d 1134 (1990). Since

The Sun did not violate the Maryland Antitrust Act, there

was no violation of public policy and no unlawful act.

Accordingly, The Sun is entitled to summary judgment as to

Counts I and IV.

Il.

For the foregoing reasons Plaintiff's Motion to Remand is

denied and Defendants' Motion for Summary Judgment is

granted.

FN1. It is not mere coincidence that the two cases raise

essentially the same claims. Counsel for Soth has admitted in

A-23

other litigation that he regularly files two actions in state

court which are identical save that one has the federal claims

omitted in an attempt to defeat defendants' removal rights.

See DiCarlo v. Baltimore County, Maryland, No.

MJG-95-556 (Nov. 13, 1995) (imposing costs under 28

U.S.C. § 1927 against counsel).

FN2. To maintain a claim for abusive discharge in Maryland,

Soth must show that he was discharged in violation of a

“clear mandate of public policy ...." Adler v. American

Standard Corp., 291 Md. 31, 47, 432 A.2d 464 (1981). The

public policy allegedly violated is provided by Maryland

Antitrust law. Relying on McCormick, supra, The Sun argues

that the wrongfulness of the discharge is determined by the

CBA because Article 8 ofo the CBA governs disputes

between the Sun and its employees and an arbitrator found

just cause to fire Soth. This argument is foreclosed by Lingle,

supra, which also reviewed a CBA with these provisions but

held that a claim alleging discharge in retaliation for

exercising a statutory right is not preempted because the

employer's motivation for firing the employee is a “purely

factual question." Lingle, supra, at 407.

29 U.S.C.A. S 185

[Current through P.L. 105-175, approved 5-11-98]

> UNITED STATES CODE ANNOTATED

> TITLE 29. LABOR

> CHAPTER 7--LABOR-MANAGEMENT RELATIONS

O SUBCHAPTER IV--LIABILITIES OF AND RESTRICTIONS

S> 185. Suits by and against labor organizations

(a) Venue, amount, and citizenship

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.

* *& *

(c) Jurisdiction

For the purposes of actions and proceedings by or against

labor organizations in the district courts of the United States,

district courts shall be deemed to have jurisdiction of a labor

organization (1) in the district in which such organization

maintains its principal office, or (2) in any district in which

its duly authorized officers or agents are engaged in

representing or acting

for employee members.

A-25

eat nd |

ANNOTATED CODE OF MARYLAND

*** THIS SECTION IS CURRENT THROUGH THE 1995

SUPPLEMENT

*** (1995 REGULAR SESSION) ***

COMMERCIAL LAW

TITLE 11. TRADE REGULATION

SUBTITLE 2. ANTITRUST

Md. COMMERCIAL LAW Code Ann. @ 11-204 (1995)

Section 11-204. Prohibited conduct; unlawful contracts,

combinations, and conspiracies

(a) Prohibited conduct. -- A person may not:

(1) By contract, combination, or conspiracy with one

or more other persons, unreasonably restrain trade or

commerce;

(2) Monopolize, attemp! to monopolize, or combine

or conspire with one or more other persons to monopolize

any part of the trade or commerce within the State, for the

purpose of excluding competition or of controlling, fixing, or

maintaining prices in trade or commerce;

(3) Directly or indirectly discriminate in price

among purchasers of commodities or services of like grade

and quality, if the effects of the discrimination may:

(i) Substantially lessen competition;

(ii) Tend to create a monopoly in any line of trade

or commerce; or

(iii) Injure, destroy, or prevent competition with

any person who grants or knowingly receives the benefit of

the discrimination or with customers of either of them;

(4) In the course of commerce, pay or contract for

the payment of anything of value to or for the benefit of a

customer of the person as compensation for or in

consideration of any service or facility furnished by or

through the customer in connection with the processing,

handling, sale, or offering for sale of any service or

commodity manufactured, sold, or offered for sale by the

person, unless the payment or consideration is available on

proportionally equal terms to all other customers competing

in the distribution of the service or commodity;

(5) Discriminate in favor of one purchaser against

another purchaser of a commodity bought for resale, with or

without processing, by contracting to furnish, furnishing, or

contributing to the furnishing of any service or facility

connected with the processing, handling, sale, or offering for

sale of the commodity on terms not accorded to all

purchasers on proportionally equal terms; or

(6) Lease or make a sale or contract for the sale of a

patented or unpatented commodity or service for use,

consumotion, enjoyment, or resale, or set a price charged for

the coimodity or service or discount from or rebate on the

price, on the condition, agreement, or understanding that the

lessee or purchaser will not use or deal in the commodity or

service of a competitor of the lessor or seller, if the effect oi

the lease, sale, or contract for sale or the condition,

agreement, or understanding may:

(i) Substantially ‘essen competition; or

(ii) Tend to create a monopoly in any line of trade

or commerce.

(b) Conduct not prohibited. -- Subsection (a) (3)

through (6) of this section does not prevent:

(1) Differentials which make only due allowance for

differences in the cost of manufacture, sale, or delivery

resulting from the differing methods cr quantities in which

the commodity or service is sold or delivered to a purchaser;

A-27

(2) A person engaged in selling a commodity or

service from selecting his own customers in bona fide

transactions and not in restraint of trade;

(3) A person engaged in selling a commodity or

service from granting employee discounts to his own bona

fide employees;

(4) A seller from introducing evidence to rebut a

case brought under subsection (a) (3) through (6) of this

section to show that his lower price or the furnishing of

services or facilities to a purchaser was made in good faith to

mect an equally low price of a competitor, or the services or

facilities furnished by a competitor; or

(5) Price changes, from time to time, in response to

changing conditions affecting the market for or the

marketability of a commodity, which changing conditions

include an actual or imminent deterioration of a perishable

commodity, obsolescence of a seasonal commodity, distress

sales under court process, or sales in good faith in

discontinuance of business in the commodity.

HISTORY: An. Code 1957, art. 83, @ 38; 1975>ch. 49, @ 3;

ch. 522; 1992, ch. 22, @ 1.

NOTES:

EFFECT OF AMENDMENTS. --The 1992 amendment,

approved Apr. 7, 1992, and effective from date of enactment,

substituted "Subsection (a) (3) through (6) of this section

does" for "Subsections (a) (3) through (a) (6) of this section

do" in the introductory language of (b); and substituted

“subsection (a) (3) through (6)" for “subsections (a) (3)

through (a) (6)" in (b) (4).

A-28

ce