Opposition Brief — Adkins v. General Motors Corp.

Supreme Court brief1992

Ask Donna

What actually matters in this document.

Text

APR +

No. 91-1151 R

In The

Supreme Court of the United States

October Term, 1991

JOHN J. ADKINS, ET AL.,

Petitioners,

GENERAL MOTORS CORPORATION, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

BRIEF FOR

GENERAL MOTORS CORPORATION

IN OPPOSITION

A.tce M. OssurRN

STEPHEN M. SHAPIRO

General Motors

James D. HoL_ZHAUER

Corporation

Counsel of Record

New Center One Timotny S. BisHop

Buildin

Mayer, Brown & Platt

3031 West Grand 190 South LaSalle Street

Boulevard Chicago, Illinois 60603

P.O. Box 33122

(312) 782-0600

Detroit, Michigan 48232

JosePpH P. BUCHANAN

Crew, Buchanan & Lowe

2580 Kettering Tower

Dayton, Ohio 45423

COCKLE LAW BRIEF PRINTING CO, em) 225-6964

OR CALL COLLECT (402) 342-283

}

QUESTION PRESENTED

Whether this Court should review the Sixth Circuit’s

fact-bound determination that petitioners’ state law

causes of action are inextricably intertwined with collec-

tive-bargaining agreements and preempted by Section

301 of the Labor Management Relations Act, where the

Sixth Circuit conscientiously and correctly applied the

preemption test established in this Court’s precedents

and where its decision is consistent with the rulings of

other courts of appeals.

TABLE OF CONTENTS

Page

QUESTION PIII sks deen bse veccisevaneavans i

TRB COP BAU wh one 4 Sep coebunckasabasas iii

Ooi 6B fe MOTE CTET PTET Tee eer ee 1

JURISDICTION........ ENS 40 (Adee PILLAGE KD Oia 1

SI ATEMMMONE + 00s-0s's hed neds canbe eeenetnewusanees 1

REASONS FOR DENYING THE PETITION......... 10

I. THE COURTS OF APPEALS HAVE CONSIS-

TENTLY AND CORRECTLY APPLIED THE SEC-

TION 301 PREEMPTION ANALYSIS

MANDATED BY THIS COURT’S DECISIONS TO

STATE LAW FRAUD AND TORTIOUS INTER-

FEREINC CULAR: canaccckapepidenschestecses. 11

A. The Sixth Circuit Faithfully And Correctly

Applied The Section 301 Preemption Stan-

dards Enunciated In This Court’s Decisions

To Petitioners’ Fraud And Tortious Interfer-

emnee CIS in 5 Ss cae ee eka cea 16

B. The Sixth Circuit’s Decision That Petitioners’

Fraud And Tortious Interference Claims Are

Preempted Is Not In Conflict With Decisions

Of Other Courts Of Appeals............... 23

Il. THE SIXTH CIRCUIT’S HOLDING THAT PETI-

TIONERS’ EMOTIONAL DISTRESS CLAIMS

ARE PREEMPTED WAS CORRECT AND CON-

SISTENT WITH DECISIONS OF OTHER

CAPSEES 0 ocds cssceueeeaeeeeeeaiea sua nesuns 27

iii

TABLE OF AUTHORITIES

Page

Cases:

Adkins v. General Motors Corp., 573 F. Supp. 1188

(S.D. Ohio 1983), aff’d, 769 F.2d 330 (6th Cir.

een cae eR chsh Nes dneaWar aden wives ceeses 5

Adkins v. International Union of Elec., Radio &

Mach., 769 F.2d 330 (6th Cir. 1985).......... 2, 3, 4, 5

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985). passim

Anderson v. Ford Motor Co., 803 F.2d 953 (8th Cir.

1986), cert. denied, 483 U.S. 1011 (1987)........... 25

Anderson v. United Auto Workers, 738 F. Supp. 441

Ey PM, BUR he kes ccc cetsesssresasecuccssavcvecs 26

Berda v. CBS, Inc., 881 F.2d 20 (3d Cir. 1989), cert.

denied, 493 U.S. 1062 (1990).............------ 15,25

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

Cohen v. Lamko, Inc., 462 N.E.2d 407 (Ohio 1984) .... 18

DelCostello v. Teamsters, 462 U.S. 151 (1983)........... 5

Electrical Workers v. Hechler, 481 U.S. 851 (1987) ..... 13

Farmer v. Carpenters, 430 U.S. 290 (1977)....... 9, 28, 29

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

EE ery eee eee ee Te ee Eee 25

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

SEP eet eee ent Ee Ee 12

San Diego Bldg. Trades Council v. Garmon, 359 U.S.

fe LER SLL OD Pere err ee 28

Hanks v. General Motors Corp., 906 F.2d 341 (8th

ee ee ee 26

Karetnikova v. Trustees of Emerson College, 725 F.

Supp. 73 (D. Mass. 1989) .........-..0-es sneer eees 26

TABLE OF AUTHORITIES - Continued

Page

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

a ee ee err Te Pree TT TTT ery ey 14, 19, 26

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

(10th Cir. 1987), cert. denied, 486 U.S. 1055

PY Sct XU sk cUErN a coy Sunde eee Ghat eseh euew Rei A 15

Master Slack Corp., 230 NLRB 1054 (1977),

enforced, 618 F.2d 6 (6th Cir. 1980)............... 24

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

Cir. 1991), cert. denied, 112 S. Ct. 912 (1992)...14, 26

Milne Employees Ass'n v. Sun Carriers, Inc., 1991

U.S. App. LEXIS 27786 (9th Cir. 1991) ......... eae

Paige v. Henry J. Kaiser Co., 826 F.2d 857 (9th Cir.

1987), cert. denied, 486 U.S. 1054 (1988)........... 15

Paradis v. United Technologies, 672 F. Supp. 67 (D.

re ry a re ee 26, 27

Richardson v. Steelworkers, 864 F.2d 1162 (5th Cir.),

cert. denied, 493 U.S. 803 (1989).................. 15

Sluder v. UMW, 892 F.2d 549 (7th Cir. 1989), cert.

a a eT eee 14

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

cost. denied, 55 US. FOE (IDGR) . 6. ccc sccsccccccss 15

Steelworkers v. Rawson, 495 U.S. 362 (1990)........... 14

Teamsters Local v. Lucas Flour Co., 369 U.S. 95

PRS Sicdcas cexuisew dessus kre acinar 12, 23

Terwilliger v. Greyhound Lines, 882 F.2d 1033 (6th

Cir. 1989), cert. denied, 495 U.S. 946 (1990)....... 15

Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957) .... 11

TABLE OF AUTHORITIES - Continued

Page

United States Gypsum Co., 94 NLRB 112 (1951),

modified in other respects, 206 F.2d 410 (5th Cir.

1953), cert. denied, 347 U.S. 912 (1954).......-.--- 24

Utility Workers v. Southern California Edison Co.,

852 F.2d 1083 (9th Cir. 1988), cert. denied, 489

U.S. 1078 (1989) ...... cece cece e cee e ener eeencecees 15

Wells v. General Motors Corp., 881 F.2d 166 (5th

Cir. 1989), cert. denied, 495 U.S. 923

(1990) nc nssecccvsccocnsctdetocrses 10, 11, 15, 23, 24

White v. National Steel Corp., 938 F.2d 474 (4th Cir.),

cert. denied, 112 S. Ct. 454 (1991)........----+---- 14

Yeager v. Local Union 20, 453 N.E.2d 666 (Ohio

i.) PPE PEPEPereer ert tre re er 27, 29

STATUTES:

2B U.S.C. § 1441...... 0. cece cece rece rccenccesccesoees 7

29 U.S.C. § 185........ cece cece eee e ner cencceeeeces 1, 11

2 USC. © MONI)... .5 6455-50005 4

BRIEF FOR

GENERAL MOTORS CORPORATION

IN OPPOSITION

Respondent General Motors Corporation (“GM”)

submits this brief in opposition to the petition for a writ

of certiorari.!

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1) is

reported at 946 F.2d 1201. The district court’s opinion

sustaining in part GM’s motion for summary judgment

(App., infra, 1a) is unreported. The district court’s opin-

ion granting in part GM’s motion for reconsideration of

the court’s decision on petitioners’ motion to remand

(App., infra, 7a) is reported at 713 F. Supp. 1043.

JURISDICTION

The judgment of the court of appeals was entered on

October 15, 1991. The petition for a writ of certiorari was

filed on January 13, 1992. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

STATEMENT

The question in this case is whether the court of

appeals properly applied Allis-Chalmers Corp. v. Lueck, 471

~ U.S. 202 (1985), and Caterpillar Inc. v. Williams, 482 U.S.

386 (1987), in holding that petitioners’ state law claims

were preempted by Section 301 of the Labor Management

Relations Act, 29 U.S.C. § 185. Petitioners originally

asserted their claims in a Section 301 action, alleging that

GM and their union had unfairly colluded to deny them

certain special seniority rights. Tiat action was dismissed

as untimely. Petitioners then brought this action in state

' The list of GM’s non-wholly owned subsidiaries required

by Rule 29.1 appears at Appendix, infra, 66a.

court, claiming fraud, tortious interference with contract

rights, and intentional infliction of emotional distress.

The court of appeals, after taking pains to decipher the

“prolix and vague” allegations of petitioners’ complaint

(Pet. App. 7), unanimously held that these claims were

preempted by Section 301. As this Court has recognized

in denying certiorari petitions in several similar cases in

recent years, there is no reason for the Court to review

the court of appeals’ application of settled law to the

particular facts of cases such as this one.

A. The “Flow Arrangement” Under the Bridge

Agreement

Until 1974, GM manufactured household appliances

and automobile air conditioners at plants operated by its

Frigidaire Division in Dayton, Ohio. Respondent Interna-

tional Union of Electrical, Radio & Machine Workers,

AFL-CIO-CLC, and its Local 801 (hereinafter referred to

together as the “Union”) was the collective-bargaining

agent for Frigidaire’s hourly employees. Initially, all Frig-

idaire workers were paid at the automobile industry rate,

even if they were engaged in making household

appliances. But in 1971, GM and the Union agreed that

Frigidaire workers engaged in appliance manufacture

would be paid the lower appliance industry rates. In

return, these appliance workers were permitted to trans-

fer — “flow” — to higher-paying automotive jobs within

the Frigidaire Division as positions became available. In

the event of layoff from an automotive job to which they

had transferred, these workers were permitted to flow

back to an appliance position, bumping less senior

appliance workers if necessary. Pet. App. 4-5; Adkins v.

International Union of Elec., Radio, & Mach., 769 F.2d 330,

332 (6th Cir. 1985).

Frigidaire’s automobile air conditioner facilities were

split off in 1974 and became part of GM’s Delco Air

Conditioning Division, but the 1971 flow arrangement

continued. Frigidaire’s workers could transfer to higher-

paying automotive air conditioning jobs at Delco, and if

laid off by Delco could transfer back to appliance jobs at

Frigidaire with their seniority intact. 769 F.2d at 332.

The flow arrangement was not included in any for-

mal collective-bargaining agreements until 1976. The

December 10, 1976 Frigidaire Local Agreement as well as

the Delco Local Agreement of the same date included a

“Bridge Agreement” (App., infra, 35a) setting out the flow

arrangement. Frigidaire Local Agreement 46 (Dec. 10,

1976); Delco Local Agreement 45 (Dec. 10, 1976). Frig-

idaire and Delco employees hired before 1977 (who were

designated “red-circled” employees) continued to enjoy

the flow rights, but newer employees would not. App.,

infra, 35a, 37a.

B. The Sale of Frigidaire And The Termination Of

The Bridge Agreement

In 1979, GM sold its Frigidaire Division and laid off

the Frigidaire employees. Pet. App. 5. GM retained the

Dayton Frigidaire plants, however, converting them to

use for GM’s Chevrolet Division. At the time, the Delco

plant was experiencing full employment. Ibid. With the

sale of the Frigidaire Division, former Frigidaire

employees working at Delco could no longer transfer

back to Frigidaire in the case of a Delco layoff.

GM and the Union negotiated about the Frigidaire

layoffs in February 1979. They agreed that the Frigidaire

workers who would be laid off as a result of the sale

would be hired in the new Chevrolet plants with unbro-

ken seniority when these plants opened in 1981, and that

the Union would continue to represent them. See Special

Memorandum of Understanding between GM, IUE and

Local 801 44 IV-VI (Feb. 23, 1979), App., infra, 43a-44a.

This Agreement was ratified on February 23, 1979, and it

cancelled the special seniority rights that had been given

to former Frigidaire workers under the 1976 Bridge

Agreement. Id. at { 1, App., infra, 41a. See also Pet. App.

5. The February 23 agreement was subsequently incorpo-

rated into the Local Agreement between Chevrolet and

e=—_-~”™-—s—snsr. |

Local 801. Chevrolet Local Agreement 43-45 (Oct. i,

1979).

The February 23, 1979 agreement (and the October 1,

1979 Chevrolet Local Agreement) applied to the laid-off

Frigidaire workers, and not to Delco workers. 769 F.2d at

333. GM and the Union renegotiated the Delco collective-

bargaining agreement later that year. Because GM no

longer owned Frigidaire, the new Delco contract did not

continue the right of former Frigidaire workers to trans-

fer back to Frigidaire Division jobs if they were laid off by

Delco. See Delco Local Agreement 14-19 (Sept. 19, 1979).2

Late in 1979, an economic slowdown hit the auto-

mobile industry and Delco was forced to lay off thou-

sands of employees, including many of the previously

red-circled former Frigidaire workers. When Chevrolet

reopened the former Frigidaire plants in 1981 and began

to recall former Frigidaire employees, pursuant to the

collective-bargaining agreements then in place, it did not

offer the jobs to the laid-off Delco workers. 769 F.2d at

333.

C. The First Round Of Litigation: The Federal

Action

A group of laid-off Delco workers who no longer had

any rights to jobs at Frigidaire — including many of the

petitioners — brought suit in federal court alleging viola-

tions of both Section 301 and Section 101(a)(1) of the

Labor-Management Reporting and Disclosure Act

(LMRDA) (29 U.S.C. § 411(a)(1)). Pet. App. 2. This hybrid

action alleged that the Union had breached its duty of fair

? Petitioners imply that under the 1976 Bridge Agreement,

they would have had the right to transfer to jobs at the former

Frigidaire plants that reopened as Chevrolet plants in 1981.

Pet. 10, 55-57. That is not correct; the Bridge Agreement gave

such employees the right to transfer to jobs at the Frigidaire

Division (App., infra, 37a), which ceased to exist as a GM

division when it was sold in 1979.

representation and that GM and the Union “had colluded

in negotiating a collective-bargaining agreement in order

to abrogate the special seniority rights contained in” the

Bridge Agreement. Ibid. The complaint also included pen-

dent state law claims for breach of contract, tortious

interference with contract rights, intentional infliction of

emotional distress, and loss of consortium. Id. at 2-3.

The district court dismissed plaintiffs’ federal labor

law claims because they had been filed outside the six-

month statute of limitations. See DelCostello v. Teamsters,

462 U.S. 151 (1983). The court also dismissed (without

prejudice) plaintiffs’ pendent state law claims for want of

a substantial federal question. Adkins v. General Motors

Corp., 573 F. Supp. 1188 (S.D. Ohio 1983). The court of

appeals affirmed. 769 F.2d 330 (6th Cir. 1985).

D. This Litigation: Petitioners’ State Complaint

In 1983, while the appeal of the dismissal of the

federal compiaint was pending, petitioners initiated this

suit against GM and the Union in Ohio state court. Pet.

App. 3. In a complaint which the court of appeals

described as “prolix,” “vague,” and “very difficult to

understand,” petitioners alleged fraud, tortious interfer-

ence with contract rights, and tortious infliction of emo-

tional distress. Id. at 7. As the court of appeals noted, it is

“not easy work” to “sift through the complaint in order to

detect the factual allegations.” Ibid. Insofar as GM can

discern, the factual basis for all of petitioners’ claims

appears to be as follows:

Petitioners contend that the Union excluded red-cir-

cled Delco employees from notification and ratification of

the February 23, 1979 agreement (which directly related

not to Delco employees but to the laid-off employees of

the sold Frigidaire Division). Pet. 8-9; Pet. App. 5-6;

Compl. {{ 29-34, App., infra, 49a-54a. They also allege

that during the notification and ratification process for

the September 19, 1979 Delco Local Agreement, the Union

“concealed” the fact that the new Agreement “omitted”

eal

and thereby “abandon{[ed]” the Bridge Agreement. Pet. 9;

Pet. App. 5-6. These allegations form part of the basis for

petitioners’ emotional distress claims. Pet. 9 (citing

Compl. {{ 30-37, App., infra, 50a-55a). Petitioners also

claim that “the president of Local 801 had fraudulently

induced them to ratify the 1979 collective-bargaining

agreement that abrogated the ‘bridge agreement.’ ” Pet.

App. 16. See also Pet. 8-9, 52.

Petitioners further allege that between February 1980

and January 1981 “respondents continued to try to keep

secret the abrogation of the Bridge Agreement,” made

“representations and innuendos” to petitioners that “jobs

would be forthcoming,” “reminded” petitioners “of the

old custom of ‘flowing,’” and made “[p]romises of

employment * * * individually and in groups.” Pet. 10.

When the Chevrolet plants began work and only Frig-

idaire workers were recalled to them, petitioners who

objected were “called * * * cry-babies and ridiculed.” Id.

at 11. These allegations are the basis for petitioners’

fraud, tortious interference with contract, and emotional

distress claims. Pet. 11-12 (citing Compl. {1 73-79, 83,

App., infra, 61a-64a).

Finally, petitioners contend that these actions all

arose out of a conspiracy between GM and the Union to

maintain the Union as the Chevrolet Division bargaining

agent, to divide labor, and to replace petitioners with

lower paid workers. Pet. 7-8 (citing Compl. {{ 15, 16,

25-27 and 43-48, App., infra, 46a-49a, 58a-61a).

In their demand for relief, petitioners made ciear that

they were really asserting rights under the various collec-

tive-bargaining agreements. In addition to seeking com-

pensatory and punitive Gamages, declaratory relief, and

other equitable remedies, petitioners asked for “injunc-

tive relief * * * with respect to each of the collective

bargaining agreements heretofore described in the com-

plaint, declaring * * * the express and implied obligations,

as well as the intendment, spirit and purpose of each of

said collective bargaining agreements in each of the

respects hereinabove alleged in this complaint” (Demand

For Relief { 1, App., infra, 64a), and also asked “[t]hat

GM be adjudged to have breached each of the collective

bargaining agreements.” Id. at | 4, App., infra, 65a.

Respondents removed this case to federal court pur-

suant to 28 U.S.C. § 1441, on the ground that petitioners’

state law claims are preempted by federal labor law. Pet.

App. 3. The district court ultimately held that petitioners’

fraud and tortious interference with contract claims were

preempted in their entirety by federal law. App., infra,

17a-26a. The court also held that petitioners’ emotional

distress claims were preempted insofar as they claimed

that GM and the Union caused them distress by such

actions as proposing the elimination of the flow rights

under the Bridge Agreement, withholding information

from the workers, failing to consider the interests of those

workers, and not permitting them fully to participate in

the ratification process. But, in the district court’s view,

petitioners’ emotional distress claims were not preempted

insofar as they complained of the respondents’ conduct in

taking those actions. Id. at 26a-33a.

The court of appeals held that all of petitioners’

claims were preempted and remanded with instructions

to dismiss the entire complaint. Pet. App. 4. The court of

appeals began its analysis with a careful review of this

Court’s Sectiun 301 preemption decisions. Id. at 6-7,

11-14. The court recognized that “Section 301 preemption

governs claims either founded directly on rights created

by collective bargaining agreements or ‘substantially

dependent on analysis of a collective-bargaining agree-

ment.’ ” Id. at 13, quoting Caterpillar Inc. v. Williams, 482

U.S. 386, 394 (1987). If analysis of petitioners’ tort claims

is “inextricably intertwined with consideration of the

terms of” the collective-bargaining agreements (Allis-

Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985)), those

claims are preempted by Section 301. Pet. App. 6-7, 17,

21-22. The court of appeals then considered each of peti-

tioners’ claims in turn and conducted the essentially fact-

bound analysis of whether those claims were “substan-

tially dependent on” or “inextricably intertwined with”

the terms of the collective-bargaining agreements

between GM and the Union.

Turning first to petitioners’ fraud claims, the court of

appeals noted that those allegations were “not very

clear.” Pet. App. 16. The court identified two separate

contentions that petitioners appeared to be making: that

Local 801’s president had fraudulently induced peti-

tioners to ratify the 1979 Delco Local Agreement by con-

cealing or misrepresenting its effect on their transfer

rights, and that following ratification the president had

made fraudulent misrepresentations regarding their

transfer rights. The court of appeals held that both of

those fraud claims were preempted. Pet. App. 14-19. The

court held that the first claim was preempted because it

would require analysis of the Bridge Agreement and the

subsequent agreements to determine what rights they

conferred and what rights they eliminated. Id. at 14-15. In

addition, because the rights at issue in that claim were

“ “created by collective-bargaining agreements,’” the

claim was completely preempted. Id. at 15 (quoting Cater-

pillar at 394).

As to petitioners’ second fraud claim, the court of

appeals could not tell whether petitioners were alleging

that after the ratification the Union president affirma-

tively misrepresented the terms of the 1979 agreement

and told them that it did not affect their rights under the

Bridge Agreement, or alternatively that he told them that

“their purported entitlement to jobs at the Chevrolet

plant would be respected, despite the 1979 collective-

bargaining agreement.” Pet. App. 16. The court held that

in either event the claims were preempted. The former

contention was preempted because it would require the

court to ascertain petitioners’ rights under the Bridge

Agreement and the 1979 Delco contract, and to determine

the accuracy of the Union president’s alleged representa-

tions about the content of those agreements. Id. at 17. This

fraud claim was “so intertwined with the terms of the

collective-bargaining agreements * * * that they may not

be separated.” Ibid., citing Lueck, 471 U.S. at 213.

Under the alternative interpretation of petitioners’

claim (that they were told that the flow arrangement

would remain in effect despite the 1979 agreement), the

court of appeals held that the claim was preempted

because the alleged job-entitlements were created and

defined by the Bridge Agreement. Pet. App. 17-18. Adju-

dication of this claim once again would require “exten-

sive” interpretation to determine “what plaintiffs’ ‘bridge

agreement’ rights were and whether they are being vio-

lated by the new arrangements.” Id. at 18.

The court of appeals concluded that in their fraud

claims petitioners were asking the court to find that

Bridge Agreement rights terminated in the 1979 Local

Agreements were “reborn under state law.” Pet. App. 18.

That would “create a situation in which rights extin-

guished 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 issu-

ing from a collective-bargaining agreement under federal

law while contradictory rights and obligations flowed

from state law. * * * Plaintiffs cannot be permitted to

revive rights deemed extinguished under federal labor

law by relying on state common law.” Id. at 17-18.

The court of appeals next examined petitioners’ tor-

tious interference with contract claims, and held them to

be likewise fully preempted. Pet. App. at 19-20. The court

rejected petitioners’ argument that their claims were like

those raised by the plaintiffs in Caterpillar. In Caterpillar,

the court noted, “the alleged contract between the plain-

tiffs and the employe[r] was independent of any collec-

tive-agreement.” Id. at 19. But in this case, the rights

claimed by petitioners were the “seniority rights” under

the Bridge Agreement. Id. at 20. Petitioners’ claims would

therefore necessarily involve analysis of the terms of the

Bridge Agreement. Ibid.

Finally, the court of appeals considered petitioners’

emotional distress claims. Pet. App. 21-26. Analogizing to

this Court’s decision in Farmer v. Carpenters, 430 U.S. 290

(1977), the court acknowledged that it is “theoretically

tell

possible” that the conduct of union leaders in a case like

this one might be so outrageous that state tort actions

would be permitted. Pet. App. 25. But “no outrageous

conduct has been alleged in this case”; rather, petitioners

alleged only that “material information * * * was withheld

from them.” Such a 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.” Ibid. In these circumstances, absent “specific

allegations” that the union or GM engaged in “outra-

geous conduct,” “the state interest in adjudicating plain-

tiffs’ emotional distress claims [is] too insubstantial to

defeat complete preemption.” Ibid.

REASONS FOR DENYING THE PETITION

Having failed to file their complaint alleging viola-

tions of the federal labor laws within the prescribed

statute of limitations period, petitioners now seek to

recast claims that arise out of and require interpretation

of collective-bargaining agreements as state law viola-

tions. The Demand for Relief in petitioners’ complaint

makes it crystal clear that what they are seeking is relief

from alleged violations of several collective-bargaining

agreements. This Court, however, has repeatedly pro-

tected the comprehensive federal regulatory scheme con-

structed by the Labor Management Relations Act from

undue interference by private actions under state law

that seek to enforce claims under collective-bargaining

agreements. In doing so, it has established workable pre-

emption standards which require the courts to undertake

just the_kind of fact-intensive, “case-by-case” analysis

carried out by the court of appeals. Lueck, 471 U.S. at 220.

The courts below conscientiously applied those standards

and reached the correct result.

Relying primarily on a case (Wells v. General Motors

Corp.) they did not even cite in their court of appeals

briefs, petitioners contend that there is a conflict among

the circuits touching the issues in this case. But even a

cursory review of Wells makes it clear that the Fifth

Circuit applied the same legal standard to very different

facts and therefore reached a different result. There is

absolutely no reason to believe that the Fifth Circuit

would disagree with the Sixth Circuit if presented with

the facts of this case.

Moreover, even were this Court inclined to elaborate

further on the standards for Section 301 preemption, this

case would provide an unsuitable vehicle. Petitioners’

state law complaint is “prolix,” “vague,” and “very diffi-

cult to understand” (Pet. App. 7), and it is the incoher-

ence of that complaint and petitioners’ formless and

shifting characterizations of their claims that have fueled

nearly a decade of litigation. It is a struggle to penetrate

the morass petitioners have created to ascertain a coher-

ent set of claims. Once that is done, it becomes clear that

this is an easy case, squarely preempted because it lies at

the very heart of federal labor law concerns.

I. THE COURTS OF APPEALS HAVE CONSIS-

TENTLY AND CORRECTLY APPLIED THE SEC-

TION 301 PREEMPTION ANALYSIS MANDATED

BY THIS COURT’S DECISIONS TO STATE LAW

FRAUD AND TORTIOUS INTERFERENCE

CLAIMS.

This Court’s jurisprudence on the interpretation and

application of Section 301 of the Labor Management Rela-

tions Act, 29 U.S.C. § 185, is well developed. Section

301(a) creates federal jurisdiction over “[s]Juits for viola-

tion of contracts between an employer and a labor organi-

zation representing employees in an industry affecting

commerce.” This statute is not merely jurisdictional, but

also “expresses a federal policy that federal courts should

enforce [collective-bargaining] agreements” and that “the

substantive law to apply in suits under § 301(a) is federal

law, which the courts must fashion from the policy of our

national labor laws.” Textile Workers v. Lincoln Mills, 353

U.S. 448, 455, 456 (1957).

iii

This Court has emphasized the necessity that “sub-

stantive principles of federal labor law * * * be paramount

in the area covered by the statute.” Teamsters Local v.

Lucas Flour Co., 369 U.S. 95, 103 (1962). Disputes about the

interpretation of ccllective-bargaining agreements cannot

be left to state law because “the subject matter of § 301(a)

‘is peculiarly one that calls for uniform law.’ ” Ibid. The

Court has explained that “[t]he possibility that individual

contract terms might have different meanings under state

and federal law would inevitably exert a disruptive influ-

ence upon both the negotiation and administration of

collective agreements.” Ibid. Indeed, the “pre-emptive

force of § 301 is so powerful as to displace entirely any

state cause of action” that explicitly or implicitly con-

tends that an employer or bargaining agent breached its

obligations under a labor contract. Franchise Tax Bd. v.

Laborers Vacation Trust, 463 U.S. 1, 23 (1983).

This Court has elaborated on these principles no

fewer than five times in recent years, beginning in Allis-

Chalmers Corp. v. Lueck, 471 U.S. 202 (1985). In Lueck an

employee subject to a labor contract filed a state law tort

suit contending that his employer in bad faith failed to

make disability insurance payments under a union-nego-

tiated disability plan. The Court held this action pre-

empted, observing that “[iJf the policies that animate

§ 301 are to be given their proper range, * * * the pre-

emptive effect of § 301 must extend beyond suits alleging

contract violations.” Id. at 210. The court instructed (id. at

211) that

questions relating to what the parties to a labor

agreement agreed, and what legal consequences

were intended to flow from breaches of that

agreement, must be resolved by reference to

uniform federal law, whether such questions

arise in the context of a suit for breach of con-

tract or in a suit alleging liability in tort.

Otherwise, “[t]he parties would be uncertain as to what

they were binding themselves to” when they entered into

a collective-bargaining agreement. Ibid. That would make

it “more difficult to reach agreement, and disputes as to

the nature of the agreement would proliferate.” Ibid.

The Court in Lueck enunciated a test for Section 301

preemption to deal with these concerns: a state law claim

is preempted whenever it “is inextricably intertwined

with consideration of the terms of the labor contract” (471

U.S. at 213), such that “any attempt to assess liabili-

ty ** * inevitably will involve contract interpretation.” Id.

at 218. In other words, whenever “resolution of a state-

law claim is substantially dependent upon analysis of the

terms of an agreement made between the parties in a

labor contract, that claim must either be treated as a § 301

claim or dismissed as pre-empted by federal labor-con-

tract law.” Id. at 220 (citation omitted).

This Court has reiterated the same concerns - and

applied the same preemption test — in each of its subse-

quent rulings in this area. In Electrical Workers v. Hechler,

481 U.S. 851, 853 (1987), the Court held Section 301 pre-

empted “a state-law tort claim that a union has breached

its duty of care to provide a union member with a safe

workplace.” A court deciding that claim “would have to

ascertain, first, whether the collective-bargaining agree-

ment * * * placed an implied duty of care on the Union to

ensure that [the employee] was provided a safe work-

place, and, second, the nature and scope of that duty.” Id.

at 862. Since “ ‘questions of contract interpretation

[underlay] any finding of tort liability’” the employee

was “precluded from evading the pre-emptive force of

§ 301 by casting her claim as a state-law tort action.” Ibid.

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

certain breach of contract claims escaped preemption

where they were based on allegations that an employer

had entered into individual employment contracts with

the plaintiff employees at a time when they were not

members of a bargaining unit or covered by any collec-

tive-bargaining agreement. The employees claimed that

Caterpillar had agreed that it “would provide employ-

ment opportunities for [them] at other facilities” if their

workplace were closed. Id. at 389. The claim that the

employer had entered into and breached these individual

employment contracts was “not substantially dependent

upon interpretation” of a labor contract, because the

claim neither “rel[ied] upon” a contract nor “address[ed]

the relationship between the individual contracts and the

collective agreement.” Id. at 395.

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

486 U.S. 399 (1988), the issue was whether Section 301

preempted an employee’s state law allegation that she

had been discharged in retaliation for filing a worker’s

compensation claim. Although the employee was covered

by a collective-bargaining agreement that required “just

cause” for discharge, the Court held that her state retalia-

tory discharge claim was not preempted. The state law

claim depended on a purely factual inquiry whether the

plaintiff was discharged and whether the employer’s

motive for the discharge was retaliatory. Such an inquiry

would “not turn on the meaning of any provision of a

collective-bargaining agreement.” Id. at 407. Lingle reiter-

ated, however, that “judges can determine questions of

state law involving labor-management relations only if

such questions do not require construing collective-bar-

gaining agreements.” Id. at 411. Most recently, in Steel-

workers v. Rawson, 495 U.S. 362, 369 (1990), this Court

reaffirmed that a state tort suit is preempted when it is

based on rights or duties “without existence independent

of the collective-bargaining agreement.”

Application of these Section 301 preemption stan-

dards requires close scrutiny of the plaintiff’s allegations

in each case. Over the last four years, this Court has

denied petitions for certiorari in at least eleven cases

involving the application of these standards to various

state law claims. That the courts of appeals in these

3 White v. National Steel Corp., 938 F.2d 474 (4th Cir.), cert.

denied, 112 S. Ct. 454 (1991); McCormick v. AT&T Technologies,

934 F.2d 531 (4th Cir. 1991), cert. denied, 112 S. Ct. 912 (1992);

Sluder v. UMW, 892 F.2d 549 (7th Cir. 1989), cert. denied, 111 S.

(Continued on following page)

cases reached different results does not mean there is a

conflict among the circuits that this Court has ignored. It

simply reflects the fact that courts applying the proper

preemption standards will reach different results when

faced with different facts. There is certainly no reason for

the Court to single out this case and to review the Sixth

Circuit’s conscientious analysis of petitioners’ nearly

unintelligible complaint.

It is particularly disingenuous for petitioners to pre-

tend that this case is something other than a complaint

bottomed on collective-bargaining agreements, when

their original suit - which raised factual allegations sub-

stantially identical to those in the present suit - was

expressly predicated on breach of collective-bargaining

agreements within the meaning of Section 301. Peti-

tioners’ original suit was dismissed for untimeliness; but

dilatoriness is surely not a justification for recycling a

Section 301 claim as a state law claim and demanding

application of divergent state law standards to construe

and enforce the underlying collective-bargaining agree-

ments.

(Continued from previous page)

Ct. 45 (1990); Wells v. General Motors Corp., 881 F.2d 166 (5th

Cir. 1989), cert. denied, 495 U.S. 923 (1990); Terwilliger v. Grey-

hound Lines, 882 F.2d 1033 (6th Cir. 1989), cert. denied, 495 U.S.

946 (1990); Berda v. CBS, Inc., 881 F.2d 20 (3d Cir. 1989), cert.

denied, 493 U.S. 1062 (1990); Smolarek v. Chrysler Corp., 879 F.2d

1326 (6th Cir.), cert. denied, 493 U.S. 992 (1989); Richardson v.

Steelworkers, 864 F.2d 1162 (5th Cir.), cert. denied, 493 U.S. 803

(1989); Utility Workers v. Southern California Edison Co., 852 F.2d

1083 (9th Cir. 1988), cert. denied, 489 U.S. 1078 (1989); Local No.

57 v. Bechtel Power Corp., 834 F.2d 884 (10th Cir. 1987), cert.

denied, 486 U.S. 1055 (1988); Paige v. Henry J. Kaiser Co., 826

F.2d 857 (9th Cir. 1987), cert. denied, 486 U.S. 1054 (1988).

A. The Sixth Circuit Faithfully And Correctly

Applied The Section 301 Preemption Standards

Enunciated In This Court’s Decisions To Peti-

tioners’ Fraud And Tortious Interference

Claims

The certiorari petition is premised on a series of

misstatements about the decisions below. The linchpin of

the petition is the repeated assertion that the court of

appeals held that petitioners’ state law fraud and tortious

interference claims were preempted because they “merely

‘relatle] to various collective bargaining agreements,’ ”

and thereby applied a standard that this Court expressly

rejected in Lueck, 471 U.S. at 220. Pet. 23. See also id. at 17,

48. This characterization of the test applied below is

fallacious.4 Both the court of appeals and the district

court were meticulous in their adherence to the Section

301 preemption standards enunciated by this Court.

The court of appeals, after examining Caterpillar and

this Court’s other recent Section 301 preemption cases in

great detail (Pet. App. 6-7, 11-14), held that petitioners’

4 Petitioners support each assertion that the court of

appeals asked whether their claims were “related to” some

labor contract with a citation to the court’s opinion at Pet. App.

9. That citation is to part of a long quotation from the district

court’s decision, intended to “exemplif[y] the approach the

[district] court took” to the problematic task of defining the

claims contained in petitioners’ “prolix and vague” complaint.

Id. at 8. The cited quotation plays no operative role in the court

of appeals’ decision. Moreover, the district court was not

applying a mere relationship standard at all, for the district

court continued by saying that “[i]t 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.” Id. at 9,

quoting App., infra, 21a.

fraud claims were preempted because they were “sub-

stantially dependent on analysis” of the Bridge Agree-

ment and the 1979 Delco contract (id. at 15) and “so

intertwined with the terms of the collective-bargaining

agreements present in the case that they may not be

separated.” Id. at 17. The court held that petitioners’

tortious interference claims were preempted because they

“necessarily involve] an analysis of” the collective-bar-

gaining agreements between GM and the Union. Id. at 20.

These same, well settled preemption principles guided

the district court (see App., infra, 13a-17a), which prop-

erly asked as to each of petitioners’ claims the question

required by Lueck and Caterpillar: whether the claim was

“substantially dependent” upon and “inextricably inter-

twined” with the construction of the terms of the various

collective-bargaining agreements. See id. at 17a-32a.

A similar misrepresentation about the preemption

standard applied below is implicit in petitioners’

repeated but incomplete quotation of the court of

appeals’ statement that it “is immaterial” that the Union's

alleged misrepresentations “took place outside the con-

text of collective bargaining.” Pet. 26, 46, quoting Pet.

App. 17. The court of appeals recognized that state claims

wholly independent of any collective-bargaining agree-

ment are not preempted (see, ¢.g., Pet. App. 13), and

emphasized in the very next sentence of its opinion that

“(t]he critical inquiry is whether a court adjudicating

[petitioners’ fraud] claim must determine rights arising

under a collective bargaining agreement.” Id. at 17.

Another equally baseless assertion is that the courts

below held that petitioners’ state law claims were pre-

empted because respondents could have raised a defense

grounded in federal labor law. Pet. 18-19, 58-59. The court

of appeals gave this argument short shrift, pointing out

that “the district court relied solely on the allegations on

the face of the complaint” in holding petitioners’ suit to

be preempted. Pet. App. 14. The court of appeals’ opinion

likewise contains no suggestion that it looked to the

nature of respondents’ defenses. On the contrary, the

court was well aware of the rule in Caterpillar that federal

defenses do not by themselves result in preemption of a

State law claim (see ibid.), and its preemption analysis

proceeded solely in terms of the elements of the claims

presented on the face of the complaint. See, e¢.g., id. at 17

(analyzing elements of fraud under Ohio law), 20 (con-

tract claim), 25 (emotional distress claim).

Once the petition is stripped of these sorts of misrep-

resentations, it appears that petitioners’ real complaint is

simply that the court below erred in applying the stan-

dards set forth in Lueck, Caterpillar and this Court’s other

Section 301 Preemption cases to the particular factual

allegations underlying their tort claims. That argument is

wholly without merit and would not warrant review by

this Court in any event.

1. Petitioners’ Fraud Claims. Petitioners apparently

assert two categories of fraud claims. The first is based

upon allegations that prior to the ratification of the 1979

Delco contract, the Local 801 president concealed and

misrepresented the fact that the Bridge Agreement was

not a part of the new Delco contract. Pet. 52. The second

is based upon representations allegedly made by the

Union president after the 1979 Delco contract had been

ratified that petitioners retained flow rights under that

contract and would be eligible for Chevrolet jobs based

on the seniority accumulated under the Bridge Agree-

ment. Pet. 50; Compl. 7] 39-40. To make out these fraud

claims under Ohio law, petitioners would have to show

that respondents concealed or misrepresented a material

fact, that they knew of or were indifferent to the conceal-

ment or misrepresentation and acted intending that the

petitioners rely on it to their detriment, and that peti- -

tioners suffered damage as a consequence. See Pet. App.

14, 17 & Pet. 49-50, citing Cohen v. Lamko, Inc., 462 N.E.2d

407 (Ohio 1984).

The claims that the Union concealed or misrepre-

sented the effect of the 1979 Delco contract during the

ratification process would embroil a court in a series of

“questions relating to what the parties to a labor agree-

ment agreed, [which] must be resolved by reference to

uniform federal iaw.” Lueck, 471 U.S. at 211. To determine

if the Union concealed or misrepresented the impact of

the 1979 Delco contract on existing flow rights, a court

would initially have to determine what petitioners’ exist-

ing rights were. To do that, the court would first have to

analyze the terms of the 1976 Delco agreement, including

the Bridge Agreement. Among other things, the court

would have to consider whether petitioners retained any

rights under the Bridge Agreement after GM sold the

Frigidaire Division; the Bridge Agreement only gave peti-

tioners the right to transfer to jobs within the Frigidaire

Division. App., infra, 37a. The court would then have to

consider whether the termination of the Bridge Agree-

ment by the Frigidaire contract of February 23, 1979 had

an impact on any flow rights the Delco workers might

have retained. After interpreting the 1976 Delco and 1979

Frigidaire contracts to see what rights Delco workers had

at the time of the alleged misrepresentations, the court

would then have to interpret the 1979 Delco contract in

order to see what changes it worked. Only then could the

truth or falsity of the representations alleged by peti-

tioners be judged.

Finally, the Ohio law requirement that petitioners

show damages would necessitate inquiry into what rights

petitioners had iost in consequence of the alleged fraud.

As the court of appeals noted (Pet. App. 14-15), that

would require a court to compare petitioners’ rights

before and after ratification of the 1979 Delco contract.$ In

* This is not the sort of peripheral use of a labor contract

“to determine the proper damages” for a state law violation

that was sanctioned in Lingle, 486 U.S. at 413 n.12. This Court

had in mind in Lingle that a “collective-bargaining agreement

may *** contain information such as rate of pay and other

economic benefits that might be helpful” in fixing the amount

of damages that should be awarded. Ibid. Here, a comparison

(Continued on following page)

iliac

short, an inquiry into the terms of the 1976 Delco contract

and Bridge Agreement, the 1979 Frigidaire agreement

cancelling the Bridge Agreement, and the 1979 Delco

contract would be at the very heart of adjudication of this

fraud claim.

A court adjudicating petitioners’ second fraud claim

would also have to engage in close analysis of collective-

bargaining agreements. Although the petition describes

in only vague terms the misrepresentations allegedly

made by the Union after the ratification of the 1979 Delco

contract (see Pet. 10), it is clear that each misrepresenta-

tion or concealment alleged in the complaint directly

concerns the effect of the 1979 Delco contract on peti-

tioners’ seniority-based transfer rights. The Union

allegedly “tr[ied] to keep secret the abrogation of the

Bridge Agreement” by the 1979 contract. Ibid. Its presi-

dent allegedly represented that rights acquired under the

Bridge Agreement were “being fully recognized, pre-

served and perpetuated equitably and equally as to each

[red-circled Delco worker] based on his order of Frig-

idaire seniority,” and that petitioners “had nothing to

worry about as they *** would *** Participate fully in

the Chevrolet jobs” in accordance with “the seniority

acquired and accumulated at Frigidaire” — i.e., under the

Bridge Agreement. Compl. { 40, App., infra, 56a-57a.

In order to determine if these alleged representations

were false, or if the Union concealed some material fact, a

court would have to interpret the 1979 Delco contract to

see what rights it gave petitioners. In addition, a court

would have to interpret various labor contracts simply in

order to understand what was allegedly misrepresented

by the Union. The content of the rights petitioners say

(Continued from previous page)

of different labor contracts is necessary to determine whether

petitioners suffered any damage at all as a consequence of the

Union’s alleged fraud, an essential element of a fraud claim

under Ohio law.

they were told they retained under the 1979 contract are

not to be found in the very general representations the

Union is supposed to have made, but in the Bridge

Agreement and the other collective-bargaining agree-

ments that established and specified the flow rights to

which those general representations referred. See Compl.

11 39-40. Then, because petitioners claim they were told

they would have rights to transfer to Chevrolet jobs based

on their Frigidaire seniority (ibid.), the court would have

to interpret the 1979 Frigidaire and Chevrolet agreements

that gave Frigidaire workers rights to recall to Chevrolet.

As if that were not enough, the requirement under Ohio

law that a fraud plaintiff prove damages would also

require the court to determine petitioners’ rights under

the agreement in effect before the 1979 Delco contract, as

a baseline against which to measure the claims that the

alleged misrepresentations and concealments harmed

petitioners.

2. Petitioners’ Tortious Interference Claims. Much of

the same close analysis of collective-bargaining agree-

ments would be essential to a resolution of petitioners’

tortious interference with contract claims. These claims

are based on the notion that the Union’s alleged represen-

tations created a contract and that respondents tortiously

interfered with petitioners’ enjoyment of rights under

that contract. Pet. 10-12, 55; Compl. {J 39-40, 74-80. Peti-

tioners blithely assert that the Bridge Agreement is irreie-

vant to a determination whether a contract was created

under Ohio law by the Union’s alleged promises. Pet.

56-57. It is clear, however, as the court of appeals recog-

nized (Pet. App. 20), that the terms of the alleged contract

must derive from the Bridge Agreement and the other

labor agreements that created and specified the flow

rights that Frigidaire and Delco workers previously

enjoyed. The promises the Union allegedly made were

that petitioners would be entitled to jobs at the new

Chevrolet plant in accordance with flow rights originally

established by, and with the seniority accumulated under

the terms of, the Bridge Agreement. Compl. {J 39-40. A

court adjudicating petitioners’ tortious interference

claims would thus have to analyze the Bridge Agreement

to give content to the contract said to have been created

by the Union’s representations. Then, since the entitle-

ment of those with Frigidaire seniority to jobs at Chevro-

let was dependent on the 1979 Frigidaire and Chevrolet

agreements, the court would necessarily have to interpret

those agreements as well.

Petitioners’ reliance on Caterpillar is misplaced. See

Pet. 16, 54-55. The state breach of contract claims at issue

in Caterpillar were founded on an employer’s promises of

permanent job security, made entirely separate from any

collective agreements at a time when the plaintiffs were

not even members of any bargaining unit. The terms of

the alleged contracts were clear and wholly independent

of any collective-bargaining agreements, so the state law

claims did not “rely upon the collective agreement indi-

rectly, nor * * * address the relationship between the

individual contracts and the collective agreement.” 482

U.S. at 395.

Here, petitioners assert that the Union represented

that the “seniority acquired and accumulated at Frig-

idaire” under the Bridge Agreement continued to govern

and that “accordingly” petitioners would “participate

fully in the Chevrolet jobs.” Compl. { 40, App., infra,

56a-57a. Petitioners’ claims thus “rely upon” the Bridge

Agreement — and the 1979 Frigidaire and Chevrolet col-

lective-bargaining agreements as well — to provide the

terms of the contract they allege was created, and a court

deciding petitioners’ tortious interference claims would

have to “address the relationship between the [alleged]

individual contracts” and these three labor agreements.

482 U.S. at 395.

In sum, this is not a case in which it can plausibly be

argued that state claims are in any sense independent of

collective-bargaining agreements. Interpretation of a mul-

tiplicity of labor contracts would be essential to adjudica-

tion of petitioners’ fraud and tortious interference claims,

and would give rise to exactly that disruption of the

ecreeerenene enema ee aman eee rane

federal regulatory scheme that this court decried in Lucas

Flour.

B. The Sixth Circuit’s Decision That Petitioners’

Fraud And Tortious Interference Claims Are

Preempted Is Not In Conflict With Decisions Of

Other Courts Of Appeals

Petitioners argue that the decision below is in conflict

with Wells v. General Motors Corp., 881 F.2d 166 (5th Cir.

1989), cert. denied, 495 U.S. 923 (1990) - a case they did >

not even cite in their court of appeals briefs. But the Sixth

Circuit here and the Fifth Circuit in Wells both applied

the preemption standards set out in this Court’s prece-

dents. Compare pp. 7-9, supra, with 881 F.2d at 172-173.

They reached different results only because they faced

very different factual circumstances.

In Wells, a collective-bargaining agreement known as

the Voluntary Termination of Employment Plan (VTEP)

provided that employees of GM’s Packard Electric plant

who agreed to resign their jobs would receive severance

pay. 881 F.2d at 168. The VTEP was totally silent as to the

future employment eligibility of workers who elected to

resign under this plan. Id. at 174. Some employees who

took advantage of the VTEP later reapplied for work at

Packard but were allegedly told that they were ineligible

for rehire. Id. at 168. These employees filed suit claiming

state law fraud and misrepresentation, alleging that a GM

representative had told them prior to their election of

VTEP benefits that they could subsequently be rehired if

new jobs were created, “although they would have to

apply like everyone else.” Ibid. The Fifth Circuit held that

“lujnder these narrow circumstances” the employees’

state claims were not preempted (id. at 175), because the

purported promise of eligibility for rehire was wholly

independent of the VTEP. Id. at 173-175.

The difference between Wells and this case is striking.

In Wells, the court of appeals held the rehire rights

claimed by plaintiffs were not even remotely connected to

a collective-bargaining agreement. On the contrary, they

were merely rights to apply for a job in the future “like

everyone else” (881 F.2d at 168) — that is, on the same

basis as any new applicant approaching GM for a job

without benefit of any collectively-bargained seniority or

other advantages. Indeed, the Fifth Circuit held that

rehire rights are not even mandatory subjects of collec-

tive-bargaining. Id. at 169-170. In consequence, the Fifth

Circuit held that plaintiffs’ state law fraud claim was “a

highly fact-bound one concerning what was said, or

promised,” by GM’s representative (id. at 173), and that

no term of the VTEP was relevant to the court’s inquiry.

Id. at 173-174.

In the present case, in contrast, a court adjudicating

petitioners’ fraud and tortious interference claims could

not avoid interpreting various collective-bargaining

agreements, as we have shown above. In particular, the

flow rights at issue in this case were solely a creature of

collective bargaining - and were mandatory subjects of

bargaining. Sce Master Slack Corp., 230 NLRB 1054, 1055

(1977), enforced, 618 F.2d 6 (6th Cir. 1980); United States

Gypsum Co., 94 NLRB 112, 114-115 (1951), modified in

other respects, 206 F.2d 410 (5th Cir. 1953), cert. denied,

347 U.S. 912 (1954). Red-circled Frigidaire and Delco

workers enjoyed seniority, transfer and bumping rights

only because these were Provided for in the Bridge

Agreement, which created those rights and gave them

precise content. Frigidaire seniority became a basis for

recall rights to the Chevrolet Division solely by virtue of

the 1979 Frigidaire and Chevrolet agreements. Petitioners

must rely on the collectively-bargained rights created by

these agreements to provide the operative terms of the

seniority and flow rights they allege they were promised

by the Union president. See Compl. 1] 39-40. In contrast

to Wells, interpretation of collective-bargaining agree-

ments is inescapable in adjudicating petitioners’ claims.

Petitioners’ fleeting assertion of other conflicts is

equally insubstantial. Pet. 26-28. Upon closer inspection,

each allegedly conflicting decision can be seen to have

- — re

rested on the precise role that the collective-bargaining

agreement would play in reaching a decision on the state

law claims, given the specific facts in issue. In Anderson v.

Ford Motor Co., 803 F.2d 953 (8th Cir. 1986), cert. denied,

483 U.S. 1011 (1987), for example, Ford allegedly told

plaintiffs before they were hired that they would be per-

manent employees and would not be bumped by

employees who had preferential hiring rights pursuant to

a collective-bargaining agreement. Id. at 955. Applying

the Lueck test, the court of appeals held that state law

fraud and breach of contract claims filed by the plaintiffs

after they were displaced by preferential hirees were not

preempted: the state claims were totally independent of

any collective-bargaining agreement. Id. at 956-957. The

right not to be bumped did not at all depend on a

collective-bargaining agreement. Indeed, the representa-

tions ali2ged to have created that right were “made

before the time [plaintiffs] became employees of [Ford],

that is, before the time they were even covered by the

collective bargaining agreement.” Id. at 958. See also

Berda, 881 F.2d 20 (no § 301 preemption of state claims

based on pre-employment representation that plaintiff

woul’ not be laid off, where no labor contract would

have to be interpreted to decide the claim); Fox v. Parker

Hannifin Corp., 914 F.2d 795, 801 n.5 (6th Cir. 1990) (indi-

vidual contract rights predating or created after the expi-

ration of a labor contract may give rise to viable state law

claims).

In the present case, the seniority and flow rights

allegedly represented by the Union to have survived the

1979 Delco agreement were those “acquired and accumu-

lated at Frigidaire” under the Bridge Agreement, and

which had been translated into an entitlement to Chevro-

let jobs by virtue of the 1979 Frigidaire and Chevrolet

agreements. Compl. {1 39-40. In other words, the very

source of the rights represented to exist by Local 801’s

iil

President was a series of collective-bargaining agree-

ments.®

Contrary to petitioners’ assertion (Pet. 26-27) the

court of appeals’ decision does not conflict with Karet-

nikova v. Trustees of Emerson College, 725 F. Supp. 73 (D.

Mass. 1989), or Paradis v. United Technologies, 672 F. Supp.

67 (D. Conn. 1987). In Karetnikova, the district court per-

mitted a state law civil rights claim to proceed where a

college had allegedly failed to grant plaintiff tenure

because of her political views. As in Lingle, plaintiff's

claim raised purely factual questions about whether the

board’s tenure decision was motivated by plaintiff’s exer-

cise of First Amendment rights and did not involve rights

under any collective-bargaining agreement. 725 F. Supp.

at 79-80. Moreover, the court held that those rights were

“at least in part” beyond the scope of collective bargain-

ing, like the rights in question in Lingle - but unlike the

seniority and flow rights at issue in this case. Id. at 81-82.

Similarly, in Paradis the district court applied the

Lueck standard to a state law fraud claim premised on an

® Petitioners also cite Hanks v. General Motors Corp., 906

F.2d 341 (8th Cir. 1990), Anderson v. United Auto Workers, 738 F.

Supp. 441 (D. Kan. 1990), and a dissenting opinion in McCor-

mick, 934 F.2d 531, as evidencing a conflict among the lower

courts in the application of Section 301 preemption standards.

Pet. 26-28. These cases do not involve fraud or tortious inter-

ference, but are primarily concerned with state law emotional

distress claims. See pp. 27-29, infra. In Milne Employees Ass'n v.

Sun Carriers, Inc., 1991 U.S. App. LEXIS 27786 (9th Cir. 1991),

also referred to by petitioners in passing (Pet. 48-49), the codrt

of appeals held that state tortious interference claims were

preempted, but that certain fraud claims were not. The deci-

sion was based on a careful analysis of plaintiffs’ allegations

and the elements of the state causes of action in light of the

Lueck test. Unlike the flow rights at issue here, the fraud claims

held not to be preempted in Milne did “not originate in or refer

to rights and duties derived from the collective bargaining

agreement” (Milne at *17).

allegation that an employer fired the plaintiff for prior

drug use after representing that it would not do so. The

court held that this fraud claim required no interpretation

of a labor contract provision authorizing termination for

just cause, because to succeed on the state claim the

plaintiff “need only show that [his] termination was con-

trary to what defendant promised, not that it was unjust.”

672 F. Supp. at 71. In-the instant case, what the Union

allegedly promised petitioners is the continuation of

rights created by the Bridge Agreement, and the avail-

ability to red-circled Delco workers of jobs at the Chevro-

let plant on the same terms enjoyed by red-circled

Frigidaire workers under the 1979 Frigidaire and Chevro-

let labor contracts. Moreover, the Union’s alleged repre-

sentations directly concerned the effect of yet another

coliective-bargaining agreement, the 1979 Delco contract.

In this case, unlike Paradis, interpretation of collective-

bargaining agreements would thus be central to any deci-

sion on petitioners’ state law claims.

Il. THE SIXTH CIRCUIT’S HOLDING THAT PETI-

TIONERS’ EMOTIONAL DISTRESS CLAIMS ARE

PREEMPTED WAS CORRECT AND CONSISTENT

WITH DECISIONS OF OTHER COURTS.

The fourth count of petitioners’ complaint alleged

that GM and the Union tortiously caused them emotional

distress. Compl. {J 81-83, 89, App., infra, 63a-64a. Peti-

tioners agree (Pet. 60-62) that to succeed on this cause of

action under Ohio law they would have to prove that

respondents engaged in “extreme and outrageous” con-

duct which caused them emotional distress. Pet. App. 21,

quoting Yeager v. Local Union 20, 453 N.E.2d 666, 671

(Ohio 1983).

The factual allegations upon which this count is

grounded are particularly murky. The district court,

believing it had considered “each of the possible [emo-

tional distress] claims” stated in the complaint (App.,

infra, 27a), thought petitioners were alleging that GM and

the court of appeals, and again here, petitioners suggest

in addition that the Union acted Outrageously in conceal-

ing the fact that the 1979 Delco agreement “omitted” and

“abandon[ed]” the Bridge Agreement. Pet. 9. Finally, to

confuse matters further, petitioners relied below (Br.

33-34) and in their Petition (Pet. 60) on Farmer vy. Carpen-

ters, 430 U.S. 290 (1977) - a Garmon preemption case

concerning the preemptive effect on state emotional dis-

unfair labor practice complaints. Section 301 preemption

was not even an issue in Farmer. Id. at 295 & n.5.

11 25, 27-28, 31, 35; Pet. 9. As the district court noted, the

outrageousness of that alleged conduct “simply cannot be

judged in a vacuum,” but would require the court to

“analyz[e] how the terms of the collective bargaining

agreements were changed.” App., infra, 28a. As we have

Shown, that would mean interpreting the Bridge Agree-

ment and the 1979 Frigidaire, Delco and Chevrolet con-

The court of appeals — at petitioners’ invitation (see

Br. 33-34; Pet. App. 22) - took a different approach to

determining whether petitioners’ emotional distress

Claims are preempted, analogizing the Section 30] inquiry

TR At Set i ee ane

to that set out in Farmer. Farmer held that because the

states have a substantial interest in protecting their citi-

zens from tortious infliction of emotional distress (430

U.S. at 304), only claims that pose “a realistic threat of

interference with the federal regulatory scheme” are pre-

empted by reason of the NLRB’s primary jurisdiction

over union discrimination complaints. Id. at 305. By

analogy to Farmer, the court of appeals acknowledged

that a properly-pleaded claim of outrageous conduct in a

case similar to this one might escape preemption. Pet.

App. 25. But because petitioners made no “specific alle-

gations of outrageous conduct,” and instead merely

alleged that GM and the Union concealed information

about the 1979 collective-bargaining agreements - “issues

central to the concerns of federal labor law” — petitioners’

claims were preempted. Pet. App. 25.

Whatever the merits of the court of appeals’ analogy

to Farmer, it is clear that the decision below does not

warrant this Court’s review. The court of appeals deter-

mined that petitioners’ claims are preempted because

they failed specifically to allege any outrageous conduct.

That is essentially a factual determination, and one as to

which petitioners cite no conflicts among the circuits or

other grounds that would warrant a grant of certiorari.

The court of appeals’ insistence that a plaintiff asserting

an emotional distress claim allege some outrageous con-

duct is a reasonable way to ensure that state claims that

would interfere with the federal regulatory scheme are

not permitted to proceed. Moreover, the court’s analysis

led to precisely the result demanded by Lueck, and for the

same ultimate reason - that in substance petitioners’

claims are about the terms of collective-bargaining agree-

ments.”

7? As the court of appeals noted (Pet. App. 21), under the law

of Ohio a claim of tortious infliction of emotional distress requires

allegations of conduct that is “extreme and outrageous.” Yeager, 453

N.E.2d at 671. Here, the court of appeals, crediting all of the

(Continued on following page)

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Auice M. OsspurN

General Motors

Corporation

New Center One

Building

3031 West Grand

Boulevard

P.O. Box 33122

Detroit, Michigan 48232

JosepH P. BUCHANAN

Crew, Buchanan & Lowe

2580 Kettering Tower

Dayton, Ohio 45423

AprRIL 1992

STEPHEN M. SHAPIRO

James D. HoLZHAUER

Counsel of Record

Timotny S. BisHopP

Mayer, Brown & Platt

190 South LaSalle Street

Chicago, Illinois 60603

(312) 782-0600

(Continued from previous page)

well-pleaded facts in the complaint, found no “specific allega-

tions of outrageous conduct.” Pet. App. 25. Before attempting

to reconcile federal labor law with state common law govern-

ing claims of outrageous conduct, this Court should await a

case in which the elements of the state law cause of action are

actually pleaded.

~—

Pe i cer eprsssoye

ERLE ESA RII, SOE” A Tk ER

SS hs

hic Riss a 7 ° ‘ ¥ sfowes:

2 » She f 5 4.

eee ST,

RN hs

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JOHN J. ADKINS, et al.,

Plaintiffs, a

Vs. C-3-83-1088

GENERAL MOTORS

CORPORATION, et al.,

Defendants.

DECISION AND ENTRY SUSTAINING

MOTION OF DEFENDANTS FOR SUMMARY

JUDGMENT ON THOSE CLAIMS PREVIOUSLY

DEEMED PREEMPTED BY § 301 OF THE

LABOR MANAGEMENT RELATIONS ACT

(DOC. #43 AND DOC. #48); JUDGMENT TO BE

ENTERED IN FAVOR OF DEFENDANTS AND

AGAINST PLAINTIFFS ON SAID CLAIMS SET

FORTH IN COUNTS TWO AND THREE OF

PLAINTIFFS’ COMPLAINT AND { 25, 27, 28,

35 AND THAT PORTION OF 4 31 RELATING

TO THE CIRCULATION OF INFORMATION

SET FORTH IN COUNT FOUR OF PLAINTIFFS’

COMPLAINT; THAT PORTION OF MOTION

FOR SUMMARY JUDGMENT OF DEFENDANT

GENERAL MOTORS SEEKING TO HAVE THIS

COURT RECONSIDER ITS PRIOR RULING

(DOC. #40), REMANDING TO STATE COURT

{1 30, 33, 36 AND A PORTION OF 4 31, OVER-

RULED; { 30, 33, 36 AND A PORTION OF { 31

ORDERED REMANDED TO STATE COURT;

TERMINATION ENTRY

i iii

[FILED January 24, 1990]

On August 16, 1988, this Court filed a Decision and

Entry (Doc. #40) which, inter alia, granted the Defen-

dants’ previous Motions for Reconsideration and, in so

doing, concluded that Counts Two and Three of the Plain-

tiffs’ Complaint and that portion of Count Four which

dealt with the circulation of certain information, to wit:

that set forth in {{ 25, 27, 28, 35 and a portion of { 31, are

preempted by § 301 of the Labor Management Relations

Act (“LMRA”) and, accordingly, would not be remanded

to state court. Ruling further, this Court concluded that

the Defendants’ Motions for Reconsideration were over-

ruled as they related to the remainder of Count Four of

the Plaintiffs’ Complaint ({{1 30, 33, 36 and a portion of

{ 31). This Court ruled that those portions of Count Four,

not preempted by the LMRA, would be remanded to state

court. Finally, this Court concluded that those claims

determined by this Court to be preempted by § 301 of the

LMRA (i.e., those found in Count Two, Count Three, and

that portion of Count Four related to {{ 25, 27, 28, 35 and

a portion of { 31) might possibly be barred by the six-

month statute of limitations established by § 10(b) of the

National Labor Relations Act (“NLRA”), 29 U.S.C.

§ 160(b). The Court granted Defendants 20 days from the

entry of said decision to file a properly documented

motion for summary judgment to that effect.

The Defendants have filed such a Motion for Sum-

mary Judgment seeking a judgment in their favor and

against the Plaintiffs on those claims set forth in the

Plaintiffs’ Complaint which this Court determined on

August 16, 1988, to be preempted by § 301 of the LMRA

(Count Two, Count Three and that portion of Count Four

relating to {{ 25, 27, 28, 35 and a portion of { 31). (Doc.

#43 and Doc. #48). In addition, the Defendant General

Motors Corporation has sought a ruling by this Court

reconsidering that portion of its Decision of August 16,

1988, which ordered remanded to state court certain

claims set forth in {{ 30, 33, 36 and a portion of { 31, as

not preempted by § 301 of the LMRA. The moving Defen-

dant would have this Court reconsider its prior Order of

remand, retain those claims within the federal court’s

jurisdiction, pursuant to the principles of pendent juris-

diction, and, consequently, grant the moving Defendants’

Motion for Summary Judgment on the grounds that the

state law claims, previously deemed by this Court to be

not preempted by § 301, are either barred by the applica-

ble six-month statute of limitations or fail to state claims

against the moving Defendant upon which relief can be

granted.

Based upon the reasoning and citations of authority

set forth in the memoranda filed by the moving Defen-

dants in support of their Motion for Summary Judgment

on those claims set forth in the Plaintiffs’ Complaint

previously deemed by this Court to be preempted by

§ 301 of the LMRA, i.e., Count Two, Count Three, and

that portion of Count Four set forth in {J 25, 27, 28, 35

and a portion of J 31, this Court deems said motions to

be well taken and same are, therefore, sustained in their

entirety.

In ruling as aforesaid, this Court makes the follow-

ing, non-exclusive, observations:

1. Each of the claims of the Plaintiffs set forth in the

aforesaid Count Two, Count Three and the above refer-

enced paragraphs set forth in Count Four are barred by

the applicable six-month statute of limitations set forth in

§ 10(b) of the NLRA, as said statute has been interpreted

by the United States Supreme Court in Del Costello v.

International Brotherhood of Teamsters, 462 U.S. 151 (1983).

2. This Court has previously held, which holding

has been affirmed by the United States Court of Appeals

for the Sixth Circuit, that Plaintiffs’ federal claims

accrued in January, 1981, and were barred by the six-

month statute of limitations found in § 10(b) of the

NLRA. Accordingly, it is axiomatic that Plaintiffs’ state

claims that this Court has held to be preempted by § 301

of the LMRA, likewise, accrued in January, 1981, and are

also barred by the aforesaid six-month statute of limita-

tions. If federal claims are barred on statute of limitations

grounds, it is nothing less than the exercise of common

sense to conclude that claims properly removable, as

preempted by federal iaw, must likewise be disposed of

on the same statute of limitations grounds.

This Court will overrule that portion of the Motion of

the Defendant General Motors Corporation seeking an

Order of the Court reconsidering that portion of its

August 16, 1988 (Doc. #40) Decision and Entry which

ordered remanded to the state court that portion of the

Plaintiffs’ Complaint which was not preempted by § 301

of the LMRA, to wit: {{ 30, 33, 36 and a portion of { 31 as

they relate to Count Four of the Plaintiffs’ Complaint.

Those paragraphs relating to Count Four of the Plaintiffs’

Complaint will be remanded to the state court.

In ruling as aforesaid, this Court makes the follow-

ing, non-exclusive, observations:

1.- Since the Court has ordered the entering of sum-

mary judgment in favor of the Defendants and against

the Plaintiffs, on all aspects of the Plaintiffs’ state court

filed claims which this Court has determined are pre-

empted by § 301 of the LMRA, there are no longer federal

claims pending upon which any purely state law claims

could pend. In Mine Workers v. Gibbs, 383 U.S. 715, 726

(1966), the United States Supreme Court stated that “If

the federal claims are dismissed before trial . . . the state

claims should be dismissed as well.” While this rule does

not establish a mandatory rule to be applied inflexibly in

all cases, see Rosado v. Wyman, 397 U.S. 397, 403-405

(1970), “[t]he statement simply recognizes that in the

usual case in which all federal law claims are eliminated

before trial, the balance of factors to be considered under

the pendent jurisdiction doctrine — judicial economy, con-

venience, fairness and comity — will point toward declin-

ing to exercise jurisdiction over the remaining state law

claims.” Carnegie-Mellon University v. Cohill, 108 S. Ct.

614, 619 n.7 (1988).

2. Even were this Court to have the unfettered dis-

cretion to maintain jurisdiction over the purely state law

claims, even without any federal law claims to which

those state law claims could pend, this Court would

decline to exercise said jurisdiction believing that matters

of purely state law, particularly in the areas involved in

the Plaintiffs’ Complaint which deal with matters of state

law which are undergoing a period of rapid evolution,

must be decided by state courts.

WHEREFORE, based upon the aforesaid, this Court

grants the Motions of the Defendants (Doc. #43, Doc.

#48), seeking summary judgment in their favor and

aa es

against the Plaintiffs herein on the federal claims for

relief (those state law claims deemed preempted by fed-

eral law) and, ruling further, overrules that portion of the

Motion for Summary [Judgment] of the Defendant Gen-

eral Motors, seeking an Order of the Court reconsidering

its prior decision and thus maintaining jurisdiction over

the state law claims and rendering summary judgment

thereon.

It is the Order of this Court that the Office of the

Clerk of Courts prepare a Final Judgment Entry to the

effect that:

1. Summary judgment is entered in favor of the

Defendants and against the Plaintiffs herein, on all claims

set forth by the Plaintiffs in Count Two, Count Three and

{1 25, 27, 28, 35 and the portion of { 31 relating to the

circulation of information in Count Four of Plaintiffs’

Complaint.

2. Those claims set forth in {¥ 30, 33, 36 and that

portion of { 31 relating to the denial of Plaintiffs’ right to

participate in the ratification vote, all set forth in the

fourth count of the Plaintiffs’ Complaint, having been

deemed to be not preempted by § 301 of the LMRA, are

ordered remanded to the Montgomery County Court of

Common Pleas.

3. The captioned cause is hereby ordered termi-

nated upon the docket records of the United States Dis-

trict Court for the Southern District of Ohio, Western

Division, at Dayton.

WALTER HERBERT RICE

UNITED STATES DISTRICT JUDGE

John J. ADKINS, et al., Plaintiffs,

GENERAL MOTORS CORPORATION,

et al., Defendants.

No. C-3-83-1088.

United States District Court,

S.D. Ohio, W.D.

Aug. 16, 1988.

DECISION AND ENTRY SUSTAINING IN PART

AND OVERRULING IN PART THE MOTIONS

OF DEFENDANT UNIONS (DOC. #21) AND

DEFENDANT GENERAL MOTORS CORP.

(DOC. #22) FOR RECONSIDERATION, AND,

ACCORDINGLY, VACATING IN PART THE

COURT’S DECISION AND ENTRY SUSTAIN-

ING IN PART, AND OVERRULING IN PART,

PLAINTIFFS’ MOTION TO REMAND (DOC.

#9); DECISION AND ENTRY VACATING IN

PART THE COURT’S DECISION AND ENTRY

SUSTAINING THE MOTION OF DEFENDANT

UNIONS FOR SUMMARY JUDGMENT (DOC.

#19); DECISION AND ENTRY OVERRULING

PLAINTIFFS’ MOTION FOR COSTS (DOC. #11)

IN ITS ENTIRETY; FURTHER PROCEDURES

ORDERED OF THE DEFENDANTS.

RICE, District Judge.

This case is before the Court on the Motions of the

Defendants (Doc. #21; Doc. #22) for Reconsideration of

the Court’s Decision and Entry sustaining in part, and

overruling in part, the Motion to Remand (Doc. #9) and

on the Motion of the Plaintiffs for Costs (Doc. #11). For

the reasons briefly set forth below, the Defendants’

Motions for Reconsideration are sustained in part and

overruled in part; the Court’s Decision and Entry sustain-

ing in part, and overruling in part, Plaintiffs’ Motion to

Remand (Doc. #9) is, accordingly, vacated in part; the

Court’s Decision and Entry sustaining the Motion of

Defendant Unions for Summary Judgment (Doc. #19) is

vacated in part; and the Motion of Plaintiffs for Costs

(Doc. #11) is overruled in its entirety.

I. A PROCEDURAL BACKGROUND

An understanding of the procedural posture of this

case requires a brief summary of litigation previously

brought before this Court. In January, 1982, many of the

Plaintiffs in the instant case filed suit in this Court

against the same Defendants, namely, Defendant General

Motors Corp. (GMC), Defendant International Union of

Electrical, Radio and Machine Workers, AFL-CIO (IUE),

and Defendant Local 801. Adkins v. General Motors Corp.,

No. C-3-82-011 (S.D. Ohio Jan. 18, 1982). The Amended

Complaints therein contained two counts.! Plaintiffs’

advanced federal claims in the first count, alleging that

the IUE and Local 801 violated their duty of fair represen-

tation, and that GMC breached a contract, with respect to

the negotiation, adoption, and implementation of certain

collective bargaining agreements. Count One thus pre-

sented a “hybrid” action under § 301 of the Labor Man-

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

1 a

[A] court may take judicial notice of its own record of

another case between the same parties.” Harrington v. Vandalia-

Butler Bd. of Educ., 649 F.2d 434, 441 (6th Cir. 1981).

claim under § 101(a)(1) of the Labor-Management Report-

ing and Disclosure Act (LMRDA), 29 U.S.C. § 411(a)(1).

Invoking the Court’s pendent jurisdiction, Plaintiffs also

set out four state claims in Count Two of the Complaints:

tortious interference with contract; breach of contract;

infliction of mental anguish; and loss of consortium.

GMC moved to dismiss the Complaint, pursuant to

Fed.R.Civ.P. 12(b)(6), alleging that it failed to state a claim

upon which relief could be granted. This Court sustained

in part, and overruled in part, the Motion to Dismiss.

Adkins v. General Motors Corp., 556 F.Supp. 452 (S.D. Ohio

1983) (Adkins I). With respect to the federal claims, this

Court held that same were sufficiently pleaded to survive

a motion to dismiss, except that the spousal Plaintiffs had

no standing to proceed. Id. at 456. With respect to the

state claims, the Court considered two lines of defense

raised by GMC: that the claims were preempted by fed-

eral labor statutes and, in any event, did not state a cause

of action under Ohio law. Id. The Court held as follows:

(1) the tortious interference with contract claim did not

state a cause of action under Ohio law; (2) the breach of

contract claim was preempted by LMRA § 301; (3) the

infliction of mental distress claim did not state a cause of

action u.der Ohio law, at least against GMC, and (4) the

loss of consortium claim could go forward. Id. at 457-58.

Eventually, all Defendants moved for summary judg-

ment, pursuant to Fed.R.Civ.P. 56, on the grounds that,

inter alia, the federal claims were barred by the applicable

statute of limitations. On April 15, 1983, this Court issued

an opinion agreeing with Defendants’ position, holding

that the federal claims were barred by applying the six-

month statute of limitations found in § 10(b) of the

10a

National Labor Relations Act (NLRA), 29 U.S.C. § 160(b).

Adkins v. General Motors Corp., 573 F.Supp. 1188, 1201

(S.D. Ohio 1983), aff'd, 769 F.2d 330 (6th Cir. 1985) (Adkins

IT). In the same decision, this Court dismissed the pen-

dent state claims without prejudice, subject to any further

litigation Plaintiffs might wish to pursue in the state

courts. Id. at 1201-02. Shortly thereafter, the Court entered

judgment in favor of the Defendants. On July 18, 1985,

following Plaintiffs’ appeal of said judgment, the Sixth

Circuit Court of Appeals affirmed this Court’s judgment.

Adkins v. International Union of Electrical, Radio & Machine

Workers, 769 F.2d 330, 337 (6th Cir. 1985) (Adkins III).

Apparently following this Court’s suggestion, some

817 Plaintiffs (most of whom were parties to the Adkins

litigation in federal court) filed suit in Montgomery

County Common Pleas Court on September 19, 1983 (No.

83-2596). The Complaint therein is of quite similar length

and style to the Complaints filed in the federal litigation.

While the factual contentions are quite similar, the state

court Complaint does not refer to any federal statute.

Instead, the Complaint sets out, in somewhat different

form, the four state law causes of action set forth in the

Complaints filed in federal court. Defendants (the same

as those in the federal lawsuit) removed the suit (the

instant action) to this Court in timely fashion, pursuant to

28 U.S.C. § 1441, contending that this Court would have

original jurisdiction of the case under NLRA and the

LMRA (Doc. #1). Plaintiffs then moved to remand the

matter back to state court, pursuant to 28 U.S.C. § 1447

and Fed.R.Civ.P. 81(c), on the basis that the removal was

improvidently granted.

a PRAIA BEN DPT AIR AB INODA

ee ee Sadhin Raripaadizisiciicei

lla

On January 20, 1984, this Court filed a Decision and

Entry sustaining in part and overruling in part the Plain-

tiffs’ Motion to Remand (Doc. #9). See Adkins v. General

Motors Corp., 578 F.Supp. 315 (S.D. Ohio 1984) (Adkins IV).

In Adkins IV, the Court concluded that “Plaintiffs have

made assertions in their lengthy complaint (e.g., breaches

of a collective bargaining agreement, and of the duty of

fair representation) which inexorably lead to the conclu-

sion that a ‘hybrid’ § 301 action is being pleaded.” Id. at

318. The Court further concluded that certain other asser-

tions within the Complaint could give rise to an action

under LMRDA § 101(a)(1). Id. at 319. Accordingly, this

Court overruled Plaintiffs’ Motion to Remand “to the

extent that the state court complaint can be read as

advancing claims under LMRA § 301 or LMRDA § 101.”

Id. Plaintiffs’ Motion to Remand was, however, sustained

with regard to the remainder of Plaintiffs’ claims on the

theory that said claims were not preempted by § 301.

Subsequently, on March 9, 1984, Defendant IUE and

Defendant Local 801 filed a motion with this Court seek-

ing an Order granting summary judgment in their favor

upon all of Plaintiffs’ federal claims. Subsequently, this

action was stayed pending the outcome of Plaintiffs’

appeal of the Adkins II decision (Doc. #15). Following the

Sixth Circuit’s affirmation of Adkins II, in a decision filed

June 26, 1987, this Court sustained Defendant Union’s

Motion for Summary Judgment in its entirety on the

grounds that Plaintiffs’ federal claims were barred by the

six-month statute of limitations contained in 29 U.S.C.

§ 160(b), and indicated that judgment would be granted

in favor of all Defendants (including Defendant GMC)

and against the Plaintiffs on the first and second causes of

12a

action set forth in the Plaintiffs’ Complaint (Doc. #19). In

a letter attached to said decision, the Court noted that

while Plaintiffs’ federal claims were dismissed, the Court

had granted Defendants leave to move for reconsidera-

tion of the Court’s Decision remanding Plaintiffs’ state

claims (Doc. #20).

On July 8, 1987, Defendants filed the Motions for

Reconsideration currently before the Court (Doc. #21;

Doc. #22). In said motions, Defendants basically assert

that in light of certain recent United States Supreme

Court decisions on the issue of federal preemption under

§ 301 of the LMRA, the Court should re-examine its

Decision and Entry sustaining in part and overruling in

part Plaintiffs’ Motion to Remand. Specifically, Defen-

dants assert that Count Two of Plaintiffs’ Complaint

(which alleges misrepresentation on the part of Defen-

dants), Count Three of Plaintiffs’ Complaint (which

alleges that Defendants tortiously interfered with Plain-

tiffs’ contractual and/or business relationships), and

Count Four of Plaintiffs’ Complaint (which alleges that

Defendants negligently and/or intentionally inflicted

severe emotional distress upon Plaintiffs) are preempted

by § 301 of the LMRA, and thus, are properly removable

to this Court, and therefore, not remandable to the Mont-

gomery County Court of Common Pleas.

At this point in time, there appears to be some confu-

sion as to the status of Count Two of Plaintiffs’ Com-

plaint. Certain language within the Court’s Decision and

Entry sustaining in part and overruling in part, the Plain-

tiffs’ Motion to Remand indicates that said motion was

13a

sustained with regard to Count Two of Plaintiffs’ Com-

plaint. However, as previously noted, this Court’s Deci-

sion and Entry sustaining the Motion of Defendant

Unions for Summary Judgment (Doc. #19) indicates that

judgment will be granted in favor of all Defendants and

against the Plaintiffs on Count Two of Plaintiffs’ Com-

plaint. In order to alleviate any confusion, the Court

hereby vacates its Decision and Entry sustaining the

Motion of Defendant Unions for Summary Judgment as it

relates to Count Two of Plaintiffs’ Complaint. In this

Decision, the Court will re-examine the propriety of

removing Count Two, Count Three, and Count Four of

Plaintiffs’ Complaint from the Montgomery County Com-

mon Pleas Court.

I]. THE PROPRIETY OF REMOVAL

A. Preemption and § 301 of the LMRA

Before discussing the specific claims which Defen-

dants assert are preempted by federal law, the Court

finds it necessary to provide a brief overview of the

applicable law. The Court notes that since its original

decision on Plaintiffs’ Motion to Remand, the Supreme

Court has handed down four decisions which signifi-

cantly clarify when claims brought under state law are

preempted by federal labor-contract law.

The first in the quartet of cases analyzing the pre-

emptive effect of § 301 of the LMRA was Allis-Chalmers

Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206

(1985). In Allis-Chalmers Corp., the Supreme Court held

that “§ 301 of the Labor Management Relations Act pre-

l4a

empts a state-law tort action for bad-faith delay in mak-

ing disability-benefit payments due under a collective-

bargaining agreement.” Id. at 208. In so doing, the

Supreme Court noted that “[i]f the policies that animate

§ 301 are to be given their proper range . . . the pre-

emptive effect of § 301 must extend beyond suits alleging

contract violations.” Id. at 210 (emphasis added). “[Q]ues-

tions relating to what the parties to a labor agreement

agreed, and what legal consequences were intended to

flow from breaches of that agreement, must be resolved

by reference to uniform federal law, whether such ques-

tions arise in the context of a suit for breach of contract or

in a suit alleging liability in tort.” Id. at 211. In determin-

ing whether a state-law claim is in fact preempted by

federal labor law, the key question which must be

answered is “whether evaluation of the tort claim is

inextricably intertwined with consideration of the terms

of the labor contract.” Id. at 213. “When resolution of a

state-law claim is substantially dependent upon analysis

of the terms of an agreement made between the parties in

a labor contract, that claim must either be treated as a

§ 301 claim, see Avco Corp. v. Aero Lodge 735, 390 U.S. 557,

88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), or dismissed as

preempted by federal labor contract law.” Id. at 220. Thus,

in the case at bar, if it is impossible to consider one of

Plaintiffs’ claims, without analyzing the terms of one or

more of the collective bargaining agreements, said claim

must be treated as preempted by § 301.

The Court next dealt with the issue of preemption

under § 301 in the case of International Bhd. of Elec.

Workers v. Hechler, 481 U.S. 851, 107 S.Ct. 2161, 95 L.Ed.2d

791 (1987). In Hechler, the plaintiff, who had been injured

errr

15a

in the course of her employment, asserted that the defen-

dant union had negligentiy breached its “duty to insure

that . . . [plaintiff] ‘was provided safety in her work place

and a safe work place’ and to insure that. . . [plaintiff]

‘would not be required or allowed to take undue risks in

the performance of her duties which were not commensu-

rate with her training and experience.’ ” Id. 107 S.Ct. at

2164. Plaintiff admitted that the “nature and scope” of

said duty was dependent upon the terms of the collective

bargaining agreement between her union and her

employer. Id. In concluding that the plaintiff's negligence

claim was in fact preempted by § 301, the Supreme Court

noted that the defendant union’s tort liability could not

be determined without considering “whether the collec-

tive-bargaining agreement in fact placed an implied duty

of care on the Union... . ” Id. 107 S.Ct. at 2168. The

Supreme Court found that the plaintiff’s negligence claim

was preempted because any consideration of said claim

would have required interpretation of the collective bar-

gaining agreement and there is a “need for federal unifor-

mity in the interpretation of contract terms. ... ” Id.

The Supreme Court once again dealt with the pre-

emptive force of § 301 in the case of Caterpillar, Inc. v.

Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318

(1987). In Caterpillar, the Supreme Court concluded that

as the plaintiff-employees’ claims of breach of contract

were founded upon an independent agreement, no inter-

pretation of the collective bargaining agreement was

required, and thus, said claims were not preempted by

§ 301. Id. 107 S.Ct. at 2431. Although the Supreme Court

found there to be no preemption in Caterpillar, it once

again emphasized that “[s]ection 301 governs claims

16a

founded directly on rights created by collective-bargain-

ing agreements, and also claims ‘substantially dependent

on analysis of a collective-bargaining agreement.’” Id.

(quoting Electrical Workers v. Hechler, 481 U.S. 851, 107

S.Ct. 2161, 2166-67, n. 3, 95 L.Ed.2d 791 (1987)).

Finally, the Court once again examined the issue of

preemption under § 301 in the recent case of Lingle v.

Norge Division of Magic Chef, Inc., __ U.S. __, 108 S.Ct.

1877, 100 L.Ed.2d 410 (1988). In Lingle, the Supreme Court

found that the plaintiff’s state law claim for retaliatory

discharge was not preempted by § 301, despite the fact

that the plaintiff’s collective bargaining agreement also

provided plaintiff with a contractual remedy for wrong-

ful discharge. The Supreme Court concluded that the

plaintiff’s state-law claim was “ ‘independent’ of the col-

lective-bargaining agreement in the sense of ‘indepen-

dent’ that matters for section 301 pre-emption purposes:

resolution of the state-law claim . . . [did] not require

construing the collective-bargaining agreement.” Id. 108

S.Ct. at 1882. In other words, the Supreme Court con-

cluded that the state claim did not turn “on the inter-

pretation of a collective bargaining agreement for its

application.” Id. 108 S.Ct. at 1882 n. 7. Basically, the Court

concluded that even in the absence of a collective bar-

gaining agreement, the Plaintiff would have had the same

right to be free from wrongful discharge. Resolution of

the state-law claim simply did not require any interpreta-

tion of the collective bargaining agreement.

Based upon all of the foregoing, the Court concludes

that in the case at bar, it cannot simply rely upon the fact

that Plaintiff’s claims are couched in terms of state-law

violations. The Court takes special note of the fact that

{

17a

the above-discussed cases indicate that there are two sepa-

rate and distinct bases for preemption. First, state claims

involving rights which arise from a labor agreement are

preempted by § 301. Caterpillar, 107 S.Ct. at 2431. Second,

state claims which are “substantially dependent upon

analysis of the terms of an agreement made between the

parties in a labor contract” are preempted by § 301

regardless of whether or not said claims involve rights

which arise from the agreement. Allis-Chalmers Corp., 471

U.S. at 220, 105 S.Ct. at 1916. The evaluation of both types

of claim “is inextricably intertwined with consideration

of the terms of the labor contract.” Id. at 213, 105 S.Ct. at

1912. Thus, in the case at bar, the Court must carefully

consider whether any or all of Plaintiff’s state law claims

arise from and/or require the interpretation of any of the

various collective bargaining agreements.

B. Count Two: Misrepresentation

In Count Two of their Complaint, Plaintiffs assert

that certain “acts, omissions, and conduct of the Defen-

dants, jointly and severally were “wrongfully motivated

misrepresentations of fact to thePlaintiffs, both construc-

tively and actually, and were the result of the intentional

and/or negligent conduct of the Defendants.” (Doc. #1,

Complaint, at { 49). For the reasons briefly set forth

below, the Court concludes that the evaluation of Count

Two “is inextricably intertwined with consideration of

the terms of the” collective bargaining agreements, and

thus, is preempted by § 301. Allis-Chalmers Corp., 471 U:S.

at 213, 105 S.Ct. at 1912.

18a

Under Ohio law, the following elements are required

in order to establish fraud:

“(a) a representation or, where there is a

duty to disclose, concealment of a fact,

“(b) which is material to the transaction at

hand,

“(c) made falsely, with knowledge of its

falsity, or with such utter disregard and reck-

lessness as to whether it is true or false that

knowledge may be inferred,

“(d) with intent of misleading another into

relying upon it,

“(e) justifiable reliance upon the represen-

tation or concealment, and

“(f) a resulting injury proximately caused

by the reliance.”

Cohen v. Lamko, Inc., 10 Ohio St.3d 167, 462 N.E.2d 407,

409-(1984) (quoting Friedland v. Lipman, 68 Ohio App.2d

255, 429 N.E.2d 456 (Ct.App.1980) (syllabus, { 1)). As

virtually every fraudulent representation allegedly made

by Defendants relates in one way or another to the terms

of the various collective bargaining agreements, this

Court must conclude that consideration of Plaintiffs’

claim of fraudulent misrepresentation is “substantially

dependent” upon the terms of said agreements.”

2 Paragraph 15 of Plaintiffs’ Complaint states: The claimed

breaches as well as the tortious interference with plaintiffs’

rights, contracts and employment, the intentional and negli-

gent infliction of emotional distress upon the plaintiffs, fraul

[sic] and deceit, involve and concern said defendants wrongful

conduct in:

(Continued on following page)

19a

As noted in Plaintiffs’ Memorandum in Opposition to

Motion for Reconsideration, “Plaintiffs essentially claim

(Continued from previous page)

(a) the implementation and enforcement of those

agreements contained in a booklet entitled “Local

Agreement between Frigidaire Division, General

Motors Corporation and Local 801, International

Union of Electrical, Radio & Machine Workers, AFL-

CIO-CLC, December 10, 1976” including without

limitation the “Bridge Agreement” dated December

10, 1976 contained at pages 46-52 of said booklet;

(b) the implementation and enforcement of the

National Agreement of December 10, 1976;

implementation and enforcement of “Special Mem-

oOrandum of Agreement Between General Motors

Corporation and the International Union of Electri-

cal, Radio & Machine Workers, AFL-CIO-CLC and its

i Local 801” dated February 23, 1979;

(d) the negotiation, manner of adoption, adoption,

implementation and enforcement of that “Memoran-

dum of Agreement” between GM and IUE and 801,

dated February 23, 1979, which in part provides that

all employees who become laid off from Frigidaire

“will have the same layoff status as if they had been

laid off from Delco Air Conditioning Division

except,” etc.;

(e) the implementation and enforcement of the

: National Agreement of September 18, 1979:

(f) the negotiation, manner of adoption, adoption,

implementation and enforcement of those agree-

ments contained in a booklet entitled “Local Agree-

ment between Chevrolet-Moraine Engine Plart,

(Continued on following page)

20a

that the negligent or intentional misrepresentations of

each defendant induced Plaintiffs to enter the 1979 collec-

tive bargaining agreements.” (Doc. #32, at 12). “Plaintiffs’

claim that the Unions misrepresented GM’s position in

1979 contract negotiations and thereby induced them to

enter into the agreements.” (Doc. #32, at 13). Plaintiffs

specifically assert that “GM, IVE and 801 concerted pre-

sented, 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 2,000 that their ‘bridge agreement’ rights

would be impaired by an affirmative ratification.” (Doc.

(Continued from previous page)

Chevrolet Motor Division, General Motors Corpora-

tion and Local 801, International Union of Electrical,

Radio & Machine Workers, AFL-CIO-CLC, October

1, 1979,” including without limitation the “Mem-

orandum of Agreement” dated September 18, 1979

contained at pages 40-44 of said booklet; and

(g) the negotiation, manner of adoption, adoption,

implementation and. enforcement of those agree-

ments contained in a booklet entitled “Local Agree-

ment between Chevrolet-Moraine Assembly Plant,

Chevrolet Motor Division, General Motors Corpora-

tion and Local 801, International Union of Electrica

[sic], Radio & Machine Workers, AFL-CIO-CLC,

October 1, 1979,” including without limitation the

“Memorandum of Agreement” dated September 18,

1979 contained at pages 42-46 of said booklet.

(Doc. #1, Complaint, at { 15). This statement alone indicates

that there is at least some link between Plaintiffs’ claims of

fraudulent misrepresentation and the various collective bar-

gaining agreements.

} .

ome ee TT TN

21a

#1, Complaint, at { 28). Plaintiffs further allege that “[i]n

furtherance of . . . [the] concerted plan 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 regard-

ing 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 2,000 [i-e. the plaintiffs]... .”

(Doc. #1, Complaint, at | 31). While not every claim of

fraudulent misrepresentation would be preempted by

§ 301, based upon the foregoing allegations, the Court

concludes that the Plaintiffs’ claims of fraudulent misrep-

resentation are in fact preempted by § 301.

It cannot be disputed that Plaintiffs’ claims of fraudu-

lent misrepresentation all relate to the various collective

bargaining agreements. It would be impossible to deter-

mine whether the information provided to Plaintiffs by

Defendants was false (or insufficient) without analyzing

the terms of the various collective bargaining agreements.

Basically, the Plaintiffs are asserting that they were not

informed (or were misinformed) as to the potential effects

of ratification of the Special Memorandum of Under-

standing of February 23, 1979 and certain other agree-

ments reached on February 23, 1979. The evaluation of

whether or not Defendants’ representations (and/or con-

cealments) were false “is inextricably intertwined with

consideration of the terms of the labor contract[s].” Allis-

Chalmers Corp., 471 U.S. at 213, 105 S.Ct. at 1912. See

generally Brown v. Keystone Consol. Indus., Inc., 680 F.Supp.

1212, 1218 (N.D. Ill. 1988).

ital

22a

Based upon the foregoing, the Court concludes that

Plaintiffs’ claims of fraudulent misrepresentation are pre-

empted by § 301 of the LMRA. Accordingly, the Court

concludes that Defendants’ Motions for Reconsideration

must be sustained as they relate to Count Two, and thus,

that Plaintiffs’ claims of fraudulent misrepresentation

shall not be remanded to the Montgomery County Court

of Common Pleas.

C. Count Three: Tortious Interference With Contract or

Business Relationship

In Count Three of their Complaint, Plaintiffs assert

that Defendants tortiously interfered with certain con-

tractual and/or business relationships. For the reasons

briefly set forth below, the Court concludes that the claim

of tortious interference set forth in Count Three of Plain-

tiffs’ Complaint is preempted by § 301 of the LMRA.

The Sixth Circuit has concluded that under Ohio law

a claim for tortious interference arises when “one who,

without a privilege to do so, induces or otherwise pur-

posely causes a third party not to enter into, or continue,

a business relationship with another, or perform a con-

tract with another. ...” Heheman v. E.W. Scripps Co., 661

F.2d 1115, 1127 (1981) (quoting Juhasz v. Quik Shops, Inc.,

55 Ohio App.2d 51, 379 N.E.2d 235, 238 (1977)), reh’g

denied, 668 F.2d 878 (6th Cir.), cert. denied, 456 U.S. 991,

102 S.Ct. 2272, 73 L.Ed.2d 1286 (1982). 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.” (Doc. #1, Complaint, at { 75). Plaintiffs further

23a

assert that “[a]s a proximate result of the conduct of the

defendant unions, the defendant General Motors did

breach its expressed and implied agreements with the

plaintiffs.” (Doc. #1, Complaint, at { 77). Finally, Plain-

tiffs assert that “[a]s a proximate result of the conduct of

the defendant General Motors, the defendant unions did

breach their contracts, fiduciary duties and business rela-

tionships with said plaintiffs.” (Doc. #1, Complaint, at |

79). The Court will consider each of these allegations

seriatim.

Plaintiffs first assert that in order to improve its

political position, Defendant IUE intentionally caused

Defendant Local 801 to breach its fiduciary obligation to

Plaintiffs. Basically, Plaintiffs assert that interpretation of

the terms of the various collective bargaining agreements

is not necessary to the determination of whether Defen-

dant Local 801 breached duties owed to Plaintiffs under

the Union Constitution or Charter. The Court cannot

agree with said assertion. Even assuming arguendo, that

Defendant Local 801’s duty of fair representation does

arise under an agreement other than the various collec-

tive bargaining agreements, the alleged breach of said

duty is “inextricably intertwined with consideration of

the terms of the [various] labor contract[s].” Allis-

Chalmers Corp., 471 U.S. at 213, 105 S.Ct. at 1912. Defen-

dant Local 801 allegedly breached its fiduciary relation-

ship by promoting changes in Plaintiffs’ collective

bargaining agreements 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 801 breached its duty of fair

representation requires an analysis of the terms of the

24a

collective bargaining agreements. Without such an anal-

ysis, it would be impossible to determine the impact of

Defendant Local 801’s actions upon the Plaintiffs. Accord-

ingly, the Court concludes that Plaintiffs’ claim that

Defendant IVE tortiously interfered with the business

and/or contractual relationship between Defendant Local

801 and Plaintiffs is preempted by § 301 of the LMRA.

Plaintiffs next assert that Defendant IUE and Defen-

dant Local 801 intentionally caused Defendant GM to

breach its duties to Plaintiffs, including those under

“implied agreements” between Defendant GM and Plain-

tiffs. The Court concludes that Plaintiffs’ assertion is

without merit as there is no relationship between Defen-

dant GM and Plaintiffs separate and apart from that

created by the collective bargaining agreement. Plaintiffs’

business relationship with Defendant GM is governed by

the collective bargaining agreements. Even assuming

arguendo, that Plaintiffs do possess some “implied” rights,

said rights could only have arisen from the employment

relationship, and said relationship arises from the various

collective bargaining agreements.* Further, it must be

remembered that Plaintiffs’ chief complaint is that GM

modified the terms of the collective bargaining agree-

ments. Even assuming, arguendo, that some implied

3 The Court notes that this is not a situation in which the

Plaintiffs assert that a duty created by statute has been

breached. In situations in which a duty is created by statute as

well as by contract, it is not necessary to refer to the contract in

order to determine whether said duty has been breached. See

Lingle v. Norge Division of Magic Chef, Inc., __ U.S. __, 108

S.Ct. 1877, 100 L.Ed.2d 410 (1988).

25a

agreement, separate and apart from the collective bar-

gaining agreements, existed between Plaintiffs and

Defendant GM, it would be impossible to determine

whether said agreement was breached by the modifica-

tion of the terms of the collective bargaining agreements

without analyzing and interpreting the terms of the col-

lective bargaining agreements. Based upon the foregoing,

the Court concludes that Plaintiffs’ claim that Defendant

Unions tortiously interfered with the contractual and/or

business relationship of Plaintiffs and Defendant GM “is

inextricably intertwined with consideration of the terms

of the [various] labor contract[s].” Allis-Chalmers Corp.,

471 U.S. at 213, 105 S.Ct. at 1912. Accordingly, the Court

concludes that said claims are in fact preempted by § 301

of the LMRA, and thus, said claims shall not be remanded

to state court.

Finally, the Plaintiffs assert that Defendant GM inten-

tionally caused Defendant IUE and Defendant Local 801

to breach their duties to Plaintiffs, including “fiduciary

duties and business relationships.” Once again, the Plain-

tiffs argue that the Defendant Unions’ duty to represent

Plaintiffs fairly arises out of agreements other than the

collective bargaining agreement. Even assuming arguendo

that said argument is correct and that Defendant Unions

do owe Plaintiffs duties which do not arise under the

various collective bargaining agreements, the Court con-

cludes that Plaintiffs’ claims of tortious interference are

“substantially dependent upon analysis of the terms” of

the various labor contracts. Id. at 220, 105 S.Ct. at 1916.

Plaintiffs basically assert that the Defendant Unions’

actions in promoting the modification of the collective

bargaining agreements breached Defendant Unions’ duty

26a

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 agree-

ments before and after the modification of February 23,

1979. Based upon the foregoing, the Court concludes that

Plaintiffs’ claims that Defendant GM tortiously interfered

with the contractual and/or business relationship of

Plaintiffs and Defendant Unions are “inextricably inter-

twined with consideration of the terms of the [various]

labor contract[s].” Id. at 213, 105 S.Ct. at 1912. Accord-

ingly, the Court concludes that said claims are preempted

by § 301 of the LMRA.

Based upon all of the foregoing, the Court concludes

that Defendants’ Motions for Reconsideration must be

sustained as they relate to Plaintiffs’ claims under Count

Three of Plaintiffs’ Complaint, and thus, said claims shall

not be remanded to the Montgomery County Court of

Common Pleas.

D. Count Four: Negligent or Intentional Infliction of

Emotional Distress

In Count Four of their Complaint, Plaintiffs assert

that “the conduct of the defendants, jointly and severally,

was negligent and/or intentional and/or reckless and

proximately caused severe emotional distress to the

plaintiffs.” (Doc. #1, Complaint, at { 89). For the reasons

briefly set forth below, the Court concludes that Plain-

tiffs’ claims of intentional and/or negligent infliction of

emotional distress are partially preempted by § 301 of the

LMRA.

27a

Under Ohio law, “[o]ne who by extreme and outra-

geous conduct intentionally or recklessly causes severe

emotional distress to another is subject to liability for

such emotional distress, and if bodily harm to the other

results from it, for such bodily harm.” Yeager v. Local

Union 20, 6 Ohio St.3d 369, 453 N.E.2d 666, 671 (1983)

(quoting Restatement (Second) of Torts § 46(1)(1965)). The

Ohio courts further recognize that “[a] cause of action

may be stated for the negligent infliction of serious emo-

tional distress.” Paugh v. Hanks, 6 Ohio St.3d 72, 451

N.E.2d 759, 761 (1983) (syllabus). In the interest of clarity,

the Court will address each of the possible claims of

negligent and/or intentional infliction of emotional dis-

tress set forth in Plaintiffs’ Complaint individually.4

In { 25 of their Complaint, Plaintiffs assert that

Defendant GM, Defendant IUE and Defendant Local 801

“proposed modifications of the Local Seniority Agree-

ment 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 Plain-

tiffs’ emotional distress, the Court concludes that said

claim is preempted by § 301 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. at 213, 105 S.Ct. at 1912. It would be impossible

‘ The Court notes that it expresses no opinion as to

whether Plaintiffs’ assertions state a claim upon which relief

can be granted under Ohio law. Instead, the Court seeks to

determine whether or not Plaintiffs’ claims of negligent and/or

intentional infliction of emotional distress are preempted by

§ 301.

28a

to determine whether the Defendants’ conduct was outra-

geous and/or whether Defendants’ actions inflicted emo-

tional distress without considering the terms of the

existing collective bargaining agreements and the pro-

posed changes to said agreements.

In { 27 of their Complaint, Plaintiffs assert that “[i]n

working out and urging the agreements and modifica-

tions proposed on February 22, 1979, GM, IUE and 801

withheld from their course of decision-making any good

faith consideration and weighing of the rights, interests,

and job security considerations of and as to any

of ... [the Plaintiffs], and the . . . rational expectation

of ... [the Plaintiffs]. ...” If the Plaintiffs are claiming

that the Defendants’ failure to consider the rights of

Plaintiffs caused Plaintiffs emotional distress, the Court

concludes that said claim is preempted by Section 301 of

the LMRA for said claim is “inextricably intertwined with

consideration of the terms of the [various] labor con-

tract[s].” Id. at 213, 105 S.Ct. at 1912. Defendants’ conduct

simply cannot be judged in a vacuum. The emotional

impact of Defendants’ actions cannot be gauged without

analyzing how the terms of the collective bargaining

agreements were changed by the modification.

In { 28 of their Complaint, Plaintiffs assert that the

Defendants “concertedly presented, urged and pro-

posed .. . [the] agreements and modifications in a man-

ner designed to insure their adoption through the

permitted withholding of information necessary to mean-

ingfully inform the . . . [plaintiffs] that their ‘bridge

agreement’ rights would be impaired by an affirmative

ratification.” If the Plaintiffs are claiming that this alleged

29a

withholding of information by Defendants caused Plain-

tiffs emotional distress, the Court concludes that said

claim must be preempted by § 301 of the LMRA as the

evaluation of such a claim “is extricably intertwined with

consideration of the terms of the [various] labor con-

tract[s].” Id. It would be impossible to determine what

information should have been provided by Defendants

without considering the terms of the existing collective

bargaining agreements and the Proposed changes to said

agreements.

In { 30 of their Complaint, Plaintiffs assert that

“[p]ursuant to the concerted plan of... [Defendants] to

substantially confine any consideration of the .. . modi-

fications . . . [to those working at Frigidaire] circulation of

the February 21, 1979 issue of ‘801 News,’ . . . was

extensively made and accomplished among .. . [those

working at Frigidaire] but not among . . . [the plain-

tiffs]. . . . [and that] such other written notification as

occurred to give notice of the special membership meet-

ing and voting . . . was substantially confined

to. . . [those working at Frigidaire].” 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

not preempted by § 301 of the LMRA. Regardless of

whether the proposed changes to the collective bargain-

ing 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.

In { 31 of their Complaint, Plaintiffs allege

that Defendants circulated information concerning the

30a

benefits of modification to Frigidaire employees but

failed to circulate information concerning the potential

detriments to Plaintiffs. If Plaintiffs are claiming that

Defendants caused Plaintiffs emotional distress by failing

to provide said information, the Court concludes that

Plaintiff’s claim is preempted by § 301 of the LMRA as it

is “inextricably intertwined with consideration of the

terms of the [various] labor contract([s].” Id. Once again, it

is important to note that it is impossible to determine

what information the Defendants should have provided

without interpreting the terms of the then-existing coop-

erative bargaining agreements and the proposed changes

to said agreements.

Paragraph 31 of Plaintiffs’ Complaint also contains

Plaintiffs’ assertion that in order to enhance the proba-

bility that Plaintiffs would not participate in the ratifica-

tion vote and to “diminish any comprehensive

consideration” of the proposed changes, Defendants

“inordinately curtailed the time lapse between the con-

clusion of their negotiations . . . and a ratification... .” If

the Plaintiffs are claiming that the Defendants alleged

conduct in denying Plaintiffs the right to participate in

the ratification decision caused Plaintiffs emotional dis-

tress, the Court concludes that said claim is not pre-

empted by § 301 of the LMRA. Once again, an analysis of

the terms of the collective bargaining agreements and the

proposed changes to said agreements is unnecessary to a

determination as to whether Defendants’ conduct could

have caused Plaintiffs emotional distress.

In { 33 of their Complaint, Plaintiffs assert that Plain-

tiffs were “effectively foreclosed and disenfranchised

from any opportunity to persuasively urge their interests

ia linia

3la

and concerns, from any meaningful participation in either

the consideration or vote upon . .. [the] proposed agree-

ments and modifications. ...” Once again, if the Plain-

tiffs are claiming that Defendants’ conduct in denying

them the right to attend the ratification meeting caused

Plaintiffs emotional distress, the Court concludes that

said claim is not preempted by § 301.

In { 35 of their Complaint, Plaintiffs assert that the

Defendants caused the submission for approval of the

Memorandum of Agreement of September 18, 1979. If the

Plaintiffs are claiming that the fact that Defendants pro-

posed a modification of the collective bargaining agree-

ment (and/or the fact that said Proposal was adopted)

caused Plaintiffs emotional distress, the Court concludes

that said claim is preempted by § 301 of the LMRA for the

evaluation of said claim “is inextricably intertwined with

consideration of the terms of the [various] labor con-

tract[s].” Id. It would be impossible to determine whether

this change could in fact cause Plaintiffs’ emotional dis-

tress without interpreting the terms of the collective bar-

gaining agreements as they existed prior to the change

and following the change.

In { 36 of their Complaint, Plaintiffs assert that the

ratification vote of September 18, 1979, took place “with-

out any notification, access or opportunity having been

afforded to any of [the Plaintiffs] . . . to meaningfully

participate either in the consideration of such submission

for approval or the vote conducted thereon.” If the Plain-

tiffs are claiming that Defendants caused Plaintiffs’ emo-

tional distress by denying Plaintiffs the right to fully

participate in decision making, the Court concludes that

Plaintiffs’ claim is not preempted by § 301 of the LMRA.

32a

This claim would not require the interpretation of the

various collective bargaining agreements.

In conclusion, there is a distinction between claims

asserting that the terms of a modification or the failure of

a company or Union to adequately disclose the terms of a

proposed modification caused a worker emotional dis-

tress, and the claim that the failure to allow a worker to

participate in decision making caused said worker emo-

tional distress. The former claims simply cannot be

analyzed without interpreting the terms of the existing

and proposed collective bargaining agreements; same are,

therefore, preempted by § 301 of the LMRA. The latter

type of claim is not dependent upon an interpretation of

the terms of the existing and proposed collective bargain-

ing agreement; same are, therefore, not so pre-empted.

Regardless of whether the impact of a particular vote is

large or small, the fact that one is deliberately excluded

from participating in said vote could be distressing and

constitute emotional distress.

Based upon the foregoing, the Court concludes that

11 25, 27, 28, 35, and that portion of { 31 relating to the

circulation of information contain claims which are “inex-

tricably intertwined with consideration of the terms of

the [various] labor contract[s]”, and thus are preempted

by § 301 of the LMRA. Said claims will not be remanded

to state court. The Court concludes that the remainder of

the claims for negligent and/or intentional infliction of

emotional distress contained within Plaintiffs’ Complaint

(i.e. those contained in {J 30, 33, 36 and that portion of J

31 relating to the denial of Plaintiffs’ right to participate

in the ratification vote) are not preempted by § 301 and,

accordingly, will be remanded to state court.

——@«o“aVsee~---,sti‘itst:””””

33a

Accordingly, the Court concludes that Defendants’

Motions for Reconsideration must be Sustained in part

and overruled in part as they relate to Count Four. Those

claims contained in 11 25, 27, 28, 35, and that portion of ¥

31 relating to the circulation of information shall not be

remanded; the remainder of the claims contained in

Count Four (as set forth above) shall be remanded.

Ill. CONCLUSION

In sum, the Court has concluded that Defendants’

Motions for Reconsideration must be and hereby are sus-

tained as they relate to Count Two and Count Three of

Plaintiffs’ Complaint and as they relate to [{ 25, 27, 28,

35 and that portion of ¥ 31 relating to the circulation of

information of Count Four of Plaintiffs’ Complaint.

Counts Two and Three and that portion of Count Four

will not be remanded to state court. The Court has further

concluded that Defendants’ Motions for Reconsideration

must be and hereby are overruled as they relate to the

remainder of Count Four of Plaintiff’s Complaint ({{ 30,

33, 36 and a portion of #31). Those portions of Count IV

will be remanded to state court. In addition, the Court

has concluded that the Court’s Decision and Entry sus-

taining the Motion of Defendant Unions for Summary

Judgment (Doc. #19) must be vacated as it relates to

Count Two of Plaintiff’s Complaint.

Finally, after due consideration, the Court has con-

cluded that Plaintiffs’ Motion for Costs (Doc. #11) must

be and hereby is overruled in its entirety. This Court

simply cannot conclude that an award of costs would be

just in this case. The vast majority of Plaintiffs’ claims

—_a aaa i

34a

were properly removed. Basically, only three and one-half

paragraphs out of Plaintiffs’ entire Complaint were

remanded. It would be unfair to penalize Defendants for

their inability to sever said paragraphs from the remain-

der of the claims which were properly removed.

IV. FURTHER PROCEDURES ORDERED OF THE

DEFENDANTS

The Defendants have asserted that those claims pre-

empted by § 301 of the LMRA (i.e., those found in Count

Two, Count Three and that portion of Count Four related

to FF 25, 27, 28, 35 and a portion of { 31) are barred by

the six-month statute of limitations established by § 10(b)

of the National Labor Relations Act, 29 U.S.C. § 160(b).

The Court hereby grants Defendants twenty (20) days

from the entry of this decision to file a properly docu-

mented motion for summary judgment to that effect.

The above stated motion for summary judgment will

be briefed according to Local Rule of Court 4.0.2. Plain-

tiffs shall have twenty days from date of service to file

any memoranda contra said motion. Any reply mem-

oranda should be filed within seven days of the mem-

oranda contra.

35a

BRIDGE AGREEMENT

WHEREAS, Local 801 IUE-AFL-CIO-CLC and the Inter-

national Union is the legal bargaining agent for employes

of Frigidaire Division of General Motors as described in

the certification from the National Labor Relations Board,

and

WHEREAS, General Motors Corporation has determined

that a product line formerly produced under the direction

of Frigidaire Division is being produced by a new divi-

sion resulting from an organization restructuring named

Delco Air Conditioning Division, both of which divisions

are hereinafter referred to as management, and

WHEREAS, management acknowledges the rights of

Local 801 as a collective bargaining agent of certain

employes of both Frigidaire Division and Delco Air Con-

ditioning Division.

NOW THEREFORE, the management and the union by

virtue of the execution of this document hereby agree to

supplement, as hereinafter set forth, certain provisions of

the Local Seniority Agreements and other local agree-

ments at the Frigidaire Division and Delco Air Condition-

ing Division. The parties further agree to apply the

representation provisions of the National Agreement

between the IUE-AFL-CIO-CLC and General Motors Cor-

poration to each division as hereinafter clarified by this

agreement.

Seniority

I. A. All represented employes of Frigidaire Division

on the active payroll as of the effective date of

36a

this agreement will be identified for seniority

purposes, by a process commonly referred to as

“red-circling.”

B. Such identified employes will be offered oppor-

tunities to move to clearance group job openings

or to appropriate skilled trades assignments in

the Delco Air Conditioning Division as these

openings occur. Movement to these openings will

be accomplished in seniority order providing the

employe is capable of performing the clearance

group or skilled trades job opening. If a “red-

circled” Frigidaire Division employe declines the

opportunity to move to an opening in Delco Air

Conditioning, he or she will continue as a Frig-

idaire Division employe until such time as the

last “red-circled” employe is scheduled for

movement to Delco Air Conditioning Division,

except that an employe who has declined such

first cpportunity to move may make one applica-

tion, on forms provided by the Company, to be

reinstated in proper seniority order for a subse-

quent opening. Employes who have declined pre-

vious moves will be offered one last chance to

elect to move. If these employes elect not to

move, they will no longer be entitled to a job in

Delco Air Conditioning Division as a matter of

right.

C. Such movements will continue until such time as

all “red-circled” employes will have moved or

declined to move.

D. After all “red-circled” employes have moved or

declined to move, new openings in Delco Air

Conditioning will be filled under the hiring prac-

tices established by Delco Air Conditioning Divi-

sion.

i iiicaicicaialaiaaiNN

II.

37a

All represented employes of Delco Air Condi-

tioning Division having valid seniority dates at

the time of the signing of this memorandum will

also be identified by the “red-circling” procedure

for seniority purposes.

In the case of possible future reductions in force

in Delco Air Conditioning Division involving

“red-circled” employes, they will be laid off in

line with seniority and will be governed by exis-

ting agreements dealing with Supplemental

Unemployment Benefits and applicable govern-

mental regulations dealing with Unemployment

Compensation.

In the event that such laid-off employe is a “red-

circled” employe, he or she will have the right to

apply for a job opening at Frigidaire Division.

Such employes will be transferred to fill such

openings, giving due consideration to the

employe’s capability to perform the work. If

there are no openings, he or she may apply to

displace a lesser seniority Frigidaire employe

working in the clearance group or in appropriate

skilled trades jobs at Frigidaire Division. The

applicant must be capable of performing the

work and must file the application to displace

within thirty (30) days following the first day of

layoff from Delco Air Conditioning Division or

upon exhausting Unemployment Cormpensation

or Supplemental Unemployment Benefits. Man-

agement will place the applicant in line with his

or her seniority and capability within three

weeks following receipt of the application. These

Provisions in no way supersede the employe’s

rights for Area Hiring consideration at other

divisions.

38a

D. The rate of pay for such employes will be at the

regular appliance rate instead of the new-hire

rate (25¢ less).

E. The Delco Air Conditioning “red-circled”

employes will consist of those employes on the

payroll in the division on the date this memoran-

dum is signed.

F. Frigidaire Division “red-circled” employes who

move to Delco Air Conditioning Division subse-

quent to the signing of this Agreement will also

be accorded “red-circled” status in Delco Air

Conditioning Division as limited in Paragraph H

below.

G. The “red-circled” employes of Delco Air Condi-

tioning Division will continue to have these

rights described herein until such time as they

retire, quit, or are otherwise terminated.

H. Frigidaire Division “red-circled” employes who

move to Delco Air Conditioning Division subse-

quent to the signing of this agreement and are

accorded “red-circled” status in Delco Air Condi-

tioning will retain such status and the seniority

benefits appertaining thereto until all Frigidaire

“red-circled” employes have been transferred to

Delco Air Conditioning Division as provided for

under Paragraph I., B. of this agreement and 900

employes are newly hired by Delco Air Condi-

tioning Division at which time “red-circled” sta-

tus will cease to exist for such employes.

Representation

The International Union of Electrical Workers and its

Local 801 have been the legally certified bargaining agent

for certain production and maintenance workers in the

39a

North Plant and the South Plant which now constitute the

manufacturing facilities of Delco Air Conditioning Divi-

sion. Additionally, they have also been the legally certi-

fied bargaining agent for certain production and

maintenance workers in Plants #2 and #3 which now

constitute the manufacturing facilities of Frigidaire Divi-

sion. Each Division recognizes that the IUE and Local 801

continue to be the legally certified bargaining agent of

employes in each of those plants falling under each Divi-

sion’s jurisdiction.

To maintain the integrity and efficiency of the bargaining

relationship between Local 801 and both the Frigidaire

and Delco Air Conditioning Division, the parties agree,

for bargaining purposes, to apply the Representation Sec-

tion of the GM-IUE National Agreement in each of the

two divisions consistent with Paragraph 4 of the Special

Agreement dated November 20, 1971 and Paragraph 1 of

the Appliance Agreement dated November 19, 1973. Cur-

rent implementation of the provisions of the Representa-

tion Section shall be under the President, Chairman and

Executive Board of Local 801.

Realignment of zones and districts as required by the

National Agreement will be completed within sixty (60)

days following the effective date of this Bridge Agree-

ment under the terms of the Memorandum of Under-

standing attached hereto.

In witness whereof, the parties hereto have caused their

names to be subscribed by their duly authorized officers

and representatives of this the 10th day of December,

1976.

40a

LOCAL 801 - IUER-MW-AFL-CIO-CLC

Cassel V. Palmer

Wesley H. Garrison, Sr.

Clyde H. Johnson

William S. Jankovich

William R. Walters

Allen C. Robertson

DELCO AIR CONDITIONING DIVISION, GMC

David L. Drury

J.T. Reynolds

D.L. Webster

R.E. Burke

L.S. Benham

FRIGIDAIRE DIVISION, GMC

T.J. Tatham

T.H. Szromba, Jr.

].W. Evans

T.D. Nichols

R. Kelhoffer

T.M. Hiegel

Subject to approvals by:

INTERNATIONAL UNION OF ELECTRICAL RADIO

AND MACHINE WORKERS, AFL-CIO-CLC

William R. Pierce

Date: 2/16/77

GENERAL MOTORS CORPORATION

Edward A. Hodge

Date: 2/16/77

4la

Special Memcrandum of Understanding

between General Motors Corporation and the

International Union of Electrical, Radio &

Machine Workers, AFL-CIO-CLC and its Local

801

WHEREAS, General Motors will cease household

appliance production at its Frigidaire Division, and,

WHEREAS, it is anticipated that Chevrolet Motor Divi-

sion will commence the manufacture of light trucks and

engines in separate plants in the buildings where the

Frigidaire operations were located and,

WHEREAS, there is a need for an orderly shutdown of

operations under the direction of Frigidaire and an

orderly startup of operations under the direction of Chev-

rolet and,

WHEREAS, employes of Frigidaire will continue to be

employed to complete Frigidaire production require-

ments and, to the extent practicable, remove, clear and

modify existing equipment and install new equipment

under the direction of either Frigidaire or Chevrolet, and,

WHEREAS, the Union is the certified bargaining repre-

sentative for the above mentioned employes, and,

WHEREAS, the Union and the Corporation recognize the

desirability of clarifying the status of the employes to be

laid off from Frigidaire Division,

NOW, THEREFORE, it is agreed that:

I, The Local Seniority Agreement dated

December 10, 1976 is hereby cancelled

and superseded by the provisions of this

Agreement.

42a

II. To provide for an orderly shutdown of

Frigidaire operations, employes will be

laid off as their job assignments are com-

pleted as determined by Management.

This procedure will be followed until all

finished product inventory requirements

are manufactured. At the time that only

service parts requirements are scheduled

for production, all Non-Interchangeable

Occupational Group jobs and those Clear-

ing Group jobs which are critical by rea-

son of skill requirements, quality of

product and/or product safety will be so

identified. The critical Clearing Group

jobs will be listed by mutual agreement

prior to March 18, 1979, by a committee

comprised of two members of the local

union and two members of the local man-

agement. Employes assigned to those jobs

will remain as long as they are needed.

Within ten (10) working days following

the completion of production of finished

product inventory requirements, clearing

group employes not designated as critical

will be employed on a seniority order

basis, provided they are capable of doing

the jobs.

Ill. In the event Management has a need to

recall any employes to perform produc-

tive operations prior to complete cessa-

tion of operations, recall will be

accomplished in the following manner:

A. Non-Interchangeable Occupational

Group jobs and those Clearing Group

jobs which have been identified as

critical in II above will be filled by

IV.

43a

recalling employes who have last

previously performed them. If no

such employes are available, Man-

agement will recall the oldest

seniority employes laid off provided

they are capable of performing the

work.

B. Clearing Group jobs which have not

been identified as critical will be

filled by recall of the oldest seniority

employes laid off provided they are

capable of performing the work.

Any employe whose Seniority at the Frig-

idaire Division is unbroken at the point at

which a need for production and mainte-

nance employes exists at the Chevrolet

Motors Division plants shall have his

seniority transferred to one of the Chev-

rolet - Dayton, Ohio plants at the time he

commences work at such plant. The

seniority of an employe which is so trans-

ferred shall be the full seniority he had on

record at the Frigidaire Division.

An employe whose Seniority is trans-

ferred to a Chevrolet - Dayton, Ohio

plant from the Frigidaire Division, pur-

Suant to Paragraph IV above, shall be

offered employment in accordance with

the following procedure:

A. Anemploye shall be offered employ-

ment at either the assembly plant or

the engine manufacturing plant as

openings in those respective plants

occur on a job he is capable of per-

forming in the judgment of Manage-

ment in accordance with his seniority

| 44a

standing at the former Frigidaire

Division.

B. Employes who are offered employ-

ment at either of the Chevrolet plants

and who refuse such employment at

such plant, will have no further

rights to employment at either Chev-

rolet plant, and their Frigidaire

seniority shall be broken pursuant to

Paragraph 34(d) of the National

Agreement.

VI. By reason of the foregoing the Corpora-

tion will continue to recognize the Union

as representative of the production and

maintenance employes who will be

employed in separate bargaining units by

Chevrolet —- Dayton in separate truck and

engine manufacturing plants.

VII. This “Special Memorandum of Under-

standing” shall become effective Febru-

ary 23, 1979, and is negotiated to apply

solely to the facts as they exist in the

instant situation, and none of the provi-

sions herein constitute a precedent for the

disposition of future positions of the par-

ties.

VIII. The parties agree that no liability of any

kind shall result from the application of

these provisions.

IX. This agreement is subject to ratification

by Local Union 801, IUE, and will become

effective on February 23, 1979, provided

notice of ratification is received not later

than February 23, 1979.

asain

45a

IN WITNESS WHEREOF, the parties hereto have caused

their names to be subscribed by their duly authorized

officers and representatives the year first above written.

INTERNATIONAL GENERAL MOTORS

UNION, IUE CORPORATION

ss/ ss /

LOCAL UNION 801, FRIGIDAIRE

IUE-AFL-CIO-CLC DIVISION, GMC

ss / ss /

CHEVROLET MOTOR

DIVISION, GMC

46a

EXCERPTS FROM PETITIONERS’

STATE COMPLAINT

* * *

15. The claimed breaches as well as the tortious

interference with the plaintiffs rights, contracts and

employment, the intentional and negligent infliction of

emotional distress upon the plaintiffs, fraul and deceit,

involve and concern said defendants’ wrongful conduct

in:

(a) the implementation and enforcement of

those agreements contained in a booklet entitled “Local

Agreement between Frigidaire Division, General Motors

Corporation and Local 801, International Union of Electri-

cal, Radio & Machine Workers, AFL-CIO-CLC, December

10, 1976” including without limitation the “Bridge Agree-

ment” dated December 10, 1976 contained at pages 46-52

of said booklet;

(b) the implementation and enforcement of the

National Agreement of December 10, 1976;

tion, implementation and enforcement of “Special Mem-

orandum of Agreement between General Motors

Corporation and the International Union of Electrical,

Radio & Machine Workers, AFL-CIO-CLC and its Local

801” dated February 23, 1979;

(d) the negotiation, manner of adoption, adop-

tion, implementation and enforcement of that “Memoran-

dum of Agreement” between GM and IVE and 801, dated

February 23, 1979, which in part provides that all

employees who become laid off from Frigidaire “will

47a

have the same layoff status as if they had been laid off

from Delco Air Conditioning Division except,” etc.;

(e) the implementation and enforcement of the

National Agreement of September 18, 1979;

(f) the negotiation, manner of adoption, adop-

tion, implementation and enforcement of those agree-

ments contained in a booklet entitled “Local Agreement

between Chevrolet-Moraine Engine Plant, Chevrolet

Motor Division, General Motors Corporation and Local

801, International Union of Electrical, Radio & Machine

Workers, AFL-CIO-CLC, October 1, 1979,” including

without limitation the “Memorandum of Agreement”

dated September 18, 1979 contained at pages 40-44 of said

booklet; and

(g) the negotiation, manner of adoption, adop-

tion, implementation and enforcement of those agree-

ments contained in a booklet entitled “Local Agreement

between Chevrolet-Moraine Assembly Plant, Chevrolet

Motor Division, C.:neral Motors Corporation and Local

801, International Union of Electrica, Radio & Machine

Workers, AFL-CIO-CLC, October 1, 1979,” including

without limitation the “Memorandum of Agreement”

dated September 18, 1979 contained at Pages 42-46 of said

booklet.

16. Inall respects, all of the conduct referred to in |

15, emanated from a wrongful course of concerted and

conspiratorial dealing wherein General Motors Corpora-

tion, while knowing otherwise, placed IVE and Local 801

in fear that General Motors might not recognize them as

the collective bargaining agent at the converted plants,

and induced willingness and action on the part of IVE

48a

and Local 801 to go along with General Motors’ demand

for the abrupt abrogation of the bridge agreement

seniority rights of the 2,000 vis 4 vis the 3,500 in order to

assure General Motors’ recognition of them and not the

UAW at the converted plants.

* * *

25. However, during February, 1979, GM, IUE and

801 acted together to cause to be presented to said 3,500

red-circled pre-1977 Frigidaire employees who had con-

tinued in their jobs at Frigidaire and to said approx-

imately 2,500 (hereinafter “2,500”) post-1976 newly hired

Frigidaire employees, and without regard to the 2,000

red-circled pre-1977 Frigidaire employees who had

moved to jobs at Delco Air under the red-circling provi-

sions of the Bridge Agreement - proposed modifications

of the Local Seniority Agreement of December 10, 1976

and of the Bridge Agreement of December 10, 1976,

together with the urging that the same be adopted. They

did so in an unlawful, arbitrary and discriminatory man-

ner.

aa * *

27. The essence and implied obligations of the

Bridge Agreement of December 10, 1976 were the preser-

vation and perpetuation of the acquired and accumulated

Frigidaire seniority and order of Frigidaire seniority

standing with respect to each continuing employer-

employee relationship between GM and each of those

who would become an ex-Frigidaire Division employee.

In working out and urging the agreements and modifica-

tions proposed on February 22, 1979, GM, IUE and 801

withheld from their course of decision-making any good

ee eee

49a

faith consideration and weighing of the rights, interests,

and job security considerations of and as to any of said

2,000, and the aforesaid rational expectation of said 2,000

who thereby had been induced to elect to become ex-

Frigidaire Division employees between December 10,

1976 and February 22, 1979. Said concerted course of

dealing among GM, IUE and 801 in that regard, including

their undertaking thus to limit such preservation and

perpetuation of Frigidaire seniority to the lesser

senioritied 6,000, while applying such preservation and

perpetuation to all 8,000 with respect to the GM Delco Air

Conditioning Division plants, constitutes a breach by

GM, IUE and 801 of the implied obligations of the Bridge

Agreement, and of the intendment, spirit and Purpose

underlying the Bridge Agreement heretofore described in

1 21(a) and (b), for equitable and equal treatment based

On acquired and accumulated Frigidaire Seniority and the

benefits thereafter to arise therefrom for each ex-Frig-

idaire employee as a continuing employee of GM, vis 4

vis each other such ex-Frigidaire employee.

28. GM, [UE and 801 concertedly presented, urged

and proposed said agreements and modifications in a

manner designed to insure their adoption through the

permitted withholding of information necessary to mean-

ingfully inform the 2,000 that their “bridge agreement”

rights would be impaired by an affirmative ratification.

29. The agreements and modifications of February

23, 1979 among GM, IUE and 801 and affirmed and/or

reaffirmed among them on September 18, 1979, provide

that upon the conversion of the operations as the Moraine

plants from Frigidaire Division’s home appliance related

manufacturing operations to Chevrolet Motor Division’s

50a

motor vehicle related manufacturing operations, that as

jobs are to be filled at the Chevrolet plants the Frigidaire

employees who then are still laid off from the shut-down

of Frigidaire, on a job capability basis, are to be trans-

ferred into those jobs together with their full seniority on

record at the Frigidaire Division. Said agreements and

modifications utilize the Bridge Agreement (Appendix

“1”) in the manner heretofore described as a vehicle to

that end. Said agreements and said modifications among

GM, IVE and 801 are tantamount to and should be

deemed to have effectuated the contractual substitution

by GM, IUE and 801 of the Chevrolet Motor Division and

its Moraine plants and jobs for the Frigidaire Division

and its Moraine plants and jobs with respect to and for

purposes of the Bridge Agreement and its “bumping”

rights, procedures and provisions. Accordingly, GM, IUE

and 801 should be deemed thereby to be, and are,

estopped from denial to said 1,000 laid-off persons who

had transferred from Frigidaire to Delco Air *he same

contractual right to “bump-in” to appropriate joc. * said

Chevrolet Division plants as the Bridge Agreement ini-

tially provided to them with respect to appropriate jobs at

Frigidaire. The aforedescribed concerted by-passing of

said 1,000 still laid-off persons from the red-circled 2,000

in disregard of their mostly greater Frigidaire seniority

over that of the red-circled 3,500 and newly hired 2,500,

has occurred in breach of the aforesaid so effectuated

contractual substitution by GM, IVE and 801 of Chevrolet

for Frigidaire as to the Bridge Agreement and its “bump-

ing” provisions.

30. Pursuant to the concerted plan of GM, IUE and

801 to substantially confine any consideration of the said

5la

modifications which they were urging be approved and

adopted, to said red-circled 3,500 and to said newly hired

2,500, and therefore, necessarily to the arbitrary and dis-

criminatory exclusion of said red-circled 2,000, circulation

of the February 21, 1979 issue of “801 News,” a copy of

which comprises Appendix “2” attached hereto and made

a part hereof, was extensively made and accomplished

among said 3,500 and said 2,500, but not among said

2,000. Pursuant, also, to said concerted plan of GM, IUE

and 801 to so substantially confine any such consider-

ation, such other written notification as occurred to give

notice of the special membership meeting and voting

which they concertedly planned and scheduled to take

place on February 22, 1979, was substantially confined to

said 3,500 and said 2,500, as well.

31. In furtherance of said concerted plan of GM,

IUE and 801 to so substantially confine any consideration

of said modifications, GM, IUE and 801 concertedly con-

fined 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 2,000, including without limitation that

heretofore described in { 26(e). Said concertedly confined

scope is exemplified by said February 21, 1979 issue of

“801 News”. As concertedly contemplated by GM, IUE

and 801, the direct and forseeable result of the complete

absence of any indication in the circulated information

that would tend to alert anyone that the Frigidaire

seniority standing of the red-circled 2,000 would be by-

52a

passed for purposes of filling the jobs at the contem-

plated Chevrolet plants by approval and adoption of the

proposed agreements and modifications, or that there

would be any other consequent converse detriment what-

soever to any of the red-circled 2,000, was to enhance the

probability that participation in the vote be substantially

confined to the persons then employed at Frigidaire. As

hereinafter related, such was the result. To that same end,

as well as to diminish any comprehensive consideration

of said proposals, GM, IUE and 801 inordinately curtailed

the time lapse between the conclusion of their negotia-

tions which occurred on or about February 20, 1979, and

a ratification that was required to be concluded so as to

meet the requirement of a notice to GM of such ratifica-

tion no later than February 23, 1979.

32. Ostensibly, the registration and voting pro-

cedures as set forth in said February 21 issue of “801

News” were such that any member of 801 by virtue of

that membership was entitled to gain admission and

endeavor to persuasively voice his views and concerns at

said special membership meeting, and to register to vote

and to vote a ballot to accept or reject the proposed

agreements and modifications. However, the intended

effect of such imposed time curtailment and such total

absence from the circulated information and explanation

of anything that would indicate that the rights of any-

body other than the persons then employed at Frigidaire

were in any way involved in the proposed agreements

and modifications, together with the aforedescribed sub-

stantially confined circulation of said issue of “801 News”

and other written notification, was that substantially the

801 members who attended, registered and voted at said

53a

special membership meeting were from among those per-

sons that comprised said red-circled 3,500 and said newly

hired 2,500.

33. Consequently, as a practical matter said

imposed time curtailment and concerted confinement of

the scope and distribution of the circulated information

and explanation permitted neither an informed nor

meaningful deliberation or vote upon said proposed

agreements and modifications either by the substantially

absent red-circled 2,000 or even by those of the 3,500 and

2,500 who were present and who voted. And as to the

2,000, they were thereby effectively foreclosed and disen-

franchised from any opportunity to persuasively urge

their interests and concerns, from any meaningful partici-

pation in either the consideration or vote upon said pro-

posed agreements and modifications, as well as from any

opportunity to first learn of the proposals’ adverse impli-

cations as to them and thereupon to persuasively urge a

fair-minded consideration of their interests. The con-

certed implementation of those modifications by GM, IUE

and 801 has served to undermine and subvert the great

reliance which persons comprising the 2,000 had placed

on the equitable and equal preserving, perpetuating and

honoring for all alike of the red-circled 5,500 of their

Frigidaire seniority, which it was the implied obligation

and underlying intendment, spirit and purpose of the

Bridge Agreement to preserve, perpetuate and honor for

all vis 4 vis one another upon transferring out of Frig-

idaire, and which had been a material inducement in the

2,000 having elected to accept transfer offers into Delco

Air.

54a

34. As a result of an overwhelming majority of

those of said 3,500 and 2,500 who attended said special

membership meeting having marked a “Yes” box upon

ballots comprised of “Yes” and “No” boxes, the so pre-

sented, urged and proposed agreements and modifica-

tions were so approved. Said so approved agreements

and modifications have since that time been known as the

“Special Memorandum of Understanding of February 23,

1979” and “certain other agreements reached on February

23, 1979.”

35. On or about September 18, 1979, GM, IVE and

801 concertedly acted to and did perpetuate the arbitrary

and discriminatory breach of the duty of IUE and 801 of

fair representation with respect to the 2,000 and the

breach by GM, IVE and 801 of the implied obligations

and underlying intendment, spirit and purpose of the

Bridge Agreement of December 10, 1976, heretofore

described in { 21. They did so by causing a submission

for approval by a majority vote of said 3,500 and said

2,500 of a contractual affirmance and/or reaffirmance

which GM, IUE and 801 concertedly had worked out in

the form of a “Memorandum of Agreement” to be dated

September 18, 1979, affirming and/or reaffirming and

implementing under the auspices of the 1979 National

Agreement between IUE and GM and as part of the 1979

Local Agreement between 801 and GM with respect to the

Chevrolet-Moraine Engine Plant and the Chevrolet-Mor-

aine Assembly Plant of the Chevrolet Motor Division, the

provisions and effect of said “Special Memorandum of

Understanding of February 23, 1979” and said “certain

other agreements reached on February 23, 1979.” This,

including the confinement of the Frigidaire seniority and

55a

order of seniority standing of ex-Frigidaire employees for

purposes of the assignment of employees to classifica-

tions and occupational groups at the Chevrolet-Moraine

Engine Plant and at the Chevrolet-Moraine Assembly

Plant to such Frigidaire seniority and standing of only the

red-circled 3,500 and the newly hired 2,500, with the

consequent by-passing for such purposes of such Frig-

idaire seniority and standing of said greater senioritied

red-circled 2,000.

36. Such confined submission for approval and said

so voted approval occurred on or about September 18,

1979, without any notification, access or opportunity hav-

ing been afforded to any of said 2,000 to meaningfully

participate either in the consideration of such submission

for approval or in the vote conducted thereon.

37. By virtue of the aforedescribed course of deal-

ing, GM, IVE and 801 have concertedly effectuated an

arbitrary, discriminatory and contract-breaching expro-

priation and abrogation of Frigidaire seniority rights and

entitlements that should flow therefrom, as to the minor-

ity comprised of the red-circled 2,000 ex-Frigidaire

employees. This GM, IUE and 801 have combined to do in

the course of extending arbitrary, discriminatory and con-

tract-breaching preferential treatment to the majority

comprised of said 3,500 and said 2,500 mostly lesser

senioritied ex-Frigidaire employees. And, without any

such due consideration or weighing, they have extended

to said Chevrolet plants the lesser Frigidaire seniority of —

the latter while precluding therefrom the greater Frig-

idaire seniority of the former.

56a

39. During approximately February, 1980, or in any

event shortly after the recall to Delco Air of some of said

previously transfer declining persons from among the

red-circled 3,500 [Frigidaire employees] instead of such

recall being from those of the 2,000 [red-circled] who

remained laid-off by Delco Air, inquiry was made of the

president of 801 by one or more of the red-circled 2,000 as

to the reason for such preference. That is, as to the reason

for such preference to those ex-Frigidaire employees who

while having greater Frigidaire seniority had previously

declined to transfer, instead of recalling an equally skilled

though lesser senioritied ex-Frigidaire employee who had

accepted the offered opportunity to transfer to Delco Air

and who Delco Air subsequently laid off. The responses

of the president of 801 to such inquiry made within the

course and scope of his capacity as such president and

within apparent authority granted him by IUE and 801 to

make, was that it was because they are all considered

Delco Air employees. He in the same capacity and with

the same apparent authority subsequently responded to a

similiar inquiry that the reason was that “we can’t leave

our brothers with seniority out on the street.”

40. Consistent with the foregoing impression which

he gave that the Frigidaire seniority standing of each of

the then 5,500 ex-Frigidaire employees who had been

given red-circled status by the Bridge Agreement of

December 10, 1976 was being fully recognized, preserved

and perpetuated equitably and equally as to each based

on his order of Frigidaire seniority vis 4 vis one another

57a

for recall purposes, the president of 801 on various occa-

sions from August, 1979 at least into August, 1980 repeat-

edly responded to inquiries from persons among the red-

circled 2,000 [Delco workers] that the jobs at the Chevro-

let plants definitely would be filled on the basis of the

order of the Frigidaire seniority of each one of the ex-

Frigidaire employees who would be still in a laid-off

condition when those Chevrolet plants were ready to

commence operations, including any of the red-circled

2,000 that had transferred to Delco Air and then would be

still in a laid-off condition. On occasion he emphasized

his response to that effect by displaying and permitting to

be read a multi-paged document comprised of communi-

cations involving IUE, 801 and federal governmental

authority to the effect that 801 was required to cause such

Participation. On occasion the response included state-

ments by the president of 801 to the effect that the union

was founded on seniority, that it has been run on

seniority and that such was the way it would continue to

be and that the seniority acquired and accumulated at

Frigidaire “rules,” and that the laid-off of the 2,000 had

nothing to worry about as they accordingly would so

participate fully in the Chevrolet jobs. Said responses

were given by said president of 801 in the course and

scope of his capacity as such president and within appar-

ent authority to do so granted him by IUE and 801.

41. During the period said president was making

those responses, he and his 801 officers and staff in the

course of their said capacities and authority to do so from

IUE and 801 were actively encouraging persons among

the red-circled 3,500 and the newly hired 2,500 to muster

58a

their forces to counter ongoing petitioning endeavors by

certain of the red-circled 2,000 for an express formal

resolution to the effect that the laid-off among said 2,000

would be included in the pool of ex-Frigidaire employees

from which the Chevrolet plant job openings would be

filled. And, such was consistent with his subsequent

acknowledgment of the IUE and 801 political reasoning

given by him in his capacity as such president and with

the apparent authority from IUE and 801 to give, to the

effect that since the laid-off ex-Frigidaire employees who

had transferred from Frigidaire to Delco Air represented

only some 1,000 union members and those ex-Frigidaire

employees that were laid-off upon the shut-down of the

Frigidaire Division represented some 6,000, the union’s

position was to fill the Chevrolet jobs only from the 6,000.

* aa *

43. The National Agreement of December 10, 1976

was entered into between the Delco Products Division

(Kettering, Ohio), Delco Air Conditioning Division (Day-

ton and Moraine, Ohio), Delco Products Division

(Rochester, New York), Packard Electric Division (War-

ren, Ohio) and Delco-Remy Division (New Brunswick,

New Jersey), of General Motors Corporation, collectively

referred to therein as the “Corporation,” and the Interna-

tional Union of Electrical, Radio and Machine Workers,

AFL-CIO-CLC, and its Local Unions 717 (Warren, Ohio),

755 and 801 (Dayton, Ohio), 509 (Rochester, New York),

and 416 (New Brunswick, New Jersey), collectively

referred to therein as the “Union,” the same to continue

at least through September 14, 1979.

59a

44. Said National Agreement of 1976 was super-

seded by the National Agreement of September 18, 1979,

the parties to which are General Motors Corporation

without specification of any divisions and referred to

therein as the “Corporation,” and the International Union

of Electrical, Radio and Machine Workers, AFL-CIO-CLC

without specification of any local unions and referred to

therein as the “Union.”

45. Paragraph 59 of said 1976 National Agreement

and paragraph 59 of said 1979 National Agreement, each

being under that group of provisions entitled “Establish-

ment of New Plants,” respectively provide without refer-

ence to any particular division, that for the first 24

months after production begins in a new plant:

(a) that the Corporation will give preference to

the applications of laid-off employees having seniority in

other plants;

(b) that such preference shall operate over

applications of individuals who have not previously

worked for the Corpora

This text is long and has been trimmed here. Open the source document for the complete record.

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.