                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-28-1995

Trans Penn Wax Corp. v McCandless
Precedential or Non-Precedential:

Docket 94-3093




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            UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                       ___________

                       No. 94-3093
                       ___________


              TRANS PENN WAX CORPORATION;
                 ASTOR WAX CORPORATION;
                    ABI CORPORATION,
                                Petitioners

                           v.

                  MICHAEL McCANDLESS;
          BENJAMIN REYNOLDS; BRADLEY PEARSON;
             BRIAN PATTERSON; JERRY SNYDER
                 and JOHN E. BULKLEY,
                               Respondents

                MAURICE B. COHILL, JR.,
                                Nominal Respondent

 ______________________________________________

        On Petition for Writ of Mandamus
Related to W.D.Pa. Civil Action No. 93-cv-00126E
               ___________________


                 Argued July 19, 1994

Before:    SCIRICA, LEWIS and ROSENN, Circuit Judges

              (Filed   February 28, l995)


                    ROBERT E. RIGRISH, ESQUIRE (Argued)
                    Clark, Paul, Hoover & Mallard
                    1360 Peachtree Street, Suite 900
                    Atlanta, Georgia 30309

                    KENNETH W. WARGO, ESQUIRE
                    Quinn, Buseck, Leemhuis, Toohey & Kroto
                    2222 West Grandview Boulevard
                    Erie, Pennsylvania 16506-4508

                       Attorneys for Petitioners
                           JOSEPH E. ALTOMARE, ESQUIRE (Argued)
                           Altomare & Barnhart
                           228 East Central Avenue
                           P.O. Box 373
                           Titusville, Pennsylvania 16354

                             Attorney for Respondents

                          __________________

                      OPINION OF THE COURT
                       __________________


SCIRICA, Circuit Judge.


          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).1

          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

1
.   The text of 28 U.S.C. § 1651 provides in part:

          (a) The Supreme Court and all courts
          established by Act of Congress may issue all
          writs necessary or appropriate in aid of
          their respective jurisdictions and agreeable
          to the usages and principles of law.
acted within its sound discretion in remanding after the

employees withdrew their federal claims.   We will deny the

petition for a writ of mandamus.

                                  I.

                                  A.

            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 . . . .


App. at 62.

           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.

                                B.

           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 (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.
                                II.

                                 A.

            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, "[a]n 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,

"'[s]traightforward' 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 (1976).2   In Thermtron, a

2
 .   At the time Thermtron was decided, § 1447(c) provided in
part:

            If at any time before final judgment it
            appears that the case was removed
            improvidently and without jurisdiction, the
            district court shall remand the case . . . .
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, '[t]he

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 (1875)).

          Thermtron and its progeny provide jurisdiction for

appellate courts to review remand orders other than in cases

removed "improvident[ly] 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 "[i]f at any time before final judgment it

appears that the district court lacks subject matter jurisdiction


(..continued)
28 U.S.C. § 1447(c) (1970).
. . . ."   28 U.S.C. § 1447(c) (1988).3   Thus, Thermtron's holding

is applicable today to remands based on a lack of subject matter

jurisdiction or for defects in removal procedure.    PAS, 7 F.3d at

352; In re Amoco, 964 F.2d at 708.

            Forty years before Thermtron, the Supreme Court had

created another partial exception to the bar on review in Waco v.

United States Fidelity & Guaranty Co., 293 U.S. 140 (1934).    In

Waco, the Supreme Court addressed a case where removal had been

based on the entry of a diverse third party into the underlying

dispute.    The district court dismissed the third party and

remanded for lack of jurisdiction because diversity had been

destroyed.   Id. at 142.   The Supreme Court held that no appeal

could lie from the remand order itself, but that "in logic and in

fact the decree of dismissal preceded that of remand and was made

by the District Court while it had control of the cause.

Indisputably this order is the subject of an appeal . . . ."      Id.

at 143.    The Court in Waco did not create an exception to the bar

of review of remand orders; it held only that separable decisions

underlying and preceding the remand could be reviewed.    Id. at

143-44; see Rhonda Wasserman, Rethinking Review of Remands:
Proposed Amendments to the Federal Removal Statute, 43 Emory L.J.

83, 112 (1994).    Courts of appeals have relied on the Waco

decision to provide an avenue to review decisions underlying

remand orders where Thermtron would otherwise seem to bar review


3
 .   For the text of § 1447(c) at the time Thermtron was decided,
see supra note 2.
altogether (i.e., where the remand was based either on a removal

defect or because the court lacked subject matter jurisdiction).

See, e.g., Powers v. Southland Corp., 4 F.3d 223, 224 (3d Cir.

1993); Mitchell v. Carlson, 896 F.2d 128, 131-33 (5th Cir. 1990);

Allen v. Ferguson, 791 F.2d 611, 613 & n.3, 614 (7th Cir. 1986).

We have further extended Waco's holding in some circumstances to

allow review of the remand order itself in addition to review of

the underlying decision.    Carr v. American Red Cross, 17 F.3d

671, 680 (3d Cir. 1994).

          Courts of appeals have applied the exceptions to the

bar of § 1447(d) initiated by Waco and Thermtron to a variety of

remand situations, such that the bar now governs a fairly narrow

range of cases.   See, e.g., Foster v. Chesapeake Ins. Co., 933

F.2d 1207, 1210-11 (3d Cir.) (interpreting Thermtron to mean the

bar of § 1447(d) applies only to cases remanded on § 1447(c)

grounds), cert. denied, 502 U.S. 908 (1991); Baldridge v.

Kentucky-Ohio Transp., Inc., 983 F.2d 1341, 1345 (6th Cir. 1993)

(noting decisions that "reflect the prevailing view that §

1447(d)'s prohibition against appellate review is fairly

narrow"); 14A Charles A. Wright et al., Federal Practice and
Procedure § 3740, at 237 (Supp. 1994) (observing the Thermtron

exception, while conceived as narrow, has been applied in

"numerous decisions").     The two lines of exceptions are

reasonably distinct, however, both as a matter of theory and as a

matter of practical impact.     Cases under Thermtron are

analytically simple: Once the court determines that the remand

was not pursuant to § 1447(c), the bar of § 1447(d) is
inapplicable and review is appropriate.    Cases following Waco,

however, are more complex, as the court must first determine

whether there was a separable decision underlying the remand

order that preceded the remand order "in logic and in fact," and

then whether the underlying decision is, in fact, reviewable

(normally an issue of whether it is final for purposes of 28

U.S.C. § 1291).   See, e.g., Aliota v. Graham, 984 F.2d 1350,

1352-53 (3d Cir.), cert. denied, 114 S. Ct. 68 (1993); Powers, 4

F.3d at 226-31.   The Waco analysis adds further complexity in

those circumstances where the court can review the remand order

itself.   See Carr, 17 F.3d at 680.

          Selecting the appropriate analytical framework has

proved difficult.   One important element is the timing of the

lack of subject matter jurisdiction, as a remand only falls under

§ 1447(c) if the removal itself was jurisdictionally improper,

not if the defect arose after removal.    In re Amoco, 964 F.2d at

708 (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343

(1988)); see also Baldridge, 983 F.2d at 1348 & nn.11-12.     Remand

decisions based on grounds other than (1) that jurisdiction was

improper at the time of removal or (2) that the removal was

procedurally defective are therefore reviewable under Thermtron
as they do not implicate § 1447(c).

          So many different patterns underlie remand decisions

that we cannot comprehensively categorize them here.    We can,

however, set the present case within the remand jurisprudence.

This case was originally removed based on federal question

jurisdiction because the complaint included counts alleging RICO
violations.   18 U.S.C. §§ 1961-68.    The plaintiffs sought and

were granted a dismissal of the RICO counts, thus leaving the

district court with supplemental jurisdiction under 28 U.S.C. §

1367 (Supp. V 1993).

           After dismissing the RICO counts, the district court

declined to exercise supplemental jurisdiction and remanded the

case to state court.   We would have had jurisdiction to review

the remand had defendants petitioned for a writ of mandamus at

that point.   As the Supreme Court has said, "Section[] . . .

1447(c) . . . do[es] not apply to cases over which a federal

court has pendent jurisdiction.    Thus, the remand authority

conferred by the removal statute and the remand authority

conferred by the doctrine of pendent jurisdiction overlap not at

all."   Carnegie-Mellon, 484 U.S. at 355 n.11.    At least eight

other circuit courts have agreed, and have held the discretionary

decision not to exercise jurisdiction over pendent state claims

is not a remand under § 1447(c).      Accordingly, they have allowed

review of remand orders based on the discretionary refusal to

exercise supplemental jurisdiction.     See Jamison v. Wiley, 14

F.3d 222, 231-33 (4th Cir. 1994); Burks v. Amerada Hess Corp., 8
F.3d 301, 304 (5th Cir. 1993); In re Glass, Molders, Pottery,

Plastics & Allied Workers Int'l, Local No. 173, 983 F.2d 725, 727

(6th Cir. 1993); Albertson's, Inc. v. Carrigan, 982 F.2d 1478,

1479-80 (10th Cir. 1993); In re Surinam Airways Holding Co., 974

F.2d 1255, 1257 (11th Cir. 1992); J.O. v. Alton Community Unit
Sch. Dist. 11, 909 F.2d 267, 269-71 (7th Cir. 1990); In re Life

Ins. Co. of N. Am., 857 F.2d 1190, 1193 n.1 (8th Cir. 1988);
Price v. PSA, Inc., 829 F.2d 871, 873-74 (9th Cir. 1987), cert.

denied, 486 U.S. 1006 (1988).

          We have allowed review of discretionary remands based

on the decision to decline supplemental jurisdiction.4     In PAS v.

Travelers Insurance Co., 7 F.3d 349 (3d Cir. 1993), the plaintiff

brought suit in state court.    Three of its four counts were

undisputedly governed by the Employee Retirement Income Security

Act ("ERISA") and the defendant removed on that basis.      The

plaintiff requested that the fourth count, based on state law, be

remanded to state court.   Defendants claimed the state statutes

were preempted by ERISA.   Id. at 351.

          After concluding that the state statutes were not

preempted by ERISA, the district court exercised its discretion

to remand the state claim because it involved a "novel and

complex issue of state law," a basis for remand provided by 28

U.S.C. § 1367(c)(1).   Holding that the state action could become

dispositive of the federal claims, the district court dismissed

the federal action without prejudice.      After the district court

denied defendant's motion for reconsideration, the defendant

petitioned for a writ of mandamus.   Id.
           We held in PAS that jurisdiction to review the remand

decision was proper, notwithstanding § 1447(d).      Id. at 352.   The

district court's decision was neither for a defect in the removal


4
 .   Indeed, we have held more generally that remands not covered
by § 1447(c) are not barred from review by § 1447(d). See, e.g.,
Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1211 (3d Cir.
1991); Hewlett v. Davis, 844 F.2d 109, 115 (3d Cir. 1988).
procedure nor for lack of district court subject matter

jurisdiction, but rather was based on an exercise of the district

court's discretion to decline to exercise supplemental

jurisdiction.   Section 1447(c) and (d) therefore did not apply

and review was proper.   Id.; cf. Carr v. American Red Cross, 17

F.3d 671 (3d Cir. 1994).5   We then proceeded to consider the

merits of defendant's claim that ERISA did in fact preempt the

state law claim.   PAS, 7 F.3d at 354-57.

          Here, as in PAS, the district court properly removed

the case based on federal question jurisdiction and exercised its

discretion under the supplemental jurisdiction statute6 to remand

5
 .   In Carr, federal jurisdiction was predicated on the joinder
of the Red Cross, whose federal charter conferred federal
jurisdiction over cases to which it was a party. Carr, 17 F.3d
at 674. The Red Cross was subsequently dismissed as a party, and
the district court remanded the case pursuant to 28 U.S.C. §
1367(c), as it declined to exercise supplemental jurisdiction.
Id. Having assumed that § 1447(d) presented a problem for review
in the first instance, we held the district court's dismissal
reviewable on appeal based on the Waco exception to § 1447(d)
combined with the notion that the dismissal was final under the
collateral final order doctrine. Id. at 675-77. We continued by
deciding that the remand order was also reviewable. Id. at 680.

          PAS and Carr are two paths to the same result. While
in Carr the court assessed the Waco elements of separability and
then finality for purposes of appeal of the decision which
underlay the remand order, PAS went by way of the Thermtron
exception straight to review of the remand order and its
underlying reasoning. We think the PAS route, when available, is
the more felicitous method, and we therefore use it here. We do
not intimate any view on how future courts should decide which
method better serves the particular facts of their cases.
6
 .   Prior to the 1990 enactment of this version of 28 U.S.C. §
1367, we held, "Absent `extraordinary circumstances,' a district
court in this circuit is powerless to hear claims lacking an
independent jurisdictional basis, and `time already invested in
litigating the state cause of action is an insufficient reason to
the case.    Also in both cases the district court determined the

state claims were not preempted.    The only difference between

this case and PAS is that the district court here made the

preemption decision on a motion for reconsideration after, rather

than before, it had granted plaintiff's motion for remand.     We

see no reason why this should require a different result.

            The timing of the motion for reconsideration, after the

district court's remand, raises a potential problem for our

review of the remand order.7   The question is whether after
(..continued)
sustain the exercise of pendent jurisdiction.'" Lovell Mfg. v.
Export-Import Bank of the United States, 843 F.2d 725, 735 (3d
Cir. 1988) (quoting Weaver v. Marine Bank, 683 F.2d 744, 746 (3d
Cir. 1982)). However, in Growth Horizons, Inc. v. Delaware
County, Pa., 983 F.2d 1277 (3d Cir. 1993), we observed that even
if Lovell mandated remand of state claims following any dismissal
of the federal claim:

            Lovell was decided prior to the passage of
            the current version of § 1367. The language
            in § 1367 expressly contradicts [this]
            reading of Lovell in that it states that
            federal courts shall exercise supplemental
            jurisdiction over pendent claims arising out
            of the same case or controversy and may
            decline to exercise jurisdiction if all
            federal claims are dismissed.

Id. at 1285 n.14. Because at the time of removal "there was a
colorable federal claim" under RICO, the district court had
original jurisdiction of that claim, Weaver, 683 F.2d at 747, and
§ 1367(a) gave the court supplemental jurisdiction over the
pendent state law claims. The court retained supplemental
jurisdiction until it declined to exercise that jurisdiction
under § 1367(c).
7
 .   We note that were the district court considering preemption
as a basis to assert jurisdiction in the first instance, the bar
of § 1447(d) may well apply and it is not clear that the Waco
exception could be used. See, e.g., Nutter v. Monongahela Power
Co., 4 F.3d 319, 321-22 (4th Cir. 1993) (holding where "complete
preemption was the basis for the district court's jurisdiction,
remand the district court had jurisdiction in order to reconsider

its remand and whether the preemption issue upon which the motion

for reconsideration was based is properly before us.

           The general rule is that a district court loses

jurisdiction over a case once it has completed the remand by

sending a certified copy of the remand order to the state court.

See Hunt v. Acromed Corp., 961 F.2d 1079, 1081 (3d Cir. 1992).

This view is premised on both the language of § 1447(c) and (d)

and the need to establish a determinable jurisdictional event

after which the state court can exercise control over the case

without fear of further federal interference.   The district court

is also barred from reconsidering its decision if the remand was

under § 1447(c) and the case thereby falls under the bar of §

1447(d).   See, e.g., New Orleans Public Serv., Inc. v. Majoue,

802 F.2d 166, 167 (5th Cir. 1986) (per curiam); FDIC v. Santiago

Plaza, 598 F.2d 634, 636 (1st Cir. 1979) (per curiam).   But the

physical mailing of the certified copy is the key jurisdictional

event to divest the district court of jurisdiction, because a

remand order is not self-executing.   Hunt, 961 F.2d at 1081

(citing Bucy v. Nevada Constr. Co., 125 F.2d 213 (9th Cir.
1942)).
(..continued)
the court's findings regarding preemption and jurisdiction are
indistinguishable," and thus § 1447(d) applies to bar review;
Waco would also not provide an exception to allow review);
Whitman v. Raley's Inc., 886 F.2d 1177, 1181 (9th Cir. 1989)
(holding no review allowed because "[a] remand based on lack of
'complete preemption' is a remand required by 28 U.S.C. § 1447(c)
. . . ."). This would present a significant jurisdictional
problem given the bar to review in § 1447(d), but as we explain
below it is not the situation we face here.
          The courts of appeals have debated the issue of whether

a district court can freely reconsider its own remand order when

the bar of § 1447(d) is not implicated.   Some courts have held a

district court has jurisdiction to reconsider such a remand order

within the time for filing an appeal unless the remand is on §

1447(c) grounds.8   See, e.g., Thomas v. LTV Corp., 39 F.3d 611,

615-16 (5th Cir. 1994) (holding a remand based on 28 U.S.C. §

1367 is not a § 1447(c) remand and therefore is not barred by §

1447(d); such a remand is reviewable by the district court within

the time for filing an appeal); J.O. v. Alton Community Unit Sch.

Dist. 11, 909 F.2d 267, 273-74 (7th Cir. 1990) (holding that

where an exception to the appellate review of remands applies the

district court also can reconsider its order of remand during the

time for filing of a notice of appeal).

          Other courts have construed the district court's

jurisdiction to reconsider remand orders more narrowly.   In Three

J Farms, Inc. v. Alton Box Bd. Co., 609 F.2d 112, 115 (4th Cir.

1979), cert. denied, 445 U.S. 911 (1980), the court held the mere

entry of the district court's remand order divested it of

8
 .   Where the district court's reconsideration of its own remand
is appropriate because the bar of § 1447(d) does not apply, some
courts have been indifferent as to whether a certified copy of
the remand order was sent. In re Digicon Marine, Inc., 966 F.2d
158, 160-61 (5th Cir. 1992). Thus, the issue of whether a
certified copy of the remand order has been sent to the state
court may only be relevant when the bar of § 1447(d) applies.
See In re Shell Oil Co., 932 F.2d 1523, 1528 (5th Cir. 1991),
cert. denied, 502 U.S. 1049 (1992). We need not decide whether
to follow that view, however, since as we discuss below there is
no evidence in the record that a certified copy of the remand
order was sent to the state court.
jurisdiction to reconsider the order.     While the remand fell

under § 1447(c) and was barred from review by § 1447(d) anyway,

the court also took a more restrictive view of when the district

court was divested of jurisdiction.     Similarly, in Santiago Plaza

the court held § 1447(d) "has been universally construed to

prohibit even a motion for reconsideration once the state court

has resumed jurisdiction."     598 F.2d at 636.   The court did not

discuss the possibility of the Thermtron exception's application,

nor did it explain the basis for the district court's remand.

Significantly, both cases were decided shortly after Thermtron

when neither court had the benefit of the nearly two decades of

judicial expansion of Thermtron's holding upon which we and other

courts have been able to draw.

           Our own precedent is inconclusive on the issue of when

a district court's jurisdiction to reconsider its own remand

order ends.   One case, Hunt v. Acromed Corp., 961 F.2d 1079 (3d

Cir. 1992), appears to take a narrow view of the district court's

jurisdiction to reconsider a case once it has remanded it.     In

Hunt, we held the district court lost jurisdiction after sending

a certified copy of the order of remand to the state court so

that it could not consider a motion to file an amended notice of

removal.   961 F.2d at 1082.    We observed that a timely motion to

reconsider a remand order would be barred after a certified copy

had been mailed.   Id. at 1082 n.6.   We also observed that while

the bar of § 1447(d) did not directly apply since the appeal was

from a denial of a motion to amend the notice of removal and not

from the removal itself, the policy underlying § 1447(d) was
implicated.   Id. at 1082.   We then noted that "[t]he remand in

this case could not possibly have been subject to review under an

exception to 28 U.S.C. § 1447(d)."    Id. at 1082 n.9.   Because no

exception to § 1447(d) applied, Hunt is more analogous to

Santiago Plaza than to J.O or Thomas (where an exception to

§ 1447(d) did apply).

          Thus, where the bar of § 1447(d) applies our precedent

suggests a district court would lack jurisdiction to reconsider

its order of remand once a certified copy of the remand order has

been sent to the state court.    We have not faced the question of

whether a district court has the power to reconsider a remand

order either when a certified copy of the order has not yet been

sent or when the remand itself is not covered by § 1447(d).      In

this case we have both factors.    There is no evidence in the

record that a certified copy of the remand order was sent to

state court,9 cf. J.O., 909 F.2d at 273-74 & n.5 (allowing

district court to reconsider its remand order during the time for

filing a notice of appeal when the record shows no evidence a

certified copy was mailed to the state court), and we have held

that the initial remand was not covered by § 1447(d).

          Because this issue has not been squarely presented to

us before, we look to a persuasive decision from the Court of

Appeals for the Fifth Circuit, Thomas v. LTV Corp, 39 F.3d 611
(5th Cir. 1994), whose facts are similar to this case.    In

9
 .   The district court's remand order was entered on October 12,
1993, and on October 29, 1993, Trans Penn filed its motion for
reconsideration.
Thomas, a union employee who had been fired for poor attendance

brought suit in state court, alleging breach of contract,

infliction of emotional distress, and wrongful discharge under

the Texas Labor Code.      Id. at 614-15.   LTV, the employer, removed

the case claiming section 301 of the LMRA preempted Thomas' state

law claims.     Id.   After removal, the district court granted LTV's

motion for summary judgment on all but the wrongful discharge

claim, finding the other claims preempted and barred by the

LMRA's six-month statute of limitations.      Id. at 615.   After the

district court remanded the wrongful discharge claim to state

court, LTV filed a motion for reconsideration.      The district

court changed its mind, held the wrongful discharge claim

preempted by section 301, and dismissed that claim as well.        Id.

          Thomas asserted before the court of appeals that the

district court had no jurisdiction to reconsider its order of

remand.   Id.   The Court of Appeals for the Fifth Circuit

disagreed, holding because the remand was a discretionary

decision to decline supplemental jurisdiction under 28 U.S.C. §

1367(c), it was not a remand under § 1447(c).      Id.   The court

held the bar of § 1447(d) did not apply, and therefore the

district court had jurisdiction to reconsider its order of

remand.   Id. at 615-16.     We agree with this analysis.   We hold

the district court here had jurisdiction to reconsider its order

of remand, first because there is no evidence in the record that

the district court had sent a certified copy of the remand order

to the state court, and second because the initial remand was not
covered by § 1447(c) and the bar of § 1447(d) is therefore not

implicated.

          In sum, with respect to the rather intricate

jurisdictional posture of this case, we hold: this case falls

under the Thermtron exception to § 1447(d)'s bar of review of

remand orders; we have jurisdiction to review this case on writ

of mandamus because the order of remand being appealed is not

final; and even though the district court decided the preemption

issue on a motion for reconsideration it did not lack

jurisdiction to make that determination.

                                  B.

          Had we determined this case fell under the Waco line of

cases we would review the decision underlying the remand order

(if at all) as an appeal.     Also we would have had to address the

question of finality, the question of the appropriate standard of

review of the preemption issue, and whether the remand order

itself could be reviewed.10    But the appropriate manner of review

under Thermtron of a remand order is mandamus, and Trans Penn has

properly petitioned for mandamus rather than filed an appeal.

The All Writs Act, 28 U.S.C. § 1651, empowers courts to issue

"all writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of law."

The Supreme Court has stated:

10
 .    On allowing review of the remand order itself (rather than
just review of the decision underlying the remand), compare Waco,
293 U.S. at 143 (holding no review of the order of remand
allowed), with Carr, 17 F.3d at 680 (holding review of the order
of remand allowed when the Waco exception applies).
            [B]ecause an order remanding a removed action
            does not represent a final judgment
            reviewable by appeal, "[t]he remedy in such a
            case is by mandamus to compel action, and not
            by writ of error to review what has been
            done." Absent statutory prohibitions, when a
            remand order is challenged by a petition for
            mandamus in an appellate court, "the power of
            the court to issue the mandamus would be
            undoubted."


Thermtron, 423 U.S. at 352-53 (citations omitted).

            A petition for a writ of mandamus must demonstrate the

district court committed a "clear error of law `at least

approach[ing] the magnitude of an unauthorized exercise of

judicial power, or a failure to use that power when there is a

duty to do so.'"    Richman Bros. Records, Inc. v. U.S. Sprint
Communications Co., 953 F.2d 1431, 1448 (3d Cir. 1991) (quoting

Lusardi v. Lechner, 855 F.2d 1062, 1069 (3d Cir. 1988)), cert.

denied, 112 S. Ct. 3056 (1992).   The writ is an extraordinary

remedy, only to be used in exceptional circumstances where the

party seeking it demonstrates a clear and indisputable right to

the writ.   Carteret Sav. Bank, FA v. Shushan, 919 F.2d 225, 232

(3d Cir. 1990), cert. denied, 113 S. Ct. 61 (1992).    This

stringent standard governs our review.



                                III.

            Ordinarily, a case is not removable to federal court

simply because, as here, the defendant raises federal preemption

as a defense.    Rather, removal on the basis of federal question

jurisdiction, 28 U.S.C. §§ 1331 & 1441 (1988 & Supp. V 1993),

generally requires that a federal question be presented on the
face of the plaintiff's properly pleaded complaint.   This well-

pleaded complaint rule "makes the plaintiff the master of the

claim; he or she may avoid federal jurisdiction by exclusive

reliance on state law."    Caterpillar Inc. v. Williams, 482 U.S.

386, 392 (1987).   In certain limited circumstances, however, a

defendant may be able to remove a case notwithstanding a

complaint's apparent grounding in state law.   One such

circumstance occurs when a state-law claim is preempted under

section 301 of the LMRA.   Id. at 393; see also Goepel v. National

Postal Mail Handlers Union, 36 F.3d 306, 311 (3d Cir. 1994)

(recognizing LMRA preemption), petition for cert. filed, 63

U.S.L.W. 3574 (U.S. Jan. 23, 1995) (No. 94-1258); Railway Labor

Executives Ass'n v. Pittsburgh & Lake Erie R.R., 858 F.2d 936,

941 (3d Cir. 1988) (same).11

          Trans Penn contends that plaintiffs' claims in this

case are, in fact, "completely preempted" in this manner,

requiring the district court to retain jurisdiction over the case

because of the implicit federal questions that Trans Penn

believes are raised on the face of the complaint.   In answer, we

first discuss the contours of section 301 preemption and then

evaluate whether plaintiffs' claims are, indeed, preempted.

                                 A.



11
 .   We have discussed elsewhere the contours of the well-
pleaded complaint rule and its corollary principle, the "complete
preemption doctrine," and need not duplicate that discussion
here. See Goepel, 36 F.3d at 310-11; Railway Labor Executives
Ass'n, 858 F.2d at 939-42.
             Section 301 of the Labor Management Relations Act

provides for federal jurisdiction over disputes regarding

collective bargaining agreements, and mandates the application of

uniform federal law to resolve such disputes.     The statute

provides:

             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. § 185(a).     While the provision only explicitly refers

to federal jurisdiction, the Supreme Court has held "that

§ 301(a) is more than jurisdictional--that it authorizes federal

courts to fashion a body of federal law for the enforcement of

these collective bargaining agreements . . . ."     Textile Workers

Union of Am. v. Lincoln Mills, 353 U.S. 448, 450-51 (1957)

(footnote omitted).    The exclusive application of federal law

serves important national policies: "[Section] 301 mandate[s]

resort to federal rules of law in order to ensure uniform

interpretation of collective-bargaining agreements, and thus to

promote the peaceable, consistent resolution of labor-management

disputes."    Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

399, 404 (1988) (footnote omitted).

             The Supreme Court has set forth a clear "principle of §

301 pre-emption" to guide our inquiry:
          [I]f the resolution of a state-law claim
          depends upon the meaning of a collective-
          bargaining agreement, the application of
          state law (which might lead to inconsistent
          results since there could be as many state-
          law principles as there are States) is pre-
          empted and federal labor-law principles--
          necessarily uniform throughout the Nation--
          must be employed to resolve the dispute.


Id. at 405-06.   The preeminence of federal law in interpreting

collective bargaining agreements applies to tort as well as

contract actions.   In Allis-Chalmers Corp. v. Lueck, 471 U.S.

202, 210-11 (1985), the Court held "the pre-emptive effect of §

301 must extend beyond suits alleging contract violations," to

"questions relating to what the parties to a labor agreement

agreed, and what legal consequences were intended to flow from

breaches of that agreement," whether such questions arise in a

tort or contract suit.   Thus, where a plaintiff sued his

employer, Allis-Chalmers, in tort for the bad-faith handling of

his insurance claims and his insurance policy was incorporated by

reference in the collective bargaining agreement between the

plaintiff's union and his employer, the court held section 301

preempted the tort claims.   The Court reasoned, "It is a question

of federal contract interpretation whether there was an

obligation under this labor contract to provide the payments in a

timely manner, and, if so, whether Allis-Chalmers' conduct

breached that implied contract provision."   Id. at 215.
          At the same time, the mere existence of a collective

bargaining agreement does not prevent an individual from bringing

state law claims based on some independent agreement or

obligation.   The plaintiffs in Caterpillar had been hired for
positions covered by a collective bargaining agreement but later

assumed management and other positions outside the bargaining

unit.    At that time, Caterpillar allegedly made statements to the

plaintiffs guaranteeing their employment, and when it later

downgraded the plaintiffs to unionized positions it assured them

these positions were temporary.     When Caterpillar later laid off

the plaintiffs, they sued claiming breach of the individual

employment contracts.

             The Supreme Court held "a plaintiff covered by a

collective-bargaining agreement is permitted to assert legal

rights independent of that agreement, including state-law

contract rights, so long as the contract relied upon is not a

collective-bargaining agreement."12    Caterpillar, 482 U.S. at

396.    The Court observed the plaintiffs' complaint neither relied

on the collective bargaining agreement indirectly nor addressed

the relationship between the individual contracts and the

agreement.    Id. at 395.   The Court also noted that individual



12
 .     The Court had noted this limit on § 301 in Allis-Chalmers:

                 Of course, not every dispute concerning
            employment, or tangentially involving a
            provision of a collective-bargaining
            agreement, is pre-empted by § 301 or other
            provisions of the federal labor law. . . .
            [I]t would be inconsistent with congressional
            intent under that section to pre-empt state
            rules that proscribe conduct, or establish
            rights and obligations, independent of a
            labor contract.

471 U.S. at 211-212.
employment contracts could not subtract from collective

agreements but they could create additional rights.     Id. at 396.

             Furthermore, a plaintiff may bring a state law tort

action against an employer, even where he could have brought a

similar claim based on a provision in his collective bargaining

agreement, so long as the state claim does not require

interpretation of the collective bargaining agreement.        The tort

claim falls under state law even though the claim based on the

bargaining agreement provision must apply federal law pursuant to

section 301.     In Lingle, 486 U.S. at 401, the plaintiff notified

her employer she had been injured in the course of her employment

and requested workers' compensation for medical expenses, but the

employer discharged her for allegedly filing a false worker's

compensation claim.     Her union filed a grievance under a

collective bargaining agreement provision protecting employees

from discharge except for "proper" or "just" cause, and she filed

a retaliatory discharge action in an Illinois state court.       Id.

at 401-02.    The employer removed the action to federal district

court and filed a motion to dismiss the case pursuant to section

301.

             The Court held section 301 did not preempt the state

law retaliatory discharge claim because it could be resolved

without interpretation of the collective bargaining agreement.

Id. at 407.     The issues raised--whether the employee was

discharged or threatened with discharge to deter her from

exercising her legal rights--were "purely factual questions

pertain[ing] to the conduct of the employee and the conduct and
motivation of the employer."    Id.    It did not matter, the Court

said, that the claim under the collective bargaining agreement

would involve the same factual issues, for the state law claim

was "`independent' of the collective-bargaining agreement in the

sense of `independent' that matters for § 301 pre-emption

purposes: resolution of the state-law claim does not require

construing the collective-bargaining agreement."     Id.

             We followed this precedent in Berda v. CBS, Inc., 881

F.2d 20 (3d Cir. 1989), cert. denied, 493 U.S. 1062 (1990), where

we allowed an employee to bring state contract, promissory

estoppel, and tort claims against his employer based on alleged

misrepresentations made before the employee became a member of

the bargaining unit.    Berda, 881 F.2d at 20.   The plaintiff

claimed the employer violated its oral promises of job security

by laying him off.    We found his claims did not "substantially

depend" on the interpretation of a collective bargaining

agreement.    Id. at 25.   Rather, they were based on the oral

agreement, which could create rights in addition to those under

the bargaining agreement.    We noted that it was of no

significance that the alleged misrepresentations in the oral

statements related to layoffs, and layoffs were referred to in

the bargaining agreement, so long as the plaintiff did not need

to refer to the bargaining agreement in making his claims.       Id.
at 27.

                                  B.

          We now turn to the employees' particular claims, which

Trans Penn asserts are inextricably intertwined with and
substantially dependent on the terms of the collective bargaining

agreement.   At the outset, we reject Trans Penn's general

contention that because the "foundation" of plaintiffs' state

tort and contract claims--job security in the face of layoffs or

discharge--is a mandatory subject of collective bargaining under

federal labor law and is covered in their bargaining agreement,

the claims are preempted.13   The employees have not alleged Trans

13
 . Trans Penn seeks support for this proposition in Angst v.
Mack Trucks, Inc., 969 F.2d 1530 (3d Cir. 1992), and Darden v.
United States Steel Corp., 830 F.2d 1116 (11th Cir. 1987).
Neither case, however, does more than apply the standard rule
that § 301 preempts claims either founded directly on rights
created by a collective bargaining agreement or substantially
dependent upon an analysis of a collective bargaining agreement.
Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987).

          In Angst, employees brought suit against Mack Trucks
alleging a violation of a "buy-out plan" Mack Trucks and the
employees negotiated as a modification of their collective
bargaining agreement. 969 F.2d at 1535. Because the state law
claims depended on interpretation of the collective bargaining
agreement and its modifications, the claims were preempted by §
301. Id. at 1536-37. While we distinguished Caterpillar and
Berda because "the aggrieved employees [in those cases] were not
represented by a union and thus were not subject to collectively
bargained labor agreements," id. at 1537, we did not indicate
that all claims arising while an individual is subject to a
collective bargaining agreement are preempted by § 301. The tort
claim in Lingle, for example, arose while the employee was
represented by a union, and the collective bargaining agreement
provided her with a grievance procedure to address her claim.
Lingle, 486 U.S. at 401-02.

          Similarly, the Darden court found § 301 preemption
after finding the employees' claims required examination of the
collective bargaining agreement. The court noted that "plaintiffs
actually allege a violation of the collective bargaining
agreement in their complaints. Having done so, it is
disingenuous for them now to maintain that their claims are not
'inextricably intertwined with consideration of the terms of the
labor contract.'" Darden, 830 F.2d at 1120 (quoting Allis-
Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985)).
Penn violated the terms and conditions of the collective

bargaining agreement.   While the state law claims here relate to

job security, they are grounded in the guarantee given the

employees by Trans Penn.14   The collective bargaining agreement

does not mention the individual employment contracts, nor does

Trans Penn explain how the claims are substantially dependent on

analysis of the collective bargaining agreement.   The fact that

job security is addressed in the collective bargaining agreement

is "of no consequence, because [the employees] need not refer to

. . . the collective bargaining agreement in order to make out

[their] claim."   Berda, 881 F.2d at 27.

          Berda, Caterpillar, and Lingle show that "there is

nothing novel about recognizing that substantive rights in the

labor relations context can exist without interpreting

collective-bargaining agreements."   Lingle, 486 U.S. at 411.   Our

examination of the employees' contract, fraud, and emotional

distress claims demonstrates they assert substantive rights

independent of the collective bargaining agreement.

14
 . We have stated, "[E]mployees who are members of a collective
bargaining unit cannot negotiate individual contracts that are
inconsistent with the . . . collective bargaining agreement."
Malia v. RCA Corp., 794 F.2d 909, 912 (3d Cir. 1986), cert.
denied, 482 U.S. 927 (1987). However, in Malia we held an
employee could sue under state law based on an oral labor
contract he negotiated while a member of a collective bargaining
unit. We stated, "Nothing in the LMRA prevents an individual--
whether that individual is to be newly hired or promoted from a
bargaining unit--from negotiating an employment contract for a
management position." Malia, 794 F.2d at 913. Similarly,
nothing in the LMRA prevents an individual from negotiating a
contract to take effect after the termination of a collective
bargaining agreement.
          1. Breach of Contract

          The employees charge Trans Penn breached the guarantee

contracts when it dismissed them on October 30, 1991.15    Trans

Penn contends that adjudication of the employees' contract claims

requires an analysis and interpretation of the terms of the

collective bargaining agreement.

          The employees may assert legal rights, including state

law contract rights, provided they are independent of the

collective bargaining agreement.   Caterpillar, 482 U.S. at 396.

Here, the employees allege Trans Penn violated its duties and

responsibilities under the separate guarantee to provide

continued employment.   The duties claimed to be owed to Trans

Penn employees are firmly rooted in the separate guarantee, not

the collective bargaining agreement.

          Under Pennsylvania law, "[i]n order to recover for

damages pursuant to a breach of contract, the plaintiff must show

a causal connection between the breach and the loss."     Logan v.

Mirror Printing Co., 600 A.2d 225, 226 (Pa. Super. Ct. 1991)

(citing Exton Drive-In, Inc. v. Home Indem. Co., 261 A.2d 319

(Pa. 1969), cert. denied, 400 U.S. 819 (1970)).   Where one party

to a contract breaches without any legal justification, the non-

breaching party may receive whatever damages it suffered (unless


15
 .   The complaint states, "Plaintiffs believe and therefore
aver that their termination from employment with Defendants did
not result from any diminution in Defendants' business sufficient
to justify termination under the terms of the Contract." First
Am. Compl. ¶ 26. The "Contract" refers to the guarantee, not the
collective bargaining agreement.
the contract provides otherwise) if: "(1) [the damages] were such

as would naturally and ordinarily result from the breach, or (2)

[the damages] were reasonably foreseeable and within the

contemplation of the parties at the time they made the contract,

and (3) [the damages] can be proved with reasonable certainty."

Logan, 600 A.2d at 226 (citing Taylor v. Kaufhold, 84 A.2d 347,

351 (Pa. 1951)).

          Considering these factors, assessing contract liability

under Pennsylvania law will not require an analysis or

interpretation of the collective bargaining agreement.     "Section

301 says nothing about the content or validity of individual

employment contracts."   Caterpillar, 482 U.S. at 394.   Rather,

these are issues to be resolved under state law.
          2. Fraud

          Trans Penn insists section 301 preempts the employees'

fraud claims16 because proof of fraud requires clear and

convincing evidence of justifiable reliance by the recipient upon

the misrepresentation.   Such an analysis, Trans Penn argues,

requires an interpretation of the collective bargaining agreement

to determine if the employees justifiably relied on

representations guaranteeing job security.   We do not agree.

          Pennsylvania law requires the plaintiff alleging fraud

to prove the following elements by clear and convincing evidence:

16
 .   The employees allege, in part, "[Trans Penn] knowing the
same to be false and misleading when made, and never intending to
honor same, . . . intentionally, recklessly, [and] maliciously
. . . represented and promised job security [for the purpose of
inducing the work force to decertify the union]." Id. ¶ 35.
"(1) a misrepresentation; (2) a fraudulent utterance of it; (3)

the maker's intent that the recipient be induced thereby to act;

(4) the recipient's justifiable reliance on the

misrepresentation; and (5) damage to the recipient proximately

caused."   Seven v. Kelshaw, 611 A.2d 1232, 1236 (Pa. Super. Ct.

1992).

           We conclude that the employees need not depend on the

collective bargaining agreement to satisfy these elements of

state law fraud.   This is not a situation, as in Allis-Chalmers,

where the alleged tort is a violation of duties assumed in the

collective bargaining agreement.   471 U.S. at 215.   An

examination of the employer's behavior, motivation, and

statements does not substantially depend upon the terms of the

collective bargaining agreement.   The essence of the employees'

case is proof of justifiable reliance on the separate guarantees,

not on the collective bargaining agreements.   As in Lingle, 486

U.S. at 407, "[e]ach of these purely factual questions pertains

to the conduct of the employee and the conduct and motivation of

the employer," and may be appropriately resolved under state law.
           3. Intentional Infliction of Emotional Distress

           Trans Penn maintains resolution of the employees' claim

of intentional infliction of emotional distress requires an

analysis of the collective bargaining agreement because the terms

of that agreement, "which gave the plaintiffs seniority benefits

and protection from arbitrary discharge, provide the context

against which the relative effects of the `Guarantee' and

subsequent layoffs must be measured."   Appellants' Br. at 20
(citation omitted).   Furthermore, Trans Penn asserts that

assessing the "outrageousness" of these facts requires analysis

of the terms of the collective bargaining agreement.17      Id.   We

disagree.

            Pennsylvania courts recognize a cause of action under

the Restatement (Second) of Torts section 46 (1965) for the

intentional infliction of emotional distress.18    Field v.

Philadelphia Elec. Co., 565 A.2d 1170, 1183-84 (Pa. Super. Ct.

1989).   To prevail, plaintiff must prove defendant, by extreme

and outrageous conduct, intentionally or recklessly caused

plaintiff severe emotional distress.     Motheral v. Burkhart, 583

A.2d 1180, 1188 (Pa. Super. Ct. 1990).    Liability will be found

only where "the conduct has been so outrageous in character, and

so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable

in a civilized community."    Id. (quoting Restatement (Second) of

Torts § 46 cmt. d).
17
 .   The employees' complaint alleges "the conduct of the
Defendants with respect to this Plaintiff was intentional,
wanton, malicious, reckless and outrageous. As a direct and
proximate result of the conduct . . . this Plaintiff has suffered
great, severe and actual mental distress and chronic depression
. . . ." Id. ¶¶ 47 & 48.
18
 .   The Restatement provides:

            (1) One who by extreme and outrageous conduct
            intentionally or recklessly causes severe
            emotional distress to another is subject to
            liability for such emotional distress, and
            if bodily harm to the other results from it,
            for such bodily harm.

Restatement (Second) of Torts § 46 (1965).
            We fail to see how evaluating Trans Penn's conduct

requires interpretation of the collective bargaining agreement

and substantially depends on its construction.    The same is true

for the employees' allegation that they suffered severe mental

distress--the analysis under state law will only focus on Trans

Penn's conduct while inducing the employees to enter into the

"Guarantee" agreement and on the employees' response.    This

factual inquiry does not implicate any analysis of terms or

rights created by the collective bargaining agreement.   See

Lingle, 486 U.S. at 407.

                                IV.

            Because we conclude that the employees' claims are not

preempted under section 301, we turn to Trans Penn's alternative

argument.   Trans Penn characterizes the employees' deletion of

their RICO claims as "forum manipulation" and contends the

district court abused its discretion in remanding back to the

Court of Common Pleas.

            It is settled that district courts have discretion to

remand to state court "a removed case involving pendent claims

upon a proper determination that retaining jurisdiction over the

case would be inappropriate."   Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 357 (1988).    In deciding whether to remand, the

district court should consider what best serves the principles of

economy, convenience, fairness, and comity.    Id.   Of course, the

district court can consider whether the plaintiff has engaged in

any manipulative tactics.    Therefore, an effort by the plaintiff
to manipulate the forum should be considered along with other

factors in the decision whether to remand.      Id.

          The employees note that they propounded and served

interrogatories and requests for production on the defendants

seeking evidence to substantiate their RICO claims.        They say

they withdrew the RICO claims because the responses to these

discovery requests proved inadequate to substantiate these

claims.

          The district court held, "Taking into consideration the

values of judicial economy, convenience, fairness and comity, we

do not believe that the present case should remain within our

jurisdiction."    McCandless, 840 F. Supp. at 374.    The court also

described the employees' assertions as "resulting from what they

perceived as a valid, enforceable employment contract which was

allegedly fraudulent."     Id.   The district court then concluded,

"This is not an action to challenge the conduct of the employer

to coerce anti-union votes.      It is an action for damages for

breach of contract, and therefore, is better suited to be

adjudicated by the Pennsylvania courts."      Id.

          We believe that the district court acted within its

sound discretion in remanding the case to the state court.

                                   V.

             Trans Penn has not demonstrated a clear and

undisputable right to mandamus.      Section 301 preempts the

application of state law only if the application substantially

depends on an interpretation of the collective bargaining

agreement.    In concluding the employees' claims were not
preempted and remanding them, the district court neither engaged

in the unauthorized use of judicial power nor abused its

discretion.   Trans Penn has failed to satisfy the stringent

standard necessary to issue a writ of mandamus.

          For the foregoing reasons, we will deny Trans Penn's

petition for a writ of mandamus.
