The Plaintiffs in this case originally filed suit against the Defendant in the 136th Judicial District Jefferson County Texas alleging damages resulting from the Fina's issuance of "Letters of Concern" ("letters") pursuant to an employee absenteeism program. The Plaintiffs argue that the publication of a list of all employees receiving such letters resulted in damages. Plaintiffs seek damages from the Defendant for intentional infliction of emotional distress and invasion of privacy. Defendants timely removed to this court on the basis of preemption under SEC. 301 of the Labor Management Relations Act ("SEC. 301" and "LMRA"). This Court finds that Plaintiffs' intentional infliction of emotional distress and invasion of privacy claims are preempted by the LMRA and removal to this Court is proper.

Background

The various Plaintiffs in this action contend that they were injured while employed by Fina and consequently filed workers' compensation claims. As a result of their injuries the plaintiffs were absent from work for various lengths of time. Due to their history of absenteeism the Plaintiffs were sent Letters of Concern by Fina in accordance with an employee absenteeism program which was not developed in conjunction with the union. A list of the employees sent such letters was compiled and Plaintiffs contend the list was distributed to "every employee that worked in the plant." Plaintiffs further assert that the list became known as the "hit list" and the publication of the list to other employees was highly embarrassing and humiliating. The Plaintiffs' claim intentional infliction of emotional distress and invasion of privacy resulting from the publication of the list.

Defendants assert that the Management Rights Clause *fn1 of the collective bargaining agreement ("CBA") between Fina and the union give Fina the right to develop and implement an employee absenteeism program. Defendants argue that because the program was within their rights sending letters of concern and publishing a list of employees receiving such letters provide no basis for legal liability. Defendants further aver that because an interpretation of the CBA provision is necessary to resolve these claims the case is removable to federal court.

ANALYSIS

The sole issue before this court is whether Plaintiffs' well-pleaded complaint raises issues "arising under the Constitution laws or treaties of the United States" that entitle the Defendants to remove the case to federal court. See 28 U.S.C. SEC.(s) 1331 1441(a). *fn2

Section 1331 provides that: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution laws or treaties of the United States." 28 U.S.C. SEC. 1331. The party seeking to remove a case to federal court bears the burden of establishing federal jurisdiction. Wilson v. Republic Iron & Steel Co. 257 U.S. 92 97 42 S. Ct.35 37 66 L. Ed. 144 (1921); Willy v. Coastal Corp. 855 F.2d 1160 1164 (5th Cir.1988) aff'd 503 U.S. 131 112 S. Ct.1076 117 L. Ed. 2d 280 (1992). Significant federalism concerns require this court to strictly construe removal jurisdiction. Willy 855 F.2d at 1164.

A federal question must appear on the face of the plaintiff's complaint for this court to entertain proper removal jurisdiction. Caterpillar Inc. v. Williams 482 U.S. 386 391 107 S. Ct.2425 2429 96 L. Ed. 2d 318 (1987). In general removal jurisdiction is not satisfied by raising a federal defense. Id. at 393 107 S. Ct. at 2430. One exception to this general rule applies to areas of federal law that completely preempt state law such as controversies involving an interpretation of SEC. 301 of the Labor Management Relations Act (LMRA). Id.; and see Lingle v. Norge Div. of Magic Chef Inc. 486 U.S. 399 108 S. Ct.1877 100 L. Ed. 2d 410 (1988).

Section 301 Preemption Generally

The Defendants assert that Plaintiffs' claims are properly removed because they are preempted by SEC. 301 of the LMRA and as such are federal questions. Section 301 of the LMRA states:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... or between any such labor organizations may be brought in any district court of the United States having jurisdiction of the parties without respect to the amount in controversy or without regard to the citizenship of the parties.

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

In Lingle the Supreme Court held that SEC. 301 preempts an application of state law "only if such application requires the interpretation of a collective-bargaining agreement." Lingle v. Norge Division of Magic Chef Inc. 486 U.S. 399 413 108 S. Ct.1877 1885 100 L. Ed. 2d 410 423 (1988). Congress did not intend that SEC. 301 should preempt "state rules that proscribe conduct or establish rights and obligations independent of a labor contract." Allis-Chalmers Corp. v. Lueck 471 U.S. 202 219 105 S. Ct.1904 1915 85 L. Ed. 2d 206 (1985). That the state court would have to decide precisely the same issue and analyze the same facts as would the arbitrator does not matter so long as resolving the state law claim without interpreting the CBA is possible. Lingle 486 U.S. at 410 108 S. Ct. at 1883 100 L. Ed. 2d at 421. Court noted that in a typical case involving for instance "just cause" for discharge a state court could resolve a discrimination or retaliatory discharge claim without interpreting the "just cause" language of the CBA. Id at 413 108 S. Ct. at 1885 100 L. Ed. 2d at 423. In such instances the state law claim is "independent" of the CBA for preemption purposes. Id. at 410 108 S. Ct. at 1883 100 L. Ed. 2d at 421.

Court of Appeals for the Fifth Circuit has stated that Sec. 301 preemption occurs when resolution of a dispute is "'substantially dependent upon analysis of the terms' of the collective bargaining agreement." Wells v. General Motors Corp. 881 F.2d 166 173 (5th Cir.1989) (citing Lueck 471 U.S. at 220 105 S. Ct. at 1915 85 L. Ed. 2d 206) cert. denied 495 U.S. 923 110 S. Ct.1959 109 L. Ed. 2d 321 (1990). A plaintiffs state law claims will not be preempted even when they are "intertwined" with a CBA so long as they are not "inextricably intertwined" with it. 881 F.2d at 175 n. 20; see Lueck .471 U.S. at 213 105 S. Ct. at 1912 85 L. Ed. 2d 206.

It is quite common for confusion to exist about the inextricable nature of a claim when a defendant alleges that his actions were permissible under the CBA. However the Fifth Circuit Court of Appeals has held that "either party may use the CBA to support the credibility of its claims" even though the claim is not preempted. Jones v. Roadway Express Inc. 931 F.2d 1086 (5th Cir.1991) reh'g denied 936 F.2d 789 (5th Cir.1991). Essentially this means that although the employers may defend against claims by arguing that their actions were authorized under the CBA and its rules this fact does not transform the claim into one which requires an interpretation of the CBA. See Anderson 2 F.3d 590 596-97. (5th Cir.1993).

To determine if adjudicating the claim requires the interpretation of a CBA a court is required under Lingle to analyze the elements of the tort at issue. Lingle 486 U.S. at 406-07 108 S. Ct. at 1881-82 100 L. Ed. 2d at 419-20. If the elements of the cause of action require an interpretation of the CBA the plaintiff's claim is inextricably intertwined and the case is removable.

Section 301 Preemption and Intentional Infliction of Emotional Distress

The Plaintiffs aver that the publication of a list of employees receiving a Letter of Concern resulted in intentional infliction of emotional distress. The list was allegedly published to all employees. The Plaintiffs do not challenge Fina's right to publish the list to management but they do challenge the distribution of the list to "every employee that worked in the plant." Plaintiff's Motion to Remand p. 2. Plaintiffs assert that their claims for intentional infliction of emotional distress are purely state law claims which are not preempted by federal labor law.

For the Plaintiffs to sustain their claim of intentional infliction of emotional distress under Texas law they must prove that: (1) the defendants acted intentionally or recklessly; (2) the defendants' conduct was extreme and outrageous; (3) the defendants' actions caused Plaintiffs emotional distress; and (4) Plaintiff's emotional distress was severe. Tidelands Auto. Club v. Walters 699 S.W.2d 939 942 (Tex. App.--Beaumont 1985 writ ref'd n.r.e.) (citing RESTATEMENT (SECOND) OF TORTS Sec. 46 (1965)). Plaintiffs do not allege that any action on the part of the Defendants other than the publication of the list to non-management Fina employees has caused emotional distress. They allege no instances of harassment discrimination physical abuse or other conduct which would provide grounds for an emotional distress claim.

In several cases Court of Appeals for the Fifth Circuit analyzed claims for intentional infliction of emotional distress under the rubric of LMRA preemption and concluded that the determination whether the employer acted wrongfully required an analysis of the employer's obligations under the collective bargaining agreement. Burgos v. Southwestern Bell Tel. Co. 20 F.3d 633 636 (5th Cir.1994). (Relying in part on the Fourth Circuit's en banc decision in McCormick v. AT&T Technologies Inc. 934 F.2d 531 (4th Cir.1991) cert. denied 502 U.S. 1048 112 S. Ct.912 116 L. Ed. 2d 813 (1992)); See also Baker v. Farmers Electric Coop. 34 F.3d 274 (5th Cir.1994); Brown v. Southwestern Bell Tel. Co. 901 F.2d 1250 (5th Cir.1990).

Burgos and McCormick reasoned that the plaintiff pursuing a claim for intentional infliction of emotional distress has the burden of proving wrongful conduct on the part of the defendant. The plaintiff must establish not that the defendant's conduct was wrongful in some abstract sense but wrongful under the circumstances. Burgos 20 F.3d at 636. Critically Court stated that "the circumstances that must be considered in examining management's conduct are not merely factual but contractual and the collective bargaining agreement is a crucial component of these circumstances." Id. Similarly Baker held that the determination of whether the defendant's conduct in reassigning an employee was extreme and outrageous turned on the particular management rights granted under the CBA Baker 34 F.3d at 280. Finally in Brown the Fifth Circuit Court of Appeals upheld a finding of preemption where the emotional distress claim turned on the circumstances under which Southwestern Bell could or could not discharge an employee. 901 F.2d at 1255-56. Simply put if the employers conduct is arguably within the limits of the CBA the court must necessarily interpret the CBA to determine the bounds of the employment relationship. This determination is necessary to assessing the extreme and outrageous nature of the employer's conduct and most courts hold that intentional infliction of emotional distress claims are preempted.

Plaintiffs must prove as an element of their claim of intentional infliction of emotional distress that the Defendants' actions in distributing the letter were extreme and outrageous. The terms of the CBA are relevant to this issue because the Management Rights Clause of the CBA grants management residual rights which may cover the Fina's conduct in publishing the list. The Management Rights Clause of the CBA provides: "Except to the extent expressly limited by any provisions of this Agreement all regular and customary rights and functions of Management in the conduct of business are exclusively reserved to and vested in the Company." Defendant's Opposition to Plaintiffs' Motion to Remand Exhibit 1 to Barnwell Affidavit. Whether or not Fina's conduct in publishing the list is extreme and outrageous will depend on the interpretation of this and possibly other provisions of the CBA which dictate the relationship between the Plaintiffs and Fina.

Although the facts underlying the claims in various cases differs at issue in each case is the authority of the employer as set forth in a CBA to take certain actions affecting the plaintiff's job. Because the terms of the CBA are relevant to the resolution of this state tort claim Sec. 301 preempts the claims.

Section 301 Preemption and Invasion of Privacy

While other circuits have addressed the preemption of invasion of privacy claims the Fifth Circuit has yet to decide the issue under the LMRA. Accordingly the jurisprudence of other circuits is instructive.

Under Texas law a claim for intrusion upon the plaintiffs seclusion solitude and into his private affairs requires that there be an intentional intrusion upon the solitude or seclusion of another or his private affairs or concerns that is highly offensive to a reasonable person. Gill v. Snow 644 S.W.2d 222 224 (Tex. Civ. App.--Ft. Worth 1982 no writ). See also RESTATEMENT (SECOND) OF TORTS sec. 652B (1977). This type of invasion of privacy is generally associated with either a physical invasion of a person's property or by eavesdropping on another's conversation with the aid of wiretaps microphones or spying. Gonzales v. Southwestern Bell Tel. Co. 555 S.W.2d 219 (Tex. Civ. App.--Corpus Christi 1977 no writ). See also RESTATEMENT (SECOND) OF TORTS SEC. 652B comments b c and d (1977). The Plaintiffs in this case allege this form of invasion of privacy stemming from the publication of the list of employees who were sent Letters of Concern.

It is clear from a review of the invasion of privacy cases decided since Lingle that as a general rule invasion of privacy claims are preempted by Sec.301.Brazinski v. Amoco Petroleum Additives Co.6 F.3d 1176 (7th Cir.1993); In re General Motors Corp. 3 F.3d 980 (6th Cir.1993); Mock v. T.G.&Y. Stores Co. 971 F.2d 522 (10th Cir.1992); Matter of Amoco Petroleum Additives Co. 964 F.2d 706(7th Cir.1992); Schlacter-Jones v. General Telephone of California 936 F.2d 435 (9th Cir.1991); McCormick v. AT & T Technologies Inc. 934 F.2d 531 (4^th Cir.1991); Stikes v. Chevron USA Inc. 914 F.2d 1265 (9th Cir.1990); Jackson v. Liquid Carbonic Corp. 863 F.2d 111 (1st Cir.1988); Keehr v. Consolidated Freightways of Delaware Inc. 825 F.2d 133 (7th Cir.1987). By way of example in the Matter of Amoco Petroleum the Seventh Circuit held that an employee's state law claim for invasion of privacy caused by the employer's installation of video cameras in the locker room arose under Sec. 301. 964 F.2d 706 (7th Cir.1992). Although the CBA did not expressly address the employer's right to install such cameras the employer argued that the broad language in the management rights clause permitted the installation of the cameras.

Kirby v. Allegheny Beverage Corp. 811 F.2d 253 (4th Cir.1987) holds that a claim of invasion of privacy in the workplace necessarily rests on federal labor law. Although decided before Lingle this opinion uses the same approach expressly concluding that adjudication of the claim would require interpretation of the collective bargaining agreement. 811 F.2d at 256. Stikes v. Chevron USA Inc. 914 F.2d 1265 (9th Cir.1990) takes the same view of a claim that the employer violated a worker's privacy by demanding that the worker consent to a search of his car. As Stikes noted state-law invasion-of-privacy claims depend on proof that the defendant invaded an objectively reasonable expectation of privacy. 914 F.2d at 1269. What expectations of privacy in the workplace are objectively reasonable depends on powers and duties specified in the collective bargaining agreement.

A series of drug testing cases reinforces the conclusion that state law invasion of privacy claims are preempted by SEC. 301. Several courts have held that federal rather than state law governs employees' privacy-based objections to drug tests--and this is true despite whether or not the collective bargaining agreement expressly mentions drug tests. E.g. Jackson v. Liquid Carbonic Corp. 863 F.2d 111 (1st Cir.1988); Laws v. Calmat 852 F.2d 430 (9th Cir.1988); Utility Workers v. Southern California Edison Co. 852 F.2d 1083 1085-87 (9^th Cir.1988). Cf. Bolden v. Southeastern Pennsylvania Transportation Authority 953 F.2d 807 826-29 (3d Cir.1991) (en banc) (unions may compromise employees' privacy claims including objections to drug tests).

In the present case the Plaintiffs maintain that their claim for invasion of privacy does not depend on the terms of the CBA. They allege in their Motion to Remand that they "are not disputing Defendant's right to compile such [a] list or even to distribute this list to management. What forms the basis of the Plaintiffs' complaint is the widespread publication of the list to every employee that worked in the plant." Plaintiffs' Motion to Remand p. 2. Defendants reply that the Management Rights Clause grants Fina broad discretion in the development and implementation of an employee absenteeism program. While the Plaintiffs concede that the CBA authorizes the compilation of the list the compact is silent about the distribution of the list. Fina would argue that the subject is covered by the management-rights language because everything that is neither regulated nor forbidden by the collective bargaining agreement is committed to management's discretion by this residual clause. The determination about what rights the management had in establishing the program will be necessary in addressing the invasion of privacy claim. This determination will establish what the employee can consider to be the solitude or seclusion of an employee. In addition whether the invasion is highly offensive to a reasonable person will depend on what level of privacy an employee could reasonably expect. Privacy in the workplace is an ordinary subject of bargaining and the extent of privacy is a condition of employment. Clearly the resolution of the invasion of privacy claim depends upon the meaning of a collective-bargaining agreement.

For all of the above reasons this Court believes that remand to the state court is not appropriate in this case and therefore Plaintiffs' Motion to Remand is hereby DENIED.

Howell Cobb

United States District Court