# Opposition Brief — Adkins v. General Motors Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0047%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1992 - **Citation:** 504 U.S. 908 ## Text APR + No. 91-1151 R In The Supreme Court of the United States October Term, 1991 a 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 o 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 4 : 3 4 : : } : | : 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. ii 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 ee iv 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 v 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. 2 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 3 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. | 4 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. 5 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 6 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 7 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” il 8 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. 9 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 10 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 11 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 12 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 13 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 | 14 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) 15 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). 16 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. 17 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 OV 18 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 19 “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 20 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. 21 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 22 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 23 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 _ 24 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 25 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 26 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). 27 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 | 28 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 j 5 29 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) 30 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. = Q ra [a ~— p < 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 .. la 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 2a [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 3a 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 4a 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: 5a 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 6a 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 7a John J. ADKINS, et al., Plaintiffs, v. 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’ 8a 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). 9a 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 OO i { 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; (c) the negotiation, manner of adoption, adoption, 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:”””” YT 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 h [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0047%3A2. Public record. Not legal advice.