Petition for Writ of Certiorari — Schnuck Markets, Inc. v. Luecke

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p Streme Gourt, U.s8.

iy FILED

96 646 OCT 22199.

No. —ppmve-OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

SCHNUCK MARKETS, INC.,

Petitioner,

MICHAEL LUECKE,

Respondent.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

BRIAN N. Brink Dennis G. CoLu.ins*

Assistant Counsel Mary BetH OrtTBALS

ScCHNUCK Markets, INC. GREENSFELDER, HEMKER &

11420 Lackland Road Gate, P.C.

P.O. Box 46928 10 South Broadway

St. Louis, Missouri 63146 Suite 2000

(314) 994-4206 St. Louis, Missouri 63102

(314) 241-9090

Counsel for Schnuck Markets, Inc.

“Counsel of Record

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

GSC AEE EOI AEC CET Oe

QUESTIONS PRESENTED

1. Whether a unilaterally implemented drug policy

is a term and condition of employment contemplated by

the collective bargaining agreement and which therefore

must be interpreted in order to resolve state claims prem-

ised upon actions taken under that policy.

2. Whether a state-law tort claim ie preempted

under Section 301 of the Labor Management Relations

Act by a defense based on rights exercised by an

employer pursuant to a collective bargaining agreement

and drug testing policy.

TABLE OF CONTENTS

Page

CQUESTBOINS PROMI GOS occ s cinsccccecccccvsns i

SERS OE NRAERRE REE sk inSos soled s sb ay die babe nes ii

SABRE OP: ALTERICRITS 665s A ER iv

OPINIONS BELOE iis ok er Aa ES 1

STATEMENT OF JURISDICTION................... 1

STATUTORY PROVISION INVOLVED.............. 1

RAEN COU GION in cee 8504 bbn cde 2

REASONS FOR GRANTING WRIT................. 8

I. INCONSISTENT CIRCUIT COURT DECISIONS

AS TO WHETHER A COLLECTIVE BARGAIN-

ING AGREEMENT INCLUDES, FOR PURPOSES

OF PRE-EMPTION, UNILATERALLY IMPLE-

MENTED DRUG TESTING PROCEDURES WAR-

RANT A RESOLUTION BY THE SUPREME

CRIGIIE havent bovocns ddow eed oA cee 10

A. The Eighth Circuit’s holding is erroneous,

because it limits the question of whether a

state law claim is inextricably intertwined

with an interpretation of a collective bar-

gaining agreement to procedures expressly

recited in the agreement. The decision over-

looks the implied rights and duties con-

tained within the labor contract ........... 10

II.

iii

TABLE OF CONTENTS - Continued

Page

B. The Eighth Circuit's decision is in direct con-

flict with its own earlier decision and with

the decisions of four (4) other circuits as to

pre-emption based on the interpretation of

implied, but not specifically delineated, man-

agement rights contained within a collective

bargaining agreement......................

THE SUPREME COURT SHOULD RESOLVE

THE SPLIT IN THE CIRCUITS AS TO

WHETHER A STATE LAW CLAIM IS PRE-EMP-

TED BY A DEFENSE BASED ON A COLLEC-

TIVE BARGAINING AGREEMENT.............

A. The resolution of Luecke’s state defamation

claim, including Schnucks’ defense, is sub-

stantially dependent upon and inextricably

intertwined with an interpretation of the

collective bargaining agreement to ascertain

whether, as a matter of law, the allegedly

defamatory statements were privileged ....

The Circuit Courts of Appeal have been

inconsistent in determining whether

defenses, as well as claims, must be consid-

ered to decide whether resolution of a state-

law claim requires interpretation of a collec-

tive bargaining agreement.................

Ot BE IRERSGI FEE es esas ae ea an I

TABLE OF AUTHORITIES

Page

Cases CITED:

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct.

1904, 85 L.Ed.2d 206 (1985) ........ 6, 12, 14, 20, 21, 25

Bagby v. General Motors Corp., 976 F.2d 919 (5th Cir.

ROORE. de Si cab eEa hws Cee abe kee ee iae 8, 23, 24

Baker v. Farmers Elec. Co-op., Inc., 34 F.3d 274 (5th

Se SE &. Wi oN 65 a 6 BRAS dale 56 Rie b CAA CN EK Ss: 28

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

denied, 493 U.S. 1062, 110 S.Ct. 879, 107 L.Ed.2d

oe, Per Te Pann PUD opine ee ermine Hane: 26

Carter v. Willert Home Products, Inc., 714 S.W.2d

we Cnt: Die 49GGs eos ies ies Ha ese.. yf ee

Caterpillar v. Williams, 482 U.S. 386, 107 S.Ct. 2425,

ei 3 Reparegy elne es re ar pee 6

Douglas v. American Information Technologies Corp.,

OTF. EGk Pee CE A, BOO be cb oiccccs ks bnsead ness 27

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

I Nae tie ge SRR FAGAN Fohiplas ere A poceeees 29

Hanks v. General Motors Corp., 859 F.2d 67 (8th Cir.

hg EERE CLOT PERT PEE epee oe 7, 21, 26

Jackson v. Kimel, 992 F.2d 1318 (4th Cir. 1993) ....... 28

Jackson v. Liquid Carbonic Corp., 863 F.2d 111 (1st

Cir. 1988), cert. denied, 490 U.S. 1107, 109 S.Ct.

3158, 104 L.Bd.26 1024 (1988). 6s ee vccccvves 8, 17, 18

Jimeno v. Mobil Oil Corp., 66 F.3d 1514 (9th Cir.

SPR hak bis 5k KEW AR ERED WAR eb NEUE RA aa 8 16, 28

TABLE OF AUTHORITIES - Continued

Page

Johnson v. Anheuser-Busch, Inc., 876 F.2d 620 (8th

NE | ERE OTIS Ia este etaAe SON aoe ey: 13, 14, 21

Johnson v. Beatrice Foods Co., 921 F.2d 1015 (10th

Ma REM 8 whee L LeU Mee Cais oy Cen oa ees oe 15, 16, 18

Kirby v. Allegheny Beverage Corp., 811 F.2d 253 (4th

SOME AOEY Bila 59 GAA RE Ty 6E ORR Co kde 005 bbe 19, 27

Laws v. Calmat, 852 F.2d 430 (9th Cir. ROGGE sivas okies 16

Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 108

S.Ct. 1877, 100 L.Ed.2d 410 (1988) ..... 16, 21, 25, 26

Luecke v. Schnuck Markets, 85 F.3d 356 (8th Cir. |

tk RIESE AES eae y areliaes Ga nee ae passim

McCormick v. AT&T Technologies, Inc., 934 F.2d 531

(4th Cir. 1991), cert. denied, 502 U.S. 1048, 112

5.Ct. 912, 116 L.Ed.2d 813 (1992)........... 18, 26, 27

Newberry v. Pacific Racing Ass'n, 854 F.2d 1142 (9th

RRR Pinine caked aids Syeda & chi DWanke ss 27

Perugini v. Safeway Stores, Inc., 935 F.2d 1083 (9th

EY tS Sa SD RAR ry Ay aya ee Sie 28

Reece v. Houston Lighting & Power Co., 79 F.3d 485

RN igs bagi ie kG hae yes uaa oye 27, 28

Rice v. Hodapp, 919 S.W.2d 240 (Mo. banc 1996) ..17, 22

Schacht v. Caterpillar, Inc., 213 Ill.App.3d 169, 157

Ill.Dec. 196, 571 N.E.2d 1215, cert. denied, 503

U.S. 926, 112 S.Ct. 1306, 117 L.Ed.2d 527 (1992) ..9, 26

Schlacter-Jones v. Gen. Tel. of Calif., 936 F.2d 435

a B® AR oc BESO EA at pce pap Ne sae 8, 15, 16

TABLE OF AUTHORITIES —- Continued

Page

Smith v. Colgate-Palmolive Co., 943 F.2d 764 (7th

Civ. 2092) isin ccc cele ee bneetet stupa ees. 26, 27

Strachan v. Union Oil Co., 768 F.2d 703 (5th Cir.

1965)... ks casaes bee gas RORW Reb ebads bias 8,23, 24, 25

United Steel Workers of America v. Rawson, 495 U.S.

362, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990)........ 14

United Steel Workers of America v. Warrior and Gulf

Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d

1409 (1960)... «0c skis bv iNie tad eens ates 11, 12, 18, 19

Willis v. Reynolds Metals Co., 840 F.2d 254 (4th Cir.

TOBE) sai sa ee a ee oR eS rn 00 0s 19

STATUTES:

28 U.S.C. & TRSGY 5 ore ee ke ewe Sa 1

2B U.S.C. & TORRE ire Oh ae oi in as hee So 6 ewe be 2

29 USA.. & 35S. Oh ORs vce ste tbh wc haan s+ orp ee 2

29 U.S.C. & TGR i castes ern wens c eh diwle’s 6

29 USC. G ABB ech ie ce es inven 1

PETITION FOR WRIT OF CERTIORARI

The Petitioner, Schnuck Markets, Inc., respectfully

prays that a Writ of Certiorari be issued to review the

judgment for the Eighth Circuit Court of Appeals entered

in this proceeding June 4, 1996.

OPINIONS

The ruling of the United States District Court for the

Eastern District of Missouri which granted Schnucks’

Motion for Summary Judgment is unreported. The ruling

of the Eighth Circuit Court of Appeals which reversed the

District Court’s grant of Summary Judgment is reported

at 85 F.3d 356 (8th Cir. 1996). The ruling of the Eighth

Circuit Court of Appeals which denied Schnucks’ Petition

for Rehearing and Suggestion for Rehearing En Banc is

unreported. The decisions are reprinted in Appendices

A-C, infra.

STATEMENT OF JURISDICTION

The decision of the Eighth Circuit Court of Appeals

was entered on June 4, 1996, and the Petition for Rehear-

ing was denied on July 24, 1996. This Court’s jurisdiction

to consider civil cases in the courts of appeals is invoked

pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

Section 301 of the Labor Management Relations Act

in pertinent part as set out below: 29 U.S.C., § 185. Suits

by and against labor organizations. .

Suits for violation of contracts between an

employer and a labor organization representing

employees in an industry affecting commerce as

defined in this chapter, . . . may be brought in

any district court in the United States having

jurisdiction of the parties. .

STATEMENT OF THE CASE

The Plaintiff below, Michael Luecke (“Luecke”), initi-

ated an action in the Circuit Court of the County of St.

Louis, Missouri asserting a claim for defamation against

Defendant, Schnuck Markets, Inc. (“Schnucks”). Luecke’s

action is predicated primarily upon a telephone call

between a Company representative and Luecke’s wife in

which Schnucks’ representative, in the course of her

investigation and enforcement of the Company’s drug

testing policy, stated that Luecke had been injured at

work, that he failed to take a drug test and that his

employment could be terminated if he did not take the

drug test. Schnucks removed the action to the United

States District Court for the Eastern District of Missouri

pursuant to 28 U.S.C. § 1441(b). On June 28, 1995, the

district court entered summary judgment in favor of

Schnucks’ finding that Luecke’s state-law defamation

claim is pre-empted by § 301 of the Labor Management

Relations Act (“LMRA”), 29 U.S.C. § 151, et seq., because

the defamation claim is inextricably intertwined with

consideration of the terms of the collective bargaining

agreement. On June 4, 1996, the court of appeals reversed

the decision of the district court and held that the LMRA

did not pre-empt Luecke’s defamation claim. The Eighth

Circuit remanded the case to the district court with

instructions to remand it to the state court from which it

was removed. On July 24, 1996, the court of appeals

denied Schnucks’ petition for rehearing and suggestion

for rehearing en banc.

Luecke is employed by Schnucks, is a member of the

United Food and Commercial Workers, Local No. 88,

AFL-CIO (“Local 88” or “Union”), and was covered by

the applicable collective bargaining agreement in effect

when the incidents in question took place. Article V, the

Management Rights Clause, of the agreement provides:

The Management of the business and the direc-

tion of the working forces, including the right to

plan, direct and control operations, hire, sus-

pend or discharge for proper cause, transfer or

relieve employees from duty because of lack of

work, or for other legitimate reasons, shall be

vested in the Employer, provided, however, that

it will not be used for the Purpose of discrimina-

tion against any employee, and provided it shall

in no way conflict with any of the terms of this

Agreement.

(Appendix D-4.)

Pursuant to this provision, Schnucks, after bargain-

ing with the Union and notifying employees, unilaterally

implemented a drug and alcohol policy in September of

1992, which provides that when an employee sustains an

on-the-job injury which results in a “lost time situation”

the employee will be required to submit to a blood and/

or urinalysis test as a routine part of the investigation of

the circumstances present at the time of the accident.

(Appendix E-3.) Subsequent to the incident in question,

Schnucks and Local 88 expressly incorporated the drug

and alcohol policy into the current collective bargaining

agreement. Both the 1992 and the current collective bar-

gaining agreement include a grievance and arbitration

procedure which provides:

Section 6.1. If any differences, disputes or com-

plaints arise over the interpretation or applica-

tion of the contents of this Agreement, there

Shall be an earnest effort on the part of the

Parties to settle such promptly through the fol-

lowing steps:

+ * *

Section 6.5. It is understood and agreed that all

employees within the bargaining unit covered

by this Agreement must exercise all their rights,

privileges or necessary procedures under this

Agreement, International and Local Union Con-

stitution, in the settlement of any and all com-

plaints or grievances filed by such employees,

before taking any action outside of the scope of

this Agreement for the settlement of such griev-

ances.

(Appendix D-5.)

On November 10, 1992, Luecke injured his hand at

work. He received treatment at a Schnucks’ selected med-

ical facility, which asked Luecke to disrobe in order to

give a urine sample for drug testing pursuant to

Schnucks’ drug policy. Luecke refused to take the drug

test.1 On that same date, Jenise Kramer, Schnucks’ Man-

ager of Equal Employment Opportunity and Counseling,

whose duties included the administration of Schnucks’

drug policy, called Luecke’s home and asked to speak to

him. Luecke’s wife told Kramer that Luecke was not at

home. Kramer then allegedly told Mrs. Luecke that her

husband had been injured at work, that he had failed to

take a drug test, and that his employment would be

terminated if he did not submit to a drug test.2 Kramer

and Luecke spoke on November 11, and the following

1 There is a dispute over the facts surrounding Luecke’s

failure to take the test as to whether his refusal was based on his

failure to disrobe or whether he merely refused to be tested.

2 Schnucks disputes the accuracy of these allegations and

maintains that Mrs. Luecke was told only that her husband

needed to call Jenise Kramer as soon as possible and that refusal

to take a drug test could be grounds for discharge.

aia

day Luecke took a drug test, which was negative. No

discipline followed.

In October, 1994 Luecke initiated an action in the

Missouri state court for defamation alleging that Kramer

and other Schnucks’ employees, acting within the scope

of their employment and with the apparent authority of

Schnucks, published to Luecke’s wife and otherwise

within the Company the allegedly false statement that

Luecke had “refused” to take a drug test.

In its removal, Schnucks maintained that Luecke’s

suit was in substance a grievance concerning the imple-

mentation or manner of implementation (including per-

mitted communications) of Schnucks’ drug testing policy

enacted pursuant to the Management Rights Clause of the

applicable collective bargaining agreement. Schnucks

then filed a Motion for Summary Judgment arguing that

Luecke’s cause of action for slander is pre-empted under

the LMRA, because the resolution of that state law claim

is substantially dependent upon the analysis of the terms

of the collective bargaining agreement. Schnucks speci-

fically maintained that the pre-emption issue needed to

be resolved on the basis of Schnucks’ defenses, as well as

Luecke’s claims, in determining whether resolution of the

state claim requires an interpretation of the collective

bargaining agreement.

Schnucks maintained: 1) Kramer’s communications

were permitted and privileged under corporate pro-

cedures and under the collective bargaining agreement;

2) Kramer, as a part of her duties and responsibilities,

was required to engage in the communications; 3) this

dispute is over an event which occurred at the workplace

which is governed by the grievance procedures set forth

in the collective bargaining agreement. Schnucks con-

tended that because Luecke’s claim is pre-empted by the

LMRA it is also time-barred, because Luecke did not file a

grievance within ten days of the occurrence and because

the action was not initiated within the six month statute

of limitations applicable to the National Labor Relations

Act, 29 U.S.C., § 160(b).

The district court concluded that the removal was

proper and granted summary judgment in Schnucks’

favor on the basis of pre-emption. In so holding, the

district court recognized the “well-pleaded complaint”

rule that for federal question jurisdiction, the federal

question must appear on the face of the complaint. How-

ever, the district court applied the exception to that rule

that when “an area of state law has been completely pre-

empted, any claim purportedly based on that preempted

state law is considered, from its inception, a federal

claim, and therefore arises under federal law.” Caterpillar

v. Williams, 482 U.S. 386, 392-393, 107 S.Ct. 2425,

2429-2430, 96 L.Ed.2d 318 (1987). The district court held

that complete pre-emption applies to § 301 of the LMRA

and reasoned that § 301 pre-empts state tort claims where

resolution of the claim is inextricably intertwined with

the terms of the labor contract. Allis-Chalmers Corp. v.

Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 1912, 85 L.Ed.2d

3 The irony of the instant dispute is that the Eighth Circuit

implies within its analysis that Luecke’s claim would be pre-

empted if he had been terminated for refusing to take a drug test

pursuant to the Management Rights Clause of the labor

agreement which grants to Schnucks ” .. . the right to discharge

for proper cause ... ” (Appendix D-4.) Thus, the court of

appeals has created, by its holding, an artificial mechanism

allowing Luecke to bring a state tort claim over his refusal to

take the test when he was not disciplined but where his action

would have been pre-empted had he been discharged.

206 (1985). The district court, citing Hanks v. General

Motors Corp., 859 F.2d 67, 70 (8th Cir. 1988), held that in

determining whether resolution of the state law claim

requires construction of the labor agreement, defenses as

well as claims must be considered. (Appendix B-4.) The

district court found Luecke’s defamation claim to be inex-

tricably intertwined with the terms of the bargaining

agreement and pre-empted, because Luecke alleges that

Kramer made the slanderous statements within the scope

of her employment and, “the statements in question

involve the ongoing employment relationship between

Plaintiff and Defendant and concern a work-related

injury and its subsequent investigation.” (Appendix B-5.)

The Eighth Circuit reversed and found Luecke’s defa-

mation claim not pre-empted by § 301, because the cen-

tral factual inquiry needed in order to resolve the state

claim did not require an interpretation of the bargaining

agreement. The court further held that Schnucks’ defense

of privilege would also not require reference to the labor

agreement, because the Management Rights Clause did

not address the procedures to be followed in conducting

investigations, and the drug testing policy which granted

to Schnucks the right to investigate, and disseminate

necessary information incident to the investigation to

other parties, was not expressly incorporated into the

applicable collective bargaining agreement. In this

regard, the court of appeals stated:

We need not, and do not, decide whether a

defamation claim of the type brought here

would be pre-empted under these express

terms; it is enough that the earlier controlling

agreement was entirely devoid of such terms. To

be sure, two months before the present incident,

management had unilaterally promulgated a

written drug testing policy which included the

same confidentiality provision. But absent its

ita i

incorporation within the collective bargaining

agreement — or absent incorporation of a com-

patible management rights clause, e.g., covering

the performance of medical examinations, or

some long standing practice or custom from

which to infer incorporation — we do not believe

that Schnucks’ unilateral adoption of the policy

rendered its language, in these circumstances, a

literal part of the agreement for purposes of the

test set out in Lingle.

Luecke, 85 F.3d at 361-362. (Appendix A-13.)

In so deciding, the court of appeals recognized that

this holding was not in accord with the opinions of the

Ninth Circuit in Schlacter-Jones v. Gen. Tel. of Calif., 936

F.2d 435, 441 (9th Cir. 1991), the First Circuit in Jackson v.

Liquid Carbonic Corp., 863 F.2d 111, 118, 121 (1st Cir. 1988),

cert. denied, 490 U.S. 1107, 109 S.Ct. 3158, 104 L.Ed.2d 1021

(1989), and the Fifth Circuit in Bagby v. General Motors

Corp., 976 F.2d 919 (5th Cir. 1992) and Strachan v. Union

Oil Co., 768 F.2d 703 (5th Cir. 1985). Luecke, 85 F.3d at 360,

n.6, 362, 362, n.9. (Appendix A- 7, A13-15.)

The court of appeals denied Schnucks’ petition for

rehearing.

REASONS FOR GRANTING WRIT

This case involves two circuit-splitting issues. The

Eighth Circuit’s opinion limits and narrows the doctrine

of federal labor law pre-emption as applying only when

the central factual inquiry to resolve a state claim

depends upon an interpretation of explicit and literal

terms of a collective bargaining agreement. The court of

appeals found a state-law claim of defamation not to be

pre-empted, because the express terms of the applicable

collective bargaining agreement did not specifically

delineate procedures concerning the investigation,

enforcement and confidentiality of drug testing by the

employer, even though the unilaterally implemented

drug testing policy enacted pursuant to the Management

Rights Clause of the collective bargaining agreement did

expressly delineate such procedures. This interpretation

is contrary to prior holdings of this Court as to the

implied rights contained within a collective bargaining

agreement and to decisions on this issue in four (4) other

circuit courts of appeal.

The holding of the Eighth Circuit effectively pre-

cludes consideration of an employer’s defenses from the

determination of whether a collective bargaining agree-

ment must be interpreted to resolve a state law claim.

There is also a split of opinion in the circuits as to the

applicability of LMRA pre-emption where defenses to

state law claims are based upon rights exercised by an

employer pursuant to a collective bargaining agreement.

This court was petitioned to resolve this dispute in 1992,

but denied that petition for certiorari with a dissent by

two Justices. Schacht v. Caterpillar, Inc., 213 Ill.App.3d 169,

157 Ill.Dec. 196, 571 N.E.2d 1215, cert. denied, 503 U.S. 926,

112 S.Ct. 1306, 117 L.Ed.2d 527 (1992). The increasing

confusion over both of these pre-emption issues warrants

a resolution of these matters by the Supreme Court.

The Eighth Circuit’s decision subjects a multitude of

employee grievances over disciplinary investigations of

work rule violations to lawsuits asserting state-court

claims. As a practical matter, the decision holds that the

following questions are not substantially dependent upon

an interpretation of the collective bargaining agreement:

1) Isa unilaterally implemented drug and alco-

hol policy within the parameters of manage-

ment rights granted in collective bargaining

agreement?

2) Do the terms of the Management Rights

clause granting to Schnucks the right to con-

trol operations, direct the working forces

a i aL

and suspend or discharge for cause include

the right to investigate violations of man-

agement’s work rules?

3) Does the right to discipline, which is

granted under a collective bargaining agree-

ment, include the right to investigate poten-

tial work policy infractions and

communicate matters related to the investi-

gation intra-corporately?

The decision thereby undermines the national labor pol-

icy that the grievance procedure is a fair, efficient and

peaceable means for resolving labor disputes.

I. INCONSISTENT CIRCUIT COURT DECISIONS AS

TO WHETHER A COLLECTIVE BARGAINING

AGREEMENT INCLUDES, FOR PURPOSES OF

PRE-EMPTION, UNILATERALLY IMPLEMENTED

DRUG TESTING PROCEDURES WARRANT A

RESOLUTION BY THE SUPREME COURT.

A. The Eighth Circuit’s holding is erroneous,

because it limits the question of whether a state

law claim is inextricably intertwined with an

interpretation of a collective bargaining agree-

ment to procedures expressly recited in the

agreement. The decision overlooks the implied

rights and duties contained within the labor

contract.

The decision by the Eighth Circuit represents a sig-

nificant departure from earlier decisions in the Eighth

and four (4) other Circuit Courts of Appeal on the doc-

trine of pre-emption and further narrows the application

of the pre-emption doctrine in a manner inconsistent with

Supreme Court decisions and directives on this issue.

Schnucks’ attempt to have Luecke take a drug test

was done in pursuance of a comprehensive drug and

alcohol policy which Schnucks unilaterally implemented

on September 22, 1992 after informing and bargaining

with Local 88. The policy was implemented under the

Management Rights Clause of the collective bargaining

agreement granting to Schnucks the right to control oper-

ations and direct its working forces. The agreement in

effect at the time of Luecke’s job injury and testing did

not contain express directives on drug testing or on the

investigation of alleged violations of the rules contained

within the drug policy.

The Eighth Circuit relied upon the absence of literal

or explicit delineations of procedures in the labor agree-

ment in holding that Luecke’s defamation claim did not

require interpretation of the agreement:

Article V, however, said nothing about the pro-

cedures to be followed in conducting investiga-

tions and enforcing policies of the employer.

The collective bargaining agreement in effect at

the time this action arose made no mention

whatever of the drug testing policy or of pro-

cedures for enforcement, nor did it impose any

requirement of confidentiality.

Luecke, 85 F.3d at 361. (Appendix A-12.)

In so holdin~. the Eighth Circuit overlooked the sem-

inal teachings of United Steel Workers of America v. Warrior

and Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d

1409 (1960) that a collective bargaining agreement is

much more than the specific words of the contract, “[I]t is

a generalized code to govern a myriad of cases which the

draftsmen cannot fully anticipate.” This Court further

stated:4

It is not unqualifiedly true that a collective bar-

gaining agreement is simply a document by

which the Union and employees have imposed

* Quoting with approval from Cox, Reflections Upon Labor

Arbitration, 72 Harv. L. Rev. 1482, 1498-99 (1959).

LS ee

upon management limited, express restrictions

of its otherwise absolute right to manage the

enterprise, so that an employee’s claim must fail

unless he can point to a specific contract provi-

sion upon which the claim is founded. There are

too many people, too many problems, too many

enforceable contingencies to make the words of

the contract the exclusive source of rights and

duties. One can not reduce all the rules govern-

ing a community like an industrial plant to fif-

teen or even fifty pages. Within the sphere of

collective bargaining, the institutional charac-

teristics and the governmental nature of the col-

lective bargaining process demand a common

law of the shop which implements and furnishes

the context of the agreement.

Id. 363 U.S. at 578-580, 80 S.Ct. at 1351.

In Allis-Chalmers Corp. v. Lueck, 471 U.S. 216, 105 S.Ct.

1904, 85 L.Ed.2d 206 (1985), this Court, in the context of a

pre-emption issue, definitively rejected the concept that a

labor contract is limited to express recitations in the

written agreement:

The [state] court evidently assumed that the

only obligations the parties assumed by contract

are those expressly recited in the agreement, in

this case the right to receive benefit payments

for non-occupational injuries. . . .

The assumption that the labor contract creates

no implied rights is not one that state law may

make. Rather, it is a question of federal contract

interpretation whether there was an obligation

under this labor contract to provide the pay-

ments in a timely manner, and if so, whether

Allis-Chalmers’ conduct breached that implied

contract provision.

Id. 471 U.S. at 214-215, 105 S.Ct. at 1913.

B. The Eighth Circuit’s decision is in direct conflict

with its own earlier decision and with the deci-

sions of four (4) other circuits as to pre-emption

based on the interpretation of implied, but not

specifically delineated, management rights con-

tained within a collective bargaining agreement.

In a case nearly identical to the instant matter, the

Eighth Circuit held that an employee’s libel claim was

pre-empted, because the allegedly defamatory statements

related to the plaintiff’s involvement in a tire slashing

incident which occurred at the workplace, and, as such,

the dispute would be governed by the grievance pro-

cedure of the collective bargaining agreement. The court

of appeals accordingly held that the slander claim could

not be resolved without interpreting or analyzing the

terms of the collective bargaining agreement. Johnson v.

Anheuser-Busch, Inc., 876 F.2d 620 (8th Cir. 1989).

The panel of the Eighth Circuit deciding the instant

case attempted to distinguish Johnson simply by conclud-

ing that the bargaining agreement in this matter said

nothing about the drug policy or about its enforcement.

Luecke, 85 F.3d at 362. (Appendix A-14-15.) The allegedly

slanderous comments in Johnson, as in the instant matter,

provided the basis for the investigation of a violation of a

plant rule, but the plant rule considered in Johnson was

also not contained in that labor agreement.5

° As to the allegedly slanderous comments in issue, the

Johnson court stated: “The statements in question refer to the

ongoing employment relationship between Mr. Johnson and

Anheuser-Busch. As such, they relate to a dispute over an event

occurring at the workplace and would be governed by the

grievance procedure set forth in Article IX of the collective

bargaining agreement. This count cannot be resolved without

interpreting or analyzing the terms of the collective bargaining

agreement. Thus, Section 301 pre-emption applies.” Johnson, 876

F.2d at 624.

An investigation of alleged violations of a work rule

prohibiting malicious mischief is no different than an

investigation of work rules prohibiting drug usage and

requiring drug testing. The only provisions of the collec-

tive bargaining agreement in Johnson which required

interpretation, and which the Eighth Circuit in that ear-

lier case found to be inextricably intertwined with the

state claim for slander, were those provisions stating that

wrongful discharge allegations and any matter involving

the meaning, interpretation, or application of the agree-

ment should be submitted to the grievance procedure.

Similarly, the collective bargaining agreement in effect

when Luecke was investigated and allegedly defamed

also provided that any differences, disputes or com-

plaints arising over the interpretation or application of

the collective bargaining agreement are to be resolved

through the grievance procedure.®

or disciplined, arguing there was thus nothing to grieve. This is

an inaccurate conclusion. The provision of the collective

bargaining agreement mandating the bringing of grievances, by

its terms, includes all differences or disputes or complaints over

the interpretation of that contract. Article 6.1 and 6.5.

(Appendix D-5.) Moreover, claims pre-empted by the LMRA

because they are dependent on the collective bargaining

agreement do not need to be specific to matters of discharge or i

discipline. In United Steel Workers of America v. Rawson, 495 U.S.

362, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990), this Court found that

a state wrongful death negligence action was pre-empted even

though the state law duty arose from the union having

undertaken to perform safety inspections under the collective

bargaining agreement. Rawson obviously did not involve any

potential grievance relating to discharge or discipline, since the

employees in question were deceased. Also, Allis-Chalmers was

not an action relating to discharge or discipline but a state-law

tort action for bad-faith delay in making disability-benefit

payments, which this Court found to be pre-empted by § 301.

Also, the Eighth Circuit's holding in this matter is

contrary to decisions in at least four (4) other circuits,

none of which involved interpretation of an express or

explicit provision of a collective bargaining agreement

specific to the minute detail required by the court below.

In Schlacter-Jones v. Gen. Tel. of Calif., 936 F.2d 435 (9th

Cir. 1991), GTE terminated an employee who tested posi-

tive for drugs, as allowed by GTE’s unilaterally imple-

mented drug policy. The employee filed a state action for

wrongful termination, breach of covenant of good faith

and fair dealing, and violation of state constitutional

rights of privacy and due process. The case was removed

to federal court. In determining that all claims were pre-

empted by the LMRA, the court held that rights derived

from a collective bargaining agreement such as those to

which Schlacter-Jones’ complaint related may be direct or

implied. The court further found that because GTE’s drug

policy was a part of the terms and conditions of employ-

ment applicable to the plaintiff, it was “immaterial for

purposes of summary judgment that no provision of the

CBA explicitly deals with drug testing or gives GTE the

right to adopt drug and alcohol policies.” Schlacter-Jones,

936 F.2d at 439, n.2. The Ninth Circuit agreed that the

district court properly concluded that the unilaterally

implemented drug policy was part of the collective bar-

gaining agreement or at least contemplated by the agree-

ment. The court reasoned that the plaintiff’s claims

implicated terms and conditions of her employment and

The Tenth Circuit in Johnson v. Beatrice Foods Co., 921 F.2d 1015

(10th Cir. 1990) also held that pre-emption shall not be limited to

suspensions or disciplinary actions, where the labor agreement

also allows “disputes” to be grieved.

thus were substantially dependent on the labor agree-

ment for resolution.”

In the instant matter the Eighth Circuit noted that

Schnucks’ drug and alcohol policy, which specifically

allows the release of information to the extent required

by the company for use in investigations (Appendix E-5),

was expressly later incorporated into its current labor

agreement, but stated that it did not and need not decide

whether Luecke’s defamation claim would be pre-empted

under these express terms. The court found, “it is enough

that the earlier controlling agreement was entirely devoid

of such terms.” Luecke, 85 F.3d at 361. (Appendix A-13.)

The court stated that it did not believe that Schnucks’

unilateral adoption rendered its language a literal part of

the agreement for purposes of the test set out in Lingle v.

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

L.Ed.2d 410 (1988). The court thus took the opposite view

of the Ninth Circuit in Schlacter-Jones that a unilaterally

implemented drug policy is a term and condition of

? The confusion is this area is demonstrated by the Ninth

Circuit’s inconsistent position analogous to the inconsistency of

the Eighth Circuit in the instant matter as compared to its earlier

decision in Johnson. In Jimeno v. Mobil Oil Corp., 66 F.3d 1514 (9th

Cir. 1995) the court refused to imply into the collective

bargaining agreement a unilaterally adopted termination policy

based on past practice and thus found a state law disability

discrimination claim not to be pre-empted. However, in Laws v.

Calmat, 852 F.2d 430, 433 (9th Cir. 1988) the Ninth Circuit held:

“A drug and alcohol testing program, upon which ail

employees’ continued employment depends, is a working

condition whether or not it is specifically discussed in the

CBA.” The Laws court also held that although the manner of

detecting employee intoxication was not in the collective

bargaining agreement, the matter of testing was a subject for the

collective bargaining process and not the courts and was thus

pre-empted by § 301. Id.

ii aa

employment contemplated by the collective bargaining

agreement and which therefore must be interpreted to

resolve state claims premised upon actions taken under

that policy.

Similarly, in Jackson v. Liquid Carbonic Corp., 863 F.2d.

111 (1st Cir. 1988), cert. denied, 490 U.S. 1107, 109 S.Ct.

3158, 104 L.Ed.2d 1021 (1989), the First Circuit considered

whether an employee’s state claim of invasion of privacy,

which arose from the employer’s unilateral inauguration

of a drug testing policy, was pre-empted by the LMRA.

The First Circuit noted that invasion of privacy had two

components under Massachusetts law: obtaining informa-

tion and disclosing it, and further that under Massa-

chusetts law the disclosure of private facts about an

employee to other employees in the same corporation can

constitute sufficient publication under the state right of

privacy statute.® Finally, the First Circuit considered that

the company’s drug testing plan contemplated sharing

the results of the test with managerial personnel in order

to determine whether to terminate the employment of a

worker who fails the test, but that this also implicated the

statutorily protected area of privacy. The First Circuit

reasoned that the balancing of the interest between the

worker’s privacy rights and the legitimate concerns of

management were enmeshed in the collective bargaining

pact. The First Circuit premised its holding on the deter-

mination that the drug and alcohol testing program,

upon which all employees’ continued employment

® Under Missouri law, communications between company

Supervisors are not considered to be publications to third

persons for purposes of defamation. However, defamatory

statements made to non-supervisory employees by corporate

officers or supervisors can constitute a publication for purposes

of a defamation action. Rice v. Hodapp, 919 S.W.2d 240, 243 (Mo.

banc 1996).

depends, is a working condition whether or not it is

specifically discussed in the collective bargaining

agreement. Secondly, the First Circuit held that in order

to resolve the plaintiff’s state law claims it would be

necessary to study the meaning and scope of the manage-

ment rights clause. The court stated that it could not

ignore the management rights clause of a collective bar-

gaining agreement merely because of its familiarity or

breadth. Jackson, 863 F.2d at 120. Again, in Jackson, there

was no express provision within the written collective

bargaining agreement governing the method of investiga-

tions of violations of this unilaterally implemented drug

policy.

Also, in Johnson v. Beatrice Foods Co., 921 F.2d 1015

(10th Cir. 1990) a union employee brought a state court

action claiming intentional infliction of emotional distress

due to name-calling, ridicule, and other incidents of

alleged harassment on the part of his supervisor. The

Tenth Circuit held the claim pre-empted by the LMRA

and found that each of the plaintiff’s allegations directly

related either to explicit or to implied rights derived

from the collective bargaining agreement, because each

of Johnson’s allegations related to the manner in which

discipline was carried out. The court then held that it

could not be determined whether the company’s conduct

was outrageous without determining whether the con-

duct was allowed under either explicit or implied terms

of the collective bargaining agreement. Id. at 1020.

Similarly, the Fourth Circuit in McCormick v. AT&T

Technologies, Inc., 934 F.2d 531 (4th Cir. 1991) found an

employee’s state claims of infliction of emotional distress,

conversion, and negligence in care of bailment, which

were premised upon the company’s actions in disposing

of the contents of the employee’s locker, were pre-empted

under the LMRA. Citing United Steel Workers of America v.

Warrior and Gulf Nav. Co., the Fourth Circuit held that in

order for the claims to be pre-empted it was not necessary

to have explicitly delineated terms of the duties and the

rights of management in the collective bargaining agree-

ment:

The specifics as to management conduct regard-

ing the lockers and tools need not be spelled out

in all their detail and refinement for the collec-

tive bargaining agreement to be applicable.

Rather the collective bargaining agreement con-

sists, in addition to its express provisions, of an

‘industrial common law - the practices of the

industry and the shop - [which] is equally a part

of the collective bargaining agreement although

not expressed in it.’

McCormick, 934 F.2d at 536. The court found that the state

claims were pre-empted, because in determining liability

for those claims the court would need to inquire into

whether the employer was legally entitled to act as it did.

See also Willis v. Reynolds Metals Co., 840 F.2d 254 (4th Cir.

1988) (slander, invasion of privacy, and intentional inflic-

tion of emotional distress claims pre-empted on the basis

that the alleged wrongs directly dealt with management’s

labor agreement rights to conduct investigations into pos-

sible harassment of one employee and the associated

right to confront the suspected employee); Kirby v. Alle-

gheny Beverage Corp., 811 F.2d 253 (4th Cir. 1987) (invasion

of privacy claim based on search by employer for illegal

drugs pre-empted on basis that determination of the

claim would require a decision as to whether the

employer could require such a search under the labor

contract).

Accordingly, the underlying premise which forms the

foundation of the Eighth Circuit’s decision, i.e., that in

order to be pre-empted a claim must depend upon the

interpretation of an explicit, detailed and literal term of a

collective bargaining agreement is incorrect and contrary

to well-established tenets of federal labor law that a

collective bargaining agreement contains implied rights

and duties. To the contrary, the resolution of Luecke’s

defamation claim is directly dependent upon an inter-

pretation of the implied rights and duties contained

within the collective bargaining agreement between

Schnucks and Local 88.

No Supreme Court decision has yet determined

whether a drug policy (or other work rule) unilaterally

implemented in the exercise of management rights is

contained within a collective bargaining agreement for

purposes of pre-emption inquiries. The confusion and

inconsistent determinations among the circuit courts of

appeal warrant a definitive ruling by this Court to resolve

this issue of widespread application in labor-management

relations.

Il. THE SUPREME COURT SHOULD RESOLVE THE

SPLIT IN THE CIRCUITS AS TO WHETHER A

STATE LAW CLAIM IS PRE-EMPTED BY A

DEFENSE BASED ON A COLLECTIVE BARGAIN-

ING AGREEMENT.

A. The resolution of Luecke’s state defamation

claim, including Schnucks’ defense, is substan-

tially dependent upon and inextricably intert-

wined with an interpretation of the collective

bargaining agreement to ascertain whether, as a

matter of law, the allegedly defamatory state-

ments were privileged.

In Allis-Chalmers, this Court stated the test for deter-

mining pre-emption:

We do hold that 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

OM A Me ME nT NRE TOE yen |

be treated as a § 301 claim . . . or dismissed as

pre-empted by federal labor-contract law.

Allis-Chalmers, 471 U.S. at 222, 105 S. Ct. at 1916.

(Emphasis added.)

Again, in Lingle, this Court emphasized that state law

remedies are independent of the collective bargaining

agreement where purely factual questions pertain to the

conduct of the employee and the conduct and motivation

of the employer, and likewise where the defense against

the claim involves a purely factual inquiry. Lingle, 486

U.S. at 407, 108 S. Ct. at 1882.

In Johnson v. Anheuser-Busch, Inc., 876 F.2d at 623 and

in Hanks v. General Motors Corp., 859 F.2d 67, 70 (8th Cir.

1988) the Eighth Circuit also held that the pre-emption

issue cannot be resolved solely on allegations found in a

plaintiff’s complaint. “Rather, defenses, as well as

claims, must be considered in determining whether res-

olution of the state law claim requires construing the

collective bargaining agreement.” Id.

As the Eighth Circuit recognized in its opinion,

Schnucks has consistently maintained that it will assert a

defense of qualified privilege to Luecke’s state claim for

defamation. The court correctly held:

To make out such a defense, Schnucks would

have to show that an otherwise defamatory

statement was made in good faith by a speaker

who had an interest in or duty with respect to

the subject matter, to a person having a corre-

sponding interest or duty. Carter v. Willert Home

Products, Inc., 714 S.W.2d 506, 513 (Mo. Banc

1986).

Luecke, 85 F.3d at 361. (Appendix A-12.) The court of

appeals incorrectly concluded, however, that “while the

provisions of the collective bargaining agreement will

perhaps be ‘consulted,’ they need not be interpreted in

order to resolve any qualified privilege defense that

22 :

Schnuck may raise in the state defamation proceeding.”

Id. In so holding, the Eighth Circuit misconstrued the

inquiry which the trial court must make in order to

determine the applicability of the defense of qualified

privilege.

In Carter, an en banc Supreme Court of Missouri held

that “the applicability of the defense of qualified privi-

lege is a matter of law to be decided by the trial court.”

Id. at 513. In discussing this defense, the Missouri court

noted that a communication by an employer involving

the character of an employee is qualifiedly privileged if it

is made in good faith by a person who has a duty, to a

person having a corresponding interest or duty. As long

as good faith is present, the person making the statement

is not limited to facts that are within his personal knowl-

edge but may and should pass on all relevant information

that has come to him or her, regardless of whether he or

she believes that to be true or not. Id. See also, Rice, 919

S.W.2d at 244.

It would be impossible for the state trial court to

determine, as a matter of law, whether Schnucks’ actions

were privileged without interpreting the collective bar-

gaining agreement. In order to make this determination,

the trial court will have to answer the following ques-

tions:

1. Does the collective bargaining agreement

grant to Schnucks the right to investigate

potential infractions of work rules or man-

agement policy?

2. If so, as a part of its right to investigate,

does Schnucks have the corresponding right

or duty to release or share information on

Plaintiff’s failure to submit to a drug test

with members of management or with per-

sons standing in the stead of the plaintiff?

ines icaiiiaiiiiiaiiidaiiiiiil

3. Would Kramer have violated the Manage-

ment Rights Clause of the bargaining agree-

ment if she informed Mrs. Luecke of

Luecke’s need to take a drug test and if she

communicated to other management person-

nel that he failed to take the test when he

went for treatment as alleged by the Plain-

tiff?

4. Is the drug and alcohol policy unilaterally

implemented by Schnucks a term and condi-

tion of employment pursuant to the collec-

tive bargaining agreement?

5. If so, are the powers granted to Schnucks by

the drug and alcohol policy, including the

right to communicate information in the

course of investigations of violations of the

policy, reasonable and within the powers

granted under the Management Rights

Clause of the labor agreement?

The Eighth Circuit states that “this is not a case

where the state-law defamation complaint attacks the

propriety of Schnucks’ drug policy or Schnucks’ right to

require a drug test.” Luecke, 85 F.3d at 360. (Appendix

A-9.) However, even if in theory the drug policy or the

right to require a drug test is not being contested as a

whole, the defamation claim does contest the right to

enforce the drug testing policy, the methods used to

investigate possible infractions of that drug policy and

the manner of administering the policy.

A similar assertion was made in two Fifth Circuit

cases, Strachan v. Union Oil Co., 768 F.2d 703 (5th Cir.

1985) and Bagby v. General Motors Corp., 976 F.2d 919 (5th

Cir. 1992). In both of those cases, the plaintiffs alleged

that the suspension and investigation procedure of the

defendant employers had defamed them by virtue of

other employees learning of the investigations. In both

cases, the Fifth Circuit found that to hold a company

guilty of defamation for making such inquiries, even

though the subject of the inquiries became known in

the plant, would mean that a company would never be

able to undertake to investigate a possible disciplinary

situation in routine and proper ways. In both instances,

the Fifth Circuit upheld the district courts’ granting of

summary judgments in favor of the employers on the

ground that these state law claims were pre-empted by

the LMRA, because the resolution of plaintiffs’ claims

would quite obviously require an interpretation of the

collective bargaining agreements.? In so holding in

Strachan, the Fifth Circuit reasoned:

In simple terms each of these employees

was suspected of violating the collective agree-

ment in a way which would subject them to

discipline by the company. . . . Both were sus-

pended during the investigation. The investiga-

tions were negative, and they were exonerated

and returned to full duty. This routine pro-

cedure occurs thousands of times every year

under collective bargaining agreements

throughout the United States. No matter in

what glamorous garb it is dressed, the basic

thrust of the appellants’ claim is that a suspen-

sion and investigation for possible disciplinary

action itself constitutes a tort under state law.

* * *

[The] various tort claims by the appellants

demonstrate clearly an attempt to create major

state court claims out of matters which are all

part of a company claim of right under a collec-

tive bargaining agreement, and the employee’s

9 As in the instant matter, in both Strachan and Bagby, the

employees whose deeds had been investigated were exonerated

and incurred no disciplinary action.

ieee

right to challenge such claims through grievance

procedure ending in binding arbitration. To

hold otherwise in this case would subject

thousands of grievance procedures involving

disciplinary investigations and disciplinary

actions including such matters as careless

destruction of production, chronic tardiness,

drinking on duty, insubordination, to lawsuits

asserting state court claims. The conclusion that

such claims are preempted by the [LMRA]

reveals the wisdom and necessity of the estab-

lished legal principle. Otherwise, the critically

important aspect of collective bargaining which

is involved in the establishment of the grievance

procedure to protest breaches of labor contracts

would be destroyed.

Strachan, 768 F.2d at 704, 705 (Emphasis added).

While the Eighth Circuit theoretically took note of the

appropriate tests set forth by the Supreme Court in Allis-

Chalmers and Lingle, the court failed to apply these tests

and failed to analyze the legal inquiries which must be

addressed for a trial court to determine whether the

defense of privilege will apply and whether Kramer had

a right and duty to investigate the violation of the drug

testing policy and to share information related to her

investigation. Also, it must be determined whether

Kramer was acting within the scope of her duties to

protect Luecke’s due process rights pursuant to the bar-

gaining agreement by advising Luecke or one in his stead

of his need to take a drug test. These legal inquiries go to

the heart of the collective agreement and require not

merely ‘consultation’ of the labor contract but a meaning-

ful and far reaching interpretation of the rights granted to

management under that agreement. As this Court held in

Lingle:

. . . [I]nterpretation of collective bargaining

agreements remains firmly in the arbitral realm;

judges can determine questions of state law

involving labor-management relations only if

such questions do not require construing collec-

tive bargaining agreements.

Lingle, 486 U.S. at 411, 108 S.Ct. at 1884.

B. The Circuit Courts of Appeal have been incon-

sistent in determining whether defenses, as well

as claims, must be considered to decide whether

resolution of a state-law claim requires inter-

pretation of a collective bargaining agreement.

In 1992, this Court denied petitions for writs of cer-

tiorari in two cases decided by the Appellate Court of

Illinois where the Illinois court, on the merits, held that

state-law claims were pre-empted by a defense which

invoked the provisions of a collective bargaining agree-

ment. Justice White, joined by Justice Blackmun, dissen-

ted from the denial of the petitions for certiorari on the

basis that the Supreme Court should resolve a conflict in

the circuits as to whether a court must look to defenses to

determine whether a claim requires interpretation of a

labor agreement. Schacht v. Caterpillar, Inc., 503 U.S. 926,

112 S.Ct. 1306, 117 L.Ed.2d 527 (1992). The dissent cited

inconsistent holdings in Smith v. Colgate-Palmolive Co., 943

F.2d 764, 769-771 (7th Cir. 1991); Hanks v. General Motors

Co., 859 F.2d 67, 70 (8th Cir. 1988); McCormick v. AT&T |

Technologies, Inc., 934 F.2d 531, 545 (4th Cir. 1991) (en |

banc) (Phillips, J., dissenting); Berda v. CBS, Inc., 881 F.2d |

20, 25 (3rd Cir. 1989). |

In Smith v. Colgate, the Seventh Circuit held that it |

could look beyond the plaintiffs’ complaint to defenses to |

resolve whether plaintiffs’ claims for fraud were depen-

dent upon an interpretation of the labor agreement,

because the case was initiated in federal court based on

diversity jurisdiction and did not involve the issue of

§ 301 pre-emption for purposes of deciding removal from

iain i

a state court. However, the Smith court indicated that if

the matter had been initiated in state court, then defenses

could not have been considered. Smith, 943 F.2d at 770.

In McCormick, the Fourth Circuit found state claims

premised upon the employer’s acts in disposing of the

contents of plaintiff's work locker pre-empted by consid-

ering the employer’s defense that it had the right under

the labor agreement to take the actions upon which the

tort claims were premised. The McCormick court relied on

its earlier decision in Kirby v. Allegheny Beverage Corp.,

which held that an employee’s state law invasion of

privacy claim based on a search of his person and prop-

erty was pre-empted, because recourse to the collective

bargaining agreement was necessary to determine

whether the employer was authorized to conduct the

searches. The McCormick court also relied upon Seventh

and Ninth Circuit decisions which found to be pre-emp-

ted state-law claims of intentional infliction of emotional

distress by plaintiff-employees, on the basis that the court

in making its decision would be required to determine

whether the employer’s conduct was authorized by the

explicit or implicit terms of a labor agreement. See, Doug-

las v. American Information Technologies Corp., 877 F.2d 565,

573 (7th Cir, 1989); Newberry v. Pacific Racing Ass'n, 854

F.2d 1142, 1149-50 (9th Cir. 1988). McCormick, 934 F.2d at

537-538. These decisions, while not explicitly stating that

defenses are available in determining whether the court

will be required to interpret a collective bargaining agree-

ment, nevertheless, effectively hold that resolution of a

claim encompasses an employer’s defense that its con-

duct was permissible under the collective agreement.

More recently, the Fifth Circuit in Reece v. Houston

Lighting & Power Co., 79 F.3d 485 (5th Cir. 1996) held an

employee's state-law civil rights claims of racial bias pre-

empted, because an interpretation of the agreement was

made necessary by the employer’s defense that its actions

were legitimate and non-discriminatory and because its

decisions on Reece’s promotion and training were based

upon rights contained within the collective bargaining

agreement. Id. at 487. Again in Jimeno v. Mobil Oil Corp.,

66 F.3d at 1524 the Ninth Circuit stated that Mobil’s

potential defenses were also relevant to the pre-emption

analysis. However, the court then determined that Jim-

eno’s disability discrimination claim under California’s

Fair Employment and Housing Act was not pre-empted

by Mobil’s affirmative defense of its inability to accom-

modate Jimeno due to health and safety risks, because the

collective bargaining agreement did not contain specific

provisions governing accommodations.

Other courts, while not discussing consideration of

defenses per se, have, nevertheless, considered potential

employer defenses in determining whether a claim is pre-

empted, where it is necessary to refer to the collective

bargaining agreement to determine if a duty of care is

established by the labor contract or to define the nature

and scope of management’s duties and rights. See, Jackson

v. Kimel, 992 F.2d 1318, 1326 (4th Cir. 1993) (no pre-

emption of state claim of intentional infliction of emo-

tional distress based on allegations of coerced sexual

intercourse, because this act could never be authorized

under the collective bargaining agreement). Moreover,

the courts taking this approach have emphasized that

state-law claims are pre-empted to the extent that the

employer’s actions are based upon the exercise of collec-

tive bargaining rights, but not where the claims are based

on behavior or conduct which is beyond the exercise of

those rights and which conduct could never be justified

or even contemplated by a collective bargaining agree-

ment. See, e.g., Baker v. Farmers Elec. Co-op., Inc., 34 F.3d

274 (Sth Cir. 1994); Perugini v. Safeway Stores, Inc., 935 F.2d

1083 (9th Cir. 1991); Fox v. Parker Hannifin Corp., 914 F.2d

795 (6th Cir. 1990).

This approach makes sense and is in accord with the

overall policy of the pre-emption doctrine. In order to

maintain a uniform body of federal law for the enforce-

ment of collective bargaining agreements and further to

promote the grievance and arbitration process as the

most efficient and peaceable means of solving labor dis-

putes, no logical purpose would be served by drawing a

bright line between the allegations of a plaintiff’s com-

plaint and potential defenses. The overall purposes of

pre-emption are to prevent state courts from inconsis-

tently interpreting federal labor law and to preserve the

integrity of the arbitral process. Allowing state courts to

interpret collective bargaining agreements when con-

fronted with defenses premised upon labor contracts is

just as likely to lead to inconsistent determinations as

would state court interpretations based on claims derived

from a labor contract.

CONCLUSION

The Supreme Court’s writ to the Eighth Circuit is

necessary to resolve these circuit-splitting issues. First,

direction from the Supreme Court is necessary to decide

whether a unilaterally implemented drug testing policy is

considered to be a part of a labor agreement for purposes

of the inquiry on § 301 pre-emption. Second, the Supreme

Court’s direction and instruction are required to resolve

inconsistent holdings among the circuits as to whether

defenses, as well as claims, are to be considered in deter-

mining whether resolution of a state-law action is sub-

stantially dependent upon the analysis of the terms of a

labor agreement. The diverse reasoning among the cir-

cuits has contributed to an abrogation of the very policy

which the doctrine of pre-emption was designed to pro-

mote, i.e., consistent and uniform treatment of claims

involving federal labor issues. The inconsistent

approaches and situational analyses of the circuit courts

of appeal and the many federal district courts in deter-

mining pre-emption demonstrate the widespread confu-

sion in this area. This case presents the ideal venue for

the Supreme Court to clarify these murky waters, in that

both issues are presented under the facts of this matter.

Accordingly, Petitioner urges this Court to grant the writ

of certiorari in light of the substantial impact of this case

upon federal labor law.

Respectfully submitted,

Dennis G. Co uins* Brian N. Brink

Mary BetH OrrsALs Assistant Counsel

GREENSFELDER, HEMKER & SCHNUCK Markets, INc.

Ga_eg, P.C. 11420 Lackland Road

10 South Broadway P.O. Box 46928

Suite 2000 St. Louis, Missouri 63146-6928

St. Louis, Missouri 63102 (314) 994-4206

(314) 241-9090 Attorneys for Petitioner

Schnuck Markets, Inc.

*Counsel of Record

A-1

APPENDIX A

Michael LUECKE, Plaintiff-Appellant,

SCHNUCK MARKETS, INC., Defendant-Appellee.

No. 95-3080

United States Court of Appeals

Eighth Circuit

June 4, 1996

Employee brought defamation action, in state court,

against his employer for allegedly telling others that

employee refused to take drug test after workplace acci-

dent. Following removal, the United States District Court

for the Eastern District of Missouri, Carol Jackson, J.,

granted defendant’s motion for summary judgment on

grounds that Labor Management Relations Act (LMRA)

preempted claim. Plaintiff appealed. The Court of

Appeals, Levin H. Campbell, Senior Circuit Judge, sitting

by designation, held that LMRA did not preempt claim.

Reversed and remanded.

John McEachern, argued, St. Louis, Missouri, for

appellant.

Brian Brink, argued, St. Louis, Missouri, for appellee.

Before WOLLMAN, CAMPBELL,* and MURPHY,

Circuit Judges.

LEVIN H. CAMPBELL, Senior Circuit Judge.

* The HONORABLE LEVIN H. CAMPBELL, United States

Circuit Judge for the First Circuit, sitting by designation.

A-2

Plaintiff-appellant Michael Luecke appeals from a

district court order granting summary judgment to defen-

dant-appellee Schnuck Markets, Inc. (“Schnuck”) on the

ground that plaintiff’s state law defamation action is

preempted by section 301 of the Labor Management Rela-

tions Act (LMRA). Based on our reading of the Supreme

Court's rule in Lingle v. Norge Div., Magic Chef, 486 U.S.

399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), and related

cases, we reverse.

Luecke, a Schnuck employee and member of Local 88

of the United Food and Commercial Workers, injured his

hand while working on November 10, 1992. He reported

to a medical facility selected by Schnuck to have his hand

bandaged, and then was asked to disrobe completely in

order to give a urine sample, pursuant to Schnuck’s new

unilaterally adopted drug and alcohol policy (effective

September 14, 1992). The policy, which was written and

disseminated to employees, provided in relevant part:

“{I])f an Associate has an ‘on the job accident’ which

results in a lost time situation there will be a blood test

and/or urinalysis test as a routine part of the investiga-

tion of the circumstances present at the time of the acci-

dent.” Schnuck says it adopted the policy pursuant to

article 5 of its collective-bargaining agreement, which

grants management the right to direct its work force.

Luecke says that he offered to produce a urine sam-

ple with his clothes removed except for the part of his

shirt around his bandaged wrist. This apparently was

unacceptable to medical personnel. Luecke left without

A-3

giving a urine sample. That afternoon, Jenise Kramer, a

Schnuck manager, called Luecke’s house and was told

that he was not there. Luecke says that Kramer then

informed his wife, without knowing who she was, that

Luecke had “refused” to take a drug test, and that his

employment would be terminated within 24 hours if he

did not take one. Kramer offers a somewhat different

version of this conversation in an affidavit; she says that

after medical personnel informed her that Luecke had

refused to take a drug test, she tried to contact him at

home and spoke with someone “who eventually identi-

fied herself as being Mr. Luecke’s wife.” Kramer left a

message whose “substance” was that after being involved

in a work-related accident, Luecke had “failed to have a

drug test,” and “if he failed to take a drug test as soon as

possible, his employment could be terminated.”

Kramer and Luecke spoke on November 11, and the

following day, Luecke took a drug test. As the results

were negative, no discipline followed. Thereafter, Kramer

and other Schnuck employees are said by Luecke to have

published within and without the company the allegedly

false statement that Luecke had “refused” to take a drug

test.

In October 1994 Luecke sued Schnuck in state court,

alleging defamation based upon Kramer’s communica-

tion to Luecke’s wife, and Kramer’s and other employees’

publication of Luecke’s alleged refusal to take a drug test.

Schnuck removed the action to federal court, arguing that

plaintiff’s claim arose under section 301 of the LMRA,

which confers federal jurisdiction over actions for a

breach of a contract between an employer and a labor

organization. Schnuck then moved to dismiss the action,

A-4

or in the alternative, for summary judgment, contending

that plaintiffs’ claim was preempted, was time-barred,

and failed to state a cause of action. The district court

granted summary judgment to Schnuck, finding that

plaintiff’s state law defamation claim was preempted by

section 301 of the LMRA. This appeal followed.

II. Discussion

[1] We review a grant of summary judgment de

novo to determine whether the record shows “that there

is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of

law.” Fed.R.Civ.P. 56(c). In so doing, we construe the facts

in the light most favorable to the non-movant, plaintiff.

[2] The dispositive question is that of subject matter

jurisdiction. In removing the case to federal court, the

defendant asserted federal question jurisdiction on the

theory that the LMRA preempted plaintiff's state law

defamation claim.! Plaintiff countered that the claim was

not preempted and that the case should be returned to

the state court.

[3][4] For federal question jurisdiction, the federal

question generally must appear on the face of the com-

plaint. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392,

107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). An exception

to this rule, often applied in labor cases, holds that when

“an area of state law has been completely pre-empted,

any claim purportedly based on that pre-empted state

1 As complete diversity was not satisfied here, the presence

of a federal question was necessary for a proper removal.

A-5

law is considered, from its inception, a federal claim, and

therefore arises under federal law.” Id. at 393, 107 S.Ct. at

2430 (emphasis supplied). Applying this exception, the

district court held that plaintiff’s defamation claim was

“inextricably intertwined” with the terms of Schnuck’s

collective-bargaining agreement with its employees, and

was therefore preempted by section 301 of the LMRA. See

id. at 394, 107 S.Ct. at 2431 (“Section 301 governs claims

founded directly on rights created by collective-bargain-

ing agreements, and also claims ‘substantially dependent

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

(internal citation omitted). The district court held that the

statements challenged by Luecke “involve the ongoing

employment relationship between plaintiff and defendant

and concern a work-related injury and its subsequent

investigation. As such, they are governed by the griev-

ance procedures set forth in the collective-bargaining

agreement.” The court also quoted from an early settle-

ment letter to Schnuck from Luecke’s attorney, who

referred to the statements in question as occurring “[a]s a

result of Schnuck’s attempt to enforce a drug testing

policy in violation of the Collective Bargaining Agree-

ment with Local 88.” Concluding that the case was prop-

erly removed, the court granted summary judgment in

defendant’s favor on preemption grounds.

[5][6] The Supreme Court has made clear that a

state law claim is preempted by section 3012 only if the

2 Section 301 provides:

(a) Suits for violation of contracts between an

employer and a labor organization representing

employees in an industry affecting commerce as

A-6

claim is “inextricably intertwined” with the terms of a

collective-bargaining agreement. Allis-Chalmers Corp. v.

Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 1912, 85 L.Ed.2d

206 (1985). The unanimous Court has stated, “[A]n appli-

cation of state law is pre-empted by Sec. 301 of the Labor

Management Relations Act of 1947 only if such applica-

tion requires the interpretation of a collective-bargaining

agreement.” Lingle, 486 U.S. 399 at 413, 108 S.Ct. 1877 at

1885 (footnote omitted); see also Livadas v. Bradshaw, ___

U.S. __, __, 114 S.Ct. 2068, 2078, 129 L.Ed.2d 93 (1994)

(“[W]e were clear [in Lingle] that when the meaning of

contract terms is not the subject of dispute, the bare fact

that a collective-bargaining agreement will be consulted

in the course of state-law litigation plainly does not

require the claim to be extinguished[.]”) (citing Lingle,

486 U.S. at 413 n. 12, 108 S.Ct. at 1885 n. 12). The proposi-

tion follows that “a state law claim may involve analysis

of the same set of facts as a claim arising under the

collective bargaining agreement without compelling pre-

- emption.” Hanks v. General Motors Corp., 906 F.2d 341,

343 (8th Cir.1990) (citing Lingle, 486 U.S. at 407-408, 108

S.Ct. at 1882-1883).

In Lingle, an employee’s state-law action against her

employer alleging that she was discharged in unlawful

retaliation for claiming worker’s compensation benefits

defined in this chapter, . . . may be brought in any

district court of the United States having jurisdiction

of the parties... .

29 U.S.C. Sec. 185(a).

i )

A-7

was declared to be independent of the collective-bargain-

ing agreement even though the agreement expressly pro-

hibited discharge without proper or just cause and

provided a grievance procedure to resolve any disputes

over the interpretation or application of the agreement.

Lingle, 486 U.S. at 401-402, 108 S.Ct. at 1879. The Court

explained that the pertinent factual inquiry in the state

retaliatory discharge action did not turn on any term of

the agreement, but rather on the employee’s conduct and

the employer’s conduct and motivation. See id. at 407,

108 S.Ct. at 1882. Because resolution of the state-law

action did not require an interpretation of the collective-

bargaining agreement, allowing it to be independently

brought was “consistent both with the policy of fostering

uniform, certain adjudication of disputes over the mean-

ing of collective-bargaining agreements and with cases

that have permitted separate fonts of substantive rights

to remain unpre-empted by other federal labor-law stat-

utes.” Id. at 410-411, 108 S.Ct. at 1884.

[7}[8}[9] In light of the foregoing, we conclude that

the district court erred in holding that plaintiff’s state

defamation action was preempted. Luecke alleges in the

action that Kramer and other Schnuck employees, acting

within the scope of their authority, published false state-

ments with total disregard for their falsity, injuring his

reputation in the community and business profession. To

recover damages under state law, Luecke will need to

establish that Kramer or other employees stated that he

had “refused” to take a drug test, that the statements

were false and were made with knowledge of or reckless

disregard as to their falsity, that they were heard by

others, and that they tended to expose Luecke to hatred

A-8

or ridicule and damaged his reputation. Nazeri v. Mis-

souri Valley College, 860 S.W.2d 303 (Mo. banc 1993);

Missouri Approved Instruction (MAI) 23.10(2).3 Keeping

in mind the central factual inquiry - what was said to

whom, whether it was false and knowingly or recklessly

so, and whether damages resulted - we look to see

whether an interpretation of the collective-bargaining

agreement will be required in order to resolve the state

claim. The answer, on the record here, is “no.”

[10] Schnuck contends that resolution of the defa-

mation claim and its defenses* depends upon interpreting

two articles of the collective-bargaining agreement “and/

or policies imr'emented pursuant to that agreement.”

First, Schnuck argues that it adopted the drug testing

policy, enforcement of which underlay the allegedly

defamatory statements, pursuant to authority conferred

in article 5 of the agreement, giving management the

right to direct its work force, “including the right to plan,

direct and control operation, . . . [and] suspend and

3 Although subsection (1) of MAI 23.10 generally governs

defamation claims brought by a private plaintiff, the elements

stated here are derived from 23.10(2), which applies when a

defendant’s statements are qualifiedly privileged. At oral

argument, the defendant's counsel said that Schnuck would

assert a qualified privilege defense. To the extent this defense is

applicable, plaintiff would carry an additional burden of

showing that the defamatory statements were made with

malice. Carter v. Willert Home Products, Inc., 714 $.W.2d 506,

513 (Mo. banc 1986).

4 In ascertaining whether the state action will require an

interpretation of the collective-bargaining agreement, we

consider probable defenses as well as the claim itself. See Hanks

v. General Motors Corp., 859 F.2d 67, 70 (8th Cir.1988).

A-9

discharge for proper cause.” Second, article 6 establishes

grievance procedures to be followed for “any differences,

disputes or complaints aris[ing] over the interpretation or

application of the contents of this Agreement.” Confer-

ences are pursued first, then arbitration if necessary.5

But this is not a case where the state-law defamation

complaint attacks the propriety of Schnuck’s drug policy

or Schnuck’s right to require drug tests.6 What is chal-

lenged is the employer’s alleged dissemination to others

of supposedly false information, i.e., that plaintiff had

refused to submit to the test. Plaintiff’s counsel reiterated

at oral argument that his client did not challenge

Schnuck’s right to require its employees to be tested. Nor

is plaintiff contesting management's right to suspend or

discharge an employee for failure to take the test. Luecke

took the drug test, passed it, and was not suspended or

° The parties have not included in the record on appeal a

complete copy of the collective-bargaining agreement in effect

at the time this action arose. We accordingly limit our review to

the provisions relied upon by Schnuck in support of

preemption.

Cir.1991) (employee’s state law claims were preempted by

section 301 where the “allegations turn on the propriety of [the

company]’s Drug Policy and cannot be assessed without

examining the CBA to determine whether the Drug Policy was a

valid term and condition of employment{ }”); Jackson v. Liquid

Carbonic Corp., 863 F.2d 111, 118, 121 (1st Cir.1988) (employee's

state law claims were preempted by section 301 where “[t]he

central thesis of his suit questions whether [the employer]’s

drug-testing protocol was reasonable[ }” in light of the union’s

cession of authority to the employer to conduct medical

examinations and to post reasonable rules), cert. denied, 490

U.S. 1107, 109 S.Ct. 3158, 104 L.Ed.2d 1021 (1989).

A-10

discharged. Resolving Luecke’s defamation claim will not

depend upon construing article 5: no express or implied

term in that provision guides the factual inquiry into

whether the speakers actually said Luecke refused to take

the test, whether their statements were false, whether

malice attached, and whether damages resulted. See

Hawaiian Airlines, Inc. v. Norris, __._ U.S. __, __, 114

S.Ct. 2239, 2248, 129 L.Ed.2d 203 (1994) (reiterating Lin-

gle’s holding that a state law claim involving “purely

factual questions” that do not turn upon the terms of a

collective-bargaining agreement are not preempted by

section 301); see also Hanks, 906 F.2d at 345 (tort claims

against employer who required employee to work with a

person who sexually abused her daughter were not pre-

empted, as “none of the terms or provisions of that agree-

ment shed any light on the appropriateness of [the

employer's] conduct[ ]”); Tellez v. Pacific Gas & Elec. Co.,

817 F.2d 536, 538 (9th Cir.) (defamation claim against

employer who distributed a suspension letter saying

employee had bought drugs on the job was not pre-

empted, as claim did not assert rights :nder the collec-

tive-bargaining agreement, and the agreement did not

require management to send such a letter or provide

guidelines if such a letter was sent), cert. denied, 484 U.S.

908, 108 S.Ct. 251, 98 L.Ed.2d 209 (1987).

Neither is Luecke’s claim dependent upon a con-

struction of article 6, which sets forth grievance pro-

cedures. As in Lingle, these procedures are available for a

broad range of disputes, and the mere possibility that

Luecke could file a grievance on these same facts does

not dictate that his claim is preempted. See Lingle, 486

U.S. at 408-410, 108 S.Ct. at 1882-1884; Hanks, 906 F.2d at

A-11

345 (“The crucial issue under Allis-Chalmers is not

whether a claim can be taken through the grievance pro-

cess but whether the state law tort claim being asserted

purports to give meaning to the terms of the labor con-

tract.”) (citing Keehr v. Consolidated Freightways of Del-

aware, Inc., 825 F.2d 133, 137 (7th Cir.1987)). Here, the

state law defamation action will not, to any material

degree, give meaning to the terms of article 5 or 6. The

record shows that the union grieved the implementation

of the drug testing policy pursuant to article 5. Luecke is

not repeating that effort; he represents that he has no

intention to do so.”

[11] Schnuck nevertheless maintains that the state

action would require interpreting article 6, because per-

mitting Luecke to bring a defamation action in state court

opens the door to other employees doing the same and

forgoing arbitration. The short answer to this is that

employees are not required to use grievance procedures

exclusively, in preference to state lawsuits, so long as a

parallel state action does not require interpreting the

collective-bargaining agreement. Lingle, 486 U.S. at

408-410, 108 S.Ct. at 1882-1884.

7 Luecke’s counsel stated in an early settlement letter that

the defamatory statements occurred “{ajs a result of Schnuck’s

attempt to enforce a drug testing policy in violation of the

Collective Bargaining Agreement with Local 88.” The letter was

written a few months after the union filed its grievance

regarding that policy. The complaint, filed almost two years

later, contains no indication that the drug testing policy was

being challenged in the action, and Luecke’s counsel expressly

confirmed at oral argument that it was not.

A-12

[12] Nor do Schnuck’s likely defenses depend upon

an interpretation of the collective-bargaining agreement.

Schnuck says that it will assert a defense of qualified

privilege which will require reference to the agreement.

To make out such a defense, Schnuck would have to show ;

that an otherwise defamatory statement was made in ;

good faith by a speaker who had an interest in or duty

with respect to the subject matter, to a person having a

corresponding interest or duty. Carter v. Willert Home

Products, Inc., 714 S.W.2d 506, 513 (Mo. banc 1986) (cita-

tion omitted).

Schnuck contends that in speaking to Luecke’s wife,

its manager, Jenise Kramer, was carrying out her duty to

ensure compliance with the drug testing policy. Her com-

munications, the argument goes, were simply made in

good faith furtherance of Schnuck’s right to control the

work force under article 5. However, Luecke’s defama-

tion claim does not deny that Kramer was acting pur-

suant to authority granted by Schnuck, nor that Schnuck

had a right to control its work force. What plaintiff con-

tests is Kramer’s right to pass along to his wife or others

the allegedly false information about his refusal to be

tested. Article 5, however, said nothing about the pro-

cedures to be followed in conducting investigations and

enforcing policies of the employer. The collective-bar-

gaining agreement in effect at the time this action arose

made no mention whatever of a drug testing policy or of

procedures for enforcement, nor did it impose any

requirement of confidentiality.

— ee Se Te ee

We recognize that, since the incident in question,

Schnuck has expressly incorporated the drug testing pol-

icy into its current collective-bargaining agreement. The

’ )

A-13

new agreement apparently contains language prohibiting

dissemination of records or their contents to any third

party except with the employee’s written consent or for

other limited reasons. We need not, and do not, decide

whether a defamation claim of the type brought here

would be preempted under these express terms; it is

enough that the earlier controlling agreement was

entirely devoid of such terms. To be sure, two months

before the present incident, management had unilaterally

promulgated a written drug testing policy which

included the same confidentiality provision. But absent

its incorporation within the collective-bargaining agree-

ment — or absent incorporation of a compatible manage-

ment rights clause, e.g., covering the performance of

medical examinations, or some longstanding practice or

custom from which to infer incorporation - we do not

believe that Schnuck’s unilateral adoption of the policy

rendered its language, in these circumstances, a literal

part of the agreement for purposes of the test set out in

Lingle.? We conclude that while the provisions of the

° The recent collective-bargaining agreement provides that

company records “shall be kept in strict confidence, and neither

said records nor the contents thereof shall be disseminated to

any third party except upon written authorization by the

Associate, or to the extent required by law, or to the extent

required by the Company for use in any proceeding involving

the Associate.”

9 See Jimeno v. Mobil Oil Corp., 66 F.3d 1514 (9th Cir.1995)

(refusing to imply into collective-bargaining agreement a

unilaterally adopted, unwritten termination policy followed in

practice for years, absent clear and unmistakable evidence that

the union accepted the policy and waived its members’ rights

under state law); but cf. Schlacter-Jones, 936 F.2d at 440 (“A

A-14

collective-bargaining agreement will perhaps be “consul-

ted,” they need not be interpreted in order to resolve any

qualified privilege defense that Schnuck may raise in the

state defamation proceeding. See Liveass, -. US at,

114 S.Ct. at 2079 (“the bare fact that a collective-bargain-

ing agreement will be consulted in the course of state-law

litigation plainly does not require the claim to be extin-

guished”) (citing Lingle, 486 U.S. at 413 n. 12, 108 S.Ct. at

1885 n. 12).

The instant case is distinguishable from Johnson v.

Anheuser Busch, Inc., 876 F.2d 620 (8th Cir.1989), in

which an employee accused by co-workers of slashing

tires in a company lot was discharged for violating plant

rules. He grieved the discharge, was reinstated, and then

brought multiple tort claims, including libel and slander,

against his employer and co-workers. This circuit held

that the libel claim against the employer was preempted

by section 301. Because the allegedly false accusations

resulted in the employee’s discharge for violating specific

misconduct rules, consideration of the collective-bargain-

ing agreement was needed to ascertain whether the dis-

charge was wrongful. See id. at 624. The slander claim

against the co-workers was also preempted, because the

allegedly false accusations “relate[d] to a dispute over an

drug and alcohol testing program is a working condition

whether or not it is specifically discussed in the [collective-

bargaining agreement].”) (citation omitted); Jackson, 863 F.2d at

120 (viewing a unilaterally passed drug testing policy as a

“working condition” within the scope of a collective-bargaining

agreement, to be evaluated for reasonableness, where union had

accepted employer’s authority to conduct medical examinations

and to pass “reasonable” rules).

A-15

event occurring at the workplace and would be governed

by the grievance procedure” in the agreement. Id. How-

ever, the libel claim against a co-worker was not pre-

empted, because the elements of that claim did not

require construction of any term of the agreement. See id.

at 625.

Unlike Johnson, Luecke’s claim against his employer

does not depend on construing a term of the collective-

bargaining agreement. Luecke ultimately took the

required drug test, which was negative, and no discharge

or other discipline resulted. The allegedly defamatory

statement by Kramer was part of the company’s attempt

to enforce Schnuck’s drug testing policy, but the collec-

tive-bargaining agreement then in effect said nothing

about such a policy or its enforcement, or even about

some more general management right to require medical

examinations to ensure employees’ fitness. But cf.

Strachan v. Union Oil Co., 768 F.2d 703, 705 (5th Cir.1985)

(holding that suspended employees suspected of drug

use were preempted from suing their employer for defa-

mation and other torts, where “[t]he issues concerning

the medical examinations and involving the blood and

urine tests are clearly within the power of the company

under the collective bargaining agreement to insist upon

medical examinations when there is doubt as to the phys-

ical condition of an employee at work[ ]”); see also Bagby

v. General Motors Corp., 976 F.2d 919 (5th Cir.1992) (hold-

ing that defamation claim arising out of temporary sus-

pension of worker was preempted, where employer

followed specific disciplinary procedures in collective-

bargaining agreement and company policy).

A-16

As we find that Luecke’s defamation action is not

preempted by section 301, there is no federal question

authorizing federal jurisdiction over the case. We remand

the case to the district court with instructions to remand

it to the state court from which it was removed.

So ordered.

B-1

APPENDIX B

Michael LUECKE, Plaintiff

SCHNUCK MARKETS, INC., Defendant

No. 4:94-CV-2274 (CEJ)

United States District Court

Eastern District of Missouri

Eastern Division

June 28, 1995

MEMORANDUM

This matter is before the Court on defendant’s

motion to dismiss or, in the alternative, for summary

judgment. See Fed. R. Civ. P. 12(b)(6) and 56. Plaintiff

opposes this Motion.

Plaintiff initiated this action in the Circuit Court of

the County of St. Louis, Missouri asserting a claim for

defamation. Defendant removed the action to this Court

pursuant to 28 U.S.C. § 1441(b), arguing that plaintiff’s

claim is preempted by the Labor Management Relations

Act (“LMRA”), 29 U.S.C. S 151, et seq.

Plaintiff is employed by the defendant and is a mem-

ber of the United Food and Commercial Workers, Local

Number 88, AFL-CIO (“Local 88”). As such he was cov-

ered by the applicable collective bargaining agreement.

Section 5.1 of the collective bargaining agreement pro-

vides that defendant has the “right to plan, direct and

control operations, hire, suspend or discharge for proper

cause, transfer or relieve employees from duty because of

lack of work, or for other legitimate reasons. ... ”

B-2

Pursuant to this provision, defendant adopted a drug and

alcohol policy in September 1992 and notified the mem-

bers of Local 88 of the policy’s implementation.

The policy provides that if an employee sustains an

on-the-job injury that results in “a lost time situation”,

the employee will be required to submit to a blood test

and/or urinalysis test as a routine part of the investiga-

tion. The collective bargaining agreement also includes a

grievance procedure.

On November 10, 1992 plaintiff injured his hand

while working for the defendant. Following the injury,

plaintiff reported to a medical facility that had been

selected by the defendant. Plaintiff alleges that he was

unable to give a urine specimen in a manner satisfactory

to the medical personnel. Consequently, plaintiff did not

take a drug test as required by defendant's policy.

On November 10, 1992, Jenise Kramer, defendant's

manager of equal employment opportunity and counsel-

ing, called plaintiff's house and asked to speak to plain-

tiff. Plaintiff’s wife told Kramer that plaintiff was not at

home. Kramer then allegedly told plaintiff’s wife that

plaintiff had been injured at work, that he had refused to

take a drug test, and that his employment would be

terminated within 24 hours if he did not submit to a drug

test. Plaintiff eventually submitted to the drug test and

the results were negative.

Rule 56(c) of the Federal Rules of Civil Procedure

provides that summary judgment shall be entered “if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact

B-3

and that the moving party is entitled to a judgment as a

matter of law.” In ruling on a motion for summary judg-

ment the court is required to view the facts in the light

most favorable to the non-moving party and must give

that party the benefit of all reasonable inferences to be

drawn from the underlying facts. AgriStor Leasing v. Far-

row, 826 F.2d 732, 734 (8th Cir. 1987). The moving party

bears the burden of showing both the absence of a genu-

ine issue of material fact and its entitlement to judgment

as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S.

242 (1986); Matsushita Electric Industrial Co. v. Zenith Radio

Corp., 475 U.S. 574, 586-587 (1986); Fed. R. Civ. P. 56(c).

Once the moving party has met its burden, the non-

moving party may not rest on the allegations of his

pleadings but must set forth specific facts, by affidavit or

other evidence, showing that a genuine issue of material

fact exists. Fed. R. Civ. P. 56 (e). Rule 56(c) “mandates the

entry of summary judgment, after adequate time for dis-

covery and upon motion, against a party who fails to

make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex

Corporation v. Catrett, 477 U.S. 317, 322 (1986).

Plaintiff argues that this Court lacks subject matter

jurisdiction because he has raised a state common law

claim that is not preempted by the LMRA. Under the

“well-pleaded complaint” rule, federal preemption raised

as a defense does not ordinarily convert a state law claim

into a federal one, and the action is not removable to

federal court. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392

(1987). However, once an area of state law has been

completely preempted any claim that arises under the

B-4

preempted state law is considered to have arisen under

federal law. Id. at 393; King v. Hoover Group, Inc., 958 F.2d

219, 222 (8th Cir. 1992) (complete preemption applies to

§ 301 of the LMRA). The Court finds that this case was

properly removed.

Section 301 of the LMRA confers upon the federal

courts jurisdiction over actions for breach of collective

bargaining agreements between employers and labor

organizations. 29 U.S.C. § 185(a). Section 301 preempts

state law tort claims when the resolution of the state law

claim substantially depends upon an interpretation of the

collective bargaining agreement. Allis-Chalmers Corp. v.

Lueck, 471 U.S. 202, 220 (1985). The state law claim is

preempted when it is “inextricably intertwined with con-

sideration of the terms of the labor contract.” Id. at 213. If

the state law claim does not require construction of the

collective bargaining agreement, even if analysis of the

same set of facts would be required to decide a dispute

arising under the collective bargaining agreement, then

the claim is not preempted. Lingle v. Norge Div. of Magic

Chef, 486 U.S. 399, 408-410 (1988). Defenses as well as

claims must be considered in determining whether reso-

lution of the state law claim requires construction of the

collective bargaining agreement. Hanks v. General Motors

Corp., 859 F.2d 67, 70 (8th Cir. 1988).

The scope of Section 301’s preemption was consid-

ered by the Eighth Circuit in Johnson v. Anheuser Busch,

Inc., 876 F. 2d 620, 623 (8th Cir. 1989). In that case, the

plaintiff brought a libel action against his co-workers who

had reported to company officials that plaintiff had van-

dalized a co-worker’s car. The court found that the

alleged false accusations directly related to the plaintiff's

B-5

employment relationship with the defendant company

and, as such, would be governed by the grievance pro-

cedure set forth in the collective bargaining agreement.

The court held that the libel claims that were based on the

individual defendants’ statements to the company

authorities was preempted by Section 301. However, a

libel claim based on a statement made by a defendant to

his insurance company accusing the plaintiff of vandal-

ism was held not to be preempted by Section 301 because

resolution of the claim did not require construction of the

collective bargaining agreement.

Plaintiff alleges that Kramer made the slanderous

statements within the scope of her employment. The

statements in question involve the ongoing employment

relationship between plaintiff and defendant and concern

a work-related injury and its subsequent investigation.

As such, they are governed by the grievance procedures

set forth in the collective bargaining agreement. See John-

son, 876 F.2d at 624. In a letter to defendant dated Decem-

ber 30, 1992, plaintiff's counsel wrote, in pertinent part:

As a result of Schnucks’ attempt to enforce a

drug testing policy in violation of the Collective

Bargaining Agreement with Local 88, certain

defamatory per se statements were published

concerning Mr. Luecke’s alleged refusal and/or

failure to take a drug test.

As this letter clearly indicates, even plaintiff’s attorney

has taken the position that this dispute involves the inter-

pretation of the collective bargaining agreement. The

Court finds that the defamation claim is inextricably

B-6

intertwined with consideration of the terms of the collec-

tive bargaining agreement is preempted by Section 301.

See Allis-Chalmers, 471 U.S. at 213.

Because plaintiff’s claim is preempted by Section 301

of the LMRA, defendant's motion for summary judgment

will be granted.

CAROL E. JACKSON

UNITED STATES

DISTRICT JUDGE

Dated this 28th day of June, 1995.

B-7

Michael LUECKE, Plaintiff

SCHNUCK MARKETS, INC., Defendant

No. 4:94-CV-2274 (CEJ)

United States District Court

Eastern District of Missouri

Eastern Division

June 28, 1995

ORDER

In accordance with the Memorandum filed herewith

this date,

IT IS HEREBY ORDERED that defendant’s motion

for summary judgment is granted.

IT IS FURTHER ORDERED that the Clerk of the

Court shall enter judgment in favor of the defendant and

against the plaintiff. The plaintiff shall bear the costs of

this action.

CAROL E. JACKSON

UNITED STATES DISTRICT JUDGE

Dated this 28th day of June, 1995.

C-1

APPENDIX C

Michael LUECKE, Appellant

SCHNUCK MARKETS, INC., Appellee

No. 95-3080EMSL

United States Court of Appeals

For the Eighth Circuit

July 24, 1996

Order Denying Petition for Rehearing and

Suggestion for Rehearing En Banc

The suggestion for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

July 24, 1996

Order Entered at the Direction of the Court:

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

D-1

APPENDIX D

AGREEMENT

between

SCHNUCK MARKETS, INC.

St. Louis

and

UNITED FOOD AND COMMERCIAL WORKERS

Local No. 88, A.F.L.-C.1.O. and C.L.C.

EFFECTIVE

September 3, 1989

THROUGH

June 5, 1993

D-2

TABLE OF CONTENTS

ARTICLE SUBJECT PAGE

PIN 85 oa BER C8 hue k vc hae ds bee coe Keweeesen 1

Tee hPL PERE PO owee eee try Cee eee Try hry aanreeS 1

EC IND hiinn scans dace es wk vate pesbensbent 1

3 Union Security and Visitation..................... 2

4 Employment Referral/Extra Help................. 4

ee et a og eet eee oe eee ee eee 5

G. CRUOVORIO BI ATIIPRTION 5 ooo 5 cs cee ceweseans 6

7. FU ee BOO BANG ih so oo cs's sr eceee bev peeessi 8

DR Fa oad oS a PUA WII ii 9

DF. SOAR Sli A ae il 11

10 Hours and Working Conditions.................. 14

Ly ee RR eer eet eer et er we) ee eee 19

Ee I SE COOMIOYE cic cc veces evivavetessdacuas 22

TS ERS FIG ooo ois ies den ewicwresdiuet 24

Ri PED UN SE TOs ons Seva ncacdeersaseaskense mune 26

RO PRE SHON cen kw ates vee s che ndaste i banseo twee 27

Bb FE Fis 55 wi epics pa hee ae Whe ook cane sos 27

57. BaD OE: WUMEEEEUN, 3s 0s caren dvd caleebeueeegeries 28

Ee RNs Faw ss Rhee Mekpre ee chaos se hegacned 8 30

19 Health and Welfare and Pension Contribution

en. PRET OPER, TEER EE TT CCU eT ee 31

Dy SS Se OI s 85 es OE eee eae ees 32

Ai (ROI RARE 8 ois ccc cvctrecsiunssabeats 32

AA CN Fk os yp Pie hon es cv eae abucsoaaeesbou ves 34

PP SION a 6a oo WKS Sa CR ree bs eS Leia eae 34

24 Wage Rates and Job Descriptions................ 34

Ta RN I ob Su ob heehee sis ceva wChieesc seus devs 37

20 FUMES BI FARMING So sos a sus once canncesc¥oen 38

Bi PRRs bx FA Rano Cn Seek ates cba he een bene bas 39

oe ee | Perey Tee yey Se PRET EEE STE 40

Schedule B - Clean-Up Employees............... 44

STONE OE SPUUOPOEOIII oo 6 ok i ok oc seks eiens oss 46

D-3

AGREEMENT

This Agreement has been entered into by and

between Schnuck Markets, Inc., St. Louis hereinafter des-

ignated as the Employer and the United Food and Com-

mercial Workers Union, Local No. 88, AFL-CIO-CLC,

hereinafter designated as the Union.

The Employer will not recognize any other collective

bargaining agency nor enter into any other agreement

setting forth hours, wages, and conditions of employment

as herein defined during the life of this Agreement.

ARTICLE 1

PREAMBLE

The Employer and the Union each represent that the

purpose and intent of this Agreement is to promote coop-

eration and harmony, to recognize mutual interests, to

provide a channel through which information and prob-

lems may be transmitted from one to the other, to formu-

late rules to govern the relationship between the Union

and the Employer, to promote efficiency and service, and

to set forth herein, the basic agreements covering rates of

pay, hours of work and conditions of employment.

ARTICLE 2

BARGAINING RIGHTS

Section 2.1 The Union shall be the sole and exclusive

bargaining agent for all Meat, Seafood, Poultry, Barbecue,

Cooked Meat and Delicatessen Department employees,

including Head Meat Cutters, Journeymen, Service Meat

Department Journeymen, Apprentices, Wrappers and

D-4

Clean-Up Employees employed in Self-Service and Ser-

vice markets. This Agreement shall be applicable to the

Employer’s meat markets, supermarket departments,

multiple markets that are presently owned, leased,

acquired, operated or supervised by the Employer

located in the City of St. Louis and St. Louis County, St.

Charles and St. Charles County, Jefferson County, Mis-

souri and Madison County, Illinois (excluding employees

presently under contract with other Union locals and

employees excluded by the National Labor Relations Act

of 1947 as amended) during the term of this Agreement.

* * *

ARTICLE 5

MANAGEMENT RIGHTS

Section 5.1 The Management of the business and the

direction of the working forces, including the right to

plan, direct and control operations, hire, suspend or dis-

charge for proper cause, transfer or relieve employees

from duty because of lack of work, or for other legitimate

reasons, shall be vested in the Employer, provided, how-

ever, that it will not be used for the purpose of discrimi-

nation against any employee, and provided it shall in no

way conflict with any of the terms of this Agreement.

* * *

D-5

ARTICLE 6

GRIEVANCE AND ARBITRATION

Section 6.1 If any differences, disputes or complaints

arise over the interpretation or application of the contents

of this Agreement, there shall be an earnest effort on the

part of the parties to settle such promptly through the

following steps:

STEP 1. By conference between the aggrieved

employee, the shop steward, or both, and the

manager of the store within five (5) working

days of the occurrence of the grievance.

STEP 2. By conference between the Business

Representative, with or without the shop stew-

ard of the Union and the store manager or his

supervisor within ten (10) working days of the

occurrence of the grievance.

STEP 3. By conference between an official or

officials of the Union and the Employer’s desig-

nated representative within fifteen (15) working

days of the occurrence of the grievance.

STEP 4. In the event the last step fails to settle

the complaint, it may be referred to arbitration

within five (5) days.

Section 6.2 In case of a dispute as to wages, the

Employer agrees to submit, to an authorized representa-

tive of the Union, bonafide copies of the employee's

payroll and social security records.

Section 6.3 At any step in this grievance procedure,

the Executive Board of the Local Union shall have the

final authority, in respect to any aggrieved employee

D-6

covered by this Agreement, to decline to process a griev-

ance, complaint, difficulty or dispute further if, in the

judgment of the Executive Board, such grievance or dis-

pute lacks merit or lacks justification under the terms of

this Agreement to the satisfaction of the Union Executive

Board.

Section 6.4 The Employer shall have the right to call

a conference with officials of the Union for the purpose of

discussing his grievances, criticisms, or other problems.

Section 6.5 It is understood and agreed that all

employees within the bargaining unit covered by this

Agreement must exercise all their rights, privileges or

necessary procedures under this Agreement, Interna-

tional and Local Union Constitution, in the settlement of

any and all complaints or grievances filed by such

employees, before taking any action outside of the scope

of this Agreement for the settlement of such grievances.

Section 6.6 No grievance may be presented later

than ten (10) calendar days after the occurrence from

which such grievance arose. Grievances which progress

past Step 2 shall be reduced to writing.

Section 6.7 Disciplinary action which may result in

layoff or discharge, will, if requested by the employee, be

in the presence of a Union Representative. If such Union

Representative is not available, another member of the

bargaining unit may be present.

Section 6.8 The Employer and the Union shall mutu-

ally agree to an impartial arbitrator to hear said arbitra-

tion case, however, if said arbitrator cannot be chosen

within three (3) days, then the Federal Mediation and

D-7

Conciliation Service will be requested to furnish a panel

of seven (7) names from which the arbitrator may be

chosen. The arbitrator will be selected within seven (7)

days after the receipt of the panel by alternately striking

names. The party striking first will be determined by the

flip of a coin. The decision of the arbitrator shall be

binding on both parties. The expenses of the arbitrator

shall be paid for jointly.

Such arbitrator shall not be empowered to add to,

detract from, or alter the terms of this Agreement.

E-1

APPENDIX E

PLEASE POST

TO: All Schnuck Associates who are Members of

U.F.C.W. Union Local No. 88

FROM: Bill Bredenkoetter

DATE: September 1, 1992

RE: Introduction of Drug and Alcohol Policy

Attached is the new Drug and Alcohol Policy which

will become effective September 14, 1992. We urge you to

study it and become familiar with it.

Drug and alcohol abuse in the workplace and socially

are major problems in our country today. According to

national statistics, they are prime causes of accidents on

the job, poor attendance, poor performance, and poor

attitudes.

As part of our new Substance Abuse Policy, Associ-

ates who are involved in a reported injury shall be subject

to Drug and Alcohol testing under the “injury-on-the-

job” provision of our Drug and Alcohol Policy. If the

injury falls within one or more of the following categories

testing will not be required:

1. Requires no outside medical treatment;

2. Repetitive trauma injuries or other occupa-

tional diseases;

3. The result of willful violence or threats of a

third party. .

Refusal to be tested will result in immediate dis-

charge.

E-2

It is believed that the benefits to be derived from the

reduction in the number of accidents, the greater safety of

all Associates, and the rehabilitation or termination of

those who, because of alcohol or drugs, are a burden

upon all other Associates, will more than make up for

any inconvenience or loss the rest of us must be subjected

to. The Company earnestly solicits the understanding and

cooperation of all Associates in implementing the policies

set forth.

As you read the policy, you will note we will not

tolerate use on the premises or allow Associates to work

while under the influence of drugs or alcohol.

The intent of the program is to keep drug and alcohol

problems out of the workplace. We are encouraging any

Associate who may have a drug or alcohol problem to

seek help. Further, our intent is to work with those of you

who have problems and help you work through them,

but we cannot help you unless you allow us to do so. Talk

with your Store Manager, or contact the Local 88 Health

and Welfare Trust Fund’s Employee Assistance Program

(EAP) at 991-1810.

WRB/dm

Attachment

DRUG AND ALCOHOL POLICY

MEAT/DELICATESSEN/SEAFOOD ASSOCIATES

The Company recognizes the seriousness of sub-

stance abuse in our society and the need to approach this

problem in a progressive manner which recognizes the

legitimate privacy rights of its Associates. With that in

E-3

mind, the Company has developed the following Drug

and Alcohol Policy to be effective September 14, 1992.

It is a violation of this Policy for an Associate to be

on the premises of the Company under the influence of a

controlled substance or alcohol which may result in disci-

plinary action up to and including discharge.

In addition, the use of controlled substances or the

consumption of alcohol during breaks or meal periods is

strictly prohibited and subjects the Associate to discharge

for the first offense.

Any associate found to be consuming alcoholic bev-

erages, or using a controlled substance, while on duty or

while on Company property, will be subject to immediate

discharge.

Where the Company believes there is a reasonable

basis that an Associate is under the influence of a con-

trolled substance or alcohol, the Company may request

the Associate to submit to a testing procedure consistent

with the steps set forth below. At the time that such a

request is made, both the Associate and the steward (or in

the event of the steward’s absence, another member of

the bargaining unit) shall be advised verbally of the facts

forming the basis of the Company’s belief that the Associ-

ate is under the influence of controlled substances or

alcohol. If the Associate refuses to take the test and if the

Company had a reasonable basis for believing that the

Associate was under the influence of controlled sub-

stances, or alcohol, then the Associate will be discharged.

In addition to the above, if an Associate has an “on

the job accident” which results in a lost time situation

E-4

there will be a blood test and/or urinalysis test as a

routine part of the investigation of the circumstances

present at the time of the accident.

Any test performed under this Policy shall be per-

formed at a clinic or hospital at the Company’s expense.

The Associate shall be compensated for all time involved

with the initial testing and for travel to and from the test

site.

For alcohol, one test is sufficient. That test will be a

blood test.

For controlled substances, two tests may be per-

formed on the sample taken. The first test performed

shall be a screening test of an enzyme immunoassay more

commonly called the EMIT test. Should the EMIT test be

negative, no further tests will be performed. Should the

EMIT test be positive, a second confirming test shall be

performed. That test shall be the Gas Chromatography /

Mass Spectromoty (GC/MS) test.

In the event that the tests prove positive for a con-

trolled substance or alcohol, the Associate will be subject

to discipline up to and including discharge. However, the

Company at their sole discretion, may elect that the Asso-

ciate be evaluated through the Local 88 Health and Wel-

fare Trust Funds’ EAP and if recommended by the EAP,

the Associate must participate in a substance abuse and/

or drug treatment program as a condition of continued

employment.

To the extent required to enable the Associate to

participate in the program, the Associate shall be allowed

to take an unpaid leave of absence in accordance with the

E-5

Leave of Absence provisions of the collective bargaining

agreement.

Cost of any rehabilitation program shall be the

responsibility of the Associate or their medical program if

applicable. Should the Associate refuse to participate in a

treatment program, he/she will be discharged.

As a condition of returning to work after the success-

ful completion of the rehabilitation program, an Associate

who participated in such a treatment program will be

subject to two (2) random tests during the first (1st) year

after completion of said program. In the event the ran-

dom test proves positive for controlled substances or

alcohol, the Associate will be subject to discipline up to

and including discharge.

Company records shall be kept in strict confidence,

and neither said records nor the contents thereof shall be

disseminated to any third party except upon written

authorization by the Associate, or to the extent required

by law, or to the extent required by the Company for use

in any proceeding involving the Associate.

In the event any test results do not establish that the

Associate was under the influence of alcohol or tested

positive for controlled substances, then the Company

shall expunge from its records all references to the test-

ing.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.