Petition for Writ of Certiorari — Adkins v. General Motors Corp.
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a 7, Supreme Court, U.S.
~@ietisyz FILED
JAN 73 1992
OFFICE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
JOHN J. ADKINS, ET AL.,
Petitioners,
V.
GENERAL MOTORS COPORATION,ET AL
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT FOR
APPEALS FOR THE SIXTH CIRCUIT
Dwight D. Brannon,
Counsel of Record for Petitioners
Six South Patterson
Suite 300
Dayton, Ohio 45402
(513) 228-2306
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
JOHN J. ADKINS, ET AL..,
Petitioners,
Ve
GENERAL MOTORS COPORATION,ET AL
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT FOR
APPEALS FOR THE SIXTH CIRCUIT
Dwight D. Brannon,
Counsel of Record for Petitioners
Six South Patterson
Suite 300
Dayton, Ohio 45402
(513) 228-2306
QUESTION PRESENTED FOR REVIEW
I. Whether Certiorari should be granted to
resolve a conflict between the Fifth and Sixth
Circuits over application of the Court’s analysis
in Section 301 preemption cases as it applies to
State common law fraud and implied contract
claims where the Sixth Circuit preempts fraud
claims that merely “relate” to the collective
bargaining process and the rule in the circuit
requires preemption of individual contracts
whenever the employee also has a collective one,
whereas the rule in the Fifth Circuit analyzes
preemption as dependent upon actual need to
“interpret” and to be “substantially” dependent
upon a CBA so that fraud claims based upon oral
misrepresentations, or independent contract
claims based upon matters not directly covered in
the CBA, are not to be preempted.
II. Whether Certiorari should be granted to
establish appropriate judicial standards for
defining or applying controlling terms previously
articulated by the Supreme Court in cases
involving Section 301 preemption where
petitioners assert that, at worst, their state claims
involve “parallel [state] rights” that only
“tangentially concern” a provision in the
collective bargaining agreement and is only of
“peripheral concern” to federal interests.
III. Whether Certiorari should be granted to
Clarify Section 301 preemption principles set
forth in Caterpillar v. Williams and Lingle v.
Norge Division of Magic Chef as applied to state
common law fraud claims, to determine: (1) the
extent a provision in a collective bargaining
agreement may provide relevant evidence
towards an element without preempting the
action, (2) appropriate analysis of common (as
compared to statutory ) law
elements and , (3) survivability of state claims
based upon conduct and oral representations
outside the collective bargaining agreement..
IV. Whether the Circuit’s rule that a contract
relationship cannot exist outside of a collective
bargaining agreement is a departure from the
standards set forth in Caterpillar_v. Williams
which recognizes independent contractual
relationships and further, whether the lower
court’s ruling that Section 301 preemption occurs
whenever “a court adjudicating [trying the] claim
must [eventually] determine rights arising under
[or relating to] a collective bargaining
agreement” is a departure from the standards set
forth in Lingle v. Norge Division of Magic Chef
which recognizes a valid state claim may include
both interpretation of a collective bargaining
agreement and a separate state law analysis that
does not turn upon the agreement.
ill
V. Whether under the rationale of Farmer v.
Carpenter, a court’s preemption analysis may
consider discrimination as a factor in the totality
of circumstances alleged to constitute outrageous
conduct in a state action for intentional infliction
of emotional distress and, further where the
district court finds the alleged conduct survives
preemption, whether said finding can be
overturned on appeal by extending preemption
analysis to include assessing the merits of
outrageousness.
iV
PARTIES TO PROCEEDING
1. For Petitioner: John Adkins
As petitioners number 817 persons they are
setforth separately in
Appendix B
2. Defendant: General Motors Corporation
(GMC)
3. Defendant: International Union of Electrical,
Radio and Machine Workers, AFL-CIO-CLC
(TUE)
4. Defendant: Local 801, International Union of
Electrical, Radio and Machine Workers, AFL-
CIO-CLC (Local 801)
TABLE OF CONTENTS
Questions Presented for Review............. I
Parties to the Proceeding .................... Vv
TROSS OE POTN encisseccensoceseccocess Xi
Jurisdictional Statement ................... X1X
Constitutional Provisions and Statutes... xx
Whether Certiorari should be granted
to resolve a conflict between the Fifth
and Sixth Circuits over application of
the Court’s analysis in Section 301
preemption cases as it applies to state
common law fraud and implied
contract claims where the Sixth Circuit
preempts fraud claims that merely
“relate” to the collective bargaining
process and the rule in the circuit
requires preemption of individual
contracts whenever the employee also
has a collective one, whereas the rule
vi
in the Fifth Circuit analyzes
preemption as dependent upon actual
need to “interpret” and to be
“substantially” dependent upon a CBA
so that fraud claims based upon oral
misrepresentations, or independent
contract claims based upon matters not
directly covered in the CBA, are not
to be preempted. 7
Whether Certiorari should be granted
io establish appropriate judicial
standards for defining or applying
controlling terms previously
articulated by the Supreme Court in
cases involving Section 301
preemption where petitioners assert
that, at worst, their state claims
involve “parallel [state] rights” that
only “tangentially concern” a
provision in the collective bargaining
Vil
ponent eerie
agreement and is only of “peripheral
concern” to federal interests.
Whether Certiorari should be granted
to clarify Section 301 preemption
principles set forth in Caterpillar _v.
Williams and Lingle v. Norge
Division of Magic Chef as applied to
State common law fraud claims,to
determine: (1) the extent a provision
in a collective bargaining agreement
may provide relevant evidence
towards an element without
preempting the action, (2)appropriate
analysis of common (as compared to
Statutory) law elements and, (3)
survivability of state claim based upon
conduct and oral representations
Outside the collective bargaining
agreement.
Vill
Whether the Circuit’s rule that a
contractual relationship cannot exist
outside of a collective bargaining
agreement is a departure from the
standards set forth in Caterpillar _v.
Williams which’ recognizes
independent contractual relationships
and further, whether the lower court’s
ruling that Section 301 preemption
occurs whenever “a court adjudicating
[trying the] claim must [eventually]
determine rights arising under [or
relating to] a collective bargaining
agreement” is a departure from
standards set forth in Lingle v. Norge
Division of Magic Chef which
recognizes a valid state claim may
include both interpretation of a
collective bargaining agreement and a
separate state law analysis that does
not turn upon the agreement.
1X
scien teeta
Whether under the rationale of Farmer
v. Carpenter, a court’s preemption
analysis may consider discrimination
as a factor in the totality of
circumstances alleged to constitute
Outrageous conduct in a State action
for intentional infliction of emotional
distress and further, where the district
court finds the alleged conduct
Survives preemption, whether said
finding can be overturned on appeal
by extending preemption analysis to
include assessing the merits of
Outrageousness.
ee IE csnincssssnasesansranesaniancns 64
CERTIFICATE OF SERVICE. .............. 65
FEE aT iiscanesininesranienensmnaenen 67
TABLES OF AUTHORITIES
CASES
Adkins v. Gen. Motors Corp
(S.D. Ohio 1983)
573 F. Supp 1188
affd 769 F.2d 330
Adkins v. Gen. Motors Corp
(S.D. Ohio 1983)
556 F. Supp 452
Adkins v. Gen. Motors Corp
(S.D. Ohio 1984)
578 F. Supp 315
Adkins v. General Motors Corp.
(6th Cir. Oct. 15, 1991)
unreported Case Nos.
90-3164,«3234,-3235.
On Appeal from the United
States District Court for the
Southern District of Ohio
Page
to
14,17,21,23,26,40,51,56,62
Allis- Chalmers v. Lueck (1985)
471 U.S. 202
31,37,40
Anderson v. Ford Motor Co.
(8th Cir. 1986)
803 F.2d 953 27,30
Anderson v. United Auto Workers
(D.Kan 1990)
738 F Supp 441 26,45
Beasley v. Affd. Hospital Products
(Mo 1986)
713 So. 2d 557 61
Bolling v. Sharp (1954)
347 U.S. 497 33
Brown v. Holiday Stationstores Inc.
(D. Minn 1989)
723 F. Supp 396 59
Cagle v. Burns
(S.C. Wa. 1986)
726 P. 2d 434 61
Carsner v. Freightline Corp
(Or. 1984)
688 P. 2d 398 61
Xi
Caterpillar v. Williams (1987),
482 U.S. 386 16-
19,24,41,45,48,53-55,58
Cohen v. Lampco, Inc. (1984),
10 Ohio St 3d 167 49-
50
Delcostello v. International Bhd. of Teamsters
(1983), 462 U.S. 151 2
Electrical Workers v. Hechler (1987),
481 U.S. 851 37
Farmer v. Carpenters (1977),
430 U.S. 290
31,35,39,44, 60
Fox v. Parker Hannifan Corp.
(6th Cir. 1990)
914 F.2d 795 19,24,55
Hanks v. Gen. Motors Corp.
(8th Cir 1990),
914 F.2d 795 27,30,40
Henteel v. Singer Co. (1986),
138 Cal. App. 3d 290 61
X1ll
J.1.Case Co. v. Labor Board (1944),
321 U.S. 332 17
Jones v. Gen. Motors Corp.
(6th Cir. 1991),
939 F.2d 380 20,55
Jones v. Roadway Express Inc.
(Sth Cir. 1991),
931 F.2d 1086 49,59
Karetnikova v. Trustees of Emerson College
(D. Mass 1989),
725 F. Supp 73 26
Keehr v. Consolidated Freightways |
(7th Cir. 1987),
825 F.2d 133 32
Krafel v. Pepsi Cola Bottiers
(6th Cir. 1990),
135 LMRM 2520 20
Krashna v. Oliver Realty Inc
( 3d Cir. 1990),
895 F.2d 111 32
XIV
Lingle v. Norge Div. of Magic Chef (1988),
486 U.S. 399 24,36,42-
44,49,51,53,59
Marine Transport Lines Inc. v. International
Organization of Masters
(SDNY 1986),
636 F. Supp 384 45
McCormick v. A T &T Tech.
(4th Cir. 1991),
934 F.2d 531 24,27-
28,30,37
Metropolitan Life Ins. Co. v. Mass.
(1985), 471 U.S. 724
3]
-
Milne Employees Assn. v. Sun Carriers, Inc.
(9th Cir. Nov. 1991),
1991 U.S. App LEXIS 27786
48-50
Mitton v. Ill. Bell Tel. Co.
(ill. App. 3d 1981),
427 N.E.2d 829 62
XV
Paradis v. United Tech.
(D.Conn 1987),
672 F. Supp 67 27,28,30
Rulon-Miller v. IBM
(Cal. App.1985),
208 Cal. Rptr. 524 62
Teamsters v. Lucas Flour (1962),
396 U.S. 95 40
Uebelacker v. Cincon Systems Ind. (1988),
48 Ohio App. 3d 268 61
Wells v. Gen. Motors Corp. (S.D. Miss. 1988),
721 F. Supp 107, affd (Sth Cir. 1989),
881 F.2d 166, reh.den.887 F.2d
1083, cert. den., U.S.
110 S.Ct. 1959 16,20-
25,41,44,46,50-52, 54-57
\
OTHER AUTHORITY
United States Constitution
Fifth Amendment 33
Tenth Amendment 31
XVI
‘
Labor Management Relations Act
Section 301,
29 U.S.C. Section 185
1,15,29,48
Federal Rules of Civil Procedure
(Fed.R.Civ.Pro.)
Rule 12(b)(6) 47
Rule 56 47
Restatement of Law 2d , Torts (1965)
74, 76, Section 46 61
Periodical and Publications
Diagnostic and Statistical Manual of Mental .
Disorders,
Third Edition-Revised
(DSM-III-R)
American Psychiatric Association
32
XVil
Scaccia, Title VII And Treaty Rights Battles
The Verdict Is Still Out,
X ASILS International L.J. 77.
34
Yonover, Preemption of State Tort Remedies
For Wrongul Discharge In The Aftermath
of Lingle v. Norge:
Wholly Independent or
Inextricably Intertwined,
34 So. D. L. Rev. 63.
XVill
JURISDICTIONAL STATEMENT
The judgement of the Court of Appeals for the
Sixth Circuit was issued on October 15, 1991
(App. B). This Court has jurisdictional pursuant
to 28 U.S.C. 1254(1).
X1X
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
UNITED STATES CONSTITUTION
Article VI -(supremacy clause)
This Constitution, and the Law of the
United States which shall be made,
under the Authority of the United
States, shall be the Supreme Law of
the Land; and the Judges in every
State shall be bound thereby, any
Thing in the Constitution or Laws of
any State to the Contrary
notwithstanding.
Amendment V- Due Process Clause
No person shall...be deprived of life,
liberty, or property, without due
process of law... .
XX
Amendment X- Reserved Powers to States
The powers not delegated to the
United States by the Constitution, nor
prohibited by it to the States, are
reserved to the States respectively, or
to the people.
United States Code (U.S.C.)
Section 301, Labor Management
Relations Act, 29 U.S.C. Section 185(a)
(a) 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.
XX1
Federal Rules of Civil Procedure (Fed. R. Civ.
Pro.)
Rule 12(b)(6)
(b) Every defense, in law or fact, to a
claim for relief in any pleading,
whether a claim, counterclaim,
crossclaim, or third-party claim, shall
be asserted in the responsive pleading
thereto if one is required, except that
the following defenses may at the
option of the pleader be made by
motion: ...(6) failure to state a claim
upon which relief can be granted ... .
Rule 56(a),(b)
(a) For claimant
A party seeking to recover upon a
claim, counterclaim or to obtain a
declaratory judgment may, at any time
after the expiration of 20 days from
the commencement of the action or
after service of a motion for summary
XXll
judgment by the adverse party, move
with or without supporting affidavits
for a summary judgement in his favor
upon all or any part thereof.
(b) For defending party.
A party against whom a claim,
counterclaim or cross-claim is asserted
or a declaratory judgment is brought
may, at any time, move with or
without supporting affidavits for a
summary judgment in his favor as to
all or any part thereof.
XX1ll
STATEMENT OF THE CASE:
This case concerns the proper application of
standards and terms announced by the Court in
evaluation of federal preemption of state claims
under Section 301 of the Labor Management
Relations Act, 29 USC 1985 (Section
301/LMRA). The case is also illustrative of the
conflict, confusion and entrenched debate over
jurisprudence which divides the circuits on the
preemption issue.
The litigation arose during a period of economic
recession, corporate reorganization and employee
layoffs from 1979 into 1981. In the last decade,
the 817 plaintiffs/petitioners steadfastly sought to
complete only the first hurdle towards trial on the
merits. Years after the complaint was filed,
federal preemption was imposed to prevent the
litigation. Initially the plaintiffs sought
resolution of both federal and pendent state
claims in an action filed in district court in
January, 1982. The federal claims were deemed
hybrid Section 301 action. Upon defendants’
(respondents’) motion, the federal claims were
found time barred under what was then a new
rule that tracked the six month limitations period
of section 10(b) of the National Labor Relations
Act (NLRB), instead of the six year statute of
limitations recognized prior to Delcostello v.
International Bhd. of Teamsters (1983) 462 U.S.
151. See, Adkins v. GMC (S.D. Ohio 1983),
523 F. Supp. 1188, aff'd. 769 F.2d 330.
However, many of the initial state claims
survived. Adkins v. GMC (S.D. Ohio 1983),
556 F. Supp 452. Declining to exercise pendent
jurisdiction, the district court dismissed the state
claims without prejudice.
Meanwhile, the original plaintiffs were joined by
several hundred others who had come to realize
how deeply they were misled, the scope of their
injuries and resulting damages. On September
19, 1983, this action was instituted in the
Common Pleas Court for Montgomery County
Ohio, Case No. 83-2596. Expanding upon the
2
original complaint, recovery was sought upon
state-based claims of fraud and misrepresentation
(count II), implied independent contract and
promissory estoppel (count III), intentional
infliction of emotional distress (count IV) and
loss of consortium. The case was based, on
actions and rights outside the collective
bargaining agreement (“CBA”). Generally, each
claim was based on two separate courses of
conduct: The most egregious and independent
occurred three months after the CBA was ratified
and continued for a year. The other course of
conduct occurred prior to the ratification vote. In
order to distinctly understand the scope and
independence of petitioners’ claims it is
important to understand the relationship and
history of the parties. Otherwise, there is danger
the claims will be taken out of context and
lumped into a catchall section 301 action, as was
done in the appellate court below.
The background of the case touches upon many
relationships some of which happen to be
member-union, employee-employer, union-
management, but these are not controlling. The
dominant relationship was less “arms length”; it
was one founded upon a nature of trust, honesty,
personal commitment essentially, a fiduciary
relationship.
Prior to 1971, General Motors Corporation
(GMC) operated plants in the cities of Dayton
and Moraine, Ohio under its Fridgidare Division.
Workers were unionized through the International
Union of Electrical, Radio and Machine
Workers, AFL-CIO- CLC (IUE) and-one of its
area affiliates, Local 801. The operation of the
plants involved both appliances and automobile
air conditioners. Wages for both types of work
were keyed, not to the appliance industry, but to
the higher scale of the automotive industry
because workers readily transferred, or “flowed,”
from appliance to automotive jobs and back
again.
In 1971 GMC negotiated a lower wage scale for
workers on appliance projects. However the
above noted custom and practice of “flowing”
continued. Workers flowed or transferred to
automotive project jobs (now at a higher scale)
when openings occurred or to flow or transfer
back to the appliance jobs to avoid layoff by
bumping those with less seniority. In 1974 GMC
reorganized, splitting the automotive air
conditioning facilities from Fridgidare and into
Delco Air Conditioning (later known as Harrison
Radiator Division). Still the flow or transfer
practice continued.
This flow arrangement was not memorialized
until September 1976 when it ‘was formally
incorporated in the new CBA which ran from
September 1976 until September 1979. This
memorialization of the flow practice was known
as the “Bridge Agreement.” However, there
were some changes from past custom. Flow
rights were to continue only until the occurrence
of a condition which would be satisfied by GMC,
offering each then existing Fridgidare employee
the opportunity to permanently transfer to the
new Delco Division plus the hiring of 900
additional new Delco workers. As a practical
matter it was not foreseeable that this condition
would be satisfied for many years (Comp. para.
19-23,27).
By 1979, of the 5,500 original Fridgidare
employees covered under the CBA’s Bridge
Agreement, 2,000 transferred to Delco.
Plaintiffs herein are from this group. The
remaining 3,500 for various reasons had yet to
exercise rights under the Bridge Agreement. The
2,000 were replaced at Fridgidare by 2,500 new
hirees who had no rights under the Bridge
Agreement
In early 1979, GMC announced it was closing its
Fridgidare division, selling off the assets but
retaining the Dayton and Moraine plants for
conversion to automotive under the Chevrolet
Division. Petitioners allege (as background not
as the basis for state suit) that a conspiracy
transpired among the Respondents, with the
objectives of maintaining power and control in
deprivation of the rights of many of the 2,000 as
employees and under federal law.
From the union’s perspective, the closing would
idle 6,000 members (above noted 3,500 plus the
2,500 newly hired). These layoffs would effect
the power, prestige and financial muscle of Local
801. On the other hand, the two year conversion
process meant jobs, and after conversion - more
jobs, all needing union representation. IUE
wanted to maintain its status as bargaining agent
when the plants reopened but feared it would lose
its position to the United Auto Workers. GMC,
for its own reasons, secretly wanted to retain IUE
as the bargaining representative. GMC had the
additional objectives of dividing labor and
removing senior employees (petitioners) who
were at a higher wage scale, replacing them with
new lower paid workers. The plan was to
abrogate the Bridge Agreement, which the unions
were willing to sacrifice to maintain their private
interest. In the process of obtaining these
objectives, however, the Respondents committed
acts which serve as the basis for this suit (Eg.
Compl. para 15,16,25-27 and 43-48).
The conspiracy came to life in a series of
meetings, between January 31 and February 20,
1979, among GMC, IVE and Local 801. IUE
and Local 801 would be recognized as the
bargaining representative at the new Chevrolet
plants. However, only laid off Fridgidare
workers were to be recalled; either as temporary
workers for converting the buildings or, after
conversion, as permanent factory workers. The
Bridge Agreement was to be abrogated. These
meetings did not include negotiation of layoffs
which GMC was to institute at the Delco plant
later that year.
Through overt acts, omissions, fraudulent
misrepresentations and concealments with the
Objective of excluding the 2,000, jointly and
individually, from the notification and ratification
process; respondents succeeded in abrogating the
Bridge Agreement. To facilitate the conspiracy
two membership meetings were called. The first
was a hurried one, on short notice, for February
23, 1979. This obstensively was to approve the
effects of Fridgidare layoffs. (Comp. para.
29,33-34). The second, for September 18, 1979,
was ostensibly to approve the Delco
CBA.(Comp. para.35) Neither meeting
discussed the abandonment of the Bridge
Agreement. It was concealed. The Delco CBA
did not mention the abandonment of the Bridge
Agreement, it just omitted the provision. The
plan was to respond to any inquiries by
insinuating that the customary “flow” practice
that existed before the 1976 Bridge Agreement
was intact or the Bridge otherwise still existed. It
is the manner of respondent’s behavior towards
petitioners during this time which serves the basis
of the emotional distress claims. (Complaint
para. 30-37).
The remaining state claims arise from separate
events occurring between February 1980 through
January 1981. Shortly after ratification of the
local Delco CBA, Respondent GMC announced
layoffs at the Delco plant. Through January 1981
respondents continued to try to keep secret the
abrogation of the Bridge Agreement. The truth
Started to surface in February 1980 when
petitioners (laid off Delco Workers) were not
recalled, but instead were replaced by former
Fridgidare workers. Rather than being straight
forward and honestly telling petitioners they had
lost their jobs, respondents made representations
and innuendoes that the jobs would be
forthcoming. Petitioners were told all they had to
do was be patient and quietly wait. They were
reminded of the old custom of “flowing” and told
nothing of the destruction of the Bridge
Agreement. They were reminded of new
Chevrolet plants. Promises of employment were
made, individually and in groups. So petitioners
waited, always being reassured by those who
cultivated their trust that jobs would be theirs.
10
Respondents planned the chaos and turmoil
Surrounding plant closings, openings, and
thousands of job transfers (including temporary
plant conversion jobs). The respondents’ plan
prospered while petitioners were told to wait.
Finally, in January 1981 the Chevrolet plants
were fully converted. Workers from Fridgidare,
including the previously mentioned 2,500, were
called in. The Plaintiff-Petitioners began to
realize they were duped as they learned about
how the Bridge agreement was destroyed without
their knowledge, how the custom of “flowing”
that existed before was abandoned, and most
importantly how promises of jobs were empty
lies. Petitioners acted and forebore in reliance of
respondents’ promises and representations of
jobs. Petitioners were not merely misled, but
suffered significant injuries; some were
economically ruined, others psychologically
injured by those whom they trusted who, in
laughing admission, later called them cry-babies
and ridiculed them. Petitioners stated causes of
11
action in implied contract/promissory estoppel,
fraud and misrepresentation and some of their
emotional distress claims arise out of this conduct
and oral misrepresentations. (Comp.para 39-42,
73-79, 89)
Asserting federal question, respondents removed
the case to district court. Petitioners moved to
remand. On January 20, 1984, portions of the
complaint were ordered remanded, as arising
under state law. Adkins v. GMC (S.D. Ohio
1984), 578 F. Supp 315. On March 9, 1984,
asserting the six month statute. of limitations,
respondents moved for summary judgment for the
portion of the complaint deemed to arise under
Section 301. Not until June 26, 1987 was the
motion granted. At that time, by the attached
letter, respondents were invited to move for
reconsideration of the January 20, 1984 decision
granting petitioners motion to remand.
On July 8, 1987 respondents moved for
reconsideration. Petitioners response (then and
12
later on appeal), essentially was that the state
claims were independentiy based and not
inextricably intertwined or substantially
dependent on the terms of the CBA and, at
worse, involved parallel and supplemental state
causes of action that only tangentially concerned
a CBA, yet foster advancement of deep local
concerns.
On August 16, 1988 the district court preempted
the case except for the emotional distress and
consortium claims in relation to paragraphs 30,
33, 36 and part of 31 in the complaint.
Reasoning that the conduct was not within
Section 301, the district court ordered a remand.
Respondents moved for summary judgment over
the remainder of the case, again asserting statute
of limitations. This motion was granted on
January 24, 1990, but the district court overruled
any reconsideration of its remand order.
13
Petitioners appealed the preemption of their
claims to the Sixth Circuit. Respondents cross
appealed.
On October 15, 1991 the Sixth Circuit affirmed
the preemption of petitioners state-based claims
of fraud and misrepresentation, breech of implied
contract and tortious interference, and expanded
the order to engulf the emotional distress and
consortium claims which the district court found
outside the scope of Section 301. Adkins v.
GMC_ (6th Cir. Oct 15, 1991) unreported case
no.s. 290-3164, -3234, -3235. (herein after
referred to as Adkins).
14
REASONS FOR GRANTING THE WRIT
I. FIRST QUESTION PRESENTED
Petitioners submit that certiorari should be
granted to resolve a conflict between the Fifth
and Sixth Circuits. The conflict centers on the
meaning implied in terms adopted by the Court to
guide the lower courts in analysis of state law
claims with preemption considerations embodied
in section 301 . This is not to say the lower court
failed to use some of these terms. However, the
meaning was diametrically opposed to the
understanding advanced by petitioner, supported
by decisions of other circuits and by this Court.
When read with other Sixth Circuit cases, the
decision reflects a jurisprudence which prohibits
union members from enjoying rights, both in the
nature of contract and other torts, outside the
collective bargaining agreement (CBA) and has
the effect of absolutely immunizing unions from
state-based suits in fraud, misrepresentation, and
tortious interference of contract .
15
The Sixth Circuit decision also appears in conflict
with Caterpillar v. Williams (1987), 482 U.S.
386, 396-97 n. 10 (“not every dispute concerning
employment or tangentially involving a provision
of a collective bargaining agreement is
preempted... . Even under section 301 we have
never intimated that any action merely relating to
a contract...arises exclusively under that
section.’’)
Petitioners’ analysis begins with the Sixth
Circuit’s disposal of their contract claims and the
circuit’s jurisprudence. The conflict with a
recent Fifth Circuit decision is then examined
Wells _v. G.M.C. ( S.D. Miss 1988) 721 F.
Supp. 107, affd (Sth Cir. 1989), 881 F.2d 166,
reh. den. 887 F.2d 1083, cert.den.
U.S.__, 110 S. Ct. 1959. (Wells). The
factual similarities of the two cases will be
discussed as a prelude to analysis of the lower
court’s disposal of petitioners’ fraud and related
claims. This analysis reveals that the Sixth
16
Circuit’s understanding is in conflict with other
circuits. For example, the Wells case limits
preemption of state claims to those which
“substantially” depend on analysis or
interpretation of a CBA, the Sixth Circuit
preempts whenever it perceives the claim might
“relate” to a CBA. Adkins supra at 9.
“Individual contracts cannot subtract from
collective ones, and whether under some
circumstances they may add to them in
matters covered by the collective bargain,
we leave to be determined by appropriate
forums under the law of contracts
applicable... We know of nothing to
prevent the employee’s making any contract
provided it is not inconsistent with a
collective agreement or does not amount to
or result from or is not a part of an unfair
labor practice.”.
J.I. Case Co. v. Labor Board (1944),321 U.S.
332, 339. Forty years later some of these
principles were applied by the Court to prevent
Section 301 preemption of a state contract claim
17
by union employees under a CBA. terpillar
Inc. v. Williams, supra. In that case the Court
stated, “a plaintiff covered by a collective
bargaining agreement is permitted to assert legal
rights independent of that agreement, including
state contract rights, so long as the contract relied
on is not a collective bargaining agreement.” Id.
at 396. The Court further noted that the CBA
could be raised as a defense, id. at 397-398, such
defenses have no bearing on preemption, id. at
398-99, and if the CBA relates to the plaintiff’s
claim it might not ultimately be a sufficient
defense. Id. at 396-97, n.10.
Petitioners’ implied contract and related claims,
are based on representations made outside the
then existing CBA. However, the lower court’s
analysis of the Caterpillar case emphasized “the
defendant employer might successfully raise
federal preemption as a defense”. Id. at 13-14.
The lower court then noted potential defenses in
the instant case, id. at 17-18, and summarily
preempted petitioner’s state contract and tortious
18
interference claims, but failed to consider that the
“bridge agreement” mentioned in the complaint
was not part of the existing CBA. As to
petitioners’ claim that the contract was outside the
collective bargaining agreement and events
directly relating thereto, or at worse, was only
‘tangentially related,’ the lower court indicated
that such considerations were irrelevant. Id. at
17, 19-20.
The lower court’s decision appears anchored in
the jurisprudence of other cases, authored by the
same judge at approximately the time appellate
briefs were filed. Therein, it was stated “the
collective bargaining process prohibits a
bargaining unit employee from engaging in
separate negotiation with the company and
precludes any actions to enforce such
agreements.” Fox v. Parker Hannifan Corp.,
(6th Cir. 1990), 914 F.2d 795, 801 (preempting
implied contract and promissory estoppel claims
predicated on alleged company and union
promises made directly to plaintiff) (Boggs, J.).
19
lO... _
The rule announced by the Sixth Circuit in the
Fox case permeated the treatment of petitioner’s
claim. Further, Sixth Circuit jurisprudence
relative to Section 301 insinuates union
immunity. Dicta found in another case indicates
that, while common law actions against
employers may escape preemption, “[o]nly
claims based on union discrimination in the
employment setting are subject to the preemption
principle, because they realistically threaten to
interfere with the federal regulatory scheme.”
Krafel v. Pepsi Cola Bottlers (6th Cir 1990), 135
LMRM 2520, 2525-2526 (Boggs J ). See also,
Jones v. G.M.C. (6th Cir. 1991), 939 F.2d 380,
383 ( Section 301 preempts state law “when...
employees covered by a CBA rely upon the
existence of a separate individual employment
contract giving rise to state law claims.”’)
Examination of the underlying facts and legal
analysis in the Wells case with the instant case
reveals a conflict. Both cases involve a class
action suit by former G.M. automotive
employees. The employees were covered under a
collective bargaining agreement and were
represented by IVE and a local affiliate during
the early 1980’s, a period of downturn in the
automotive industry. Wells, supra. F. Supp at
109. Adkins , supra at 4-5. Both cases involve
claims that, when layoffs were occurring, oral
representations and promises were also made
which were believed and resulted in plaintiffs’
either action or forbearance of action in reliance
thereupon and to their detriment. However,
some of the behavior complained of in the Wells
Case was more or less clandestine than in the
instant case. Specifically, the plaintiffs in the
Wells cases were told they were facing
permanent layoff. Wells, supra. In that context,
the Wells plaintiffs were offered a plan, instituted
by GM and IVE, whereby union members could
sell off their seniority rights and be voluntarily
terminated (“VTEP”’). The VTEP plan was made
a supplement to the collective bargaining
agreement. Id., 721 F. Supp. at 113. The Wells
plaintiffs alleged that in meetings on VTEP,
2 1
ee
representations were made that those choosing to
sell their seniority could later compete for new
job openings if they arose. These representations
were relied upon but, after selling their rights,
plaintiffs were barred from applying for new
openings. A state suit for breach of implied
contract and fraud was removed to federal court.
The difference in the decision of the Fifth
Circuit, holding fraud and contract claims were
not preempted, and the decision of the Sixth
Circuit, preempting petitioners’ fraud, contract
and tortious interference claims is simply a
function of a difference in approach to Supreme
Court precedent. For example, the Wells case
emphasized, that Section 301 preemption was
dependent upon finding that "the resolution of the
particular dispute must be substantially dependent
upon analysis of the terms of a collective
bargaining agreement." Wells, supra F.2d at 173
(emphasis original). The Sixth Circuit's
preemption of petitioners’ claims swept the
Significance of the word "substantial" under the
22
rug. The Sixth Circuit imposed preemption
whenever it believes the state claim merely
"relates to various collective bargaining
agreements.” Adkins, supra at page 9. The
failure of the Sixth Circuit to attach significance
to the Supreme Court's use of terms such as,
"substantially" is not an isolated example. The
Fifth Circuit also emphasized several other
concepts announced by the Supreme Court which
are relevant to petitioners’ claim but disavowed
or ignored by the Sixth Circuit.
The Wells decision also followed the Supreme
Court's pronouncement that "not ...every state-
law suit asserting a right that relates in some way
to a provision in a collective bargaining
agreement is preempted." Wells, supra F.2d at
173 n.13, "Section 301 is not implicated unless
resolution of the state claims requires
interpretation of a collective bargaining
agreement...[and accordingly] a plaintiff covered
by a collective bargaining agreement is permitted
to assert legal rights independent of that
23
————————————————————————————— Ne
agreement, including state law contract rights, so
long as the contract relied on is not a collective
bargaining agreement." Id. at i73 (emphasis
original) (quoting and citing Lingle v. Norge
Div. of Magic Chef, Inc (1988), 486 U.S. 399,
and Caterpillar Inc. v. Williams, supra.) As
noted above, Sixth Circui: jurisprudence
disavows the possibility, or even the concept, of
union employees having a contract independent
of the collective agreement. See, Fox v. Parker
Hannifan Corp. supra. This jurisprudence
resulted in the summary preemption of
petitioners’ state contract claims that were
independent of, and subsequent to, the collective
bargaining agreement. Oral representations are
without effect even if detrimentally relied upon
by this approach.
The intercircuit conflict also extends to
petitioners’ fraud claims. The Wells decision
focused on the basis of the claim, to wit, oral
promises and oral representations that VTEP
contained provision allowing for future
24
employment. The Wells court noted that
actually, except for potentially minor provisions,
VTEP was essentially silent on future
employment. The parties did not dispute the
absence of any provision on the right to future
employment. Accordingly, and in reality, “the
dispute is a highly fact bound one concerning
what was said, or promised, at the meeting. The
defense to such a claim is not that the VTEP
might be construed to say otherwise; rather, it is
that--we made no such representation’ or that “no
such representation could have been made given
the VTEP's provisions.’ ” Wells. supra F.2d at
72.
The Sixth Circuit's approach to petitioners’ fraud
claims is in sharp contrast with the Wells case.
Petitioners’ claims revolve around two groups of
oral representations and separate detrimental
reliance; one prior, the other, many months after,
ratification of the CBA. The core of theses oral
misrepresentations relates to a bridge agreement
which all parties agree was not contained in the
25
pertinent collective bargaining agreement.
Nonetheless, the Sixth Circuit held "[t]he fact
that these [oral] misrepresentations took place
outside the context of collective bargaining is
immaterial.” Adkins, supra at 17. There was no
discussion about petitioners’ assertion that, at
worse, the fraud claim was merely tangentially
related to any collective bargaining agreement,
the significance of the state interest, or even that
the action was only of peripheral concern to
federal interest.
The conflict is not isolated between the Fifth and
Sixth Circuits. Cases from other circuits support
petitioners’ position and disavow the approach of
the Sixth Circuit. Anderson v. United Auto
Workers (D.Kan. 1990), 738 F. Supp 441, 442-
44 (employing a balancing test and holding a
State tort action against defendants, union and
employer is not preempted merely because it
"relates" to a provision in a collective bargaining
agreement.); Karetnikova v. Trustees (D.Mass.
1989), 725 F. Supp. 73,79 (employing a
26
—_—
balancing test in denying preemption and noting:
"A...more important reason the claim is not
preempted is that although plaintiffs claim may
refer to a CBA in some respects, it does not
substantially depend upon interpretation of the
CBA. Not every state law claim that relates in
some way to a provision in a collective
bargaining agreement is preempted.’’); Paradis v.
United Tech.. (D.Conn. 1987), 672 F. Supp.
67,70-71-( state claims in the nature of fraud
hinge not on what may be in a CBA but rather
what was represented or not represented
“irrespective” of the contents of any CBA.);
Anderson v. Ford Motor Co. . (8th Cir. 1986),
803 F.2d 953, 957 (holding fraud “ is a common
law tort deeply rooted in local standards of
individual and social responsibility..[and] does
not derive or depend on an underlying contract.’’)
Regardless of the approach, the consensus among
the circuits is that the conflicts are widespread |
and deep. Id. at 958-59 (noting conflict with
Ninth Circuit); Hanks v. GMC (8th Cir 1990),
27
Oe
906 F.2d 341, 344, n.4 ("Ninth Circuit...
unjustifiably extends (Supreme Court
precedent)’’); McCormick v. AT&T Tech.. (4th
Cir. 1991), 934 F.2d 531 and 538-539
(Dissenting opinion); (in a 4-3 decision, Judge
Phillips observes that his "disagreement with
section 301 preemption analysis is fundamental.
It is a disagreement that simply reflects a wider
inter-circuit conflict on this issue that has
developed in recent years as lower courts have
sought to apply the Supreme Court precedents."):
Paradis v. United Tech., supra at 69 (Noting that
the current status of section 301 preemption "in
its application by different courts, have led to
different results in similar fact scenarios.”); See
also, id. at 71,n.7 (observing split on fraud
among the circuits including Sixth).
Thus, the need for clarification is great. The
issues are clear and divisions between the circuits
are great. Moreover, the lower courts readily
acknowledge they are at odds, sometimes in less
that flattering terms. The instant case reflects the
28
Oe
——— ——
divisions. Granting certiorari will resolve these
divisions now and for the future.
II. SECOND QUESTION PRESENTED:
The United States Supreme Court has articulated
the law in a variety of phrases in their analysis of
Section 301 preemption cases. Some of the
phrases favor a finding of preemption, such as;
‘substantially dependent’ and ‘inextricably
intertwined.’ Other phrases are associated against
a finding of preemption, such as ; tangentially
related,’ ‘peripherally concerned’ and ‘parallel
[state] rights’. To date, the Court has not
specifically defined these terms and,
unfortunately, the lower courts have failed to
complete the process. Petitioners request
certiorari so the Court may clarify the meaning of
controlling terms used in Section 301 issues, by
either identifying the process through which their
meaning can be ascertained or by otherwise
29
clearly defining their meanings and appropriate
uses.
Phrases such as “tangentially related”, or
“substantially dependent”, are descriptive in
nature. When viewed together within the cases
the Court employed them, they define a process
and not a dictionary definition. The lower courts
have utterly failed to provide a workable
definition. The inconsistency by which the lower
courts apply these phrases makes it evident that
they are not susceptible to a common
understanding and usage. See, eg,. Anderson v.
Ford Motor Co., supra at 958-59; Hanks _v.
G.M.C. supra at 344, n.4; McCormick v. A T
& T Tech., supra at 538-39; Paradis v. United
Tech., supra at 69 and 71 n.7. (note refers to
conflict with Sixth Circuit over rationale in fraud
and misrepresentation cases.)
The problem is partially a consequence of lower
courts failing to consistently recognize that
federal interests are often best served by
30
recognition of parallel and supplemental state
causes of action. “Federal labor law in ...[a]
sense is interstitial, supplementing state law
where compatible, and supplanting it only when
it prevents accomplishment of the purposes of the
federal act.... Thus the Court has recognized
that it cannot declare pre-empted all local
regulation that touches or concerns in any way
the complex interrelationships between
employees, empioyers and unions; obviously
much is left to the States.”” Metropolitan Life
Ins. Co. v. Massachusetts (1985), 471 U.S. 724,
756-757. As a general rule, “courts sustain local
regulation unless it conflicts with federal labor
law or frustrates the federal scheme’, Allis-
Chalmers v, Lueck, (1985) 471 U.S. 202, 208-
209, “by interfer[ing] with the effective
administration of national labor policy.” Farmers
v. Carpenters, (1977), 430 U.S. 290, 298. See
United States Constitution Amendment X.
The NLRA and LMRA seek to create equal
bargaining power in the workplace. The purpose
3 1
sian la a la 2 nl Ma eee enema
is to provide a process by which a CBA can
formulated and issues directly related to a CBA
can be resolved. Certainly, there are provisions
and sanctions for those who would act unfairly or
unequal during this process. Beyond this, the law
was not designed to address malicious,
Outrageous or egregious behavior generally
associated with intentional torts. See Farmers v.
Carpenters, supra. Generally, federal sanctions
and damages would not be tailored to account for
such extreme behavior. See e.g. Id.; Keehr v.
Consolidated Freightways (7th Cir. 1987), 825
F.2d 133, 137-138; Krashna v. Oliver Reality,
Inc (3d Cir. 1990), 895 F.2d 111, 115 (“state
claim exceeds scope of...rights under LMRA.)
Yonover, Preemption of State Tort Remedies for
Wrongful Discharge in the Aftermath of Lingle
v. Norge: Wholly Independent or Inextricably
Intertwined, 34 So. D. L. Rev. 63, 78-79.
The procedural posture of this case underscores
the importance of recognizing _ the state interest.
One of the reasons for the states providing a
-
Na a a SS i ST
longer statute of limitations is the psychological
fact that those so injured are unlikely to be
readily capable of recognizing rights and
damages in a short period of time. See, eg.
Diagnostic and Statistical Manual of Mental
Disorders, Third Edition-Revised (DSM-III-R),
American Psychiatric Association at 218-222
(Major Depressive Episode-lasts 6 months or
longer), 247-251 (Post Traumatic Stress
Disorder) and 251-253 (Generalized Anxiety
Disorder). The six month statute of limitation
retroactively imposed upon petitioners to defeat
their Section 301 claims may have been
appropriate for the limited federal purposes of
enforcing the CBA. However, preemption of the
State claims imposes an unrealistic burden on
those petitioners with emotional injuries and
ultimately forecloses recovery to a whole class of
helpless plaintiffs. Moreover, if petitioners had
managed to preserves federal claims, federal
recovery could not address their injuries, See eg.
Yanover, supra at 77-79. Such foreclosure
borders on an arbitrary denial of fundamental
33
le
Substantive principles embodied in Fifth
Amendment Due Process. Bolling v. Sharp
(1954), 347 U.S. 497, 499 (Federal government
is limited by concepts similar to equal protection
embodied in Fifth Amendment substantive due
process.) See Scaccia, Title VII and Treaty
Rights Battles; The Verdict is Still Out, X ASILS
International Law Journal 77, 91-96.
It is apparent from the nature and context of
petitioners’ state claims (and the eight years in
federal court), that any appellate decision
purporting to resolve the controversy should have
defined its use of controlling phrases. The lower
court should have employed a methodology that
addressed petitioners assertions that their claims
involve parallel and supplemental state causes of
action that only tangentially concern a collective
bargaining agreement yet foster the advancement
of deep local concerns. See Farmer _v.
Carpenters, supra at 300-301. Had proper
methodology been used the Sixth circuit would
have found none of the state actions preempted.
34
Petitioners will first discuss a _ proper
methodology for analyzing section 301 claims
which take into account both federal concerns
and state interests. Petitioners then examine the
general approach by the lower court. Petitioners
analysis reveals that their claims should not have
been preempted even assuming arguendo that
there was some relation to the CBA. Petitioners’
claims are only peripheral to federal interest and
tangential to any collective bargaining agreement.
Concepts of state parallelism are demonstrated as
controlling since federal interests are best served
by recognizing the state’s substantial interest in
providing petitioners’ claims a forum.
The appropriate standard for judicial review
requires a threshold inquiry of whether, under the
circumstances alleged, the claim appears to be
embraced within the federal legislation. If not,
there is little or “no risk that permitting the state
cause of action to proceed would result in
regulation of conduct Congress intended to
35
ff e——C—CCCOCOCi‘(S..UUCOC##é#é#é#é#4ee..#eow..oeeeee
protect.” Farmer v. Carpenters, supra at 298.
Where the threshold inquiry indicates possible
federal preemption, further analysis is required to
determine whether the federal purpose underlying
the doctrine of preemption is best served by its
application. Still, the first question remains as to
what standard controls the threshold inquiry.
The threshold inquiry should focus on state black
letter law and avoid embroiling (possibly for
years) the federal courts in issues more
appropriately left for subsequent phases of
litigation. The state courts already have
concurrent jurisdiction and are duty bound to
apply federal common law where appropriate.
State black letter law was the threshold inquiry in
Lingle v. Norge Div. of Magic Chef, supra at
407-410. The state black-letter elements were:
(1) discharge and (2) a state prohibited motive
for discharge,. “Each of these purely factual
questions pertains to the conduct of the employee
and the conduct and motivation of the employer.
Neither... element requires a court to interpret
36
any term of a collective bargaining agreement.
Thus, the state law remedy.....is independent of
the collective bargaining agreement in the sense
...that matters for section 301 pre-emption
purposes: resolution of the state law claim does
not require construing the collective bargaining
agreement.” Id at 407 (emphasis added). State
black-letter law was also the threshold inquiry
pre-empting a state claim in Allis-Chalmers v.
Lueck, supra at 216-218 (“Under Wisconsin law,
the tort intrinsically relates to the of the nature
and existence of the [collective bargaining]
contract.”). Accord, Electrical Workers v.
Hechler (1987), 481 U.S. 851, 858-862
(“Because the [tort] right asserted not only
derives from the contract, but is defined by the
contractual obligation of good faith, any attempt
to assess liability ... inevitably will involve
[collective bargaining] contract interpretation.”’).
See also McCormick v. A T & T Tech., Inc.,
supra (dissenting opinion).
37
Petitioners submit that the state black letter law in
their claims does not require examination of the
CBA. This is more fully demonstrated in the
three subsequent questions presented. To avoid
redundancy they are incorporated by reference.
Importantly, assuming arguendo the claims do
not survive the threshold inquiry, further analysis
reveals the claims still should not be preempted.
“ When it is clear or may fairly be assumed
that activities which a state purports to
regulate are protected...or [prohibited]...,
due regard for federal enactment requires
that state jurisdiction must yield....But the
same considerations that underlie...
[preemption] led the Court to recognize
exceptions in appropriate classes of cases.
[The Court] refused to apply the preemption
doctrine...if that activity was merely a
peripheral concern to the LMRA or touched
interests so deeply rooted in local feelings
and responsibility that, in the absence of
compelling congressional direction we
38
eee
could not infer that Congress had deprived
the States of the power to act.”
Farmer _v Carpenters, supra at 296-297
(emphasis added). Though the Farmer case
involved Garman preemption, Section 301 pre-
emption analysis should not be significantly
different in form; both focus on the collective
bargaining process, only Section 301 emphasizes
the CBA and grievance process whereas Garman
emphasizes the preeminence of the NLRB. Thus,
the second step of analysis is examination of
countervailing considerations. At this phase
section 301 preemption would “depend [or turn]
upon the nature of the particular interest being
asserted and the effect upon the administration of
national labor policies of concurrent judicial and
administrative remedies.” Id. at 300-301
(emphasis added). In other words, the interest of
the state/individual is balanced against the federal
interest to determine whether the “state cause of
action would interfere with effective
administration of [the appropriate] national labor
policy.” Id.
The national labor policy of Section 301 cases
centers on uniformity in interpretation of
collective bargaining agreements. The objective
is to avoid labor disputes arising over uncertainty
in the meaning of provisions during negotiations,
and later administration, of a CBA. Allis-
Chalmers v. Lueck, supra at 209-210; Teamsters
v.- Lucas Flour (1962), 369 U.S. 95, 103.
Though effectiveness of arbitrations is also a
Section 301 concern, Hanks v. G.M.C., supra at
344-345, it is not an issue in the instant case.
Grievance procedures have long ago been ruled
illusionary and not applicable to the dispute.
Adkins _v. GMC (SD Ohio 1983) 573 F. Supp
1188, 1196-97.
Analyzing the state and federal interest, with the
facts of the case reveals that petitioners and
respondents agree that the 1979 CBA was
intended to abolish transfer rights known as a
40
“bridge agreernent.”” Adkins, supra at 18. The
bridge agreement simply is not in there. The
nonexistence of a provision does not create a
federal question on uniform interpretation of a
term ina CBA. Wells, supra. The agreement is
merely backdrop.
Petitioners state claims are based upon two
categories of behaviors. The first involves oral
Statements and other actions beginning four
months after ratification of the agreement. The
second relates to oral and written statements and
concealments and other actions prior to the vote
ratifying the CBA. In both, the legal issue is
what was said and done or what was not said or
done, not the meaning of a ‘bridge agreement’ or
what should be interpreted in the CBA. Since the
CBA is not the issue and the dispute does not
directly involve its interpretation, petitioner’s
claims only tangentially involve the CBA.
Wells, supra F.2d at 172-175; accord, Caterpillar
Inc. v. Williams, supra, (oral and written
41
written representations alleged occurred outside
the agreement).
The only other “provision” identified by the
lower court as reason for preempting petitioners
claims was seniority. Again, petitioners are not
per se asserting seniority nghts under the CBA.
Rather the claim is that statements were made
that included the term “seniority.” The issue is
what was said and understood at the time, not
what was in the CBA. Perhaps the lower court
was indicating seniority under the CBA may also
play a role in evidence. Maybe so, but the case
still does not involve a substantial federal interest
under the rationale of Lingle v. Norge Division
of Magic Chef, supra.
The Lingle decision noted that the state issue
was motive for discharge, essentially a factual
inquiry. Id at 407. Obviously, at trial relevant
evidence demonstrating proper or improper
motive would include compliance or
noncompliance with discharge procedures in the
42
CBA. Also, the CBA agreement would be
important for assessing damages. Such indirect
use of the CBA had no affect on the state claim.
“although federal law would govern the
interpretation of the agreement...the
underlying state claim, not otherwise
preempted, would stand. 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....not every dispute
tangentially involving a provision of a
collective bargaining agreement is
preempted by [Section] 301.”
Id at 413 n.12.
Without a more direct need to interpret the CBA,
federal policy under Section 301 is not
43
EE
implicated. Federal interest is best served by
recognizing the state claim. Though some of the
behavior alleged may also constitute an unfair
labor practice, fraudulent and/or outrageous
behavior far exceeds what is needed to satisfy a
federal violation. See,eg.. Farmers v.
Carpenter, supra. The limits of federal
enforcement only encourage those who intend to
act fraudulently, maliciously, or outrageously.
Without the state claims, these federal limitations
are counterproductive to the labor peace at the
core of federal legislation. Similarly, labor
unrest is encouraged by those frustrated with
partial or inadequate justice. Petitioners suggest
that this, at least partially, explains why factual
parallelism, to support nonpreemption of state
claims is approved in Lingle v. Norge Div. of
Magic Chef, supra at 408-410.
The state also has a strong interest in allowing a
forum for petitioners’ claims. “Fraud is a
common law action deeply rooted in local
standards of individual and_= social
44
responsibility....A claim of fraud does not derive
from nor depend upon an underlying contract.”
Wells supra F. Supp. at 107. States also have
“an overriding interest in protecting its citizens
from intentional infliction of emotional distress.”
Anderson v. United Auto Workers, supra at 443.
Petitioners asserted mental anguish in their fraud
and loss of consortium claims. Substantial
burden is placed on state resources if those who
cause such injuries can readily escape
responsibility for maintenance or recover.
Petitioners’ quasi-contract and promissory
estoppel claims also advance federal interest.
First, it is doubtful whether quasi-contract or
promissory estoppel claims are cognizable under
LMRA. See eg., Marine Transport Lines, Inc v.
International Organization of Masters,
(S.D.N.Y. 1986), 636 F. Supp. 384, 390-391;
Caterpillar v. Williams, supra. Without the state
claims, those who do not wish to abide by their
representations and promises have nothing to fear
regardless of the damage that results. Such
45
immunity hardly serves the national interest of
preventing labor unrest.
The Sixth Circuit wholly ignores analysis of
federal or state concerns. No mention was made
of state parallelism or matters of peripheral
concern to federal interest. Instead, the court
held as policy: “The fact that these
misrepresentations took place outside the context
of collective bargaining is immaterial.” Adkins
supra at 17. This direct conflict with the Wells
case, may have occurred from the court feeling a
need to examine the CBA for provisions that
might relate to a nonexistent bridge agreement.
However, judicial inconvenience is not the focus
for finding preemption (though it may support
remanding). Thus, by improper methodology the
lower court failed to identify the true issue, to
wit, what was said or not said by defendants and
their agents.
The Sixth Circuit also overruled the district
court's finding that some of petitioners emotional
46
ee
distress claims were not preempted. In doing so
the court did not engage in a preemption analysis.
Rather, the circuit court preempted based upon its
feeling that petitioners’ allegations of outrageous
behavior were not factually sufficient. Thus, the
court substituted a substantive Fed. R. Civ. Pro.
56(a) and (b), or Fed R. Civ. Pro. 12(b)(6)
analysis, which was not at issue, for a pre-
emption analysis. Had the lower court engaged
in a preemption analysis it could have discovered
all the alleged behavior was outside the LMRA
and NLRA. The siate action neither prohibited
what is protected nor protected what is
prohibited. The court would have discovered the
intentional infliction of emotional distress claim
was cognizable through concepts’ of state law
parallelism. The error by the lower court is
reflected in its failure understand that petitioners
case is not based on the CBA.
III. THIRD QUESTION PRESENTED:
Petitioners fraud claims may not be preempted
under Section 301 unless based “directly on
rights created by [a] collective bargaining
agreement ...[or] substantially dependent on
analysis of a collective bargaining agreement.”
terpillar _v. Williams, supra at 394-95.
Petitioners state fraud claims do not seek to assert
any right out of any CBA. The lower court did
not identify how any specific element was
substantially dependent on the CBA. The focus
for the lower court was that petitioners claims
“related” to a CBA. Id at 9.
The lower court was apparently concerned about
potential use of various documents relating to the
CBA to support,with other evidence, an element
or a defense. Such concerns are misplaced.
“[C]laims having their genesis in state law are not
preempted merely because their resolution in part
requires interpretation of a collective bargaining
48
a a ie a Ui laa Gui intaiainn Sa Gm ama eh
agreement.” Milne Employees’ Assn. v. Sun
Carriers Inc. (9th Cir Nov. 1991) 1991 U.S. App
Lexis 27786 at P.8. Petitioners also find support
in the Lingle case. In Lingle the issue of
employer motivation was factually dependent,
though, as a practical matter, compliance or
noncompliance with discharge procedures in the
CBA would be waived at the jury as evidence
Supporting a permissible or impermissible
motive. Lingle v. Norge Division of Magic
Chef, Inc., supra. The use of the CBA to
determine damages was also approved. Id. at
413, n.12. In other words, it is “not required that
the CBA be irrelevant to the dispute; either party
may still use the CBA to support the credibility
of its claims.” Jones v. Roadway Express, Inc.
(Sth Cir. 1991), 931 F.2d 1086, 1090.
Like other states, Ohio’s elements of fraud are:
(a) misrepresentation or concealment of a
material fact; (b)knowledge of falsity or
concealment (or such great indifference that
knowledge can be inferred) ; (c) intent to induce
49
Sg
reliance; (d) justifiable reliance and; (e) damages.
Cohen v. Lampco, Inc. (1984), 10 Ohio St. 3d
167,169. Wells, supra at 172 n.10. Milne
Employees’ Assn v. Sun Carriers Inc., supra. By
themselves, these elements do not refer to, nor
require evidence from a contract such as a CBA.
Similarly, petitioners’ factual allegations do not
give these elements a preemptive life.
The primary events supporting petitioners’ fraud
Claims started four months after ratification of the
1979 CBA and extended for almost a year
(February 1980 through January 1981). The
general core of these events are set forth in
paragraphs 39 through 42 of the complaint,i.e.,
oral misrepresentations of job security and future |
employment when there was none. These
misrepresentations each have a basis independent
of any CBA. First, based upon 817 individual
experiences. Second, based upon the behavior of
the defendants Third, no provisions in the
collective bargaining agreement embrace the oral
50
misrepresentations. Thus interpretation is not
required.
Turning to the elements, material
misrepresentation, knowledge and intent do not
require interpretation of any CBA, but turn on the
individual plaintiff’s state of mind and “purely
factual questions pertaining to the conduct and
motivation of the [defendant when they allegedly
made the representations]”. Lingle v. Norge
Div. of Magic Chef, supra at 407. Similarly, the
damage and justifiable reliance elements are
purely a factual inquiry. See Wells supra. As
the lower court recognized, the
misrepresentations to the 817 plaintiffs over a one
year period evolved into two forms. Adkins
supra at 16-18. First, there was concealment of
the absence of a bridge agreement in the CBA.
As noted previously, the absence of a provision
does not trigger a preemption. Petitioners’
reliance is based not on the CBA but solely upon
relationship of the parties, the manner of
communication (and withholding) and, generally,
51
————E
the factual circumstances of the interaction. The
second group of misrepresentations indicated that
employment security existed despite what was
not in the CBA. Again, the “dispute is highly
fact-bound one concerning what was said, or
promised, at the meeting[s]. The defense to such
a claim is not that the ...[{CBA] might be
construed to say otherwise; rather, it is the ‘we
made no such representation’ or that ‘no such
representation could have been made given the
Wells supra F.2d at
’
...[(CBA’s] provisions’.’
173.
Petitioners also assert a second category of fraud
claims occurring prior to ratification of the CBA
and based on concealing and misrepresenting the
absence of a bridge agreement in contract. Once
again, the issues are not what is in the agreement.
Its not there. Rather, the issues are what was
said or not said. Petitioners recognize this may
be a closer question if, for no other reason than
factually there was a potential for an unfair labor
practice claim. However, this potential is not
52
fatal. First, the state issues and sanctions for
fraudulent conduct are different as the behavior is
more extreme that what is needed to create an
unfair labor practice. Thus, there is support for
state law parallelism. Lingle v. Norge Div. of
Magic Chef, supra at 408-409. Second, to the
extent preliminary analysis indicates possible
preemption, the balancing of various interests and
purposes underlying federal preemption indicate
preemption is not appropriate. To avoid
redundancy, petitioners incorporate by reference
relevant portions of the analysis in the Second
Question for review.
Accordingly, the lower court’s preemption of
petitioners’ claims was a departure from the
guidelines established by the Court’s in the
Lingle and Caterpillar cases. So as to rectify the
error and avoid a compounded problem in future
cases, certiorari should be granted.
53
eisai
IV. FOURTH QUESTION FOR REVIEW
Petitioners do not seek enforcement of a CBA.
Rather they seek recovery for what was said and
what they were led to believe. “Their complaints
relate not to the agreement itself but to entirely
separate conduct by [respondents].” Wells, .
supra F. Supp. at 111.
The Court has specifically stated that “ a plaintiff
covered by a collective bargaining agreement is
permitted to assert legal rights independent of
that agreement, including state-law contract
rights so long as the contract relied upon is not a
collective bargaining agreement.” Caterpillar v.
Williams, supra at 396. The Court further
indicated that a state based contract claim may be
upheld even though it “tangentially involv[es] a
provision of a collective bargaining
agreement...[or] merely relat[es] to a contract
within the coverage of [section] 301.” Id. at 396-
97, n.10.
54
In conflict with the Caterpillar, case the Sixth
Circuit holds “employees covered by a CBA
cannot rely upon the existence of a separate
individual employment contract giving rise to
state law claims.” Fox v. Parker Hannifan Corp,
supra at 801, Jones v. G.M.C., supra at 383.
The lower court’s legal and factual analysis of
petitioners’ contract claims is guided by this
impermissible predisposition.
The elements of petitioners’ state contract claims
are offer, acceptance and consideration.
Alternatively, a representation was made which
they (individually) justifiably relied upon, to their
(individual) detriment. None of the elements in
either alternative look to the CBA. The basis of
the claim is what was said, implied or promised
by union leaders, their agents and the employer,
in their discussions with petitioners (individually
or in group). See, e.g. Wells, supra. Indeed,
the CBA is silent as to any right to work at the
new factories. Such silence removes the CBA
from preemptive consideration. Id. The Sixth
55
Circuit failed to identify which element was
substantially dependant upon or inextricably
intertwined with, the CBA. Identifying the
specific element would be impossible,
petitioners’ claims are based on _ oral
representations outside the agreement. Instead,
the lower court ruled the “critical inquiry is
whether a court adjudicating must determine
rights arising under a collective bargaining
agreement.”” Adkins, supra at 17. The lower
court identified these rights as seniority rights and
bridge agreement rights.
As to the relevance of a bridge agreement,
petitioners, individually and jointly, assert they
were promised jobs that did not exist at two new
factories. To the extent those promises referred
to transfer rights known as a bridge agreement,
such rights did not exist under the CBA. The
absence of a provision in the CBA which is
central to the dispute cannot create federal
preemption. Wells, supra. Alternately, to the
extent those promises related io the availability of
56 -
numerically sufficiently new positions at the new
factories (that could be open to all union
members) such an opportunity never occurred for
petitioners. Again the issue is not the CBA, but
the independent representations. Id.
As to the relevance of seniority, focusing on
conversations paraphrased in the complaint using
the phrase “seniority”, the lower court
characterized petitioners contract claims as based
upon seniority provisions existing in the CBA.
‘The lower court failed to appreciate that this
complex class action is based on individual
promises of jobs and individual belief that jobs
were forthcoming. Under such circumstances the
elements of reliance (for promissory estoppel) or
acceptance (for implied contract) would not be
satisfied at trial if solely based on the maybe and
vague uncertainty of possible available seniority.
Without this element there is no independent
contract, the trial court would never even
hypothetically get to the CBA. Accordingly,
there could not possibly be a federal issue based
57
on the seniority provisions. Similarly, to the
extent the respondents bantered about the term
“seniority,” the state claim would turn on
whether the individual was left with the
understanding that his job was secure or
employment would otherwise be forthcoming.
Again, there is no need to interpret the CBA as
the understanding of the parties would control.
The lower court analyzed the seniority issue by
analogy to the Caterpillar case. This analogy
focused on how it anticipated the CBA could be
used if the case went to trial. The impression
created is that the court’s analysis is merely
speeding up what it anticipates is the inevitable
preemption. Such analysis is shortsighted. First,
to the extent that aspects of seniority provisions
in the collective bargaining agreement may be
used at trial to support a defense or bolster
evidence of an element, “claims having their
genesis in state law are not preempted merely
because their resolution in part requires
interpretation of a collective bargaining
.
agreement.” Brown v. Holiday Station Stores,
supra at 405. It is “not required that the CBA be
irrelevant to the dispute; either party may still use
the CBA to support the credibility of its claims.”
Jones _v. Roadway Express, supra at 1090.
Lingle v. Norge Div. of Magic Chef, supra at
413, n.12. Second, to the extent that initial
analysis might indicate possible preemption,
examination of the federal purposes reveals they
are furthered more by resolution of the state
claims on the merits. This examination is set
forth with petitioners’ Second Question Presented
for Review and, to the extent applicable,
incorporated herein by reference to avoid
redundancy.
V. FIFTH QUESTION FOR REVIEW:
The NLRA and LMRA does not protect
outrageous conduct. Farmer v. Carpenters, supra
at 301-302. Regardless of the setting, federal
preemption will not override a state emotional
distress claim which has as an element a
requirement of outrageous conduct. Id. at 304-
306. The Court correctly did not establish a
national definition for “outrageousness.” The
determination of what constitutes outrageousness
was left to the states with the only provision that
“{ujnion discrimination in employment
opportunities cannot itself form the underlying
Outrageous conduct on which the state tort action
is based...something more is required.” Id. at
305 (emphasis added). The Court never said that
discrimination could not be considered.
The tort of emotional distress has evolved to
reflect life’s realities without causing disaster to
the legal system. Ohio is in the mainstream that
recognize, while employment discrimination in a
60
ee
vacuum may not amount to outrageousness, it is
a factor for consideration and, depending on the
factual circumstances, may constitute the
determinative factor. Uebelacker v. Cincon
Systems, Inc. (1988), 48 Ohio App. 3d 268;
Henteel v. Singer Co. (1986), 138 Cal. App. 3d
290 (discrimination following OSHA complaint);
Carsner v. Freightline Corp. (Or 1984), 688 P:2d
398; Cagle v. Burns (S. Ct. Wa. 1986), 726 P.2d
434 (wrongful discharge in violation of public
policy); Beasley v. Affd Hospital Prod.
(Mo.1986), 713 So.2d 557. The exercise of
power and authority “ must be done in a
permissible way and extreme and Outrageous
conduct may arise from abuse by the actor of a
position, or a relation with the other, which may
give him actual or apparent authority over the
other Or power to affect his interests.”
Uebelacker supra (quoting Restatement of the
Law 2d, Torts (1965), Section 46). Simply,
“relatively immobile workers who often have no
other place to go to market their skills do not
stand on equal footing with large corporations
6 1
[and unions]....It is the abuse of power ...which
aggravates the outrageousness.” Milton v. Ill.
Bell Tel. Co. (Ill. App. 1981), 427 N.E.2d 829,
832. The behavior cannot be viewed in a
vacuum rather the combination, duration,
frequency individual susceptibility and
employee’s ability to obtain internal redress are
significant factors in determining outrageousness.
See,. Rulon-Miller v. IBM (Cal. App.1985), 208
Cal. Rptr. 524, 534-535.
The Sixth Circuit removed from petitioners’ case,
any consideration of discrimination as a factor in
Outrageousness. The court first segregated the
various behaviors, isolating them out of their
context. First, the district court segregated and
_preempted petitioners’ claims relating to
“defendants failure to consider [their] nghts and
[also withheld] relevant information about the
collective bargaining agreement”. Adkins, supra
at 21-22. In affirming, the Sixth Circuit stated:
“the: claim goes to the quality of their union
representation and the fairness of their
62
ne
employer’s labor practices, issues central to the
concerns of federal labor law.” Id. at 25. There
was no further analysis. Thereupon the circuit
overruled the district court’s finding of no
preemption for the portions of the complaint
relating to emotional distress caused by
“defendants conduct in denying Plaintiff the right
to participate.” Id. at 22. The circuit court’s
rationale was the conduct was not sufficient to
constitute outrageousness. Id. at 25-26.
Petitioners challenge the circuit court on three
points: First, the determination of Outrageousness
Should not be piecemeal. The respondents’ entire
course of conduct should be considered if
relevant. Second, the court should not have
automatically preempted portions of the claim
which may have a relation to the labor process.
Closer examination would reveal only a
peripheral relation to federal policies. Also, a
-LMRA action technically would not be concerned
with the scope of conduct beyond the minimum
needed to satisfy a violation and would not tailor
63
eee
damages to all injuries sustained. Accordingly,
relevant portions of petitioners’ second question
for review are incorporated by reference. Third,
the circuit court should not have overruled the
trial court and determined whether the conduct
alleged in the complaint constituted
outrageousness. Aside from its failure to analyze
current state law, preemption was the issue
before the court, not the underlying merits.
CONCLUSION:
For the foregoing reasons petitioners assert the
Petition for Certiorari should be granted.
Sta
: Bee BA 6f 5 gee
Oi D. ranean
Counsel of Record
for Petitioners-Plaintiffs
64
CERTIFICATE OF SERVICE
This is to certify that a true copy of the foregoing
Petition for Certiorari has been served upon each
of the following counsel for the respective
respondents, GMC, IUE, and Local 801, by
regular United States Mail this 13 day of January
1992 addressed to their respective following
office addresses:
Joseph P. Buchanan, Esq.
(Counsel for General Motors Corporation)
2580 Kettering Tower
Dayton,Ohio 45423
J.R. Wheatley, Esq.
(Counsel for General Motors Corporation)
3044 West Grand Boulevard
Detroit, Michigan 48202
Carole W. Wilson, Esq.
(Counsel for IUE & Local 80] IUE)
1126 Sixteenth Street, N.W.
Washington, D.C. 20036
Richard F, Rice, Esq.
(Counsel for IUE & Local 80] IUE)
3561 Office Park Drive
Dayton, Ohio 45439
65
BRANNON, GIANUGLOU, DANKOF &
> 5 CARAS
APA Lee
7 ~ Dwight D. Brannon
aa Counsel of Record
for Plaintiffs-Petitioners
66
APPENDICES
APPENDIX A
—
_ - -_—
> FS =
RECOMMENDED FOR FULL TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 24
Nos. 90-3164/3234/3235
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN J. ADKINS, et al.,
Plaintiffs-Appellants (90-3164)/
Cross-Appellees,
v. ON APPEAL from the
United States District
GENERAL MOTORS CorPorATION, Court for the Southern
Defendant-Appellee/ District of Ohio
Cross-Appellant (90-3234),
and
LOCAL 801; INTERNATIONAL
UNION OF ELECTRONIC,
ELECTRICAL, SALARIED,
MACHINE and FURNITURE
WoRKERS, AFL-CIO,
Defendants-Appellees/
Cross-Appellants (90-3235). _
Decided and Filed October 15, 1991
Before: MILBURN and BOGGS, Circuit Judges; and
Nos. 90-3164/3234/
2 Adkins, et al. v. General Motors, et al. 3235
DEMASCIO,” Senior District Judge.
BOGGS, Circuit Judge. Plaintiffs are a class of former
employees of defendant General Motors Corporation
(General Motors) and their spouses. Because the spouses’
claims are derived from the employees’ claims, we shall
use the term “plaintiffs” to refer to the employees only,
unless the facts and the law of this case require us to
distinguish between the plaintiffs-employees and the
plaintiffs-spouses.
At all times relevant to this dispute, the plaintiffs were
members of defendant International Union of Electronic,
Electrical, Salaned, Machine and Fumiture Workers and
of defendant Local 801 of that union (collectively, “the
union"). In a prior action in the United States District
Court for the Southern District of Ohio, plaintiffs brought
a hybrid unfair representation/unfair labor practices claim
against General Motors and the union, pursuant to the
Labor Management Relations Act (LMRA) § 301, 29
U.S.C. § 185, and the Labor- Management Reporting and
Disclosure Act (LMRDA) § 101(a)(1), 29 U.S.C.
§ 41 1(a)(1). See generally Adkins v. General Motors
Corp., 556 F. Supp. 452 (S.D. Ohio 1983)(motion to
dismiss); Adkins v. General Motors Corp., 573 F. Supp.
1188 (S.D. Ohio 1983) (motion for summary judgment),
aff'd in part, remanded in pan, 769 F.2d 330 (6th Cir.
1985). In that case, plaintiffs alleged, in substance, that
General Motors and the Union had colluded in negotiating
a collective-bargaining agreement in order to abrogate the
special senionty rights contained in a collective-bargaining
agreement called the “bridge agreement." We will discuss
the nature of this agreement and the plaintiffs’ rights
under it more fully later in this opinion.
In the same action, plaintiffs also pursued pendent state
law claims for breach of contract, tortious interference
*The Honorable Robert E. DeMascio, Senior United States
District Judge for the Eastern Distnct of Michigan, sitting by
designation.
Nos. 90-3164/3234/
3235 Adkins, et al. v. General Motors, et al. 3
with contract rights, intentional infliction of emotional
distress, and loss of consortium. The federal labor law
Claim was dismissed with prejudice as untimely. The
pendent state law claims were dismissed without
prejudice, for lack of a substantial federal question to
support the exercise of jurisdiction over state law claims.
After the dismissal, many of the same plaintiffs filed a
complaint in state court alleging fraud, tortious
interference with contract rights, and intentional infliction
of emotional distress, thereby initiating the case now
before this court on appeal. See generally Adkins vy.
General Motors Corp., 578 F. Supp. 315 (S.D. Ohio
1984). The factual allegations of the complaint were
substantially the same as those advanced in the federal
suit. Defendants removed the case to federal district
court, asserting that these claims were fully preempted by
federal labor law. Plaintiffs then moved to remand the
case. The court below ruled that since plaintiffs’ fraud
and misrepresentations claims were fully preempted by
federal labor law, the case contained a federal question
substantial enough to support the exercise of federal
question jurisdiction. At the same time, the district court
also gave the defendants twenty days to present proper
motions for summary judgment on all claims. The court
noted its previous disposition of plaintiffs’ federal labor
law claims, which it had dismissed as untimely, and the
identity of the complaint filed in the previous action and
this one.
After defendants moved for summary judgment
pursuant to the suggestion of the district court, the court
below held that the federally-preempted fraud and tortious
interference claims were barred by the six-month statute
of limitations of the National Labor Relations Act. See 29
U.S.C. § 160(b): DelCostello v. International Bhd. of
Teamsters, 462 U.S. 151, 171-72, 103 S. Ct. 2281, 2294
(1983). These claims were dismissed with prejudice.
With respect to plaintiffs’ claims for emotional distress,
the court ruled that some were preempted and others were
Nos. 90-3164/3234/
4 Adkins, et al. v. Generai Motors, et al. 3235
not preempted. Those preempted were dismissed with
prejudice as time-barred. Those not preempted were
remanded to state court, because the dismissal of the
federally preempted claims had left the case without a
substantial federal question. See United Mine Workers of
America v. Gibbs, 383 U.S. 715, 86S. Ct. 1130 (1966).
This timely appeal and cross-appeal follow the court's
dismissal and remand. On appeal, plaintiffs contend that
the district court erred in holding any of the claims
preempted and in remanding the unpreempted emotional
distress claim. On cross-appeal, defendants argue that the
court erred in holding that some of plaintiffs’ emotional
distress claims were not preeempted and in failing to
dismiss all these claims with prejudice as time-barred
under federal labor law.
We affirm the district court's judgment in so far as it
holds _ plaintiffs’ claims completely preempted and
therewith barred as untimely by applicable federal labor
law. We vacate the judgment below in so far as it holds
that plaintiffs’ emotional distress claims are not
completely preempted and remands them to state court.
We remand the case to the district court with instructions
to dismiss all of plaintiffs’ emotional distress claims with
prejudice as completely preempted and time-barred under
federal labor law. ;
Before the events giving rise to this case occurred,
plaintiffs were employed by the Frigidaire Division of
General Motors at its Dayton-area plant. They were paid
at the wage rates prevailing in the automotive industry
instead of the lower wages of the appliance industry.
General Motors wanted to pay its Frigidaire employees at
the lower rates and, to this end, it negotiated a new
agreement with the local in 1976. As the quid for this
quo, General Motors agreed that Frigidaire workers could
transfer to the nearby Delco plant, also owned by General
Motors and organized by the local, where automotive
Nos. 90-3 164/3234/
3235 Adkins, et al. v. General Motors, et al. 5
workers’ rates prevailed. The agreement granting the
plaintiffs these rights, called the “bridge agreement" by
the parties, provided that if there were lay-offs at Delco,
Frigidaire workers who had transferred there could return
to Frigidaire, where they would replace workers with less
senionty. Plaintiffs took advantage of the “bridge
agreement" and transferred from the Frigidaire plant to
the Delco plant. The Delco plant later became a part of
the Harrison Radiator Division of General Motors, but for
purposes of simplicity we shall continue to refer to it as
the Delco plant.
In 1979, General Motors sold its Frigidaire Division to
White Motors, but retained possession of the physical
plant at Dayton. General Motors planned to convert the
facility and use it as part of its Chevrolet Division. All
the workers were laid off as a result. The local then
entered into negotiations with General Motors in order to
secure employment for its laid-off members when the
plant re-opened and to maintain its own position as their
bargaining agent. General Motors agreed to rehire its
laid-off employees and to recognize the union, but in the
ensuing collective-bargaining agreement, the “bridge
agreement” was abrogated. The resulting agreement was
ratified by workers from the former Frigidaire plant and
by the former Frigidaire workers who had transferred to
Delco. The latter group included the plaintiffs. At the
time of ratification, workers at the Delco plant were
experiencing full employment, while workers at the
Frigidaire plant were being laid off. As the year
progressed, however, the situation was reversed.
Workers at the Delco plant were laid off, including the
plaintiffs. When they tried to retreat to the former
Frigidaire plant, now part of Chevrolet, they learned that
the “bridge agreement" had been abrogated.
The substance of plaintiffs' grievance, both in the
preceding case and in this one, is that they were not told
that the new collective-bargaining agreement terminated
their retreat rights and that the union president told them
many times prior to ratification of the new collective
Nos. 90-3 164/3234/
6 Adkins, et al. v. General Motors, et al. 3235
bargaining agreement and afterwards that their “bridge
agreement" rights would not be affected by the new
arrangement. Plaintiffs argue that these representations
were fraudulent and wrongly induced them to ratify an
agreement not in their interest. Plaintiffs assert that the
motivation for this alleged fraud was collusion between
the local and General Motors, whereby the union agreed
to the termination of plaintiffs’ rights in exchange for
General Motors's recognition of the local as_ the
representative of the workers at the new Chevrolet plant.
According to plaintiffs, this collusion constitutes common
law fraud under state law. Plaintiffs also argue that the
local president's post-ratification assurances about the
survival of their mghts have created a contract, which
defendants have violated by refusing to honor their
“bridge agreement” rights. Finally, the plaintiffs take the
position that by their conduct in negotiating and
implementing the new collective-bargaining agreement,
defendants negligently’ or intentionally inflicted severe
emotional distress on them and their spouses.
The district court's well-reasoned opinion in response to
plaintiffs’ motion to remand and defendants’ motion for
summary judgment began by considering when claims
apparently arising under state law are preempted by
federal labor law. In the last decade, the Supreme Court
has handed down four significant opinions on_ that
question: 1) Allis-Chalmers Corp. v. Lueck, 471 U.S.
202, 105 S. Ct. 1904 (1985); 2) International
Brotherhood of Electrical Workers, A.F.L.-C.1.0. v.
'The wrongdoing that plaintiffs ascribe to defendants is all
intentional: intentionally misrepresenting the 1979 CBA; tortiously,
i.e., intentionally, interfenng with contract mghts; and acting
outrageously, i.¢., intentionally, to cause them emotional distress.
None of the cases cited in their brief refers to the negligent infliction
of emotional distress. We have no choice but to treat plaintiffs’
claims for the negligent infliction of emotional distress as pleading
boilerplate, since plaintiffs do not specify the nature of the
negligence, as opposed to the intentional conduct, on the part of the
defendants that caused the plaintiffs emotional distress.
Nos. 90-3 164/3234/
3235 Adkins, et al. v. General Motors, et al. 7
Hechler, 481 U.S. 851, 107 S. Ct. 2161 (1987); 3)
Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S. Ct.
2425 (1987); and, 4) Lingle v. Norge Division of Magic
Chef, Inc., 486 U.S. 399, 108 S. Ct. 1877 (1988). After
reviewing these cases, the district court held that a claim
made by the plaintiffs under state law would be fully
preempted by federal labor law if it arose from or
required the interpretation of any of the collective-
bargaining agreements relevant to the case. See Lingle,
486 U.S. at 405-06, 107 S. Ct. at 1881 ("Thus Lueck
faithfully applied the principle of [LMRA] § 301
preemption ... : if the resolution of a state-law claim
: depends upon the meaning of a collective-bargaining
) agreement, the application of state law (which might lead
: to inconsistent results since there could be as many state-
law principles as there are States) is pre-empted and
federal labor-law _ principles--necessarily —_ uniform
throughout the nation--must be employed to resolve the
dispute."); Williams, 482 U.S. at 395, 107 S. Ct. at 2431
("(For preemption purposes, sJection 301 governs claims
founded directly on rights created by collective-bargaining
agreements, and also claims ‘substantially dependent on
analysis of a collective-bargaining agreement.’ Electrical
Workers v. Hechler, 481 U.S. at 859 n.3, 107 S. Ct. at
2166-67 n.3 ....").
After reviewing plaintiffs’ allegations of fraud under
this standard, the district court concluded that "virtually
every fraudulent representation allegedly made by
[djefendants relates in one way or another to the terms of
the various collective-bargaining agreements." For that
reason, the court held that plaintiffs’ claim for fraud under
State law was “substantially dependent" on the terms of
the collective-bargaining agreement and _ therewith
preempted by federal labor law. ,
To reach this conclusion, the court below was obliged
to sift through the complaint in order to detect the factual
allegations underlying its claim for relief from fraud.
This was not easy work. The complaint is very difficult
to understand. It is prolix and vague. Because of this
Nos. 90-3 164/3234/
8 Adkins, et al. v. General Motors, et al. 3235
problem, we find it necessary to quote more extensively
from the plaintiffs’ pleadings and the opinion of the court
below than we normally do.2 The following passage from
the court's opinion exemplifies the approach the court
took to the task of defining plaintiffs’ claims.
[In their motion in opposition to summary
judgment,] “Plaintiffs claim that the Unions
misrepresented GM's position in 1979 contract
negotiations and thereby induced them to enter into
the agreements." .. . Plaintiffs specifically assert
that "GM, IUE and 801 concerted[,] presented,
urged and proposed ... [the] agreements and
modifications [of February 23, 1979] in a manner
designed to insure their adoption through the
permitted withholding of information necessary to
meaningfully inform [the plaintiffs} that their
‘bridge agreement’ rights would be impaired by an
affirmative ratification.” Plaintiffs further allege
that "[iJn furtherance of . . . [the] concerted plan
2in their bref and at oral argument, the plaintiffs allude to
additiona! conduct by the president of Local 801 and other parties to
this case, not mentioned in their complaint, which they maintain
would support their claims of fraud and contractual obligations arising
outside context of collective bargaining agreement. They argue
that the court erred in preventing them from proving this additional
conduct by granting summary judgment in favor of the defendants.
Even if we were inclined to indulge this argument because of the
mandate of the Federal Rules that a complaint is to be construed
liberally, see FED. R. Civ. P. 1, our forbearance would not aid the
plaintiffs. The court below disposed of the case on a motion for
summary judgment. In ing such a motion, plaintiffs were under
a duty not only to state the allegation a intended to prove at trial
but also to demonstrate the nature and quality of the evidence they had
at their disposal. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-
23, 106 S. Ct. 2548, 2552 (1986) (“[T]}he plain language of Rule
56(c) [of the Federal Rules of Civil Procedure] mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, _— a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at tnal."); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2514
(1986) (“The movant has the burden of showing that there is no
genuine issue of fact, but the plaintiff is not thereby relieved of his
| burden of producing in tum evidence that would support a jury
verdict. ”).
Nos. 90-3 164/3234/
3235 Adkins, et al. v. General Motors, et al. Q
of GM, IUE and 801 to . . . substantially confine
any consideration of . . . [the] modifications, GM,
IUE and 801 concertedly confined the scope of any
circulated information regarding the proposals to
the explanation and discussion of only the benefits
to be derived by the persons then employed by
Frigidaire[,] while wholly ignoring and being
totally silent with respect to any consequent
converse detriment whatsoever to [the plaintiffs]."
my While not every claim of fraudulent
misrepresentation would be preempted by § 301,
based on the foregoing allegations, the Court
concludes that the Plaintiffs' claims of fraudulent
misrepresentation are in fact preempted by § 301.
It cannot be disputed that Plaintiffs' claims of
fraudulent misrepresentation all relate to the
various collective bargaining agreements. It
would be impossible to determine whether the
information provided to Plaintiffs by Defendants
was false (or insufficient) without analyzing the
terms of the various collective bargaining
agreements.
J.A. 116-17. (Italics supplied.) (Citations omitted.)
In considering plaintiffs’ tortious interference claim, the
court also held that they were fully preempted, because
adjudicating any of them would require an analysis of
plaintiffs’ rights under the _ collective-bargaining
agreements. The following excerpts from the district
court's opinion exemplify the approach the court took to
these claims and their supporting allegations of fact.
In Count Three of their Complaint, Plaintiffs
assert that “[a]s a proximate result of the conduct
of the defendant IUE, the defendant Local 801
breached its duties and agreements with the
plaintiffs.” Plaintiffs further assert that "[a]s a
proximate result of the conduct of the defendant
unions, the defendant General Motors did breach
ee
Nos. 90-3 164/3234/
10 Adkins, et al. v. General Motors, et al. 3235
its expressed and implied agreements with the
plaintiffs." Finally, Plaintiffs assert that “[aJs a
proximate result of the conduct of the defendant
Generai Motors, the defendant unions did breach
their contracts, fiduciary duties and business
relationships with said plaintiffs.” .. .
“* *
Defendant Local [801] allegedly breached its
fiduciary relationship by promoting changes in
Plaintiffs’ collective bargaining agreement which
were allegedly detrimental to Plaintiffs and by
allegedly concealing the fact that said changes
were in fact detrimental. An analysis of whether_
or not Defendant Local 80] breached its duty of
fair representation requires an analysis of the
terms of the collective bargaining agreements.
Without such an analysis, it would be impossible to
determine the impact of the Defendant Local 801's
actions upon the Plaintiffs.
~<* *
Further, [with respect to the contention that the
local and the union induced General Motors to
breach its duties toward the plaintiffs,] it must be
remembered that Plaintiffs’ chief complaint is that
GM modified the terms of the collective
bargaining agreements. Even assuming,
arguendo, that some implied agreement, separate
and apart from the collective bargaining
agreements, existed between Plaintiffs and
Defendant GM, it would be impossible to
determine whether said agreement was breached
by the modification of the terms of the collective
bargaining agreements without analyzing and
interpreting the terms of the collective bargaining
agreements.
~_*" *
Nos. 90-3 164/3234/
3235 Adkins, et al. v. General Motors, et al. 11
Finally, [with respect to plaintiffs’ claim that GM
induced the local and the union to breach its duties
toward the plaintiffs,] Plaintiffs basically assert
that the Defendant Unions’ actions in promoting
the modification of the collective bargaining
agreements breached Defendant Unions' duty of
fair representation. The propriety of Defendants’
- actions simply cannot be determined in the absence
of an analysis of the terms of the collective
bargaining agreements before and afier the
modification of February 23, 1979.
J.A. 118-22. (Emphasis supplied.) (Citations omitted.)
Il
A
Plaintiffs rely largely on Caterpillar, Inc. v. Williams,
supra, to argue against the district court's disposition of
their fraud and tortious interference claims. Because of
the use plaintiffs make of the case, we begin our
consideration of plaintiffs’ arguments with a review of its
facts and holdings.
In Caterpillar, plaintiffs were a group of long-time
employees of the Caterpillar Corporation at its San
Leandro, California plant. They hired in as hourly
workers under terms established by a collective-bargaining
agreement with United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW).
Later during their employment with Caterpillar, they were
promoted to the salaried ranks. While in those jobs,
plaintiffs were told that the company would always take
care of them and that if the San Leandro plant ever
closed, plaintiffs would be given jobs in other divisions or
subsidiaries of Caterpillar's enterprises. Later still in their
employment at San Leandro, plaintiffs were returned to
their former positions as hourly employees. While they
were in those positions, the company decided to close the
San Leandro plant. Plaintiffs were notified that they were
Nos. 90-3 164/3234/
12 Adkins, et al. v. General Motors, et al. 3235
laid off and that promises to find employment for them
elsewhere would not be honored.
Plaintiffs then brought suit in state court, alleging that
Caterpillar's promises of continuing employment were
contractual obligations under state law and independent of
any collective-bargaining agreement between the UAW
and Caterpillar. Caterpillar removed the action to federal
court, contending that, as a matter of law, any rights
plaintiffs might have because of contracts under state law
were merged into the collective-bargaining agreement.
Because of this merger, Caterpillar alleged, plaintiffs’
state law claims were fully preempted by federal labor
law.
The Supreme Court disagreed and held that removal
was improper under the “well-pleaded complaint rule” of
federal question jurisdiction. 482 U.S. at 391-93, 398-
99, 107 S. Ct. at 2429-30, 2432-33. This rule provides
that “federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff's properly
pleaded complaint." 482 U.S. at 392, 107 S. Ct. at 2429.
In addition, the rule provides that “a case may not be
removed to federal court on the basis of a federal defense
.. , even if the defense is anticipated in the plaintiff's
complaint, and even if both parties concede that the
federal defense is the only question truly at issue. 482
U.S. at 393, 107 S. Ct. at 2430.
Normally, federal preemption is a defense to a state law
claim and may not serve as the basis for removal. 482
U.S. at 392, 107 S. Ct. at 2430. The doctrine of
“complete preemption,” however, is a corollary to the
“well-pleaded complaint rule." 482 U.S. at 393, 107 S.
Ct. at 2430. Once an area of state law has been
completely preempted, any claim purportedly based on the
preempted state law is considered a federal claim from its
inception. /bid. Complete preemption occurs when “the
pre-emptive force of a statute is so ‘extraordinary’ that it
‘converts an ordinary state common-law complaint into
one stating a federal claim for purposes of the well-
re
Nos. 90-3 164/3234/
3235 Adkins, et al. v. General Motors, et al. 13
pleaded complaint rule.'" /bid. (quoting Metropolitan
Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S. Ct.
1542, 1547 (1987)). The complete preemption corollary
| to the well-pleaded complaint rule is applied primarily in
cases raising claims preempted by LMRA § 301. Jbid.
The preemptive force of § 301 is so powerful as to
displace entirely any state cause of action for violations of
contracts between an employer and a labor organization.
482 U.S. at 394, 107 S. Ct. at 2430 (citing Franchise Tax
Board of California v. Construction Laborers Vacation
Trust for Southern California, 463 U.S. 1, 23, 103 S. Ct.
2841, 2853-54 (1983)). Section 301 preemption governs
claims either founded directly on rights created by
collective-bargaining agreements or “substantiall’
dependent on analysis of a collective-bargaining
agreement." 482 U.S. at 394, 107 S. Ct. at 2431 (citing
Electrical Workers v. Heckler, supra).
Despite the strength of § 301 preemption, the
Caterpillar court held that nlaintiffs' state law contract
claims were not completely preempted so as to justify
removal to federal district court. J/bid. The court
reasoned that Caterpillar's promises to the plaintiffs, i:
proven, constituted an employment contract with the
plaintiffs individually, separate from the collective-
bargaining agreement, that was not necessarily superseded
by the collective-bargaining agreement between
Caterpillar and the UAW. 482 U.S. at 396, 1075S. Ct. at
| 2431. In other words, “(the Caterpillar plaintiffs’)
| complaint is not substantially dependent upon
| interpretation of the collective-bargaining agreement. It
| does not rely upon the collective agreement indirectly, nor
does it address the relationship between the individual
contracts and the collective agreement." 482 U.S. at 395,
107 S. Ct. at 2431.
This holding did not preclude the possibility that the
Caterpillar plaintiffs’ claims were panially preempted. In
other words, the defendant employer might successfully
raise federal preemption as a defense to the plaintiffs’
State law contract claim if it is able to show that enforcing
Nos. 90-3 164/3234/
14 Adkins, et al. v. General Motors, et al. 3235
the alleged contracts would violate federal labor laws.
See 482 U.S. at 397, 107 S. Ct. at 2432. For example,
Caterpillar might successfully defend by showing that the
purported contracts with the individual plaintiffs violated
the principle of exclusive representation of the National
Labor Relations Act § 9(a), 29 U.S.C. § 159(a). Jbid.
Nonetheless, “the presence 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 .... [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 U.S.
at 396, 107 S. Ct. at 2433.
On the strength of Caterpillar, plaintiffs in this case
argue that the district court erred by giving full
preemptive effect to defendants’ “defensive allegations"
when it considered plaintiffs’ claims of fraud. With
respect to their claims of tortious interference, plaintiffs
argue that the district court erred by not holding that their
contract claims arose outside the context of the collective
bargaining agreement. Neither argument has merit.
Plaintiffs misconstrue the district court's opinion when
they argue that the court mistakenly treated defendants'
assertion of federal preemption as an affirmative defense
to fraud. Rather, the district court relied solely on the
allegations on the face of the complaint to determine that
all of plaintiffs’ claims of fraud were fully preempted.
An examination of the passages from the district court's
opinion quoted above should make that point clear. The
plaintiffs’ claim, as the court understood it, was that the
president of Local 801 had fraudulently induced them to
ratify the 1979 collective-bargaining agreement that
abrogated the “bridge agreement." As the court below
correctly noted, under Ohio law, damages are a necessary
element of a claim for fraud. Cohen v. Lamko, Inc., 10
Ohio St. 3d 167,169, 462 N.E.2d 407, 409 (1984). The
EE
Nos. 90-3 164/3234/
3235 Adkins, et al. v. General Motors, et al. 15
damage alleged by plaintiffs was the loss of “bridge
agreement” entitlements, which had been effected by the
1979 collective-bargaining agreement. In order to
adjudicate this claim, the court below would have been
obliged, at a minimum, to determine that the “bridge
agreement" conferred such rights on the plaintiffs, that the
subsequent collective-bargaining agreement abrogated
those nights, and that the plaintiffs agreed to the 1979
collective-hargaining agreement because the president of
Local 801 misrepresented those rights as the court
construed them. As the court below correctly concluded,
such a judicial undertaking would necessarily involve the
federal courts in adjudicating a claim “substantially
dependent on_ analysis of collective-bargaining
agreements." Caterpillar, 482 U.S. at 394, 107 S. Ct. at
2431; Electrical Workers, 481 U.S. at 859 n.3, 1075S. Ct.
at 2166-67 n.3. We might go even farther and say that
the rights at issue are “created by collective-bargaining
agreements," Caterpillar, ibid., thus effecting a complete
preemption of plaintiffs’ fraud claims.
Plaintiffs also argue that the court did not consider all
of their allegations of fraud in concluding that their claim
was fully preempted. Their brief states:
As set forth in paragraphs 39 through 42 [of the
complaint], the Plaintiffs-Appellants further
alleged, after completion of all collective
bargaining agreements, and after all the actions
surrounding the collective bargaining agreements,
that the President of Local 801 from February of
1980 through January of 1981, made various
extensive fraudulent misrepresentations regarding
the continued recognition of the seniority nghts of
the laid off Plaintiffs-Appellants. Specifically he
indicated that these employees had nothing to
worry about, and they accordingly would
participate fully in the Chevrolet jobs. . . .
These fraudulent representations made by the
President obviously took place long after the
~
-
Nos. 90-3 164/3234/
16 Adkins, et al. v. General Motors, et al. 3235
collective bargaining agreements, and they were
not representations being made with regards to the
collective bargaining agreements, but were
representations that the Plaintiffs-Appellants would
be participating in the Chevrolet jobs like their
counterparts.
x“ &
In the case at bar, the fraudulent representation
claims are based upon the representations made by
the President; the claim does not require extensive
interpretation of the collective bargaining
agreement. Instead, the Plaintiffs-Appellants, in
raising their separate state claims, complain with
regards to the fraudulent acts on the part of the
President in making representations that seniority,
despite the terms and conditions of the collective
bargaining agreement, was going to be respected.
Brief for the Appellants at 20-21, 22-23.
Plaintiffs’ position in the passages just quoted from
their brief is not very clear. We do not know whether
they are alleging that the president of Local 801 told them
that the 1979 collective-bargaining agreement did not
affect their mghts under the “bridge agreement," or
whether they are alleging that the president of Local! 801
told them that their purported entitlement to jobs at the
Chevrolet plant would be respected, despite the 1979
collective-bargaining agreement. What is clear is that
plaintiffs maintain that these representations occurred
independently of the collective bargaining agreement and
that, as a result, they give rise to claims not completely
preempted by federal law.
Under either understanding of the meaning of plaintiffs’
complaint, this argument is without ment. We assume
first, for the sake of argument, that plaintiffs are asserting
that after the 1979 collective-bargaining agreement had
been negotiated and ratified, the president of Local 801
Nos. 90-3 164/3234/
3235 Adkins, et al. v. General Motors, et all. 17
concealed from the plaintiffs that it abrogated their
“bridge agreement" rights. The fact that these alleged
misrepresentations took place outside the context of
collective bargaining is immaterial. The critical inquiry is
whether a court adjudicating this claim must determine
rights arising under a collective bargaining agreement. It
surely must, if plaintiffs are alleging that the president of
Local 801 concealed from them the fact of their loss of
“bridge agreement" rights.
In order to find fraud under Ohio law, a court must
find, among other things, that there is a misrepresentation
or concealment of fact material to the transaction, that the
party against whom fraud is alleged knew of the falsity of
his misrepresentation or was so indifferent to truth or
falsity that knowledge may be inferred, and that the
misrepresentations were made with the intent of inducing
the other party to rely on it to his detriment. Cohen,
supra. In order to make such a determination in this case,
the court would have to ascertain what the plaintiffs’
rights were under the bridge agreement; whether they had
been abrogated under the 1979 collective-bargaining
agreement; what the Local's president had told plaintiffs
about the 1979 collective-bargaining agreement; whether
Or not it was false, given the court's construction of the
agreements at issue; and whether the Local president
knew or should have known of its falsity. These
determinations require an analysis of both the “bridge
agreement” and the 1979 collective-bargaining agreement.
The analysis may not be especially difficult, but it would
be extensive. Plaintiffs’ fraud claims, on _ this
understanding of their complaint, are so intertwined with
the terms of the collective-bargaining agreements present
in the case that they may not be separated. See Allis-
Chalmers Corp., 471 U.S. at 213, 105 S. Ct. at 1912.
We next assume that plaintiffs are instead alleging that
the president of Local 801 told them that their “seniority
rights" would be respected, despite the terms of the 1979
collective-bargaining agreement abrogating their “bridge
agreement" mghts. We can conceive of no understanding
ee
Nos. 90-3 164/3234/
18 Adkins, et al. v. General Motors, et al. 3235
of the term “seniority mghts” in this case other than the
plaintiffs’ asserted rights to transfer from the Delco plant
to the Chevrolet plant (formerly the Frigidaire plant),
carrying their job seniority with them. As we understand
the facts of this case, this portable seniority is the basis of
plaintiffs’ asserted entitlement to share in jobs at the
Chevrolet plant. These rights were created by the “bridge
agreement,” one of the collective-bargaining agreements
of this case. Under the construction of plaintiffs’
allegations that we are considering here, adjudication of
plaintiffs’ claim would require, at the minimum, a
determination of what plaintiffs’ “bridge agreement"
rights were and whether they are being violated by the
new arrangements. Again, the analysis may not be
difficult, but it is extensive.
We conclude that the district court did not err in |
holding all of plaintiffs’ fraud claims completely
preempted by federal labor law. We find such a result
completely consistent with federal labor law policy.
Indeed, it 1s required by it. The parties do not dispute
that both Local 801 and General Motors intended that the
1979 collective-bargaining agreement terminate the
“bridge agreement.” Plaintiffs, in effect, are asking this
court to find that the rights thus terminated were reborn
under state law because of the inequitable conduct of
General Motors and union officials when the 1979
collective bargaining agreement was submitted for
member ratification and at various times thereaftey. We
are asked to enforce those rights either by awarding
money judgments for their violation or by injunction. We
would thereby create a_ situation in which” mnghts
extinguished under federal labor law were vital under state
law. The purpose of the doctrine of complete preemption
is to prevent one set of rights and obligations from issuing
from a collective-bargaining agreement under federal law
while contradictory rights and obligations flowed from
state law. If plaintiffs have been betrayed by their
employer and their union and cheated out of valuable
senionty rights in a fraudulent ratification procedure, their
remedy is a timely suit for unfair representation/unfair
a
Nos. 90-3 164/3234/
3235 Adkins, et al. v. General Motors, et al. 19
labor practices. Plaintiffs cannot be permitted to revive
rights deemed extinguished under federal labor law by
relying on state common law.
.
We now tum to plaintiffs’ tortious interference claims.
| Plaintiffs rely on Caterpillar to argue that contractual
obligations between employer, employee, and union may
exist outside the collective-bargaining agreement. They
fault the district court for failing to consider this
| possibility in addressing their tortious interference claims.
| As we understand the plaintiffs’ position, they are arguing
that a contract was formed because of the representation
of the president of Local 801 and others that their “bridge
agreement" rights either had not been abrogated, or would
be respected, despite abrogation. They analogize this
purported contract to the promises made to the Caterpillar
plaintiffs about continuing employment with the company.
On the basis of this analogy, they assert that the
contractual rights arising from the representations of the
local president and others can be determined without
reference to the collective-bargaining agreements present
in the case. Hence they maintain that removal on the
basis of complete preemption was improper.
We do not accept this analogy. In Caterpillar, the
alleged contract between the plaintiffs and the employees
was independent of any collective-bargaining agreement;
in this case, the purported contracts between the plaintiffs,
on the one hand, and their union and their employer, on
the other, are not independent in any way of the
collective-bargaining agreements in the case. A
comparison between Caterpillar and this case should make
the point clear.
In order to adjudicate the Caterpillar plaintiffs’ state
law contract claim, a court would be obliged to engage in
ordinary contract analysis. It would be required to
determine questions such as_ whether Caterpillar had
offered the plaintiffs continuing employment, whether the
|
_
Nos. 90-3 164/3234/
20 Adkins, et al. v. General Moters, et al. 3235
plaintiffs had accepted the offer by performance or
otherwise, and whether there was adequate consideration
for the promises. Although these determinations could be
made without any reference whatsoever to a collective-
bargaining agreement, once it had been established that
such a state law contract existed, the defendant company
would be permitted to argue, for example, that subsequent
collective-bargaining agreements had displaced this
contract because of the exclusive representation provisions
of the National Labor Relations Act. Such an argument
would raise preemption as a defense to the assertion of
contractual obligations that had been established without
reference to a collective-bargaining agreement, but it
would not serve as the basis of removal.
In this case, in order to adjudicate plaintiffs’ claim that
a contract existed under state law, the court would have to
determine that plaintiffs were offered “seniority rights”
based on the “bridge agreement” after the 1979 collective-
bargaining agreement, that they accepted the offer, that
there was consideration, and so on. Or the court may
have had to determine that plaintiffs were induced to
believe that their asserted “seniority rights” under the
“bridge agreement" were intact or would be respected,
even if not intact, and that they relied on these
representation justifiably and to their detriment. An
exercise such as this necessarily involves the court in
determining what the “seniority rights" under the “bridge
agreement” are. It follows that adjudicating the plaintiffs’
tortious interference clam necessarily involves an analysis
of a_ collective-bargaining agreement because the
contractual relation necessary to the claim is based on the
representations of the president of local 801 that their
“seniority mghts" would continue. For this reason,
plaintiffs’ tortious interference claims are fully preempted.
The court below did not err in so holding.
Nos. 90-3 164/3234/
3235 Adkins, et al. v. General Motors, et al. 21
IV
We now reach plaintiffs’ emotional distress claims.
The district court held some of these claims completely
preempted, others not completely preempted. In the
opinion of the district court, plaintiffs’ claims were
completely preempted if they were alleging that General
Motors and the union caused them emotional distress by
the very fact of actions such as withholding information
about the 1979 collective-bargaining agreement, by
concealing the fact that a vote was to be held; by insisting
on quick ratification of the agreement; or by failing to
consider their “bridge agreement” rights. On the other
hand, the court concluded that plaintiffs’ emotional
distress claims were not preempted in so far as they were
based on the defendants’ conduct in doing these things.
Ohio law requires that a defendant's conduct be
“extreme and outrageous” if there is to be tort liability for
a plaintiff's emotional distress. Yeager v. Local Union
20, 6 Ohio St. 3d 369, 382, 453 N.E.2d 666, 671 (1983).
The following passages from the district court's opinion
exemplify its approach to the claims of emotional distress
under Ohio law in this case.
In 4 25 of their Complaint, Plaintiffs assert that
Defendant GM, Defendant IUE and Defendant
Local 801 “proposed modifications of the Local
Seniority Agreement of Dec. 10, 1976 and of the
Bridge Agreement of December 10, 1976, together
with the urging that the same be adopted.” If the
Plaintiffs are claiming that in proposing this
modification, Defendants caused Plaintiffs’
emotional distress, the Court concludes that said
claim is preempted by § 30] of the LMRA. Such a
claim is “inextricably — intertwined with
consideration of the terms of the [various] labor
contract/s].” Allis-Chalmers Corp., 471 U.S.
| 2 reer
If the Plaintiffs are claiming that the Defendants’
Nos. 90-3 164/3234/
22 Adkins, et al. v. General Motors, et al. 3235
failure to consider the rights of Plaintiffs caused
Plaintiffs emotional distress, the Court concludes
that said claim is preempted [by federal labor law]
for said claim is “inextricably intertwined with
consideration of the terms of the [various] labor
contract[s].” /d. at 213.
If the Plaintiffs are claiming that [by withholding
relevant information about the collective
bargaining agreement,] Defendants caused
Plaintiffs emotional distress, the Court concludes
that said claim must be preempted ... as the
evaluation of such a claim “is inextricably
intertwined with consideration of the terms of the
[various] labor contract[s].” Jd.
If the Plaintiffs are claiming that Defendants’
alleged conduct in concealing the fact that a vote
was to be held caused the Plaintiffs emotional
distress, the Court concludes that said claim is nor
preempted by § 301 of the LMRA. Regardless of
whether the proposed changes to the collective
bargaining agreements would have a major or
minor effect upon Plaintiffs, it could be argued
that Defendants’ alleged conduct in denying
Plaintiffs the right to participate in decision
making caused Plaintiffs emotional distress.
J.A. 123-26. (Italics supplied.)
Plaintiffs rely on Farmer v. United Brotherhood of
Carpenters and Joiners of America, Local 25, 430 U.S.
290, 97 S. Ct. 1056 (1977) to uphold the judgment of the
court below that some of their emotional distress claims
are not completely preempted. They also rely on Farmer
to argue that the court erred in holding that other
emotional distress claims were fully preempted. This
reliance is misplaced.
In Farmer, the plaintiff, a vice-president of a local
union, developed sharp differences with other officers of
ne
Nos. 90-3164/3234/
3235 Adkins, et al. v. General Motors, et al. 23
the local over union policies. The local ran a closed
hiring hall. Plaintiff alleged that as a result of his policy
disagreement with the leadership of the local, he was
discriminated against when jobs were assigned at the
hiring hall. He also alleged that he was subjected to a
campaign of vituperation and harassment when he came to
the union hall. He filed suit in California state court,
alleging that union officials had intentionally engaged in
Outrageous conduct causing him severe emotional distress.
In the same action, he also alleged that the local officials’
discrimination against him breached the relevant
collective-bargaining agreement and_ his membership
contract with the union. The state court dismissed his
discrimination and breach of contract claims as completely
preempted, but allowed his emotional distress claim to go
to the jury. The case ultimately came to the Supreme
Court, which upheld the state trial court's exercise of
jurisdiction over the emotional distress claims.
The premise of the court's reasoning was that the
complete preemption doctrine should not be applied in
cases where “the State ... has a substantial interest in
protecting its citizens” from tortious conduct, 400 U.S. at
302, 97 S. Ct. at 1064, or where the activity at issue is
| merely peripheral to the concerns of federal labor law,
400 U.S. at 297, 97 S. Ct. at 1061. On the other hand,
"[t]o leave the States free to regulate conduct so plainly
within the central aim of federal regulation involves too
great a danger of conflict between the power asserted by
Congress and the requirements imposed by state law. 400
U.S. at 296, 97 S. Ct. at 1061.
Applying these consideration to the case before it, the
Supreme Court held:
No provision of the National Labor Relations Act
protects the “outrageous conduct" complained of
Regardless of whether the operation of the
hiring hall was unlawful or lawful under federal
Statutes, there is no federal protection for conduct
on the part of union officers which is so
_
Nos. 90-3 164/3234/
24 Adkins, et al. v. General Motors, et al. 3235
outrageous that "no reasonable man in civilized
society should be expected to endure it."... .
The State, on the other hand, has a substantial
interest in protecting its citizens from the kind of
abuse [complained of]. That interest is no less
worthy of recognition because it concerns
protection from emotional distress caused by
outrageous conduct, rather than protection from
physical injury . . . or damage to reputation.
_—* *
On balance, we cannot conclude that Congress
intended to oust state-couri jurisdiction over
actions for tortious activity such as that alleged in
this case. At the same time, we reiterate that
concurrent Sstate-court jurisdiction cannot be
permitted where there is a realistic threat of
interference with the federal regulatory scheme.
[Neither] union discrimination in employment
opportunities nor [threats of discrimination can in
themselves] form the underlying “outrageous”
conduct on which the state-court action is based
.... [SJomething more is required .... [I]t is
essential that the state tort be either unrelated to
the employment discrimination or a function of the
particularly abusive manner in which the
discrimination is accomplished or threatened rather
than a function of the actual or threatened
discrimination itself.
Two further limitations deserve emphasis. Our
decision rests in part on our understanding that
California law permits recovery only for emotional
distress sustained as a result of “outrageous”
conduct. The potential for undue interference with
federal regulation would be intolerable if state tort
recoveries could be based on the type of robust
language and clash of strong personalities that may
be commonplace in various labor contexts.
Nos. 90-3 164/3234/
3235 Adkins, et al. v. General Motors, et al. 25
400 U.S. at 302, 305-06, 97 S. Ct. at 1064, 1066.
Although the court below did not express itself in these
terms, its decision can be understood as analogizing the
fact of withholding information about the 1979 collective
bargaining agreement in this case to the _ hiring
discrimination aJleged in Farmer. The decision can also
be understood analogizing the manner in which the
information was\withheld in this case to the manner in
which the plaintiff in Farmer was abused. The analogies
appear to establish the boundary between the central
concerns of federal labor policy and the unpreempted
interests of state law in protecting its citizens. In this
case, the line divides the claim that information was
allegedly withheld from the claim that it was withheld in
an abusive manner.
We are unpersuaded that the line has been drawn
correctly, appealing though the distinctions of the court
below are on first inspection. Although it is theoretically
possible that union leaders urging the ratification of a
collective-bargaining agreement might behave
outrageously toward other union members, no outrageous
conduct has been alleged in this case. The substance of
plaintiffs’ complaint is that material information about the
1979 collective-bargaining agreement was withheld from
them. This claim goes to the quality of their union
representation and the fairness of their employer's labor
practices, issues central to the concerns of federal labor
law. Without specific allegations of outrageous conduct
on the part of the union or the employer in securing the
ratification of the 1979 collective-bargaining agreement,
we find the state interest in adjudicating plaintiffs’
emotional distress claims too insubstantial to defeat
complete preemption.
Accordingly, we affirm the district court's holding that
plaintiffs’ emotional distress claims, in so far as plaintiffs
allege that information was withheld from them, are
completely preempted. We reverse the district court's
holding that plaintiffs’ emotional distress claims, in so far
seem.
Nos. 90-3164/3234/
26 Adkins, et al. v. General Motors, et al. 3235
as they refer to defendants' conduct, are not completely
preempted.
V
For the reasons given above, the district court's
dismissal of plaintiffs’ complaint is AFFIRMED. The
court's remand of plaintiffs’ emotional distress claims to
state court is VACATED. The case is REMANDED
with instructions to DISMISS the complaint WITH
PREJUDICE in its entirety.
ee
APPENDIX B
NAMES OF PETITIONERS (817):
1) John J. Adkins;2) Alva L Alexander, Jr.;3)
Jerry L. Alexander; 4) Robert L. Alexander; 5)
Melville G. Allemang; 6) Dewey Alley; 7)
Donald Anderson; 8) Richard Andruskewicz; 9)
Paul L Arahood; 10) Patricia A. Arnett; 11) Paul
Douglas Arrington; 12) C. Douglas Astor; 13)
Larry Allan Austin; 14) Charles E. Bach; 15
Lester Payne Backus; 16) Barry L. Bahns; 17)
John R. Bailey; 18) Lester Bair: 19) Herman L
Baker; 20) Walter C. Baker: 21) James L Barnes:
22) Harry Bausmith; 23) Henry A. Beasly; 24)
Janet E. Stivers Beckett; 25) Larry L. Belue; 26)
Thomas F. Bledsoe; 27) Paul E. Boggs; 28)
Robert L. Bowling, Sr.; 29) Raleigh L. Brewer;
30) Robert Brock; 31) Darryl Patrick Brown; 32)
Michael R. Brown; 33) Roger D. Brown: 34)
Ross T. Brown; 35) Larry Burile; 36) Wendell C.
Burr; 37) Darrell H. Burton: 38) Larry J. Camp;
39) Glenn Campbell; 40) Terry Carman; 41) Lory
Carpenter; 42) Billey Ray Carr; 43) Tommy
Roger Cavey; 44) Thelma K. Chain
aa
45) Donalfd F. Chambers; 46) Edith C. Chandler;
47) Eddie Childers, Sr.; 48) William F. Clark;
49) Benjamin D. Cleary; 50) Homer Climons;
51) Lester Collins; 52) Herman Combs; 53)
James C. Combs; 54) Phiilip E. Combs; 55)
Roger K. Combs; 56) Cecil W. Conrald;. 57)
Terry L. Conway; 58) Denver Cook; 59) Alfred
Cooper; 60) James A. Cooper; 61) Bruce W.
Cordray; 62) Curt Couch; 63) Joseph M. Courter;
64) Charles W. Cowens; 65) Larry D. Cox; 66)
Harry Crego; 67) Sammy Crouch; 68) Harold L.
Cundif; 69) Douglas E. Curtis; 70) John E.
Dales; 71) Thomas M. Dalton; 72) James Darst;
73) Gary L. Davidson; 74) Richard C. Davidson;
75) Robert M. Davidson; 76) Dean A. Davis; 77)
Gary H. Day; 78) John E. Deak; 79) Michael W.
Deck; 80) jhn A. Denman; 81) Robert Dennison;
82) James D. Dillow; 83) Lloyd D. Eaton, Jr.;
84) Larry E. Edington; 85) Donald Ellinger; 86)
David B. Evans; 87) Eddie R. Evans; 88)
LaVaughn Farris; 89) Michael V. Finley; 90)
Dennis B. Forsyth; 91) Robert C. Freeman;
92) Harold French; 93) Lloyd E. Gebbard; 94)
Richard Garberson; 95) Howard E. Gardner; 96)
Floyd A. Garrod, Jr.; 95) Larry Garwood; 93)
Bernard L. George; 99) William C. Gibson; 100)
Donald D. Gilbert; 101) Harry E. Gisewite; 102)
William Glenn; 103) Otis J. Glover; 104)
Thomas R. Goins; 105) Mac S. Green; 106)
Leonard H. Griffen; 107) Stanley D. Griffith;
108) Marvin D. Grooms; 109) Williams R.
Grooms; 110) Kenneth D. Gropengieser; 111)
James A. Grosshart; 112) Donald G. Gulasa:
113) George Gurdon; 114) Howard Guy, Jr.;
115) Forrest B. Gwinn; 116) Ronnie L Hall; 117
Danny R. Hamm; 118) John Hamm; 119) Ronald
e. Hampton; 120) Donald E. Hardy; 121) Dennie
M. Hardyman; 122) David Lee Hargrove; 123)
Stephen A. Harlow; 124) John Harowski, Jr.:
125) James D. Harris; 126) Ronald L.
Hartbarger; 127) Delbert Hatton; 128) Joseph
Haynes; 129) Wilson D. Helfinstine; 130) George
C. Helton; 131) Gary Hemberger; 132) Jerry W.
Henderson; 133) Lovell Henderson;
| en
134) Roger S. Henderson, Sr.; 135) John D.
Hendricks; 136) LeRoy R. Herdman; 137) Glen
E. Higgins; 138) Leslie Higgins; 139 Cietus
Holbert; 140 Gary A. Holliday; 141) James C.
Hosey; 142) Jack R. Howard, Sr.; 143) Carl W.
Hudson; 144) Bruce A. Hughley, Sr.; 145)
Richard J. Hunter; 146) Norman E. Hurst; 147)
James Ishman, Sr.; 148) Bradley A. Ivey; 149)
Charles H. Jackson; 150) Robert Jackson; 151)
Thaddeus S. Jackson; 152) Alfred R. Jamison;
153) James M. Jellison; 154) David Jends; 155)
Fred A. Jennings; 156) Bobby Gene Johnson;
157) James L Johnson; 158) Leonard D. Johnson;
159) Richard E. Johnston; 160) Jerry G. Jones;
161) John A. Jones; 162) Lonnie L Kilburn; 163)
Sylvester Kindred; 164) Larry W. King; 165)
Gerd Klingler; 166) John Knight; 167) Donald D.
Konz; 168) John E. Laird; 169) Gary P. Layne;
170) Charles David Leadingham; 171) Edward J.
Leary; 172) Frank G. Lee; 173) Norman D. Lee;
174) Timothy L Leonard; 175) Ronald Leopold;
176) Stephen M. Lett;
177) Lester D. Leturgez; 178) John E. Lewis, Jr.:
179) Ronnie J. Lewis; 180) Charles E. Lilly;
181) C.M. Loesch; 182) Robert Lofty; 183)
Thomas K. Lngenecker; 184) Glenn M. Lykins;
185) Richard McCarty; 186) Thomas J.
McGarvey; 187) Franklin B. Mcllvain; 188)
Robert G. McIntosh; 189) Emery Myles
McMahan; 190) Harrison Madden, Jr.; 191)
Ronald E. Malone; 192) Marion Marshall; 193)
Mary A. Marshall; 194) Michale L. Massis: 195)
David L. Meadows; 196) George Michael
Mercer; 197) James L. Merkison: 198) Gordon
L. Merritt; 199) Richard Lee Mikesell; 200) Gary
E. Miller; 201) Kenneth Lee Miller; 202) Ronnie
D. Miller; 203) Ronald O. Miller; 204) Bob
Minney; 205) Lowell P. Mitchell; 206) Newell
Mitchell; 207) Richard C. Mobley; 208) Harvey
L. Monbeck, Sr.; 209) John R. Monroe; 210)
Glenda L. Moore; 211) John D. Moore; 212)
Mildred L Moore; 213) Marvin L. Morris; 214)
Richard Edward Mulll; 215) Claren ce L.
Mullins; 216) James A. Mutter:
il,
217) Daniel Newsome; 218) Dale H. Nicholas;
219) Sylvia S. Nickell; 220) Donald Lee Noble;
221) Donald L. Null; 222) William R.
O’Connell; 223) Patrick Lee O’Shea; 224)
Ronnie L. Osborne; 225) Harry J. Otto; 226)
Charles Pauley; 227) Michael R. Pennington;
228) Charles A. Petrey; 229) Robert e. Petry;
230) James Vernon Peyton; 231) James Phelps;
232) Wilburn G. Pigman; 233) mihaly A.
Polczer; 234) Thomas W. Porter; 235) Darryl L.
Powell; 236) Dennis Harry Powell; 237) Vernol
H. Powell; 238) Thomas Wayne Presley; 239)
Howard S. Price; 240) Charles W. Prosser; 241)
David Pryor; 242) Lee Bruce Pryor; 243) Michael
Dean Puterbaugh; 244) James C. Pyles; 245)
Thomas; J. Ramsey; 246) Kurotibishi Ali Rashid;
247) David Eugene Rauch; 248) Michael L.
Rauch; 249) William G. Retherford; 250) David
T. Rhoden; 251) Paul R. Rickman; 252) Rufus
Ridley; 253) Robert Rinehart, Jr.; 254) Lawrence
Roark, Jr.; 254) Lawrence Roark, Jr.; 255) Dawn
Cherie Roman; 256) Randle Rose; |
257) Michael L. Rudd: 258) Lonnie R. Saunders;
259) William L. Schemel: 260) Henery e.
Schleiger; 261) Glenn E. P. Scholz; 262) Robert
G. Schroth; 263) Donald E. Shearer; 264) Harlis
H. Sheets; 265) Philip H. Sheidan: 266) James L.
Sherrit; 267) Earl Shilt, Jr.; 268) Jerry L. Short;
269) Tommy A. Short; 269) Tommy A. short;
270) Sheldon Sisco; 271) Ronald L. Skinner;
272) Larry O. Smith: 273) Robert Smith; 274)
James Walter Spangler; 275) Lonnie Spencer:
276) Robert F. Stall; 277) Dennis Standifer; 278)
James L. Steiner: 279) James Patrick Stiens; 280)
Timothy L. Stuart; 280) Raymond Swope; 2820
Jerry A. Taylor; 283) Travis K. Taylor; 284)
Raymond Terrell, Jr.; 285) Richard. L. Terrell;
286) Charles Thatcher; 287) Kenneth E. Thomas;
288) James T. Titus: 289) Jon R. Titus; 290)
Dale R. Thompkins; 291) Ivan E. Tufts; 292)
Danny Turner; 293) Paul Tyra; 294) Edgar P.
Underwood, Sr.; 295) John L. VanCleve; 296)
James P. Vaughn, Jr.; 297) David L. Vires; 298)
Gary Wagers; 299) George Lewis Walker;
_
300) Lawrence E. Warren; 301) Bill L. Waters;
302) Donald P. Watkins; 303) David M. Weaver;
304) John E. Welch; 305) James E. West; 306)
Duane T. Wheatley; 307) Leona A. Whitey; 308)
Will White; 309) Donald D. Wigginton; 310)
Autsin S. Wiley; 311) Kenneth R. Wiley; 312)
Garry G. Williams; 313) James L Williams; 314)
Roy D. Williamson; 315) Ronald Williford; 316)
Paul s. Willis; 317) Ralph Edward Willis; 318)
Roger L. Wills; 319) Robert J. Wilson; 320)
Rusell W. Windsor; 321) Richard L. Winkler;
322) Charles H. Witham; 323) Rober S. Wynn;
324) James E. Wysocki; 325) Rober M. Yerian;
326) Paul e. Zimmerman; 327) Timothy R.
Zwick; 328) Robert L. Ashman; 329) Gary W.
Carmack; 330) George J. Eikens, II; 331) John F.
Evans; 332) Gaylord F. Fitzwater; 333) V.L.
Frenchf; 334) George E. Frymyer, Jr.; 335) Keith
Gabbard; 336) Quentin E. Mobley; 337) Clifford
H. Ruble; 338) John P. Ruble 339) Dwight A.
Smith; 340) Joseph H. Smith, Jr.; 341) Clarence
W. Tipton; 342) Cary G. Wogomon;
343) Fayetta Alexander: 344) Jacquelin
Alexander; 345) Peggy J. Alexander; 346)
Dorothy J. Allemang; 347) Louetta M. Alley;
348) Patricia g. Andruskewicz; 349) Janic A.
Arahood; 350) Linda L. Arrington; 351) Elaine
A. Astor; 352) Pamela J. Austin; 353) Norma J.
Backus; 354) Patricia A. Bahns; 355) Patty A.
Bailey; 356) Donnita Bari: 357) Joyce A. Barnes:
358) Gloria Bausmith; 359) Jan M. Belue; 360)
Doris J. Brewer; 361) Cheryl L. Brock; 363)
Jeanette E. Brown: 363) Linda R. Brown; 363a)
Lois D. Brown; Sandra K. Brown; 365) Beth
Burile; 366) Kathryn Burr: 367) Pamela R.
Burton; 368) Deborah J. Carman; 369) Elizabeth
J. Carr; 370) Linda Sue Cavey; 371) Madeliene
C. Chambers; 372) Levie Childers; 373) Chalene
L. Clark; 374) Yvonne M. Cleary; 375; Patricia
A. Clemons; 376) Ina Collins; 377) Barbara
Combs; 378) Eunice Combs; 379) Lillian M.
Combs; 380) Vikki L. Conrad; 381) Sharon
Cook; 382) Cheryl A. Cooper; 383) Janice A.
Cordray; 384) Karen S. Couch;
385) Catherine A. Courtier; 386) Joan Cowens;
387) Gayle Cox; 388) Gisela Crouch; 389) Chris
C. Cundif; 390) Hazel M. Curtis; 391) Patricia J.
Dalton; 392) Vi Darst; 393) Doris Davidson; 394)
Gladys K. Davidson; 395) Karen Davidson; 396)
Sheila F. Davis; 397) Judith A. Day; 398) Peggy
L. Deak; 399) Susan L. Denman; 400) Kay E.
Dennision; 401) Sherry O. Eaton; 402) Jeanetta
M. Edington; 403) Lana Ellinger; 404) Kathleen
R. Evans; 405) Lou Ann Evans; 406) Vivian J.
Finley; 407) Loraine Forsyth; 408) Beverly J.
Freeman; 409) Cathy French; 410) Verna
Gabbard; 411) Pat Garberson; 412) Susan E.
Gardner; 413) Janet Garrod; 414) Beverly
Garwood; 415) Pauline L. George; 416) Peggy L.
Gilbert; 417) Rowena Gisewite; 418) Helen
Glover; 419) Alic S. Goins; 420) Betty L. Green;
421) Carolyn S. Griffen; 422) Cathy M. Griffith;
423) Fran Grooms; 424) Susan K. Grooms; 425)
Sandra K. Gropengieser; 426) Yvonne Grosshart;
427) Jane Gulasa; 428) Shirley F. Hall; 429) Gail
Hamm; 430) Mary Lou Hamm; 431) Kathryn
Hampton; 432) Bobbie F. Hardy; 433) Betty A.
Hardyman; 434) Wanda Hargrove; 435) Patricia
S. Harlow; 436) Sharon M. Harowski; 437)
Ramona G. Harris; 438) Ruthann Hartberger;
439) Connie Hatton; 440) Betty L. Haynes; 441)
Judy A. Helfinstine; 442) Charlotte R. Helton;
443) Linda C. Henderson; 445) Thelma J.
Henderson; 446) Chalotte A. Hendricks; 447)
Gwyneth W. Herdman; 448) Shirley Higgins;
449) Sandra J. Holliday; 450) Carolyn K. Hosey;
451) Ruby R. Howard; 452) Deborah A. Hudson;
453) Narvelll Hughley; 454) Karen S. Hunder;
455) Dorothy Ishman; 456) Alene Ivey; 457)
Gloria A. Jackson; 458) Shirley Jackson; 459)
Mary Jamison; 460) Shirley F. Jellison; 461)
Denise Jenks; 462) Darlene Jennings; 463) Bertha
Johnson; 454) DeeAnna Johnson; 465) Karen S.
Johnson; 466) Pat Jones: 467) Reva Kilburn; 468)
Ovivia C. Kindred; 469) Carolyn King; 470)
Judith A. Klingler; 471) Sharon Knight; 472)
Mary K. Layne; 473) Mary M. Leadingham;
474) Wanda S. Leary; 475) Ida Mae Lee: 476)
Chreyl A. Lett; 477) Sharon J. Leturgez
478) Nancy Lewis; 479) Rebecca D. Lewis; 480)
Janic A. Logty; 481) Vivian D. Lykins; 482)
Brenda McCarty; 483) Helen M. Mcllvain; 484)
Mary Ann MclIntosh; 485) Melanie M.
McMahan; 486) Evelyn Madden; 487) Gayle
Malone; 488) Iva Nell Marshall; 489) Ronald
Marshall; 490) Sandra L. Massie; 491) Esther
Meadows; 492) Karen Sue Mercer; 493) Helen
D. Merkison; 494) Sara Merritt; 495) Norma F.
Mikesell; 496) Debbie Miller; 497) Patty L.
Miller; 498) Shirley Miller; 499) C. Kaye
Minney; 500) Elsie Mitchell; 501) Shirley
Mitchell; 502) Quentin E. Mobley; 503) Terry L.
Mobley; 504) Elfrieded K. Monbeck; 505) Anna
M. Monroe; 506) Shirley Moore; 507) Brenda A.
Morris; 508) Gloria L. Mullins; 509) Sandra L.
Mutter; 510) Kathleen Newsome; 511) Elizabeth
J. Nicholas; 512) Iva Rene Noble; 513) Doris
No. Null; 514) Opal M. O’Connell; 515) Eldene
O’Shea; 516) Judy A. Osborne; 517) Susan Otto;
518) Dorothy Pauley; 519) Wanda Pennington;
520) Linda Lou Petrey; 521) Dorothy A. Petry
522) JoAnn Fetyon; 523) Ruth D. Pigman; 524)
Carol Jean Porter; 525) Bessie K. Powell; 526)
Berverly L. Powell; 527) Denise M. Presley;
528) Donna Price; 529) Jeanine R. Prosser; 530)
Leslie R. Pryor; 531) Linda L. Pryor; 532) Debra
E. Puterbaugh; 533) Diane T. Pyles; 534) Shirley
S. Ramsey; 535) Ismailia Rashid; 536) Wanda
Sue Rauch; 537) Joy B. Retherford; 538) Connie
Rhoden; 539) Marilyn K. Rickman; 540) Cayth
Ridley; 541) Myra Roark; 542) Cindy Rudd; 543)
Linda Saunders; 544) Jeanice Schleiger; 545)
Donna Jo Scholz; 546) Shirley E. Schroth; 547)
Cynthia A. Shearer; 548) Rosemary Sheets; 549)
Carol S. Sheidan; 550) Ellen J. Shilt; 551)
Brenda S. Short; 552) Donna S. Short; 553)
Marcia Sisco; 554) Lorraine Skinner; 555)
Armon Smith; 556) Belinda Sue Spangler; 557)
Tabitha Jane Spencer; 558) Judy Stall; 559)
Barbara Standifer; 560) Barbara S. Steiner; 561)
Betty D. Stiens; 562) Marian Swope; 563)
Mafrey Taylor; 564) Patricia Taylor; 565) Brenda
S. Terrell; 566) Wanda Terrell;
567) Doris Thatcher; 568) Edna Thomas; 569)
Juanita Titus; 570) Phyllis Titus; 571) Rose
Turner; Chloie L. Tyra; 573) Rose M.
Underwood; 574) Pamela S. VanCleve; 575)
Donna C. Vaughn; 576) Dianna Vires; 577)
Susan L. Wagers; 578) Sheliah K. Walker; 579)
Vicki Warren; 580) Patricia K. Water; 581)
Penry L. Watkins; 582) Patsy L. Welch; 583)
Fran West; 584) Evelyn K. White; 585)
Charmaine Wiley; 586) Tonya L. Wiley; 587)
Patsy Y. Williams; 588) Tonya Williams; 589)
Diana S. Williamson; 590) Juanita Willis; 591)
Linda L. Willis; 592) Juanita J. Wills; 593)
Dianne Wilson; 594) Sharon A. Witham; 595)
Mary Eloise Wynn; 596) Julie O. Wysocki; 597)
Judy Yates; 598) Sharon K. Yerian; 599)
Kathleen Zimmerman; 600) Cheryl D. Zwick;
601) Eugene K. Adams; 602) D.E. Agee; 603
Anthony W. Amburgey; 604) James R.
Anderson; 605) Ronald O. Applegate; 606)
David R. Armstrong; 607) Stephen R. Armstrong
608) Frank Attard; 609) Larry Baker
610) William K. Barnes; 611) Charles T.
Bateman 612) Michael Bates; 613) Dallas R.
Beaver; 614) Gary Lee Behr; 615) Kenneth W.
Bettinger; 616) Jerry Bishop; 617) Michael J.
Bishop; 618) Daniel L. Blandford; 619) James R.
Blanton; 620) David B. Boggs; 621) James A.
Bond; 622) Robert L. Booth; 623) Raymond E.
Bostick; 624) Larry D. Brandenburg; 625)
Dewey Branson; 626) Harold E. Brooks; 627)
Robert O. Brooks, Jr.; 628) Bradley D. Brown;
629) Karl H. Brown; 630) Lloyd G. Brown; 631)
Muriel D. Browning; 632) Selena Caldwell: 633)
Bernard Campbell; 634) Charlie C. Campbell;
635) Michael D. Carrico: 635a) Joel Carson; 636)
Larry E. Chaney; 637) Melvin Clark; 638)
Charles M. Collins; 639) George E. Combs; 640)
Lee R. Combs; 641) Tommy L. Combs: 641)
Tommy L. Combs; 642) Paul M. Copeland; 643)
John Cornett; 644) Larry A. Cox; 645) Donald R.
Creech; 645a) Gary D. Culberson; 646) Jerry
Cutlip; 647) Richard E. Daily; 648) Terry L.
Dehart; 649) Dennis C. Elliott;
650) William Ray Elza; 651) Starlin W. Engle;
652) Robert E. Evans; 653) Ronnie B. Bannin;
654) Felix B. Fleming; 655) Richard Gabbard;
655a) Robert E. Garrett; 656) Dolores O.
Griffitts; 657) Linda F. Grooms; 658) Curtis
Haddix; 659) James L Haning; 660) Robert A.
Hansford; 661) Eddie D. Hardyman; 662) Everett
A. Harville; 663) Dannis W. Haslam; 664)
Barbara C. Hill; 665) William M. Hoblit; 666)
Gary Hollingsworth; 667) Loren Howard; 668)
Larry E. Huling ; 669) Carl W. Husssong; 670)
Charles D. Hutchins; 671) Michael L.
Hutchinson; 672) Earl J. Isaacs; 673) Anis C.
Ison; 674) Junior A. James; 675) Gary Johns;
676) Michael Johns; 677) Banonzel Johnson;
678) Dennis C. Johnson; 678a) Michael Johnson;
679) Wilbur R. Keets; 680) Harold R. Keener;
681) Ray D. Kershner; 682) William G. Kettler;
683) David J. King; 684) Michael Kretzer; 685)
Keith K. Lainhart; 686) David A. Landis; 688)
Ronnie Lee Leisure; 689) Larry J. Linder; 690)
Steven L. Linkhart; 691) Dennis E. Loomis;
692) John Lummis; 693) Tony McKiddy, Jr.; |
694) Dan McWain; 695) Edward maise; 696) |
Gary S. Marcum; 697) Edward Mattis; 698)
Frank V. Mauro; 699) Tex H. Messer; 699a)
Robert D. Miller; 700) Donnie Moore;702) Barry
A. Must; 703) Rolland E. Neves; 704) Leonard
Overholser; 705) Larry G. Partin; 706) James F.
Patterson; 707) Anthony Perkins; 708) Donald
W. peters; 709) Franklin W. Pheanis; 710)
Claudio N. Ponciano; 711) Milton T. Poynter,
Jr.; 712) Ivan M. Prescott; 713) Harold T.
Rawlins; 714) Melvin K. Ray; 715) Lawrence J.
Rhoades; 716) Franklin D. Rose; 717) Norman
Rose; 718) Edward L. Salyer; 719) Tommie
Salyer; 720) Ronnie L Shackelford; 721) Nelson
K. Sherwood; 721a) Richard J. Shockey; 722)
Wilburn Simpson; 723) Anthony C. Smith; 734)
Finley E. Smith; 725) James Smith; 726) James
R. Smith; 727) Richard J. Smith; 728) Ermin
Spradlin; 729) Hughie W. Sprinkle; 730) Howard
H. Stanze, Jr.;731) Philip E. Stivers; 732)
Melvin L. Stone; 733) Ronald L. Szabo;
734) Daniel E. Tabor; 735) Johnnie C.
Thompson; 736) Kendrick M. Thompson; 737)
Charles Thresher; 738) Sammie Turner; 739)
Leonard Vaughn, Jr.; 740) David Wade; 741)
Gary R. Watson; 742) Donnie V. Webb; 743)
Ferman L. Wells; 744) Gary Williams; 745) M.
Denet Williams; 746) Dennis E. Woodruff; 747)
Harold D. Young; 748) Gayle E. Armstrong;
749) Leotine E. Armstrong; 749) Leotine E.
Armstrong; 750) Jo Ann Ashman; 751) Karen
Attard; 752) Linda Beaver; 753) Peggy Ann
Livingston Behr; 754) Peggy Jo Bettinger; 755)
Mathilde Bishop; 756) Glenna M. Bishop; 757)
Janis Boggs; 758) Sharon L Bond; 759) Marcia
Bostick; 760) Wilma Dean Bowling; 761) Susan
Brown; 762) Judy Carpenter; 763) Hilda Cornett;
764) Becky A. Cos; 765) Connie Creech; 766)
Mildred K. Dales; 767) Carol A. Elza; 768)
Joyce Fannin; 769) Judy Gabbard; 770) Jonda R.
Haning; 771) Sharon K. Hansford; 772) Dorothy
Hoblit; 773) Brenda Howard; 774) Myrtle F.
Huling; 775) Cheryl J. Hutchinson;
— ——~<“‘“C COSC
776) Patricia Johnson; 777) Mary K Keets; 778)
Lois J. Keener; 779) Billie J. Kretzer; 780) Ruby
Leisure; 781) Delorise M. Leopold; 782) Karla
Loomis; 783) Alice Lummis; 784) Vivian R.
McKiddy; 785) Kathleen McWain; 786) Betty M.
Pheanis; 787) Mary A. Ponciano; 788) Melanie
| A. Poynter; 789) Deborah K. Prescott; 290) Betty
| C. Rawlins; 791) Carolyn Ray; 792) Janice L.
Rose; 793) Kathy A. Salyer; 794) Patricia A.
Sherritt; 795) Sharon L. Sherwood; 796) Myrna
Smith; 797) Fay E. Spradlin; 798) Joan E.
Stivers; 799) Christine Stone; 800) Joan Szabo;
801) Kathleen Thompson; 802) Deborah K.
Watson; 803) Ruth Ann Webb; 804) Mary A.
Woodruff; 805) Shirley Culberson; 806) Delores
Johnson; 807) Helen Maise; 808) Gayle C.
Shockey; 809) Bonnie F. Carmack; 810) Mary A.
Evans; 811) Rita M. Fitzwater; 812) Sandra G.
French; 813)Pat Frymyer; 814) Nancy Gabbard;
815) Linda D. Ruble; 816) Carol J. Ruble; 817)
Teresa L. Wogomon
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.