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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 1011

## Text

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

13

20

20

iv

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

Vv

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

vi

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

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

2

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

3

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:

4

+ * *

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

5

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

6

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.

7

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

8

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

9

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

10

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

a

11

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

12

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.

13

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.

ee

14

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.®

© Luecke on appeal emphasized that he was not discharged
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.

15

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.

16

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

17

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).

18

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.

19

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

20

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 |

21

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

23

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

24

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

25

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;

26

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

27

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

28

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

29

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

30

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,
v.
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

ee

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.

© Cf. Schlacter-Jones v. Gen. Tel., 936 F.2d 435, 441 (9th
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
v.
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

v.
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
v.
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

Se

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1680%3A1. Public record. Not legal advice.