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FURILLO v. DANA CORP. PARISH DIV.

October 19, 1994

CARL A. FURILLO, JR., Plaintiff,
v.
DANA CORPORATION PARISH DIVISION, LOU BENIEN, KIP R. BROWN AND STUART F. HAMMEL, Defendants.



The opinion of the court was delivered by: FRANKLIN S. VAN ANTWERPEN

 VAN ANTWERPEN, J.

 October 19, 1994, Decided

 On June 6, 1994, plaintiff, Carl A. Furillo, Jr., filed a complaint with the Court of Common Pleas in Berks County, Pennsylvania, and alleged a state law claim for defamation against defendants Dana Corporation Parish Division ("Dana"), Lou Benien, Dana's Human Resource Manager, Kip R. Brown, Dana's Industrial Relations Manager, and Stuart F. Hammel, Dana's Manager of Safety and Workers' Compensation. *fn1" On June 28, 1994, defendants removed this action to our court pursuant to 28 U.S.C. § 1441(b). Defendants subsequently filed, on July 29, 1994, a Motion to Dismiss or in the Alternative for Summary Judgment on the ground that plaintiff's state law defamation claim is preempted under Section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185 et seq. Plaintiff, on August 12, 1994, filed a Response to defendant's Motion and also filed a Cross Motion to Remand to state court for lack of subject matter jurisdiction. On August 29, 1994, defendants filed a Response in Opposition to Plaintiff's Cross Motion to Remand as well as a Reply to Plaintiff's Response to Defendants' Motion to Dismiss. This matter is presently before the court on both of these motions, and they will be dealt with together since the principal issue in deciding both is whether plaintiff's state law defamation action is preempted under § 301. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441(b).

 I. FACTUAL BACKGROUND

 The undisputed facts in this case are as follows. Plaintiff, Carl A. Furillo, Jr. worked for Dana and was a member of the United Steel Workers of America, Local 3733 ("Union"), which had a collective bargaining agreement ("CBA") with Dana. The terms and conditions of Furillo's employment were governed by this CBA.

 On August 25, 1993, plaintiff called in sick to work due to an alleged headache. *fn2" Prior to this date, Dana management had noticed a pattern in the plaintiff's absences from work due to sickness. The absences usually occurred on either a Wednesday or Friday. They suspected that plaintiff was not sick and was instead working on those days at his family-owned video store. The company had decided, prior to August 25, that the next time plaintiff called in sick, a private investigator would be called in to determine his whereabouts. A private investigator was thus dispatched after plaintiff called in sick on the morning of August 25. He followed plaintiff for much of the morning as plaintiff apparently ran errands, but lost sight of him for several hours midday. The investigator next located plaintiff later that afternoon at his family's video store.

 When plaintiff reported to work the next day, he brought with him a doctor's slip, apparently issued by his chiropractor, indicating that he had been too sick to work the previous day due to a headache. *fn3" The doctor's slip was a photocopy and not an original. When the company examined plaintiff's medical records, they found a doctor's slip dated June 25, 1993, that appeared identical to the slip plaintiff had just handed in. The placement of the words and marks on the slip was the same and only the date was different. See Exhibits C and D, Defendants' Motion to Dismiss or in the Alternative for Summary Judgment.

 At the beginning of the meeting, the company representatives announced their belief that Management Rights should govern any discipline of the plaintiff, as opposed to the Shop Rules. *fn5" During the meeting, the suspicions of the company that plaintiff had forged a doctor's note and had not actually been ill on August 25, were discussed by those present. Plaintiff does not allege that there was anyone present at the meeting who should not have been present.

 At the end of the meeting, Dana found plaintiff in violation of the CBA. There is some confusion as to whether the plaintiff was then suspended or discharged. For a first time violation of the CBA under Management Rights, the penalty is apparently suspension. However, plaintiff believed that as a result of this meeting, he had been discharged. The basis for his belief is the fact that at the end of the meeting he was handed a slip of paper which said "Notice of Violation of Shop Rules" and listed four different types of action: (1) written warning, (2) second written warning, (3) third written warning, and (4) discharge. The space next to "discharge" had been marked with an "X."

 The Union filed a grievance on plaintiff's behalf, asserting that he had been wrongly discharged in violation of the CBA, and requested plaintiff's immediate reinstatement with back pay. *fn6" See Exhibit F, Defendants' Motion to Dismiss or in the Alternative for Summary Judgment. On September 16, a Step Two grievance meeting was held in accordance with the CBA. The Dana representatives maintained at this meeting that from August 27 to September 16, plaintiff had been suspended, not terminated. However, they then converted his suspension into a termination. The matter then proceeded to arbitration. *fn7" The question presented to the arbitrator, by both parties, was "Was the grievant discharged for just cause and, if not, what is the proper remedy?" See Exhibit B.

 II. STANDARD OF REVIEW

 As an initial matter, we note that we will treat defendants' Motion as one for Summary Judgment since they have submitted material, which we have taken into account, that falls outside the scope of the pleadings. See Fed. R. Civ. Pro. 12(b).

 Rule 56(c) of the Federal Rules of Civil Procedure provides for summary judgment where the:

 
pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

 "The party moving for summary judgment must demonstrate that, under the undisputed facts, the non-movant has failed to introduce evidence supporting a necessary element of his case." In Re Phillips Petroleum Sec. Litig., 881 F.2d 1236, 1243 (3d Cir. 1989). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. See Celotex Corp. v. Catrett, 477 U.S. 317, 321 n.3, 106 S. Ct. 2548, 2552 n.3, 91 L. Ed. 2d 265 (1986) (quoting Fed. R. Civ. P. 56(e)); see also First Nat'l Bank v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986). As we have noted, we have set forth facts which are not disputed.

 III. MOTION TO REMAND

 Section 301(a) of the Labor Management Relations Act provides:

 
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, 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. § 185(a). In addition to providing federal jurisdiction over controversies involving Collective Bargaining Agreements ("CBA"), § 301 of the Labor Management Relations Act (" § 301") also "authorizes federal courts to fashion a body of federal law for the enforcement of these collective-bargaining agreements." Textile Workers v. Lincoln Mills, 353 U.S. 448, 451, 77 S. Ct. 912, 915, 1 L. Ed. 2d 972 (1957). The Supreme Court has made clear that "the dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute [so that] issues raised in suits of a kind covered by § 301 [are] to be decided according to the precepts of federal labor policy." Allis-Chalmers v. Lueck, 471 U.S. 202, 105 S. Ct. 1904, 85 L. Ed. 2d 206 (1985) (quoting Teamsters v. Lucas Flour Co., 369 U.S. 95, 103, 82 S. Ct. 571, 576, 7 L. Ed. 2d 593 (1962)). The doctrine is motivated by concern for uniformity in the law applied to labor contracts. 85 L. Ed. 2d at 211.

 The Supreme Court has held that when "evaluation of a [state law] claim is inextricably intertwined with consideration of the terms of a labor contract," the state law claim is preempted by § 301. Id. This is because

 Id. See also Electrical Workers v. Hechler, 481 U.S. 851, 858-59 n.3, 107 S. Ct. 2161, 2166 n.3, 95 L. Ed. 2d 791 (1987) (holding that § 301 preemption occurs when the plaintiff's claims are "substantially dependent on analysis of a collective bargaining agreement").

 The Supreme Court clarified this holding in Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988), by ruling that if the presence of the necessary elements of a state claim can be ascertained without recourse to interpretation of the CBA, the state law remedy is not preempted. See id. at 413. The fact that the claim requires "addressing precisely the same set of facts," however, is not enough to implicate § 301 preemption. Id. at 410.

 In order to determine if § 301 preempts a plaintiff's state law tort claims, then, Lingle instructs us to first determine whether resolution of plaintiff's claim requires an interpretation of the CBA. See Crawford v. TRW, Inc., 815 F. Supp. 1028, 1033 (E.D. Mich. 1993); Barbe v. Great Atlantic & Pacific Tea Co, Inc., 722 F. Supp. 1257, 1260 (D. Md. 1989), aff'd, 940 F.2d 651 (4th Cir. 1991), cert. denied ___ U.S. ____, 112 S. Ct. 939, 117 L. ...


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