On Petition for Writ of Mandamus Related to W.D.Pa. Civil Action No. 93-cv-00126E.
Before: Scirica, Lewis and Rosenn, Circuit Judges.
In this appeal, we must decide whether section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a) (1988), mandates federal preemption of state contract and tort claims brought by collective bargaining unit members based on promises and misrepresentations of job security by their employer, Trans Penn Wax Corporation. Trans Penn contends these claims are preempted because they relate to mandatory subjects of collective bargaining and require interpretation of the collective bargaining agreement. Trans Penn also claims the district court abused its discretion in remanding the case to state court after the employees withdrew their sole federal cause of action.
The employees brought suit in the Court of Common Pleas of Crawford County, Pennsylvania, alleging breach of contract, fraud, intentional infliction of emotional distress, and violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68 (1988 & Supp. V 1993), by Trans Penn and its corporate affiliates, Astor Wax Corporation and ABI Corporation. The employees alleged Trans Penn induced them to decertify their union through contractual promises of job security and later breached those promises by terminating them. Defendants removed the case to the United States District Court for the Western District of Pennsylvania. The employees then sought leave to delete their RICO claims and have the case remanded back to state court. The district court granted their motion and then denied Trans Penn's subsequent motion for reconsideration. McCandless v. Trans Penn Wax Corp., 840 F. Supp. 371 (W.D. Pa. 1993).
Trans Penn now petitions for a writ of mandamus directing the nominal respondent, Maurice Cohill, Jr., District Judge for the United States District Court for the Western District of Pennsylvania, to rescind his order remanding this case to the Court of Common Pleas of Crawford County, Pennsylvania and to exercise jurisdiction over the employees' claims. We have jurisdiction to address this claim under the All Writs Act, 28 U.S.C. § 1651 (1988).*fn1
We hold that resolution of the employees' contract and tort claims is not substantially dependent upon an analysis of the collective bargaining agreement and therefore section 301 does not require preemption. We also find the district court acted within its sound discretion in remanding after the employees withdrew their federal claims. We will deny the petition for a writ of mandamus.
Trans Penn is a Pennsylvania corporation engaged in the manufacture of industrial wax products in Titusville, Pennsylvania. The Oil, Chemical, and Atomic Worker's International Union ("OCAWI") represented Trans Penn employees for the purpose of collective bargaining beginning in 1988. On January 15, 1990, OCAWI and Trans Penn entered into a collective bargaining agreement in which the company recognized OCAWI as the exclusive representative of full-time employees at the Titusville plant.
On April 27, 1990, a majority of the bargaining unit members voted to decertify OCAWI as their bargaining representative. The election was certified by the National Labor Relations Board on May 7, 1990. On the eve of the decertification election, Trans Penn presented the employees with a written "contract" for employment and guarantee of job security. The document is entitled "Guarantee" and states:
This is our PERSONAL GUARANTEE and your
LEGAL CONTRACT that you . . . will have a job
here . . . as long as you perform your work satisfactorily, follow our customary rules, and we are economically able to operate this institution successfully and work is available. This GUARANTEE is given to you because of the FALSE UNION RUMOR that you will lose your job if the Union loses the election . . . . This is our WRITTEN LEGAL CONTRACT AND GUARANTEE TO YOU . . . .
On October 30, 1991, Trans Penn terminated the six employees who are plaintiffs in this action, and later contracted with Manpower, Incorporated to provide temporary production workers.
The employees filed a complaint in the Court of Common Pleas of Crawford County, Pennsylvania, alleging Trans Penn had committed: (1) breach of contract by terminating the "Guarantee"; (2) fraud in making false and misleading statements concerning the "Guarantee" upon which the employees relied in decertifying the union; (3) intentional infliction of emotional distress; and (4) RICO violations under 18 U.S.C. § 1964(c).
Based on the employees' RICO claims, Trans Penn removed the action to the United States District Court for the Western District of Pennsylvania. The employees then sought leave to withdraw their RICO claims and remand the case to the Court of Common Pleas of Crawford County. The District Court granted the request and remanded the case to state court. Trans Penn asked for reconsideration, arguing section 301 of the LMRA preempted the employees' claims so that federal questions remained even after dismissal of the RICO claims. Trans Penn also claimed the employees had alleged unfair labor practices under sections 7 and 8 of the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 157 & 158 (1988), which protect the rights of employees to organize without interference from their employer. Unfair labor practice charges must be brought before the National Labor Relations Board. Huge v. Long's Hauling Co., 442 F. Supp. 1041, 1043 (W.D. Pa. 1977), aff'd, 590 F.2d 457 (3d Cir. 1978), cert. denied, 442 U.S. 918, 61 L. Ed. 2d 285, 99 S. Ct. 2840 (1979).
The district court denied Trans Penn's motion for reconsideration. McCandless, 840 F. Supp. at 374. The court found that the employees' complaint comprised state law claims based on the guarantee, not on the collective bargaining agreement. Id. The court also accepted the employees' argument that they were not raising unfair labor practice claims based on Trans Penn's execution of individual contracts, but rather were seeking state law tort and contract remedies based on those contracts. Id. at 373. Therefore, the court found no preemption under either the LMRA or the NLRA. Id. at 373-74.
Trans Penn petitions for a writ of mandamus, contending the employees' claims substantially depend on an interpretation of the collective bargaining agreement between OCAWI and Trans Penn and therefore are preempted by section 301 of the LMRA. Alternatively, if those claims are not preempted, Trans Penn characterizes the employees' deletion of their RICO claims as "forum shopping" and asserts the district court abused its discretion in remanding the case to state court. Trans Penn does not raise the NLRA claim in its petition.
We must first address the threshold issue of whether we have jurisdiction to address this petition for a writ of mandamus. The power of the courts of appeals to review district court remand orders is circumscribed by 28 U.S.C. § 1447 (d) (1988), which states, "an order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise" with one exception not relevant here. While the language seems straightforward, analysis of § 1447(d) is not simple and its bar is not absolute. As one court has noted, "'straightforward' is about the last word Judges attach to § 1447(d) these days . . . ." In re Amoco Petroleum Additives Co., 964 F.2d 706, 708 (7th Cir. 1992).
The Supreme Court has interpreted the bar of § 1447(d) narrowly, stating it only applies to remand orders issued under 28 U.S.C. § 1447(c): "[Section 1447(d)] and § 1447(c) must be construed together . . . . This means that only remand orders issued under § 1447(c) and invoking the grounds specified therein--that removal was improvident and without jurisdiction--are immune from review under § 1447(d)." Thermtron Prods. Inc. v. Hermansdorfer 423 U.S. 336, 345-46, 46 L. Ed. 2d 542, 96 S. Ct. 584 (1976).*fn2 In Thermtron, a district court had remanded a case to state court because its docket was overloaded, and the Court held review appropriate because the remand had been based "on grounds not authorized by the removal statutes." Id. at 353. The Court allowed review of the remand order itself upon petition for a writ of mandamus. The Court held that "because an order remanding a removed action does not represent a final judgment reviewable by appeal, 'the remedy in such a case is by mandamus to compel action and not by writ of error to review what has been done.'" Id. at 352-53 (quoting Chicago & Alton R.R. v. Wiswall, 90 U.S. (23 Wall.) 507, 508, 23 L. Ed. 103 (1875)).
Thermtron and its progeny provide jurisdiction for appellate courts to review remand orders other than in cases removed "improvidently and without jurisdiction." That is, § 1447(d) bars review of remands that are issued under § 1447(c). See PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993); Bradgate Assocs. v. Fellows, Read & Assocs., 999 F.2d 745, 750 & n.4 (3d Cir. 1993); see also Kolibash v. Committee on Legal Ethics, 872 F.2d 571, 573 (4th Cir. 1989); cf. Foster v. Mutual Fire, Marine & Inland Ins. Co., 986 F.2d 48, 50 (3d Cir. 1993). The language of § 1447(c) has changed since Thermtron. It now provides for remand based on a procedurally defective removal and requires remand "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction . . . ." 28 U.S.C. ...