Kline v. Security Guards Inc

• Court: Court of Appeals for the Third Circuit
• Decided: October 6, 2004
• Docket: 03-3404
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

10-6-2004

Kline v. Security Guards Inc Precedential or Non-Precedential: Precedential

Docket No. 03-3404

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Recommended Citation "Kline v. Security Guards Inc" (2004). 2004 Decisions. Paper 177. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/177

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL B RI AN DOERRMAN; KENN ETH ECKERT; BERNARD EHRETS; IN THE UNITED STATES COURT AN TO NI O E S P I N O S A ; JO S E P H OF APPEALS ESSICK; GARY ETTEL; BART FAUST; FOR THE THIRD CIRCUIT STEPHEN FAUST; EDWARD FELEGI; BRUCE FISH BU RN ; W ILLIA M F I SH E R ; G E R A L D F O G A R T Y ; NOS. 03-3404, 03-3610, 03-3620 RAYMOND FOLK, JR.; MICHAEL FREY; RICHARD FRITZ, JR., DERK FRONHEISER; CASEY GANSTER; DAULPH KLINE; TERRY KLINE, JOHN GASPERETT I; JA M ES individually, and On Behalf of All Others GASPERETTI; SANDRA GAWNE; Similarly Situated; DAVID J. BIGG; DENNIS GAY; DONALD GEDDIO; JOSEPH T. COULSON; ROBERT L. GEORGE GEIGER; RONALD GOREY; LASH; JOHN M . SPEARS, JR., CARL GRAEFF; RITCHIE GRETH; WILLIAM ALLEN; JAMES ALLEN; PERRY GRIESEMER; GILL GROVE; JOHN ALSVAN; EDWARD JOE GUIDO; JEFFREY HANNAHOE; ANDERSON; KENNETH ARTERS, JR.; D O U G L A S H A R R I S ; RI C HA R D T O N Y A Z Z A R EL L O ; T E R RY HARRIS; JAY HARTMAN; JOHN BACHERT; GLENN BALTHA SER; HEFT; RODERICK HELLER; GLENN THOMAS BARTASHUS; FRANCIS HELMAN; RICH HERB; JAMES HESS; BEIERSCHMITT; GERALD BENDER; ROSE MARIE HESSLER; PATRICK JOE BICKELMAN; BRETT BILLINGS; HOLLYWOOD; THOMAS HOLT; JOHN JOSEPH BISCANTI; VERNON BLOOM, HORNBERGER; MICHAEL HUBIAK; JR.; MICHAEL BODOLUS; KEVIN IMPINK; GARY JAMES; CHRIS CHRISTOPHER BORN; PATRICIA JONES; EDWIN JONES; MARVIN BORRELL; JEFFREY BOSTON; DAVID KACHEL; JOHN KAHN, JR.; WALTER M. BRAMLEY; THOMAS BRENEMAN; KATCHUR; HARRY KAUFFMAN; WILLIAM BROWN; JOHN BUGERA; ALLAN KEHL; MARK KERBER; A N T H O N Y B U O N O ; A N T HON Y LARRY KLINE; WILLIAM KOCUR; CALCAGNO, JR.; JOSEPH CARDELL; MARK KRAM MES; ALBERT KUKLIS; RICHARD CARL; WILLIAM GARY LECHNER; TERRY LEESE; C A R P E N T E R ; ALAN CLOUSE R ; BYRON LEIBY; GRANT LEONTI; FRANK CRAMM ER, JR.; ALFRED TODD LESHER; JOHN LISA; ROBERT CRAMMER, JR.; TERRY CROSSELY; LONG; WALTER LOOSE; EDWARD ROB E R T C R U P I; ANDREW L U B A S ; D A V I D LU C A R E L L I; CUCCARO, JR.; LEE DALTON; MINH R A Y M O N D L U T Z , I II ; G A R Y DAO; ROBERT DAVIDSON; BRENT MADARA; JAMES MARKUS; KARL DAVIS; TIMOTHY DEBECK; MATTERN; JEFFREY MAULICK; MARGARE T DECKER; MARK JESSE MAY; EUGENE M CCLURE; DETTERLINE; KENNETH DEW ALD; RICHARD MERSINGER; LAWRENCE THOMAS DIETRICH; JOHN DILALLO; MICCICKE, JR.; WALTER MILLER; RICHARD M IL LE R; T HO M AS W A W R Z Y N IA K , JR.; LARRY MOYER; RICHARD MULHOLLAND; W E B B E R ; K E N N E T H MICHAEL MULLIGAN; THOMAS WE IDENHEIMER; KENNETH MULUTZIE; R. MUNDELL; JOHN WEIKEL; VICTOR WELLER, JR.; MURRAY; CHRISTOPHER CALVIN WILLIAMS; LAWRENCE NEITHAMER; RAYMOND WILLIAMS, JR.; ROBERT NEUHEIMER; DAWN NIEDZIELSKI; WILLIAMSON; RICHARD WOLF; VITO NINFO; RAY OVERTON, JR.; MARC WO LFE ; MIK E XAV IOS; GEORGE PALM, JR.; HOWARD TERRY ZERBE; JOHN ZIATS; STEVE PALMER; DONALD PAPP; CRAIG ARTHUR; WIL LLIA M BANGS; P A W L I NG ; DA VID P H I L L I P S; WILLIAM BARNHART; THOMAS WILLIAM PIANO; TIM PONATOSKI; BARRETT; RAYMOND BARTON; RONALD PORRINO; RORY QUINTER; MARLIN BASHORE; BRIAN BATES; TERRY RAEZER; DANIEL REEVES; PETER BECKER; RON BESSIL, JR.; KE IT H R E IC H A R T ; S H IR L E Y HELEN BILLM AN; JAY REICHART; JEFFREY REIFSNYDER; B L A N K E N B I L L E R ; B R A D F O RD DE NN IS RE MP ; LOU IS REYES; BOLL; ROBERT BORD; PAUL BOYER; FLOYD RHODES, IV; LOUIS RODINO; GREGORY BOYER; SAM BROBST; JEFFREY ROTHERMEL; GEORGE R O B E R T C H ILA , SR .; L E W I S SALTZMAN, 3RD; RANDY SANDERS; COLLINS; BRIAN CONRAD; FERRELL SAMUEL S CH A EF ER ; M ICHAEL COOPER; GARY COOPER; ROBERT SCHAEFFER; TERRY SCHAEFFER, COULTER; MICHAEL DAVIDSON; SR.; JOHN SCHAICH; RANDY SCHIES; DAVID DEANGELO; PAUL DELBO, L IN D A S C H L E G E L ; D A R R E L L SR .; RICH AR D D IEH L; L ARRY SCHLEGEL, SR.; DALLAS DURHAM; GLENN FISHER; EVAN SCHLIECHER; THOMAS SCHWARTZ; FOURNRIS; ANTHONY GATTO, JR.; ANTHONY SEDOTI; EUGENE STEPHEN GERA S; A LFRED SEDOTI; JAMES SELTZER; TIMOTHY GIAC OM INI; GEORGE GRENUS; SHERMAN; GENE SHIMP; GEORGE LAFAYETTE HAYES; JOHN SHIREY, JR.; CHRISTOPHER HECKMAN, SR.; RANDY HERTZOG; SHOEMAKER; GEORGE SHUPP; PAUL DENNIS HILL; JOHN HORNING; SILK; JOSEPH SPICA; RICHARD S H AW N INGRAM; STANLEY S T IC H T E R ; CU RT IS ST IE LY ; JOHNSON; RUSSELL KLINE; LESTER DOUGLAS STROHL; THEODORE KLOCK; RICHARD KOHARCHECK; SULLIVAN; NORMAN SUNDAY; KEITH KRAMMES; ROBIN KRICK; JOSEPH TOKONITZ; FR EDERICK STEVEN KRUSZEWSKI; RAYMOND TRATE, JR.; WALTERS VACULA; KUBACKI, JR.; S. KEITH KULP; R I CH A RD VALENTINE; BARRY PA TR I CI A L A Y T O N ; T H O M A S WALTERS; DAVID WALTERS; BRIAN L E C H N E R ; TH EO DO RE LEW IS; W A L T E R S ; R I C H A R D JOSEPH LISA; ROSALIE LONG;

2 JOSEPH MARONE; GEORGE MICHAEL R. HANSFORD; STEVEN J. MATALAVAGE; JAMES MAY; JACK HAUGER; DENIS J. HEYDT; JOHN J. MCNERNY, JR.; WILLIAM HOMKA, JR.; MARC HUNTZINGER; MERRIWEATHER; H. DAVID MILLER; THOMAS C. ISETT; CHRISTOPHER W. JANE MILLER; WILLIAM MOLINA; JONES; ROBERT C. JONES; Individually ANDREW MOORE; GARY MOYER; and in his capacity as Pottstown Borough SCOTT NEITHAMER; GLENN Manager; TIMOTHY O. KAHL; DIANE NEWCOMB; MAURIO PETA; GERARD L E F F L E R ; G E R A L D E. L U T Z; PETERKA; RANDALL PHILLIPS; WILLIAM M. MCANDREW; SCOTT R. R I C HA R D P H ILLIP S; W ILLIA M MELL; JEFFREY S. NOLL; GEORGE R. PICKUP, JR.; MIKE PINKASAVAGE; O'NEILL; R IC K Y C. O S WA LD; R O N A L D P R E SS L E Y ; JEFFRE Y KENNETH A. PLANER; WILLIAM H. PRINCE; DON QUIR E; STEVEN RAVERT; SALVATORE L. RIZZO; REICHART; WIN FR E D R O MAN; GREGORY C. SANCINELLA; KEVIN RORKE; BARRY SCHAEFFER; RICHARD D. TOLLAND; KENNETH DONALD SCHIEN; TODD SWARTZ; WARFIELD; GARY L. WEISS; LARRY GENE SEDOTI; WILLIAM SHUPP, III; L. WOLFE; JOSEPH E. YAKAITIS; ANNETTE SICENAVAGE; JAMES F R ANC IS M . ZE L L ER ; J O HN S IM M O N S ; B A R R Y S NY D E R ; CONTSICOS; HAROLD J. FASIG; ROBERT SN YD ER , JR., D. CHARLES E. FELTY, JR.; DALE FOX; STUBBLEBINE; ANGELO TADDEO; CARL FURILLO; MICHAEL GROSS; S T E P H E N T H O M P S O N ; T ER R Y TOM HOLLAND; MARK K. OUDINOT; TRAYER; JOHN W ALCHAK, JR.; JEFFREY G. RACZKA, SR.; GERALD ROBERT WALLACE; ARLAN B. RHOADS; ANTHONY W. WEAVER; TERRY WENZ; RON ROTKISKE, JR.; RICHARD J. SEISLER, W E S S N E R ; WADE W E S S N ER; II; JOSEPH F. SHOUMLISKY, RICHARD WOLF; ROBERT YENSER; CHARLES ZAMBIASI; GREGORY D. Appellants in No. 03-3404 ARTERS; AARON C. AUGHTRY; Cross Appellees in Nos. 03-3610 KENNETH BAIR; GLENN D . and 03-3620 BEARSTIER; DALE A. BENDER; M A R I O B I SB A N O ; HA R R Y E. v. BOWERS, JR.; JIMMIE CALDWELL; JOSEPH T. COULSTON, JR.; HOWARD SECURITY GUARDS, INC. C. CRAWFORD, JR.; KURT D. DAHMS; Appellant in No. 03-3610 GREGORY L. DUFFIN; PATRICK J. Cross Appellee in No. 03-3404; DUGGAN; ROY M . FLOWERS; LEROY G. FREY; MICHAEL J. GALAVAGE; DANA CORPORATION NATHAN A. GARBER; DERRICK L. Appellant in No. 03-3620 GRAVES; ARNEL C. GRETH; Cross Appellee in No. 03-3404

3 Scott F. Cooper (Argued) Scott A. Mayer On Appeal From the United States Blank Rome District Court One Logan Square For the Eastern District of Pennsylvania Philadelphia, PA 19103 (D.C. Civil Action No. 00-cv-00566) Attorneys for Dana Corporation District Judge: Hon. Franklin S. Appellant in No. 03-3620 VanAntwerpen Cross Appellee in No. 03-3404 Magistrate Judge: Hon. Linda K. Caracappa

OPINION OF THE COURT Argued June 29, 2004

BEFORE: AMBRO, ALDISERT and STAPLETON, Circuit Judge: STAPLETON, Circuit Judges Daulph Kline and Terry Kline (Opinion Filed: October 6, 2004) brought suit in the Court of Common Pleas of Berks County, in the Commonwealth of Pennsylvania, against Dana Corporation Joseph F. Roda (Argued) (“Dana”), Security Guards, Inc. (“SGI”), Roda & Nast and Radio Maintenance, Inc. (“RMI”; 801 Estelle Drive collectively, the “Defendants”) asserting Lancaster, PA 17601 n u m e r o u s c l a im s a r i s in g u n d e r Attorney for Daulph Kline, et al. Pennsylvania law. Defendants thereafter Appellants in No. 03-3404 removed the case to the United States Cross Appellees in Nos. 03-3610 District Court for the Eastern District of and 03-3620 Pennsylvania, contending that Appellants’ claims were completely preempted by § Scott L. Vernick 301 of the Labor Management Relations Joshua Horn (Argued) Act (“LMRA”), 29 U.S.C. § 185. RMI Emil J. Kiehne was ultimately dismissed as a party and Fox Rothschild judgment was entered in favor of Dana and 2000 Market Street SGI. This appeal followed. Because we 10th Floor conclude that the District Court did not Philadelphia, PA 19103 have subject matter jurisdiction over any Attorneys for Security Guards, Inc. of the state law claims asserted in the Appellant in No. 03-3610 complaint, we will vacate the judgment Cross Appellee in No. 03-3404 and remand to the District Court with instructions to return this case to the

4 Pennsylvania Court of Common Pleas. employees at the Reading facility, Terry and Daulph Kline, learned from certain I. SGI guards operating the guard booth that This case arises out of Dana’s the surveillance system had the capacity to alleged surveillance of its hourly transm it to the mo nitor oral employees at one of its facilities in communications taking place in the Reading, Pennsylvania. Dana, a Virginia entryway. The Klines then reported this corporation, is a manufacturer of fact to their Union representatives. Over a u to m ob i l e a n d t r u c k a s s e m b l y the course of the following weeks, the components. During the relevant period, Union made inquiries of Dana’s its hourly employees working at the management concerning its use of the facility were represented by the United surveillance system. These inquiries Steel Workers of America, Local 3733 (the resulted in the removal of the system on “Union”) and were subject to a Collective October 29, 1998. Bargaining Agreement (“CBA”) between Terry and Daulph Kline filed a Dana and the Union. complaint against Defendants in the Court On September 28, 1998, Dana of Common Pleas of Berks County, in the installed an audio and video surveillance Co mm onw ealth o f P e n n s y lv a nia , system in an entryway at its Reading asserting, in sixty-nine counts, (1) claims facility. The system was allegedly under the Pennsylvania Wire Tapping and purchased from, and installed by, RMI. It Electronic Surveillance Control Act (the consisted of two cameras with built-in “Wiretap Act”), 18 Pa. Cons. Stat. § 5725; microphones, a monitor with a built-in (2) claims under the Pennsylvania Private speaker, and a twenty-four hour video Detective Act of 1953 (the “Detective cassette recorder. The system enabled Act”), Pa. Stat. Ann. tit. 22, § 26; and (3) Dana to monitor the entryway, which was various Pennsylvania common law tort the location at which its hourly employees causes of action, including invasion of were required to “punch-in.” The cameras privacy.1 Shortly thereafter, Defendants automatically sent video and audio signals to the monitor, which was located in a 1 guard booth adjacent to the entryway. The Thirty of those counts were asserted guard booth was operated by employees of against Defendants under § 5725 of the SGI, a Pennsylvania corporation, which Wiretap Act, which provides a civil cause had contracted with Dana since 1989 to of action for any person whose oral provide it with security services. The SGI communications are intercepted, disclosed, guards operating the booth reported to, and or used, to recover against any person who were supervised by, Dana managers. intercepts, discloses, or uses such oral communications in violation of the Approximately one week after Wiretap Act. Four of the counts asserted installation of the system, two hourly civil conspiracy claims under § 16 of the

5 removed the case to the District Court for appeal was filed following the entry of the Eastern District of Pennsylvania and final judgment filed motions to dismiss. The Klines filed II. a motion to remand. The District Court, without opinion, denied both the We are presented with a final order Defendants’ motions to dismiss and the of a District Court to review. Accordingly, Klines’ motion to remand. Accordingly, we have appellate jurisdiction. 28 U.S.C. the District Court retained jurisdiction and § 1291. It is not clear, however, that the allowed the matter to proceed.2 This District Court had subject matter jurisdiction to enter that judgment, and we are obliged to raise and resolve that Detective Act, alleging that Dana, SGI, jurisdictional issue before addressing the and RMI violated, and conspired to merits of this appeal. Exxon Mobil Corp. violate, this statute by forming a scheme to v. Saudi Basic Industries Corp., 364 F.3d intercept and disclose Plaintiffs’ oral 102, 104 (3d Cir. 2004). communications to the detriment of their rights to form, join, or assist a labor union, According to Dana and SGI, the and their constitutional rights to District Court possessed subject matter association, collective bargaining, and jurisdiction because at least three assembly. Six counts asserted tort claims categories of Appellants’ claims were against Defendants for invasion of privacy. completely preempted by § 301 of the Twelve counts asserted that Defendants Labor Management Relations A ct had negligently or recklessly supervised (“LMRA”), 29 U.S.C. § 185: (1) the their duly authorized officers, agents, Wiretap Act claims; (2) the tort law servants, or employees, thereby causing invasion of privacy claims; and (3) the tort harm to Plaintiffs. Eight counts asserted law negligent or reckless supervision that Defendants had negligently or claims. Appellants insist, however, that recklessly supervised the premises or the LMRA was not implicated in any of instrumentalities under their control. Six their claims. We agree with Appellants counts asserted a respondeat superior that subject matter jurisdiction was theory against Defendants for the actions lacking.3 of their employees. Two counts asserted that Dana had failed to exercise reasonable care to protect Appellants as business who were hourly employees at Dana’s invitees. The final count asserted class Reading facility. action allegations. 3 “We exercise plenary review in 2 The District Court denied the Klines’ determining whether the District Court had motion for class certification, and they subject matter jurisdiction.” Bracken v. were subsequ en tly j o i n e d by Matgouranis, 296 F.3d 160, 162 (3d Cir. approximately 370 additional plaintiffs 2002) (citing Wujick v. Dale & Dale, Inc.,

6 A. which provides that federal jurisdiction exists only when “Only state-court actions that a fede ral question is originally could have been filed in federal presented on the face of the court may be removed to federal court by plaintiff’s properly pleaded the defendant.” Caterpillar Inc. v. complaint. See Gully v. Williams, 482 U.S. 386, 392 (1987). If First National Bank, 299 Appellants’ case could not have been filed U.S. 109, 112-113, 57 S. Ct. originally in federal court, then removal 96, 97-98, 81 L. Ed. 70 under 28 U.S.C. § 1441 was improper and (1936). The rule makes the Appellants would be entitled to the remand plaintiff the master of the they initially requested. See Roxbury claim; he or she may avoid Condo. Assoc., Inc. v. Anthony S. Cupo federal jurisdiction by Agency, 316 F.3d 224, 227 (3d Cir. 2003) exclusive reliance on state (“Removal jurisdiction under section 1441 law. is . . . wholly derived from original federal jurisdiction.”); see also 28 U.S.C. § Id. As we have indicated, Appellants’ 1447(c) (“If at any time before final complaint in this case indeed sounded judgment it appears that the district court entirely in state law. That does not, lacks subject matter jurisdiction, the case however, end our analysis. shall be remanded.”). Here, diversity There is an exception to the well- jurisdiction under 28 U.S.C. § 1332 was pleaded complaint rule that precludes a unavailable because SGI is a Pennsylvania plaintiff from “avoid[ing] a federal forum corporation and the Klines were both by ‘artfully pleading’ what is, in essence, Pennsylvania citizens. Accordingly, we a federal claim solely in terms of state must determine whether federal question law.” Tifft v. Commonwealth Edison Co., jurisdiction existed under 28 U.S.C. § 366 F.3d 513 (7th Cir. 2004) (citing 1331. See Caterpillar, 482 U.S. at 392 Franchise Tax Bd. of State of Cal. v. (“Absent diversity of citizenship, federal- Construction Laborers Vacation Trust for question jurisdiction is required [for Southern California, 463 U.S. 1, 22 removal].”). (1983)). This exception, described as an As the Supreme Court explained in “independent corollary” to the well- Caterpillar: pleaded complaint rule is the so-called “ c o m p l e t e p r e e m p t io n ” d o c t r in e . The presence or absence of Caterpillar, 482 U.S. at 393. In federal-question jurisdiction Caterpillar, the Supreme Court articulated is governed by the “well- this doctrine as follows: pleaded complaint rule,” On occasion, the Court has concluded that the pre- 43 F.3d 790, 792 (3d Cir.1994)).

7 emptive force of a statute is defined in this chapter, or so “extraordinary” that it between any such labor “converts an ordinary state organ izations, m ay b e common-law complaint into brought in any district court one stating a federal claim of the United States having for purposes of the well- jurisdiction of the parties, pleaded complaint rule.” without respect to the Metropolitan Life Ins. Co. amount in controversy or [v. Taylor, 481 U.S. 58, 65 without regard to the (1987)]. Once an area of citizenship of the parties. state law has been 29 U.S.C.§ 185(a). We have previously completely pre-empted, any had occasion to review extensively the claim purportedly based on Supreme Court’s jurisprudence regarding that pre-empted state law is the complete preemption of state law c o n s i d e re d , f r o m i t s claims under § 301 of the LMRA. See, inception, a federal claim, e.g., Voilas v. General Motors Corp., 170 and therefore arises under F.3d 367, 373-76 (3d Cir. 1999); Trans federal law. See Franchise Penn Wax Corp. v. McCandless, 50 F.3d Tax Board, supra, 463 U.S., 217, 228-30 (3d Cir. 1995); Berda v. CBS, at 24, 103 S. Ct., at 2854 Inc., 881 F.2d 20, 22-25 (3d Cir. 1989). (“[I]f a federal cause of Accordingly, we will review the relevant action completely pre-empts principles only briefly. a state cause of action any complaint that comes within In Allis-Chalmers Corp. v. Lueck, the scope of the federal 471 U.S. 202 (1985), the Supreme Court cause of action necessarily set forth the standard for determining ‘arises under’ federal law”). when a state law claim is completely preempted by § 301: “[W]hen resolution of Id. a state-law claim is substantially Section 301 of the LMRA has been dependent upon analysis of the terms of an held to possess this preemptive force. See agreement made between the parties in a Franchise Tax Bd., 463 U.S. at 23. It labor contract, that claim must either be provides: treated as a § 301 claim or dismissed as pre-empted by federal labor-contract law.” Suits for violation of Id. at 220 (citation omitted). In that case, contra cts b e t w e e n a n the plaintiff brought a state tort claim employer and a labor against his employer for the bad-faith organization representing processing of an insurance claim. The employees in an industry Court concluded that this cause of action affecting commerce as was completely preempted by § 301

8 because “[t]he duties imposed and rights collective agreement, and established through the state tort . . . derive could have brought suit from the rights and obligations established under § 301. As masters of by the [collective-bargaining] contract,” the complaint, however, and resolution of the dispute would they chose not to do so. therefore “inevitably . . . involve contract Moreover, . . . respondents’ interpretation.” Id. at 217-18. The complaint is not Supreme Court noted, however, that “it substantially dependent would be inconsistent with congressional upon interpretation of the intent under [§ 301] to pre-empt state rules collective-bargainin g that proscribe conduct, or establish rights agreement. It does not rely and obligations, independent of a labor upon the co llective contract.” Id. at 212. agreement indirectly, nor Subsequently, in Caterpillar, 482 does it addre ss the U.S. 386, the Court considered whether § relationship between the 301 permitted employees, who were individual contracts and the covered by a collective bargaining collective agreement. agreement, to bring state law contract Id. at 394-95. We have described claims for breach of individual contracts Caterpillar as standing for the proposition between each employee and their that “employees have the option of employer. After reiterating that § 301 vindicating their interests by means of “governs claims founded directly on rights either a section 301 action or an action c r e a te d b y c o ll e c ti v e -b a r g a i n i n g brought under state law, as long as the agreements, and also claims substantially state-law action as pleaded does not dependent on analysis of a collective require interpretation of the collective bargaining agreem ent,” the Court bargaining agreement.” Voilas, 170 F.3d concluded that the employees’ state claims at 373-74 (citing Caterpillar, 482 U.S. at for breach of their individual employment 394-95). contracts were not preempted. Id. at 394 (internal quotation omitted). The Court The Supreme Court next addressed reasoned: § 301 in Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988), where it Section 301 says nothing considered whether that provision about the content or validity completely preempted an employee’s state of individual employment law retaliatory discharge claim against her contracts. It is true that employer. The Court’s analysis focused respondents, bargaining unit first upon the elements necessary to make members at the time of the a prima facie retaliatory discharge claim plant closing, possessed under the relevant state law: (1) discharge substantial rights under the

9 or a threat of discharge, and (2) a motive agreements. In other words, to deter the employee from exercising her even if dispute resolution rights. These elements, the court noted, pursuant to a collective- constituted “purely factual questions bargaining agreement, on pertain[ing] to the conduct of the employee the one hand, and state law, and the conduct and motivation of the on the other, would require employer,” neither of which “require[d] a addressing precisely the court to interpret any term of a collective- same set of facts, as long as bargaining agreement.” Id. at 407. the state-law claim can be Accordingly, the Court concluded that the resolved without employee’s state claim was “independent” interpreting the agreement of the relevant collective-bargaining i t se l f , t h e c la i m i s agreement for purposes of § 301 because “ i n depe nden t” o f th e “resolution of the state-law claim d[id] not agreement for § 301 pre- require construing the collectiv e emption purposes. bargaining agreement.” Id. Morever, the Id. at 409-410. Court found it irrelevant that “the state-law analysis might well involve attention to the The Supreme Court addressed § same factual considerations as the 301 preemption most recently in Livadas v. contractual determination of whether [the Bradshaw, 512 U.S. 107 (1994). There, employee] was fired for just cause [under the Court was required to consider whether her collective-bargaining agreement].” Id. § 301 preempted a plaintiff’s state law at 408. “[S]uch parallelism,” according to claim to recover a statutory penalty arising the Court, would not “render[] the state- from her former employer’s payment of law analysis dependent upon the late wages. The Court began its analysis contractual analysis.” The Court opined by summarizing the relevant controlling that the reason for this was that principles: § 301 pre-emption merely [T]he pre-emption rule has ensures that federal law will been applied only to assure be the basis for interpreting that the purposes animating collective-bargainin g § 301 will be frustrated a g r e e m e nts, and s a ys neither by state laws nothing about the purporting to determine substantive rights a State “questions relating to what may provide to workers the parties to a labor when adjudication of those agreement agreed, and what rights does not depend upon legal consequences were the interpre tation of intended to flow from [colle ctive-barg ainin g] breaches of that agreement,”

10 nor by parties’ efforts to [t]he only issue raised by renege on their arbitration [the plaintiff’s] claim , promises by “relabeling” as whether [her employer] tort suits actions simply “willfully fail[ed] to pay” alleging breaches of duties her wages promptly upon assumed in colle ctive- severance, was a question of bargaining agreements . . . . state l a w , e n t i re ly independent of any In [Allis-Chalmers] and in understanding embodied in Lingle . . . , we underscored the collective-bargaining the point that § 301 cannot agreement betw een the be read broadly to pre-empt union and the employer. n onn egotia ble r i g h ts There is no indication that conferred on individual there was a “dispute” in this employees as a matter of case over the amount of the state law, and we stressed penalty to which [the that it is the legal character plaintiff] would be entitled, of a claim, as “independent” and Lingle makes plain in so of rights u nder the many words that when collective-b argain ing liability is governed by agreement (and not whether independent state law, the a grievance arising from mere need to “look to” the “precisely the same set of collec tive-barg aining facts” could be pursued) that agreement for damages decides whether a state computation is no reason to cause of action may go hold the state-law claim forward. Finally, we were defeated by § 301. clear that when the meaning of contract terms is not the Id. at 124-25. Accordingly, the Court subject of dispute, the bare concluded that the plaintiff’s state law fact that a collective- claim was not completely preempted by § bargaining agreement will 301 of the LMRA. be consulted in the course of B. state-law litigation plainly does not require the claim to At the outset, we address Dana’s be extinguished. and SGI’s general contentions with respect to Appellants’ state law claims. According Id. at 122-24 (internal citations and to Dana and SGI, the state claims go to the footnotes omitted). Applying these “core” of Dana’s management rights, a principles, the Court reasoned that subject of collective bargaining. They also

11 argue that Appellants’ state claims “necessarily implic ate” th e “Management’s Rights” and “Shop Rules” condition suspend work. clauses of the CBA between Dana and the U n i o n . 4 D a n a a n d Section 2. Promotions – Discipline – Discharge The right to promote, 4 The relevant portion of the CBA and the right to discipline provides: and discharge for proper cause are likewise the sole A R T I C L E 1 1 . responsib ility of th e MANAGEMENT’S Management. Provided, the RIGHTS claims of discriminatory Section 1. General promotions and of wrongful or unjust discipline or T h e U n i o n discharges shall be subject recognizes the rights and to the Grievance Procedure responsibilities belonging herein provided. solely to the Company, such as the rights to decide the Proper cause for number and location of discipline and discharge plants, the machine and tool shall be determined in equipment, the products to accordance with the rules b e m anuf acture d, th e and procedures outlined in method of manufacture, the Exhibit B, Shop Rules and schedules of production, the violations of Shop Rules. If processes of manufacturing no rule exists under the or assembling, together with Shop Rules then all designing engineering management’s rights would and the control of raw apply. materials, semi- Section 3. Order and manufactured, and finished Efficiency parts w hich m ay b e i n c o rpor a t e d into th e (a) The right to hire products manufactured. and to maintain order and efficiency is the sole When required by r e s p o n s i b i l i ty o f t h e Management, employees Management. n ecessary to maintain protection of the Company’s (b) There will be no property shall under no hiring of part-time or

12 SGI therefore contend that the claims was that the “foundation” of the state law cannot be analyzed without reference to tort and contract claims was “job security the CBA. While it is true that the CBA in the face of layoffs or discharge,” a may be consulted in the course of litigating mandatory subject of collective bargaining Appellants’ claims, it does not follow that and a subject covered in the collective their claims are completely preempted. bargaining agreement. Id. at 230. Consequently, the employer argued, the In Trans Penn Wax Corp. v. claims were dependent upon the applicable McCandless, 50 F.3d at 230-31, we collective-bargaining agreement and addressed, and rejected, a similar argument should be preempted by § 301. We in support of finding complete preemption rejected this argument, reasoning that under § 301. In that case, the plaintiff employees were subject to a collective- [t]he employees have not bargaining agreement between their alleged [that the employer] employer and their union, but had also violated the terms and entered into individual employment conditions of the collective contracts in which the employer b a r g a i n in g a g r e em e n t . guaranteed their job security. Several of While the state law claims the employees were later terminated and here relate to job security, thereafter brought state law claims against they are grounded in the their employer for breach of contract, guarantee given the fraud, and intentional infliction of em p l o ye e s by [ the emotional distress, relating to the employer]. The collective representations made by the employer in bargaining agreement does their individual employment contracts. not mention the individual One of the arguments advanced by the employment contracts, nor employer in favor of finding preemption does [the employer] explain h o w t h e c l a i m s a re substantially dependent on temporary employees analysis of the collective to do any work that bargaining agreement. The is performed by fact that job security is bargain ing unit addressed in the collective employees. bargaining agreement is “of no consequence, because App. at 605. The “Shop Rules” exhibit to [the employees] need not the CBA prescribes conduct that covered refer to ... the collective employees are prohibited from engaging bargaining agreement in in, as well as procedures for dealing with order to make out [their] the prescribed infractions. claim.” Berda, 881 F.2d at

13 27. bargaining agreement, so long as the state claim does not require interpretation of the Id. at 230-31 (footnote omitted). In collective bargaining agreement.”). rejecting the employer’s argument, we also noted that “‘there is nothing novel about Although Dana and SGI rely upon recognizing that substantive rights in the the “Management’s Rights” and “Shop labor relations context can exist without Rules” clauses of the CBA, they do not i n t e rp r e t in g c o l l ec t i v e- b a r g a i n in g point to any specific provision of these agreements.” Id. at 231 (quoting Lingle, clauses that must be interpreted in order to 486 U.S. at 411). resolve Appellants’ claims. Nor can we identify any provision that would require Similarly here, Appellants have not interpretation. A finding of § 301 alleged a violation of any term or preemption is not mandated simply by the condition of the CBA. Nor does it appear contention that Appellants’ state law from the face of their complaint that any of claims “necessarily implicate” the CBA. their state claims are founded upon rights That is, the mere fact that we must look at created by the CBA. Although their state the CBA in order to determine that it is claims relate to conduct that Defendants silent on any issue relevant to Appellants’ engaged in at Appellants’ workplace, those state claims does not mean that we have claims, as in Trans Penn Wax, are “interpreted” the CBA. As the Ninth nonetheless grounded in substantive rights Circuit Court of Appeals has recently granted under state law. Moreover, the stated in applying Livadas: CBA itself makes no mention of the use of video cameras, microphones, or other [A]lleging a hypothetical surveillance of any kind. Like Trans Penn connection between the Wax, the essential question is not whether [state law] claim and the Appellants’ claims relate to a subject – terms of the CBA is not management’s rights – contemplated by enough to preempt the the CBA. In fact, Caterpillar and Lingle claim: adjudication of the both recognize that a finding of claim must require preemption under § 301 is not required interpretation of a provision even if the same set of facts may give rise of the CBA. A creative to a state law claim as well as an action for linkage between the subject violation of the CBA. Rather, the matter of the claim and the dispositive question here is whether wording of a CBA provision Appellants’ state claims require any is insufficient; rather, the interpretation of a provision of the CBA. proffered interpreta tion Id. at 229 (“[A] plaintiff may bring a state argument must reach a law tort action against an employer, even reasonable level o f where he could have brought a similar credibility. Cf. Livadas, 512 claim based on a provision in his collective U.S. at 124-25, 114 S. Ct.

14 2068. The argument does expectation of privacy is one that society is not become credible simply prepared to recognize as reasonable,” because the court may have which “is necessarily an objective to consult the CBA to standard.” Id. evaluate it; “look[ing] to” Dana and SGI insist that this claim the CBA merely to discern is completely preempted by § 301 of the that none of its terms is LMRA because the justifiable expectation reasonably in dispute does of Appellants cannot be determined not require preemption. Id. without reference to Dana’s bargained-for at 125, 114 S. Ct. 2068. management rights to direc t the Cramer v. Consolidated Freightways Inc., supervision of employees. We regard this 255 F.3d 683, 691 (9th Cir. 2001) (en argument as foreclosed by our decision in banc). Trans Penn Wax. As we have noted, the employees in that case alleged that the With this background, we turn to employer’s breach of its guarantees of job each of the Appellants’ state law claims to security, granted in individual contracts d e t e r m in e wh ether th e y r equir e with the employees, constituted fraud and interpretation of the CBA. the intentional infliction of emotional 1. distress. Under Pennsylvania law, one of the elements required for a fraud claim Appellants claim that Defendants was that the plaintiff justifiably relied on violated § 5725 of the Wiretap Act. Such the defendant’s misrepresentations. One a claim requires a plaintiff to demonstrate: of the essential elements of a cause of “(1) that he engaged in [an oral] action for intentional infliction of communication; (2) that he possessed an emotional distress was a showing that the expectation that the communication would defendant’s conduct was “extreme and not be intercepted; (3) that his expectation outrageous.” Much like Dana and SGI, the was justifiable under the circumstances; employer in that case argued that the only and (4) that the defendant attempted to, or way to determine whether the employees success fully intercep ted the were justified in relying upon its communication, or encouraged another to representations guaranteeing job security do so.” Agnew v. Dupler, 717 A.2d 519, or whether its conduct had been “extreme 522 (Pa. 1998). In Agnew, the Supreme and outrageous” was to interpret the Court of Pennsylvania held that “a applic able collec tive barg ainin g conversation amounts to a protected ‘oral agreement. In both instances, the communication’ under the Wiretap Act employer suggested, the collective only where the speaker possessed a bargaining agreement was part of the reasonable expectation of privacy in the context in which the issue had to be conversation.” Id. at 523. Moreover, the addressed. Arguably, for example, the Court decided that “the standard for such

15 collective-bargaining agreement could consulted in the course of state law have contained provisions that undermined litigation plainly does not require the the employees’ allegation that their claims to be extinguished.” Livadas, 512 reliance upon the separate guarantees was U.S. at 124. justified. Nonetheless, we rejected the Dana and SGI insist that their employer’s argument, holding that neither argument is supported by numerous cases of these two tort claims was completely that have found state law invasion of preempted by § 301. We pointed out that privacy claims completely preempted by § the “justifiable reliance” and “extreme and 301. See, e.g., In re General Motors outrageous conduct” were “purely factual Corp., 3 F.3d 980, 982 (6th Cir. 1993); questions,” the resolution of which did not Mock v. T.G. & Y . Stores Co., 971 F.2d “require[] interpretation of the collective 522 (10th Cir. 1992); In re Amoco bargaining agreement [or] substantially Petroleum Additives Co., 964 F.2d 706 depend[] on its construction.” Trans Penn (7th Cir. 1992); and Kirby v. Allegheny Wax, 50 F.3d at 232. The fact that a Beverage Corp., 811 F.2d 253 (4th Cir. collective bargaining agreement was part 1987). We find these cases either of the context in which an employee’s inapposite or lacking in continued vitality claim must be addressed thus did not following the Supreme Court case law we trigger complete preemption in the absence have earlier discussed. Moreover, to the of some substantial dispute over the extent any of them is in tension with Trans meaning of the collective bargaining Penn Wax, we must, of course, remain agreement. faithful to that decision. Based on Trans Penn Wax, we must In Kirby v. Allegheny Beverage reject Dana and SGI’s contention that the Corp., a plaintiff brought a state law only way to determine whether Appellants invasion of privacy claim against his had a justifiable expectation of privacy is employer after he was forced to submit to by interpreting the CBA. Appellants’ a search of his person and then forced to justifiable expectations can be determined resign after refusing to submit to a search by a state court simply by considering the of his automobile. The employer removed conduct of Dana and the facts and the case to federal court and sought circumstances of Appellants’ workplace. dismissal on grounds of complete Dana has provided no reason to believe preemption by § 301 of the LMRA; the that such a determination will require the Court of Appeals for the Fourth Circuit resolution of any dispute concerning rights agreed. It reasoned that “the issues or obligations contained in the CBA, and presented by the search in this case are we are unable to perceive one. “[W]hen ‘grist for the mill of grievance procedures the meaning of contract terms is not the and arbitration.’” Id. at 256 (quoting subject of dispute, the bare fact that a Strachan v. Union Oil Co., 768 F.2d 703, collective bargaining agreement will be 705 (5th Cir. 1985)). According to the

16 Court, it was clear that the plaintiff could state law claims did not depend on the refuse to submit to the search, and if meaning of the applicable collective- dismissed, could have challenged the bargaining agreement. Although the t e r m i n at i on u nder the grieva nce employee conceded that the collective- procedures provided for in his CBA. bargaining agreement could have Furthermore, the Court noted, if his union authorized the surveillance, he noted that had refused to submit a grievance, the nothing in the agreement actually plaintiff could have then sued his union for mentioned cameras, locker rooms, or breach of the duty of fair representation, surveillance in general. The Court agreed under the Supreme Court’s decision in with Am oco, h ow ever, th at the Vaca v. Sipes, 386 U.S. 171 (1967). management-rights provision of the According to the Court, “the availability of parties’ collective bargaining agreement remedies under the labor contract could fairly be read as a “residual clause” precludes appellant’s pursuit of those commuting “everything that [was] neither remedies in a state law tort action.” Kirby, regulated nor forbidden by the . . . 811 F.2d at 256. agreement . . . to [the] discretion” of the employer. Since this arguable reading We are unable to reconcile this wo uld a u t h o r iz e t h e c h a ll e n ge d conclusion with the Supreme Court’s surveillance, the Court concluded that a decision in Caterpillar, which was decided “state court could not award damages four months after Kirby. As we noted without first construing the collective above, Caterpillar holds that an employee bargaining agreement and rejecting has the option of vindicating his interests Am oco’s interpretatio n of the by seeking a remedy available under a management-rights clause.” Id. at 709. collective-bargaining agreement or by bringing a state court action, as long as the The Amoco Court relied primarily state law action does not require on Kirby and Stikes v. Chevron USA, Inc., interpretation of the collective-bargaining 914 F.2d 1265 (9th Cir. 1990). Just as we agreement. 482 U.S. at 394-95. Thus, have concluded that Kirby did not survive Kirby’s holding – that the availability of a Caterpillar, an en banc Ninth Circuit labor contract remedy precluded a state Court of Appeals has concluded that Stikes tort action brought to vindicate the same did not survive the ensuing Supreme Court interests – did not survive Caterpillar. j u r i s pr uden c e . See Cram er v. Consolidated Freightways, Inc., 255 F.3d In In re Amoco Petroleum Additives 683, 692 (9th Cir. 2001) (en banc). Given Co., an employee sued for invasion of that jurisprudence, it is not clear to us that privacy and intentional infliction of we would have reached the same result emotional distress after Amoco installed a reached by the Amoco Court. In any event, camera outside of the women’s locker it is clear to us that the “Management room. With respect to complete Rights” article of the agreement before us preemption, the employee argued that his

17 cannot arguably be read as a residual program participation was to remain clause committing everything not covered confidential. The Court concluded that the in the agreement to management’s duty of confidentiality alleged to have discretion. For that reason, Amoco is been violated arose from the collective- inapposite here. bargaining agreement, and the invasion of privacy claim was therefore completely In Mock, an employee brought suit preempted. Thus, the right allegedly against T.G. & Y. for invasion of privacy violated – the right to confidential use of and intentional infliction of emotional an employee drug and alcohol abuse distress resulting from an investigation counseling program – arose out of a conducted by T.G. & Y. into employee collective-bargaining agreement and, misconduct and the employee’s subsequent accordingly, the plaintiff was necessarily termination. The Court held these claims relying on the terms of the labor contract. preempted, reasoning as follows: Appellants in our case have made no Under the CBA, T.G&Y. reference, nor need they make reference, to could conduct such an any provision of the CBA. investigation and could 2. terminate any employee for “just cause.” An analysis of Appellants also claim that whether T.G.&Y . acted Defendants committed the tort of invasion p ro p e rly or no t wil l of privacy. “An action for invasion of inevit a b l y r e q u i r e an privacy is comprised of four distinct torts: analysis of what the CBA (1) intrusion upon se clusion, (2) permitted. appropriation of name or likeness, (3) publicity given to private life and (4) Mock, 971 F.2d at 530. Thus, in Mock, as publicity placing the person in a false in Amoco, provisions of the collective light.” Harris v. Easton Publishing Co., bargaining agreement could fairly be read 483 A.2d 1377, 1383 (Pa. Super. Ct. 1984) to authorize the employer’s conduct. (citing Marks v. Bell Tel. Co. of Pa., 331 Finally, in In re General Motors A.2d 424 (Pa. 1975); Vogel v. W.T. Grant Corp., an employee brought suit against Co., 327 A.2d 133, 136 (Pa. 1974)). General Motors for invasion of privacy Although the state law complaint does not after General Motors, during the course of specify which privacy tort Appellants the employee’s grievance proceeding, advance, the only cause of action arguably allegedly revealed that the employee had relevant to the interception of oral sought drug and alcohol abuse counseling communications in this case is intrusion through an employee assistance program upon Appellants’ seclusion. The prescribed by the applicable collective- Pennsylvania courts have defined this bargaining agreement. Under the claim, in accordance with the Restatement collective-bargaining agreement, such (Second) of Torts (1977), as follows: “One

18 who intentionally intrudes, physically or business invitees – Dana and SGI argue otherwise, upon the solitude or seclusion that we must find these claims completely of another or his private affairs or preempted under Electrical Workers concerns, is subject to liability to the other (IBEW) v. Hechler, 481 U.S. 851 (1987), for invasion of his privacy, if the intrusion and Steelworkers v. Rawson, 495 U.S. 362, would be highly offensive to a reasonable 364 (1990). person.” Harris, 483 A.2d at 1383 Neither Hechler nor Rawson is (quoting Restatement (Second) of Torts § applicable to Appellants’ tort claims. In 652B). Like Appellants’ Wiretap Act Hechler, an employee of Florida Power claim, this cause of action also requires and Light Company sued her union after that the plaintiff have a reasonable she was injured performing a repair to an expectation of privacy. See id. (“The electrical substation. The basis of her defendant is subject to liability under this claim was that the union had breached a section only when he has intruded into a duty it assumed, pursuant to the relevant private place, or has otherwise invaded a collective-bargaining agreement, to ensure private seclusion that the plaintiff has that she would not be required or allowed thrown about his person or affairs.” (citing to take undue risks in the performance of Restatement (Second) of Torts § 652B cmt. her duties which were not commensurate c)). with her training and experience. The With respect to Appellants’ Court held that this claim was completely invasion of privacy claim, Dana and SGI preempted by § 301 of the LMRA because present arguments identical to those they it was not sufficiently independent of the raise in favor of extinguishing the Wiretap c o l l ec t i v e- b a r g a in i n g a g re e m en t . Act claims – namely that the expectation According to the Court, the plaintiff’s tort of privacy issue and the “highly offensive claim was based on her allegation that her to a reasonable person” issue must be union owed her a duty of care, but determined in the light of the collective “[u]nder common law . . . it is the bargaining agreement. Again, based on employer, not a labor union, that owes Trans Penn West, we reject these employees a duty to exercise reasonable arguments. care in providing a safe workplace.” Id. at 859. Accordingly, the Court reasoned, the 3. plaintiff’s “allegations of negligence As for Appellants’ remaining tort assume significance if – and only if – the claims – negligent or reckless supervision Union, in fact, had assumed the duty of of Defendants’ officers, agents, servants; care that the complaint alleges the Union negligent or reckless supervision of breached.” Id. at 861. In order to Defendants’ premises or instrumentalities determine the union’s tort liability, a court under their control; and failure to exercise would have to examine the duty assumed reasonable care to protect Appellants as by the union in the collective-bargaining

19 agreement and the scope of that duty. delegates are accused of This, according to the Court, was precisely acting in a way that might the type of contract interpretation that v i o l a te t h e d u ty o f implicated the complete preemption reasonable care owed to doctrine. As in Allis-Chalmers, the Court every person in society. held, the plaintiff was “precluded from There is no allegation, for evading the pre-emptive force of § 301 by example, that members of casting her claim as a state tort action.” Id. t h e s a f e ty comm itte e negligently caused damage Similarly, in Rawson, the plaintiffs, to the structure of the mine, survivors of four miners who were killed an act that could be in an underground mine fire, brought state unreasonable irrespective of law wrongful death actions against the who committed it and could deceaseds’ union alleging that the deaths foreseeably cause injury to were caused by the union’s fraudulent and any person who might negligent acts. The plaintiffs’ claims were possibly be in the vicinity. based on the contention that the union had, through a collective-bargaining agreement . . . If the Union failed to with the mine operator, caused to be perform a du ty in established a management-labor safety connection with inspection, committee. The plaintiffs argued that the it was a duty arising out of union representatives had negligently the collective-bargaining performed inspections that the union had agreement signed by the promised to conduct, failing to uncover Union as the bargaining obvious deficiencies. The Supreme Court, agent for the miners. as in Hechler, again held that the wrongful Clearly, the enforcement of death claim against the union was that agreement and the completely preempted. The Court noted remedies for its breach are that, like Hechler, the plaintiffs’ pleadings matters governed by federal indicated that the duty of care relied on as law. . . . Pre-emption by the basis of their tort suit was one federal law cannot be allegedly assumed by the union in a avoided by characterizing collective bargaining agreement. The the U nion’s negligent Court further reasoned: performance of what it does on behalf of the members of As we see it . . . , [the the bargaining unit pursuant plaintiffs’] tort claim cannot to the term s of th e be described as independent c o l l ec t i v e- b a r g ain in g of the collective-bargaining contract as a state-law tort. agreement. This is not a situation where the Union’s Id. at 371-72. Accordingly, the Court

20 held, the plaintiffs’ suit could only go form, join, or assist any forward under federal law. labor organization of their own choosing, to interfere In relying on Hechler and Rawson, or hinder the lawful or Dana and SGI refuse to acknowledge that peaceful collective the duty of care in both of those cases was bargaining between alleged to have arisen from a collective- employees and employers, bargaining agreement. In both of those to pay, offer, or give any cases, the unions, which did not otherwise money, gratuity, favor, have any duty of care under state law, were consideration, or other thing the defendants being sued. In this case, of value , dire ctl y or however, Appellants’ claims did not indirectly, to any person, for invoke any duty of care prescribed by the any verbal or written report CBA, and no consultation with the CBA is of the lawful activities of necessary in order to define the scope of employees in the exercise of the duties alleged to have been breached. their right of self- Accordingly, whatever duties Dana was organization, to form, join, alleged to have had with respect to or assist labor organizations, supervision its employees, agents and and to bargain collectively premises, or protection of business through representatives of invitees, those duties are independent of their own choosing, . . . . the CBA. As such, Appellants’ claims arising from negligent or reckless breach Pa. Stat. Ann. tit. 22, § 26. In order to of those duties are not completely state a cause of action for civil conspiracy preempted by § 301 of the LMRA. under Pennsylvania law, a plaintiff must allege: “(1) a combination of two or more 4. persons acting with a common purpose to Section 16 of New Jersey’s do an unlawful act or to do a lawful act by Detective Act provides, in relevant part: unlawful means or for an unlawful purpose; (2) an overt act done in pursuance It is unlawful for the holder of the common purpose; and (3) actual of a license issued under this legal damage.” McGuire v. Shubert, 722 act, or for any employee of A.2d 1087, 1092 (Pa. Super. Ct. 1998) such licensee, knowingly to (citing Kadel v. McMonigle, 624 A.2d commit any of the following 1059, 1063 (Pa. Super. Ct. 1993)). acts, within or without the Commonwealth of Ap pella n t s ’ De tecti v e A ct Pennsylvania: . . . to conspiracy claim is not based on any right interfere with, restrain, or or duty created by the collective coerce employees in the bargaining agreement, and litigation of exercise of their right to that claim will not require interpretation of

21 that agreement. It necessarily follows that This did not provide the District Court § 301 does not completely preempt this with subject matter jurisdiction, however. claim. In San Diego Building Trades This conclusion is not inconsistent Council v. Garmon, 359 U.S. 236, 244 with San Diego Building Trades Council v. (1959), the Supreme Court held that Garmon, 359 U.S. 236 (1959), and its “[w]hen it is clear or may fairly be progeny. It is true that to the extent assumed that the activities which a State Appellants assert that Defendants purports to regulate are protected by § 7 of interfered with their rights to form, join, or the National Labor Relations Act, or assist a labor union, as well as their rights constitute an unfair labor practice under § to collective bargaining, these claims 8, due regard for the federal enactment appear to be preempted by §§ 7 and 8 of requires that state jurisdiction must yield.” the National Labor Relations Act Thus, §§ 7 and 8 of the NLRA may (“NLRA”), 29 U.S.C. §§ 157 and 158.5 provide Defendants with a preemption defense to Appellants’ claims under § 16 of the Detective Act upon remand to the 5 Section 7 of the NLRA provides: state court. Such preemption, however, is Employees shall have the not the type of complete preemption that right to self-organization, to would provide Defendants with a basis for form, join, or assist labor federal question jurisdiction. See Ethridge organizations, to bargain v. Harbor House Restaurant, 861 F.2d collective ly through 1389, 1396-1401 (9th Cir. 1988) (holding representatives of their own that “sections 7 and 8 [of the NLRA] do choosing, and to engage in not confer original federal question other concerted activities for jurisdiction on the federal district courts”); the purpose of collective U nite d A ss’n of Journeymen & bargaining or other mutual Apprentices of Plumbing & Pipe Fitting aid or protection, and shall Indus., Local No. 57 v. Bechtel Power also have the right to refrain Corp., 834 F.2d 884, 886-87 (10th Cir. from any or all of such 1987) (same); see also Caterpillar, 482 activities except to the U.S. at 392-93 (distinguishing between extent that such right may preemption as a defense to a state law be affected by an agreement claim and complete preemption as a basis requiring membership in a for federal question jurisdiction). labor organization as a condition of employment as a u t h o r iz e d in sectio n labor practice for an employer to interfere 158(a)(3) of this title. with, restrain, or coerce employees in the 29 U.S.C. § 157. Section 8(a)(1) provides, exercise of the rights guaranteed in section in relevant part that “[i]t shall be an unfair 157 of this title.” 29 U.S.C. § 158(a)(1).

22 C. In summary, Appellants’ claims do not involve rights or duties created by the collective bargaining agreement. Nor do those claims raise “‘questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement.’” Livadas, 512 U.S. at 122-23 (quoting Lueck, 471 U.S. at 211). Rather, our analysis indicates that the state laws invoked by Appellants confer upon them substantive rights that are independent of any rights available under the CBA. Under such circumstances, the Supreme Court has held, it would be inconsistent with Congress’ intent under § 301 to find complete preemption. See Allis- Chambers, 471 U.S. at 212. III. For the foregoing reasons, the judgment of the District Court will be vacated and this case will be remanded to the District Court with instructions to remand it to the Court of Common Pleas of Berks County, Pennsylvania.