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.

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