Petition for Writ of Certiorari — Gore v. Trans World Airlines

Supreme Court, US.

FILED

901151 SEP 28 200

~OFFICE OF ir.

No. .

In the

Supreme Court of the United States

ANDREW GORE,

Petitioner,

versus

TRANSWORLD AIRLINES, a Delaware corporation;

THOMAS J. CLOSSICK, an individual; JAMES NASS, an

individual; HAROLD SMALLWOOD, an individual;

KENNETH GABRIEL, an individual; ROLLIN O. PARKER,

an individual,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE EIGHTH

CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Douglas K. DeZube Russell C. Purvis

ULLMAN & DEZUBE,P.A. Counsel of Record

10100 W.87th Street PURVIS & GENTRY, P.A.

Suite 202 306 E.12th Street

Overland Park, KS 66213 Suite 908

(913) 385-0355 Kansas City, MO 64106

(816) 842-7877

Attorneys for Petitioner

i

QUESTIONS PRESENTED

WHETHER CLAIMS ASSERTING THE

VIOLATION OF SUBSTANTIVE STATE

PROTECTION ARE PREEMPTED BY THE

RAILWAY LABOR ACT, 45 US.C.

SECTIONS 151 ET. SEQ., WHEN THE

CLAIMS ARE INDEPENDENT OF THE

RELATIVE COLLECTIVE BARGAINING

AGREEMENT, RENDERING

INTERPRETATION OF THE AGREEMENT

UNNECESSARY, AND THE AGREEMENT

DOES NOT DETERMINE THE STANDARD

BY WHICH THE DEFENDANT’S CONDUCT

SHOULD BE JUDGED?

IF THE RAILWAY LABOR ACT, 45 U.S.C.

SECTIONS 151 ET. SEQ. DOES NOT

PREEMPT CLAIMS ARISING FROM STATE

RIGHTS WHICH ARE INDEPENDENT OF

ii

THE COLLECTIVE BARGAINING

AGREEMENT, DID THE COURT OF

APPEALS ERR IN AFFIRMING THE

DISTRICT COURT’S DISMISSAL OF

GORE’S CLAMS DUE TO PREEMPTION OF

THE RAILWAY LABOR ACT?

TABLE OF CONTENTS

QUESTIONS PRESENTED . 06 .icicicccccctesveesh i

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REASONS FOR GRANTING THE WRIT

I. THERE IS CONFUSION AMONG THE CIRCUIT

COURTS OF APPEALS

REGARDING THIS COURT?’S DECISION IN

ill

HAWAIIAN AIRLINES, INC. v. NORRIS ON THE

BREADTH OF THE RAILWAY LABOR ACT’S

PREEMPTIVE POWER, WHICH IS YIELDING

INCONSISTENT AND UNPREDICTABLE

RESULTS IN THE CIRCUIT COURTS. ....... 11

THE DECISION OF THE EIGHTH CIRCUIT

COURT OF APPEALS CONCERNING THE

BREADTH OF THE RAILWAY LABOR ACT’S

PREEMPTIVE POWER IS CONTRARY TO ITS

OWN JURISPRUDENCE, AND IS CONTRARY,

AS WELL, TO THE DECISIONS OF THIS COURT.

STATE LAW HAS CREATED THE TORT

ACTIONS GORE IS BRINGING, AND IS THE

DEFINING SOURCE OF THE DUTIES

SPECIFICALLY OWED BY TWA FOR EACH

eg Ee 23

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APPENDIX

EIGHTH CIRCUIT OPINION ................ 1A

ORDER DENYING PETITION AND FOR

ee errr rrr ery ry 1B

TABLE OF AUTHORITIES

CASES

ANDREWS v. LOUISVILLE & NASHVILLE RAILROAD,

406 U.S. U.S. 320, 330 (1972) .........ceeeeeeeeeeee 24

ATCHISON, TOPEKA AND SANTA FE RAILWAY v.

BUELL, 480 U.S. 557 (1987) .........0000eceeeeeee 20

ERTIE v. CONTINENTAL AIRLINES, INC., 136 F.3d 690,

meer me ON fic 16,17

FENNESSY v. SOUTHWEST AIRLINES, 91 F.3d 1359,

maemo... 17, 23

FERRELL v. CROSS, 543 N.W.2d 111, 113-14 (Minn. App.

re 13, 14, 15, 16

HANKS v. GENERAL MOTORS CORP., 906 F.2d 341, 343

OP Cte 99 sis cn isc chca e EI. 21

HAWAIIAN AIRLINES, INC. v. NORRIS, 512 U.S. 246,

506-GD UNO idaciniscdsices 10, 12, 18, 19, 20, 21, 22, 25

HOGAN v. NORTHWEST AIRLINES, INC., 880 F.Supp.

GUS CDs, 19OGYS $28 JADA pe ckagias 18

HUBBARD v. UNITED AIRLINES, INC., 927 F.2d 1094

Cie: 108 5 iiss nica cechmetcueNaexca Bled das 17

HUMPHREY v. SEQUENTIA, INC , 58 F.3d 1238, 1244

AO <6 csi vicvinndi cloacae 22

JOHNSON v. ANHEUSER BUSCH, INC., 876 F.2d 620,

625.0 Oe, WON Sis ibs cs marncdcrereeiss 21

LINGLE v. NORRIS DIV. OF MAGIC CHEF, INC., 486

US SAUER ook 21

LUECKE v. SCHNUCKS MARKETS, INC., 85 F.3d 356,

10-G0 GNC MODS AG 6561 b i DAA 21,22

MAHER v. NEW JERSEY TRANSIT RAIL OPERATIONS,

593 A.2d 750, 7S7(NJ. 1991)... 0cc2.cccecececeee. 17

vl

METROPOLITAN LIFE INS. CO. v. TAYLOR, 481 U.S.

FO, GO GISSTD 6 octet ducccctsscvenSoeseckedeesuuns 19

MEYER v. SCHNUCKS MARKETS, INC., 163 F.3d 1048,

St gt Br rr rrr t pee 24

TAGGART v. TRANSWORLD AIRLINES, 40 F.3d 269,

rey Tg ry ren ef 18, 22

STATUTES

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1

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Eighth Circuit in Gore v. TransWorld Airlines, 210 F.3d

944 (8" Cir.2000), is set forth in the Appendix hereto (App.

A). The order of the Eighth Circuit denying petition for

rehearing is also set forth in the Appendix hereto (App. B).

BASIS FOR JURISDICTION

The final judgment of the United States Court of

Appeals for the Eighth Circuit denying Gore’s petition for

rehearing en banc was entered on June 30, 2000. (App. A).

This petition for writ of certiorari s filed within ninety (90)

days from that date. 28 U.S.C. Section 2101(c).

The jurisdiction of this Court is invoked pursuant to

the provisions of 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

RAILWAY LABOR ACT - 45 U.S.C. SECTION

151a (1994)

The purposes of the Act are: (1) to avoid any

2

interruption to commerce or to the operation of any

carrier engagéd therein; (2) to forbid any limitation

upon freedom or association among employees or any

denial as a condition of employment or otherwise, of the

right of employees to join a labor organization; (3) to

provide for the complete independence of carriers and —

of employees in the matter of self-organization to carry

out the purposes of this Act; (4) to provide for the

prompt and orderly settlement of all disputes concerning

rates of pay, rules or working conditions; (5) to provide

for the prompt and orderly settlement of all disputes

growing out of grievances or out of the interpretation or

application of agreements covering rates of pay, rules,

or working conditions.

RAILWAY LABOR ACT -45 U.S.C. SECTION 181

(1994)

All of the provisions of subchapter I of this chapter,

except section 153 of this title, are extended to and

shall cover every common carrier by air...and every air

3

pilot or other person who performs any work as an

employee or subordinate official of such carrier or

carriers, subject to its or their continuing authority to

supervise and-direct the manner of rendition of his

service.

STATEMENT OF THE CASE

Gore is employed by Trans World Airlines (TWA) as

a mechanic at TWA’s Maintenance and Engineering facility

(the “Overhaul Base”) in Kansas City, Missouri.

Throughout his employment with TWA, Gore has been a

member of the International Association of Machinist and

Aerospace Workers, AFL-CIO (the “IAM”’). The terms of a

Gore’s employment are subject to a collective bargaining

agreement.

Harold Smallwood (Smallwood) is also a mechanic

at the Overhaul Base. Thomas J. Clossick (Clossick) is

employed by TWA as a Supervisor in the Facilities

Maintenance Department at the Overhaul Base and is Gore’s

4

immediate supervisor. Kenneth Gabriel (Gabriel) is also a

Supervisor in the Facilities Maintenance Department. James

Nass (Nass) is the Manager of the Facilities Maintenance

Department and is the immediate supervisor of Clossick and

Gabriel. Rollin Parker (Parker) is a retired employee of

TWA,; prior to his retirement, Parker was a Supervisor in the

Facilities Maintenance Department and reported to Nass.

These people are mentioned individually because of their

respective roles in the events that transpired in December of

1996.

On the evening of Sunday, December 15, 1996, Gore

was working at the Overhaul Base. At approximately 9:00

P.M., Gore and co-worker Howard Cowher (Cowher) were

on a break in the break room, engaged in a private

conversation. Smallwood was in the adjacent room and

allegedly overheard a small portion of the conversation

between Gore and Cowher. Smallwood, unable to properly

discern the context of the conversation, reported Gore’s

comments to [AM Committeeman Roy Gardner. Smallwood

stated that he believed Gore wished to “take out” some TWA

employees between the graveyard and day shift. At 10:00

p.m., Gardner telephoned Clossick and reported Smallwood’s

allegations. i

Clossick, as Gore’s immediate supervisor, had

informed Gore, approximately two weeks prior to December

15, 1996, that the two of them were going to be “tangling

assholes” over a complaint that Gore had made to his

supervisor, regarding the privacy of his payroll information.

Clossick traveled to the Overhaul Base to obtain

written statements from Smallwood and Cowher concerning

the alleged comment made by Gore. Smallwood

acknowledged that he had been eavesdropping on the

conversation between Cowher and the Gore and repeated

what he believed he overheard. Cowher informed Clossick

that he was not taking the conversation seriously and believed

it to be “B.S.”. Clossick failed to conduct any further

questioning of Cowher to verify his belief that the subject

matter of the conversation was not to be taken seriously, nor

6

eames

did he inquire as to whether Cowher believed Gore posed a

threat to TWA employees.

Clossick requested the prompt intervention of both

the KCI Airport Police and TWA security. Five KCI Airport

Police officers and three TWA security guards reported to

Clossick at the Overhaul Base. TWA, through Clossick,

physically detained Gore. Without any independent

investigation, the KCI Airport Police handcuffed Gore and

conducted a “pat down” search of his person. Clossick and

another supervisor interrogated Gore concerning the

statements of Cowher and Smallwood. Gore attempted to

explain the situation, stating the comment was taken out of

context and that no harm was intended towards anyone. In

an attempt to elicit consent to search Gore’s property,

Clossick and Gardner intentionally misinformed Gore that

they had the right to conduct searches of his vehicle, locker,

lunch box and tool chest. Gore refused to consent to the

searches.

Despite Gore’s lack of consent, TWA security guards

were instructed to search Gore’s toolbox, tool chest, locker,

lunch box and vehicle. This entire process took place over a

two-hour period, during which time Gore was paraded

throughout the Overhaul Base while in handcuffs. Upon the

conclusion of the searches, Clossick removed Gore’s TWA

identification badge and placed him on immediate suspension

pending a termination hearing.

At approximately 8:00 a.m. the next morning, Nass

held a meeting with all the Facilities Maintenance

Supervisors and Engineers. During the meeting, Nass

explicitly instructed those present to warn fellow employees

that Gore was a dangerous individual. Nass’s statement was

made in reckless disregard to the truth and the foreseeable

harm the statement would cause. Thirty-five to forty-five

other employees attended a subsequent meeting conducted by

Parker and Gabriel. During the course of the second meeting,

numerous 8.5 by 11 inch pictures of Gore were posted about

the TWA Overhaul Base. Parker and Gabriel warned

8

employees that Gore was dangerous and to call security if he

was seen anywhere on the premises.

The collective bargaining agreement between TWA

and its employees, which Gore is party to, requires, among

other things, for TWA to protect the safety of its employees

and maintain safe working conditions. TWA relies on the

duties imposed by the collective bargaining agreement to

justify its treatment of Gore on December 15, 1996.

Gore vigorously disputed the truth of the statements

made by his supervisors that he was dangerous and posed a

threat to his colleagues. While on suspension, Gore

submitted to a psychological examination that revealed he

posed no threat to his co-workers. The TWA hearing board

decided Gore was not a threat and reinstated him with back

pay. Due to TWA’s slant: bowed Gore found himself

ostracized and treated like a pariah upon his return.

Gore initially filed a complaint in federal court

against TWA, Clossick, Nass, Smallwood and Parker,

asserting a 42 U.S.C. § 1983 violation together with several

9

claims under Missouri state law. The district court concluded

that Defendants were not state actors and did not act under

color of state law and declined to exercise supplemental

jurisdiction over the remaining state law claims. The case

was dismissed, and Gore re-filed the petition in state court,

asserting claims of false arrest, negligence, libel and slander,

and invasion of privacy for publicly placing him in a false

light and public disclosure of private facts. The defendants

removed the case to federal court. Gore then filed a motion

to remand, which the court denied on February 2, 1999,

reasoning that an evaluation of the merit of Gore’s claims is

tied to a consideration of the terms of the collective

bargaining agreement. The court determined that the claims

were minor disputes, as defined by the Railway Labor Act

(RLA), and were thus preempted by the Act.

On April 26, 1999, the district court granted the

defendants’ motion to dismiss, on the ground that Gore’s

claims were preempted by the RLA, without considering the

preemption issue. Gore appealed to the Eighth Circuit Court

10

of Appeals to consider the district court’s denial of his

motion for remand and the dismissal of his complaint on the

grounds of preemption. Gore pointed to the Court’s decision

in Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (1994) to

argue that the mere existence of a collective bargaining

agreement does not deprive employees of independent

remedies under substantive state law. In Norris, the Court

explained that the need of a court to refer to the terms and

duties contained in a collective bargaining agreement to

resolve state law claims does not require preemption.

A panel of the Court of Appeals submitted a 2-1

opinion on April 26, 2000, affirming the district court’s

dismissal of Gore’s claims due to preemption under the RLA.

The panel determined that the collective bargaining

agreement, rather than Missouri law, defined the duty owed

by the defendants in the tort actions brought by Gore. In the

opinion of the panel, the essence of Gore’s claims are that

TWA’s conduct was not legally justified, and that

interpretation of specific provisions in the collective

11

bargaining agreement is necessary to determine the validity

of Gore’s allegations.

Gore subsequently petitioned for a rehearing en banc,

arguing that consideration by the full court was necessary to

secure and maintain uniformity of decisions in the court, in

light of contrary decisions by the Supreme Court of the

United States and the United States Court of Appeals for the

Eight Circuit. The Court of Appeals, on June 30, 2000,

denied Gore’s petition for rehearing, 6-5, without giving

definitive reasons for doing so.

Gore has duly filed his petition for writ of certiorari

within ninety days of the entry of the ruling.

12

REASONS FOR GRANTING THE WRIT

I. THERE IS CONFUSION AMONG THE CIRCUIT

COURTS OF APPEALS REGARDING THIS

COURT’S DECISION IN HAWAIIAN AIRLINES, INC.

v. NORRIS ON THE BREADTH OF THE

RAILWAY LABOR ACT’S PREEMPTIVE POWER,

WHICH IS YIELDING INCONSISTENT

AND UNPREDICTABLE RESULTS IN THE

CIRCUIT COURTS.

In Normis, this Court decided whether certain claims

are subject to the RLA. Norris, 512 U.S. at 261. The

threshold question is decided against preemption if the

employee’s claims turns on a “purely factual question”

concerning conduct that does not require a separate

interpretation of the CBA, even if the question could also be

resolved under the terms of the CBA. Id. In Norris, Norris’

claim could potentially be resolved in one of two ways: (1)

by interpreting the meaning of just cause under the CBA, or

(2) by examining Hawaiian Airlines’ motive in discharging

13

Norris. Id. The first form of the claim is preempted by the

RLA, whereas the second form is not. Confusion surrounds

RLA preemption, as reflected in the conflicting decisions

‘among the circuit courts of appeals. The main problem stems

from courts’ basing their preemption decisions ona

classification that is itself being challenged by the disputing

Parties.

Some courts, applying Norris, have provided some

guidance as to what constitutes “interpretation” of a CBA.

One approach is for the court to analyze state law claims and

the defenses asserted for each such claim, and determine

whether either requires interpretation under the CBA. See

Gay v. Carlson, 60 F.3d. 83 (2™ Cir. 1995); Ferrell v. Cross,

543 N.W.2d 111 (Minn App. 1996). For example, in Ferrell

y. Cross, the Plaintiff, a operations planner assistant for

Northwest Airlines sued her supervisor for tortious

interference with contractual rights, intentional infliction of

emotional distress and defamation. Ferrell, 543 N.W.2d 111,

113 (Minn App. 1996). The defendant asserted that the

14

plaintiff's claims were preempted by the RLA, as the CBA

and rules of conduct that were in place needed to be

interpreted to determine whether defendant’s actions were

justified. Ferrell, 543 N.W.2d at 114. The court, applying the

Norris decision, expressly rejected the defendant’s argument.

Id. “The [defendant’s] motives, whether they acted on

reasonable or probable cause, and whether either [defendant]

acted with actual malice are purely factual determinations

that do not require a court to interpret the CBA.” Id. The

court reasoned that a plaintiff's right to be free from

defamation exists independently of the CBA , as does the

defendant’s duty not to defame; although the CBA may be

referred to in connection with an asserted defense, the CBA

does not define state substantive law. Id. The court of

appeals, therefore, held that the plaintiff's defamation claim

was not preempted by the RLA. Id. The United States Court

of Appeals for the Second Circuit has used a similar analysis,

and has applied it to a set of facts markedly similar to Gore’s.

Harold Gay, a Pan Am airline pilot, sued his co-workers in

15

the United State District Court for multiple causes of action,

including defamation. Gay v. Carlson, 60 F.3d 83 (2™ Cir.

1995). Gay alleged that his co-workers falsely reported that

Carlson permitted a flight attendant to control the plane. Gay,

60 F.3d at 85. The co-workers’ allegations led to Gay’s

discharge, although he was later reinstated with full back pay

and seniority rights. Id. The District Court concluded that the

Employee Rules of Conduct and the CBA had to be consulted

to determine whether the defendants enjoyed a qualified

privilege in reporting Gay’s misconduct, and further held that

the CBA was relevant in determining whether defendants

were “justified” in their actions. Id.

The Second Circuit, applying the decision in Norris,

reversed. The Second Circuit held that no interpretation of

the CBA was required to resolve Gay’s state law claims of

defamation and prima facie tort, and that state law provides

the exclusive source of the rights. Id. Further, the court

expressly rejected the district court’s finding that the CBA

required interpretation to determine if the defendants

16

enjoyed a qualified privilege and were “justified” in their

actions. Id. “Whether or not a qualified privilege defense

applies...can be determined solely according to New York

law, and no interpretation of the collective bargaining

agreement is necessary to make the determination. The

privilege is independent of the agreement. Although the

court may consult the Rules of Conduct, these rules in no

way determine whether the plaintiff should nevertheless

prevail.” Id. at 89. The court also rejected defendants’

argument concerning the justification of their actions,

explaining that Norris teaches that reference to the CBA in

connection with a justification defense does not give rise to

preemption. Id. at 88.

Other circuits have relied upon similar analyses. In

Ertie v. Continental Airlines, Inc., former flight attendants

brought a state court action against the airline for breach of

contract and fraudulent concealment. Ertie v. Continental

Airlines, Inc., 136 F.3d 690, 692 (10" Cir. 1998). The

plaintiffs, in Ertie, claimed that the rights they sought to

17

vindicate did not arise from the CBA they were party to,

while the airline contended that resolution of the plaintiff's

claims could not be resolved without interpretation of the

CBA. Ertie, 136 F.3d at 694. The court concluded that the

RLA, via the terms of the CBA, preempted the breach of

contract claim, but not the fraudulent concealment claim. Id.

at 695.

On a similar set of facts, however, the Ninth Circuit

decided that former airline employees’ claims were

necessarily minor disputes, and thus preempted by the RLA

and the terms of the CBA. F ennessy v. Southwest Airlines,

91 F.3d 1359, 1362 (9" Cir. 1996). In Fennessy, the court

conceded that preemption analysis depended in part on how

the claim was framed. Id. at 1361. As other courts have

noted, Norris has encouraged the emergence of the ‘artfully

crafted’ pleading, constructed solely to avoid preemption.

See Maher v. New Jersey Transit Rail Operations, 593 A.2d

750, 757 (N.J. 1991); Hubbard v. United Airlines, Inc., 927

F.2d 1094 (9" Cir. 1991).

18

Another uneven result is illustrated by the following

comparison. A federal district court in Minnesota held that a

plaintiff's disability discrimination claim involved a minor

dispute committed exclusively to resolution under the RLA.

Hogan v. Northwest Airlines, Inc., 880 F.Supp. 685 (D.

Minn. 1995). Under a comparable set of facts, though, the

Eighth Circuit came to a wholly opposite result, determining

that an employee’s state law discrimination claim against an

airline was not preempted by the RLA. Taggart v. Trans

World Airlines, 40 F.3d 269, 275 (8" Cir. 1994).

The conflicting opinions among the circuits caused

by a misunderstanding of Normis has led to uncertainty and

une’ -n results for plaintiffs and defendants alike.

Clarification of the breadth of the RLA’s preemption power

would allow for uniformity in the federal appellate system.

I. THE DECISION OF THE EIGHTH CIRCUIT COURT

OF APPEALS CONCERNING THE BREADTH OF

THE RAILWAY LABOR ACT’S PREEMPTIVE

19

POWER IS CONTRARY TO ITS OWN

JURISPRUDENCE, AND IS CONTRARY, AS WELL,

TO THE DECISIONS OF THIS COURT.

In Hawaiian Airlines, Inc. v. Norris, this Court

acknowledged that the RLA’s mechanism for resolving minor

disputes does not preempt causes of action to enforce rights

that are independent of a collective bargaining agreement.

Norris, 512 U.S. at 256. Although Petitioner Hawaiian

Airlines argued for a broad interpretation of what constitutes

minor disputes within the context of the RLA (and thus the

invocation of the RLA’s preemptive power), this Court could

not find in the legislative history of the RLA any

Congressional intent that would justify such broad

preemptive reach. Id. at 255. Congressional intent is the

touchstone of the complete preemption analysis.

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987).

The Court’s rationale was that despite the need for uniformity

and predictability in labor law, the substantive protections

20

guaranteed to workers by state law cannot be usurped by the

procedural apparatus of the RLA. Norms, 512 US. at 257.

The dispositive issue Norris was the source of the

right that Norris claimed Hawaiian Airlines violated. Id. In

that case, while a collective bargaining agreement (CBA)

may have addressed wrongful discharge, Norris’ claim was

based strictly on Hawaii law prohibiting discharge in

retaliation for whistleblowing. Id. The Court applied the

same preemption analysis with respect to state claims arising

out of state law as it did in Atchison, Topeka and Santa Fe

Railway v. Buell, 480 U.S. 557 (1987), in which the

independent night asserted arose under federal law. Normis,

512 U.S. at 257. In Normis, the Court relied upon the

preemption standard from the Labor Management Relations

Act, to wit: a state law cause of action is not preempted by

the RLA if it niwelvee rights and obligations that exist

independent of the CBA. Id. at 258. Moreover, despite the

possibility of overlap, an independent state claim will survive

preemption if analysis of the claim does not require

ki 21

interpretation of the CBA. Id. at 261-63.

The Court reaffirmed the threshold test identified in

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

405-06, (1988), that preemption is improper when the claim

in independent of the CBA. Norris, 512 U.S. at 261. A

dispute is independent if it may be resolved through purely

factual questions. Id.

The United States Court of Appeals for the Eighth

Circuit has followed the same line of reasoning. See Hanks

y. General Motors Corp., 906 F.2d 341, 343 (8" Cir. 1990);

Luecke v. Schnucks Markets, Inc., 85 F.3d 356, 359 (8" Cir.

1996). In deciding whether claims are preempted, some

courts have taken a broad view of what it means for a case to

be substantially dependant upon an interpretation of a

collective bargaining agreement, and have considered

defenses based on the collective bargaining agreement. See,

¢.g., Johnson v. Anheuser Busch, Inc., 876 F.2d 620, 623 (8"

Cir. 1989).

On the other hand, a separate line of Eighth Circuit

22

cases hold that claims based on state law that are intimately

related to events at the work place are not preempted as long

as they involve purely factual questions and are not based on

provisions of the collective bargaining agreement. Luecke,

85 F.3d at 359. No express or implied provision of a CBA

guides a factual inquiry into whether TWA made statements

about Gore that were false, damaging and negligent. See Id.

At 360. The fact that TWA defends the claims using the

rationale that its conduct was justified by the terms of the

CBA is not enough to create a basis for preemption. See,

e.g., Humphrey v. Sequentia, Inc., 58 F.3d 1238, 1244 (8"

Cir. 1995), in which an employer’s assertion that there was

“Just cause” for a discharge under the CBA’s terms, was held

not to create a basis for Labor Management Relations Act

preemption. The Eighth Circuit has held that an examination

of an employer’s conduct and motives does not require an

interpretation of the collective bargaining agreement.

Traggart v. Trans World Airlines, Inc., 40 F.3d at 273,

quoting Normis, 512 U.S. at 262.

23

Gore’s claims rest not upon the collective bargaining

agreement, but upon a charge that TWA violated state

substantive law, and there can be no doubt that the claims

were within the jurisdiction of the district court, rather than

the adjustment board. See, generally, Fenessy 91 F.3d at

1364.

STATE LAW HAS CREATED THE TORT ACTIONS

GORE IS BRINGING, AND IS THE DEFINING

SOURCE OF THE DUTIES SPECIFICALLY OWED

BY TWA FOR EACH CLAIM ASSERTED.

The panel decision of the Eight Circuit Court of

Appeals correctly enunciates the basis of Gore’s claims,

setting forth, respectively, the elements of his claims of false

imprisonment, libel and slander, negligence, and public

disclosure of private facts. (App. A) The panel correctly

States that Missouri law has created these tort actions, but

mistakenly contends that the CBA alone defines the duties

24

owed by TWA for each claim asserted. Id. at 949. While

TWA may point to its obligations under the CBA to defend

its conduct, the claims themselves are not inherently tied to

any provision of the CBA. Meyer v. Schnucks Markets,

Inc.,163 F.3d 1048, 1051.

As Justice Douglas reasoned in Andrews v. Louisville

& Nashville Railroad, 406 U.S. 320 (1972), one who joins a

union does not abandon his right to substantive state

protection. Andrews, 406 U.S. at 330. The CBA does

compel TWA to protect its employees from harm; TWA

nevertheless has an obligation not to violate Gore’s state law ~

rights. For example, TWA could handcuff Gore and lock

him in a closet for a week at the Overhaul Base, and proceed

to argue that its conduct was justified in light of its duty to

protects its other employees. If the logic of the panel

decision of the Eighth Circuit in the instant case were applied

to the hypothetical situation, Gore’s claims would again have

to be preempted by the RLA, due to the connection between

TWA’s defense and the duty imposed by the CBA. Absurd

25

as it may be, it is nonetheless the result produced by the

court’s rationale, and its understanding of Norris.

The specific duty TWA owed to Gore, in relation to

Gore’s tort claims, is clearly deducible through analysis of

the ample Missouri case law on the subject. As in Norris, the

CBA is not the “only source” of the rights Gore asserts in his

State law claims. Norris, 512 U.S. at 258. In his dissenting

opinion in the Eighth Circuit panel decision, Judge Heaney

argues that whether Gore was libeled or slandered can be

answered by determining whether TWA made a defamatory

false statement against him, published it with the requisite

intent, and in so doing damaged him; the same reasoning

applies to Gore’s negligence and privacy claims. (App. A)

CONCLUSION

For all of the reasons identified herein, a writ of

certiorari should issue to review the panel decision of the

United States Court of Appeals for the Eighth Circuit and,

26

ultimately, to vacate and reverse its decision and remand the

matter to state court for trial.

Respectfully Submitted,

Douglas K. DeZube Russell C. Purvis

ULLMAN & DEZUBE, P.A. Counsel of Record

10100 W.87th Street PURVIS & GENTRY, P.A.

Suite 202 306 E.12th Street

Overland Park, KS 66213 Suite 908

(913) 385-0355 Kansas City, MO 64106

(816) 842-7877

1A

APPENDIX A

United States Court of Appeals,

Eighth Circuit.

Andrew L. GORE, Appellant,

v.

TRANS WORLD AIRLINES, a Delaware corporation;

Thomas J. Clossick; James

Nass; Harold Smallwood; Kenneth Gabriel; Rollin oO.

Parker, Appellees.

No. 99-2363.

Submitted Dec. 16, 1999.

Filed April 26, 2000.

Rehearing and Rehearing En Banc Denied June 30, 2000.

Chief Judge Wollman, Judge McMillian, Judge Richard S.

Amold, Judge Morris Sheppard Amold, and Judge Bye

would grant the petition

Affirmed.

2A

Heaney, Circuit Judge, dissented and filed opinion.

Before BEAM, HEANEY, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Andrew Gore appeals the district court's dismissal of his case

due to preemption under the Railway Labor Act (RLA), 45

U.S.C. §§ 151- 163, 181-188 (1994 & Supp. II 1996). We

affirm. |

I.

Andrew Gore is employed as a mechanic by Trans

World Airlines (TWA) at its Maintenance and Engineering

Center, also known as the Overhaul Base, in Kansas City,

Missouri. He is a member of the International Association of

Machinist and Aerospace Workers, AFL-CIO and the terms

of his employment are subject to a collective bargaining

agreement.

On the evening of December 15, 1996, Gore was

working at the Overhaul Base. While he and coworker

Howard Cowher were on a break, another coworker, Harold

<<

3A

Smallwood, allegedly overheard Gore telling Cowher that he

planned to kill himself as well as other TWA employees.

Smallwood reported the cumpantn to union steward Roy

Gardner, who in turn reported the comments by telephone to

Thomas Clossick, a supervisor in the Facilities Maintenance

Department at the Overhaul Base. Clossick telephoned the

report to James Nass, who is the Manager of the Facilities

Maintenance Department and Clossick's immediate

supervisor. Nass consulted with Paul Davis, who is TWA's

Employee Relations Manager. Nass then instructed Clossick

to get written statements from the coworkers as to Gore's

statements and if necessary to call the police.

After reading the coworkers’ Statements, Clossick

called the Kansas City International Airport Police. Gore

asserted that Smallwood had not heard the entire

conversation and had taken Gore's statements out of context.

The police handcuffed Gore and patted him down searching

for weapons. They requested permission to search his locker,

tool chest, tool box, lunch box, and vehicle. Gore initially

4A

denied consent, but after consulting with union stewards,

Gore consented to the search of his vehicle and locker.

Supervisor Clossick required Gore to turn in his TWA

identification badge and parking pass, and he suspended Gore

pending a termination hearing.

The following morning, Rollin Parker, a supervisor in

the Facilities Maintenance Department at that time, informed

his crew members of the occurrence, warned them not to

allow Gore onto the premises, and instructed them to call the

guard house if Gore attempted to return to the Overhaul Base.

Nass held a supervisors’ meeting with Parker and Kenneth

Gabriel and told them to warn their employees that Gore was

a dangerous man. Gore's identification badge photograph

was enlarged and posted in various places at the Overhaul

Base to enable TWA employees to recognize Gore.

The collective bargaining agreement includes a

management rights clause, pursuant to which TWA issued

Rules of Conduct and Personnel Regulations, providing in

pertinent part that violence, threatening other employees, and

ee

SA

firearms are prohibited from the premises and that the

company reserves the right to make inspections of employee

lockers, desks, lunch boxes, vehicles, and other items of

personal property located on the premises when there is

reason to believe they may contai: prohibited iten:s. Also,

the collective bargaining agreement imposes contractual

obligations on TWA to protect the safety of its employees.

The agreement requires TWA to maintain safe working

conditions and to promptly handle complaints involving the

safety of working conditions. (See J.A. at 179.) The

defendants claim to have acted in accordance with the duties

imposed by the collective bargaining agreement.

Gore disputed the truth of the statements made by

supervisors advising employees that Gore was dangerous or

posed a threat to TWA employees. While on suspension,

Gore submitted to a psychological examination which

demonstrated that he posed no threat to TWA personnel.

Thereafter, the TWA hearing board decided that Gore did not

pose a threat and reinstated him with back pay.

6A

Gore filed a complaint in federal court against TWA,

Clossick, Nass, Smallwood, and Parker, asserting a 42 U.S.C.

§ 1983 violation along with several state-law claims. The

district court granted summary judgment in favor of TWA

and Clossick on the § 1983 claim, concluding that they were

not state actors and did not act under color of state law.

Having thus disposed of the only federal law claim, the

district court declined to exercise supplemental jurisdiction

over the remaining state-law claims. This court affirmed the

dismissal for lack of a state actor. See Gore —— World

Airlines, 163 F.3d 602 (8th Cir.1998) (unpublished).

Gore then filed an amended complaint in state court,

asserting claims of false arrest, negligence, libel and slander,

and invasion of privacy for publicly placing him in a false

light and public disclosure of private facts. The defendants

removed the case to federal district court. Gore filed a

motion to remand, which the district court denied upon

concluding that "the evaluation of whether the Plaintiff's

claims have merit is inextricably intertwined with

7A

consideration of terms in the [collective bargaining

agreement]." Noting that the resolution of Gore's claims will

require an analysis of both his rights and the defendants’

duties under the collective bargaining agreement, the district

court determined that the claims are minor disputes

preempted by the RLA.

The district court then granted the defendants’ motion

to dismiss, citing its previous determination that the claims

are preempted by the RLA and refusing to reconsider the

preemption issue. Gore now appeals the district court's denial

of his motion for remand and the dismissal of his complaint

on grounds of preemption.

Il.

We review the district court's denial of a motion to

remand and its dismissal of the complaint on grounds of

preemption under a de novo standard. See Schuver v.

MidAmerican Energy Co., 154 F.3d 795, 798 (8th Cir.1998);

Taggart v. Trans World Airlines, Inc., 40 F.3d 269, 272 (8th

Cir.1994).

8A

A defendant may remove a state court claim to federal

court only if the claim originally could have been filed in

federal court, and the well-pleaded complaint rule provides

that a federal question must be presented on the face of the

properly pleaded complaint to invoke federal court

jurisdiction. Caterpillar Inc. v. Williams, 482 U.S. 386, 392,

107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). A defendant is not

permitted to inject a federal question into an otherwise state-

law claim and thereby transform the action into one arising

under federal law. See id. "Congress has long since decided

that federal defenses do not provide a basis for removal.” Id.

at 399, 107 S.Ct. 2425. "Thus, a case may not be removed to

federal court on the basis of a federal defense, even if the

defense is anticipated fi the plaintiff's complaint, and even if

both parties admit that the defense is the only question truly

at issue in the case." Rivet v. Regions Bank of Louisiana,

522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998)

(internal quotations and alterations omitted). To permit

removal on the basis of a federal defense would deprive the

9A

plaintiff of the right to be the master of his cause of action.

See Caterpillar Inc.. 482 U.S. at 399, 107 S.Ct. 2425.

An independent corollary to the well-pleaded

complaint rule is known as the complete preemption doctrine.

Id. at 393, 107 S.Ct. 2425. The complete preemption doctrine

converts an ordinary state-law claim into a federal claim

where "the pre-emptive force of a statute is so ‘extraordinary’

that it 'converts an ordinary state common-law complaint into

one stating a federal claim for purposes of the well-pleaded

complaint rule.'" Id. (quoting Metropolitan Life Ins. Co. v.

Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55

(1987)). Whether federal law preempts a state-law cause of

action is a question of congressional intent. Hawaiian

Airlines, Inc. v. Norris, 512 U.S. 246, 252, 114 S.Ct. 2239,

129 L.Ed.2d 203 (1994).

"Congress'’ purpose in passing the RLA was to

promote stability in labor-management relations by providing

a comprehensive framework for resolving labor disputes."

Id. Under the RLA, parties are obligated to arbitrate minor

10A

disputes, which are controversies arising out of the

application or interpretation of the collective bargaining

agreement, and therefore, complete preemption applies to

disputes involving duties and rights created or defined by the

collective bargaining agreement. See Id. at 256-59, 114 S.Ct.

2239. Claims of preemption under the RLA are governed by

a standard that is "virtually identical" to that employed under

§ 301 of the Labor and Management Relations Act (LMRA),

29 U.S.C. § 185; under this standard, "a state-law cause of

action is not pre-empted by the RLA if it involves rights and

obligations that exist independent of the [collective

bargaining agreement].” Nornis, 512 U.S. at 260, 114 S.Ct.

> ie

"[W]here the resolution of a state law claim depends

on an interpretation of the [collective bargaining agreement],

the claim is pre- empted." Id. at 261, 114 S.Ct. 2239

(discussing favorably the analysis set forth in Lingle v. Norge

Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100

L.Ed.2d410 (1988)). However, " ‘purely factual questions’

11A

about an employee's conduct or an employer's conduct and

motives do not 'requir[{e] a court to interpret any term of a

collective-bargaining agreement.'" Id. (quoting Lingle, 486

U.S. at 407, 108 S.Ct. 1877) (alteration in original). Also, a

mere need to reference or consult a collective bargaining

agreement during the course of state court litigation does not

require preemption. See Id. at 261 n. 8, 108 S.Ct. 1877. Our

preemption analysis focuses on a determination of whether

the state-law claim "confers nonnegotiable state-law rights on

employers or employees independent of any right established

by contract, or, instead, whether evaluation of the tort claim

is inextricably intertwined with consideration of the terms of

the labor contract." Allis- Chalmers Corp. v. Lueck, 471

U.S. 202, 213, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) (cited

favorably in Norris, 512 U.S. at 260-61, 114 S.Ct. 2239); see

Taggart, 40 F.3d at 272 (noting that "the critical question is

one of characterization--does the state law claim involve

interpretation or application of the collective bargaining

agreement”).

12A

In this case, the district court concluded that Gore's

state-law claims are preempted because they are inextricably

intertwined with a consideration or interpretation of the

collective bargaining agreement. Gore asserts that his state-

law claims exist independent of the collective bargaining |

agreement and are not preempted. Our review of Missouri

law, however, convinces us that the rights asserted in Gore's

tort suit are not nonnegotiable, independent state- law rights.

Instead, the facts of this tort suit make it "inextricably

intertwined with consideration of the terms of the labor

contract." Allis- Chalmers Corp., 471 U.S. at 213, 105 S.Ct.

1904.

Gore's complaint alleges claims of false arrest,

negligence, libel and slander, and invasion of privacy (both

by placing Gore in a false light and by disclosing private

facts). While state law has created these tort actions, the

collective bargaining agreement is the defining source of the

duties specifically owed by the defendants for each claim

asserted. "The essence of the cause of action of false arrest,

13A

or false imprisonment, ‘is the confinement, without legal

justification, by the wrongdoer of the person wronged.’ "

Rustici v. Weidemeyer, 673 S.W.2d 762, 767 (Mo.1984) (en

banc) (quoting Warrem v. Parrish, 436 S.W.2d 670, 672

(Mo.1969)). To prevail on this claim, the plaintiff bears the

burden to demonstrate that the defendants’ actions were done

"without legal justification.” Gore's complaint pleads this

essential element generically, avoiding any mention of the

relative rights and duties contained within the collective

bargaining agreement. The defendants have indicated that

their actions were required according to their interpretation of

specific provisions in the collective bargaining agreement.

While we are mindful that removal cannot be invoked

on the basis of facts not alleged in the complaint, see

Caterpillar Inc., 482 U.S. at 397, 107 S.Ct. 2425, we are also

constrained by the artful pleading doctrine--the principle that

"a plaintiff may not defeat removal by omitting to plead

necessary federal questions." Rivet, 522 U.S. at 475, 118

S.Ct. 921 (internal quotations omitted). When a plaintiff has

14A

artfully pleaded in a manner that avoids an element of the tort

that rests on federal law, the court "may uphold removal even

though no federal question appears on the face of the

plaintiff's complaint." Id.; see also Federated Dep't Stores,

Inc. v. Moitie, 452 U.S. 394, 397 n. 2, 101 S.Ct. 2424, 69

L.Ed.2d 103 (1981) (quoting a treatise stating that courts will

not permit artful pleading to close off a defendant's right to a

federal forum and will seek to determine whether the real

nature of the claim is federal, regardless of plaintiff's

characterization).

While Gore's complaint avoids mention of the

collective bargaining agreement, it indicates that the actions

took place in the course and scope of the defendants’

employment with TWA, a relationship in fact governed by a

collective bargaining agreement that specifically requires

TWA to provide a safe working environment and to promptly

investigate and handle complaints relating to worker safety.

Employers and employees are free to negotiate what actions

an employer may take to preserve the safety and security of

ISA

the workplace and the safety of other employees. Given the

fact that Gore's alleged statements caused a serious security

concern in the workplace, Gore's burden to prove that he was

falsely arrested without legal justification will necessarily

require an interpretation of the collective bargaining

agreement to determine whether the defendants acted

contrary to their duties under the agreement. Thus, this claim

is not based on an independent state-law right but is

inextricably intertwined with the provisions of the collective

bargaining agreement. Therefore, the claim is preempted.

Likewise, Gore's libel and slander claims will require

the court to construe whether the defendants’ actions

conformed to the rights and duties created under the

collective bargaining agreement. "The elements of

defamation in Missouri are: 1) publication, 2) of a

defamatory statement, 3) that identifies the plaintiff 4) that is

false, 5) that is published with the requisite degree of fault,

and 6) damages the plaintiff's reputation." Overcast v.

Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo.2000) (en -

16A

banc). The element requiring a showing that the statement

was published with the requisite degree of fault will need to

be evaluated within the framework of the contract terms

governing the standard by which TWA must handle

employee safety complaints. The defendants assert that their

actions were required by specific provisions of the collective

bargaining agreement. Again, artful pleading has avoided the

fact that the collective bargaining agreement is inextricably

intertwined with the resolution of this dispute.

The same can be said about Gore's claim of

negligence. In the circumstances presented in this case,

where simple negligence is claimed in the manner in which

TWA employees (acting within the course and scope of their

employment) investigated a claim of a threat to other

employees, the collective bargaining agreement is the source

of the duty of care owed. The duty allegedly breached is

defined by the agreement that governs the employment

relationship. See Allis-Chalmers Corp., 471 U.S. at 216, 105

S.Ct. 1904 (noting that preemption applies if the extent of the

17A

duty ultimately depends upon the terms of the agreement

between the parties). When the collective bargaining contract

is the source of the duty allegedly breached, application of

the tort remedy is preempted. See Lingle, 486 U.S. at 405 &

n. 4, 108 S.Ct. 1877..

Finally, Gore claims violations of his right to privacy

because TWA employees published private facts and placed

him in a false light. These state-law torts require a showing

that the other party unreasonably obtained private

information or that the disclosure would be highly offensive

to a reasonable person. See St. Anthony's Med. Ctr. v.

HLS.H., 974 S.W.2d 606, 610 (Mo.Ct.App. 1998) (stating the

elements of the tort of publishing private facts); Sullivan v.

Pulitzer Broad. Co., 709 S.W.2d 475, 478 n. 5 (Mo.1986) (en

banc) (stating the elements of placing another in a false light).

The duties owed and the reasonableness of the parties’ actions

in these circumstances cannot be evaluated independently _

from the bargained-for terms of the collective bargaining

agreement. The extent of the plaintiff's privacy rights in this

18A

matter were legally negotiated by the terms of the collective

bargaining agreement, and therefore, the resolution of these

tort claims is inextricably intertwined with an interpretation

of the nghts and duties created by the collective bargaining

agreement.

Gore contends that his claims are purely factual, that

the collective bargaining agreement need only be referenced

during the state court litigation (not interpreted), and that

justification defenses grounded in rights and duties created by

the collective bargaining agreement do not give rise to

preemption, citing Norris and Meyer v. Schnucks Markets,

Inc., 163 F.3d 1048 (8th Cir.1998). We disagree. Gore's

claims are not purely factual but are rooted in an

interpretation of the collective bargaining agreement. We do

not hold that removal and preemption may be based on a

federal defense. Instead, we have concluded that Gore cannot

be successful on the claims he has pleaded in this factual

situation without interpreting certain terms of the collective

bargaining agreement that govern the rights and duties of the

19A

parties. Additionally, we find the facts of Norris and Meyer

distinguishable from the facts at hand.

In Norris, the plaintiff alleged that he was discharged

in violation of state public policy and the state whistle-blower

protection law. The Court held that these claims are not

preempted because they are grounded in independently

created state-law rights involving purely factual questions.

See 512 U.S. at 266, 114 S.Ct. 2239. To the contrary, for

Gore to prove the elements of the torts he alleged in this case,

he will be required to argue the meaning of standards or

duties created and defined by the governing collective

bargaining agreement. Because the collective bargaining

agreement provides the source of the duties allegedly

breached or governs the determination of reasonableness

under the state law, the resolution of Gore's tort claims will

require more than a mere tangential reference to the

collective bargaining agreement, even though Gore's

complaint omits any reference to the collective bargaining

agreement. The Court in Norris expressly recognized that

20A

"where the resolution of a state-law claim depends on an

interpretation of the [collective bargaining agreement], the

claim is preempted.” 512 U.S. at 261, 114 S.Ct. 2239.

In the same manner, the Meyer case from our court is

distinguishable. In Meyer, we held that Meyer's state-law

claims of slander, tortious interference with a business

relationship, and retaliatory transfer were not preempted by

the LMRA. The facts, however, are far different from Gore's

case. In Meyer, the plaintiff alleged that in retaliation for his

criticism of his employer's improper sanitation procedures in

handling meat, the company allowed supervisors to harass

him and criticize him publicly. 163 F.3d at 1049. We stated

that complete preemption occurs when the plaintiff's claim

"require[s] the interpretation of some specific provision of a

[collective bargaining agreement]." Id. at 1051. We

concluded, however, that the causes of action alleged in that

particular context were neither based on nor substantially

dependent upon an interpretation of the collective bargaining

agreement. Id. (also noting that although the facts of the

21A

complaint occurred while the plaintiff was on the job, "the

claims themselves are not inherently tied to any provision of

the relevant [collective bargaining agreement]").

To the contrary, Gore asserts facts that occurred while

the defendants were seeking to respond, according to their

duties under the collective bargaining agreement, to a

perceived security threat to many employees. The defendants

have set forth specific provisions of the collective bargaining

agreement that they contend governed their actions and

prescribed their duties in this factual scenario. Gore cannot

establish liability on his tort claims without demonstrating

that the defendants’ actions were wrongful under a proper

interpretation of the relevant rights and duties bargained for

in the collective bargaining agreement.

Il.

Accordingly, we affirm the judgment of the district court.

HEANEY, Circuit Judge, dissenting.

22A

The majority opinion is inconsistent with the United

States Supreme Court's decision in Hawaiian Airlines, Inc. v.

Norris, 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d 203

(1994), and with the decisions of this circuit in Taggart v.

Trans World Airlines, Inc., 40 F.3d 269 (8th Cir. 1994),

Luecke v. Schnucks Mkts., Inc., 85 F.3d 356 (8th Cir.1996),

and Meyer v. Schnucks Mkts., Inc., 163 F.3d 1048 (8th

Cir.1998), and for that reason, I respectfully dissent.

Justice Blackmun, wniting for the Court in Norris,

reviewed the scope of federal preemption under the RLA in a

case involving a state law claim brought by an aircraft

mechanic alleging he was discharged for refusing to certify a

plane that he considered unsafe and for reporting his safety

concerns to the FAA. The Court held that Normis's state law

claim was not preempted even though he also could seek

redress through the RLA's arbitral mechanism. The Court

stated that "no proposed interpretation [of the RLA]

demonstrates a clear and manifest congressional purpose to

create a regime that broadly pre-empts substantive

23A

protections extended by the States, independent of any

negotiated labor agreement." Norris, 512 U.S. at 255-56, 114

S.Ct. 2239.

Here, the majority recognizes, and I agree, that the

state of Missouri has created tort actions for false arrest,

negligence, libel and slander, and invasion of privacy, both

by placing Gore in a false light and by disclosing private acts.

I part company with the majority, however, in its conclusion

that the collective bargaining agreement is the defining

source of the duties specifically owed by TWA to Gore. Here, = -

as in Norris, the collective bargaining agreement is not the

"only source” of the rights that Gore asserts in his state law

claims. See Id. at 258, 114 S.Ct. 2239. Wholly apart from the

collective bargaining agreement, TWA had an obligation not

to violate Gore's state law rights. The parties’ obligation

under the RLA to arbitrate disputes arising out of the

application or interpretation of the collective bargaining

agreement does not relieve the company of this duty, nor

does it deprive an employee of his opportunity to bring a state

24A

law action for damages. See id. Here, as in Norris, we have

purely factual questions about an employee's conduct, the

employer's response to that conduct, and its motives for so

responding.

The majority's argument that resorting to the

collective bargaining agreement is necessary to determine

where state statutes have been violated is foreclosed by the

Supreme Court's decisions in Lingle v. Norge Division of

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

410 (1988), and in Norris, holding that the issue of whether

an employer's action establishes the elements of aclaim

under state law is purely a factual question. Norris 's impact

on the jurisprudence relating to an employee's right to bring a

state law action in RLA cases is illustrated by the pre- and

post-Norris decisions in the Fifth Circuit case of Hirras v.

National R.R. Passenger Corp., 10 F.3d 1142, cert. granted

and judgment vacated, 512 U.S. 1231, 114 S.Ct. 2732, 129

L.Ed.2d 855 (1994). There Hirras asserted, inter alia, a state

law claim for intentional infliction of emotional distress

25A

based on verbal abuse by coworkers, abusive telephone calls

from unknown sources, and offensive graffiti. The district

court held that the claim was preempted by the RLA; the

Fifth Circuit affirmed. On certiorari, the Supreme Court

vacated the decision and remanded to the Fifth Circuit for

reconsideration in light of Norris. On remand, the Fifth

Circuit rejected the employer's argument that a state law

claim for intentional infliction of emotional distress arises out

of the collective bargaining agreement because the agreement

determines the standard by which the employer's conduct is

judged. See Hirras v. National R.R. Passenger Corp., 44 F.3d

278 (5th Cir.1995). The similarity between Hirras and this

case should dictate the same result, one which the majority

eschews.

I thought that this court settled the questions raised

here in the two Schnucks cases. In Luecke v. Schnucks

Mkts., Inc., 85 F.3d 356 (8th Cir.1996), an employee brought

an action for defamation against his employer, Schnucks

Markets, alleging that the employer told others that he

26A

refused to take a drug test. Schnucks argued that resolving

the defamation claim depended on an analysis of the

collective bargaining agreement's clauses regarding

management rights and establishing a grievance procedure.

We held that the claim was not preempted because the issue

could be determined based on whether the employee took the

drug test, whether the company’s statement that he refused

was false, and whether it was made with malice. Similarly,

here the questions to be answered are whether Gore was

confined without legal justification, and whether Gore was

libeled or slandered. The first question can be answered

without reference to the collective bargaining agreement.

Either the employer was justified or it was not. Although

TWA's justification defense may be based on the collective

bargaining agreement, the agreement would at most be

consulted, and not interpreted. Whether Gore was libeled or

slandered can be answered by determining whether TWA

made a defamatory false statement about Gore, published it

with the requisite intent, and in so doing damaged Gore, all

27A

questions that can be answered without interpreting the

collective bargaining agreement. This reasoning applies

equally to the privacy and negligence claims.

In Meyer v. Schnucks Mkts., Inc., 163 F.3d 1048 (8th

Cir.1998), John Meyer, a meat cutter, brought a state law

action for slander, intentional infliction of emotional distress,

and other claims. Schnucks removed the case to federal court

alleging preemption. The district court held some claims

were preempted; others were not. It then granted summary

judgment on the non- preempted claims. Our court reversed,

holding that none of the plaintiff's claims were preempted.

We stated:

Although the events underlying Mr. Meyer's complaint

occurred on the job, the claims themselves are not

inherently tied to any provision of the relevant CBA. To

prove slander, Mr. Meyer will have to produce evidence

that Mr. Jansen made false statements that injured Mr.

Meyer's reputation. The elements of tortious interference

with a business relationship are the existence of a contract

28A

or of a valid business expectancy known to the defendant,

intentional and unjustified interference causing a breach

of the contract, and damages. Except for the existence of

the valid business expectancy itself, which can be

demonstrated by mere reference to the CBA without any

analysis of it, neither of these causes of action is based

on, or substantially dependent upon an interpretation of,

the CBA. Therefore, neither of them is automatically

preempted by the LMRA. For similar reasons, we see

nothing 1n the basic elements of the other claims that

requires analysis of the CBA for their resolution. Id. at

1051.

Similarly, any inquiry in this case into the collective

bargaining agreement merely would require its consultation,

and not interpretation of it. Accordingly, Gore's claims are

not be preempted.

For the reasons outlined above, I have no alternative but

to dissent.

1B

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 99-2363 WMKC

Andrew L. Gore, ) Order Denying Petition for

) Rehearing and for Rehearing

) En Banc :

Appellant, )

vs. )

Trans World Airlines, etc., )

et al., )

Appellees. a

The petition for rehearing en banc is denied. Chief

Judge Wollman, Judge McMillian, Judge Richard S. Amold,

Judge Morris Sheppard Amold, and Judge Bye would grant

the petition. -

2B

The petition for rehearing by the panel is also denied.

(5193-010199)

June 30, 2000

Order Entered at the Director of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit