                     IN THE UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT

                             _____________________

                                  No. 98-41588
                             _____________________

ANTHONY VOLENTINE; HARRY C. ANDERSON;
JASON W. APODACA; ARTHUR M. ARNOLD, JR.;
JOE E. ASHCRAFT; ET AL.,

                                                      Plaintiffs-Appellants,

                                      versus

BECHTEL, INC.; MOBIL CHEMICAL CO.,

                                            Defendants-Appellees.
_________________________________________________________________

          Appeal from the United States District Court
                for the Eastern District of Texas
                          (1:98-CV-1609)
_________________________________________________________________
                         February 9, 2000

Before JOLLY, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

     The 308 plaintiffs, construction workers and union members,

were fired by C. A. Turner Contractors, their employer--allegedly

because of pressure from the defendants Bechtel, the general

contractor, and Mobil, the owner--when they took unauthorized,

organized breaks specifically forbidden by orders of Bechtel.

After       losing   their   unfair   labor    practice   charges   before   the

National Labor Relations Board, the plaintiffs have now sued the

defendants based on state law claims of tortious interference with

contract, conspiracy to interfere with contract, and intentional


        *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
infliction of emotional distress. The district court dismissed the

complaint on summary judgment, holding that the plaintiffs’ claims

were preempted under § 8 of the National Labor Relations Act.               For

the reasons that follow, we affirm.

                                      I

     In August 1996, Mobil began its Olefins Expansion Project in

Beaumont, Texas.     Mobil had hired Bechtel, Inc. as the general

contractor, and Bechtel had hired Turner as a subcontractor for

construction work.    On April 9, 1998, Bechtel’s construction site

manager for the project, Sam Stoddard, sent a letter to its

subcontractors, informing them that the company would no longer

allow organized mass breaks or organized break areas because of

alleged abuse of those breaks. Bechtel continued to allow for non-

mass breaks necessary for worker safety, though Bechtel explained

that the subcontractors would have to pay for that break time

themselves.

     On April 13, almost all of Turner’s employees decided to

disregard the order and continued their practice of taking mass

breaks.   Turner fired the employees taking the breaks that day.

The plaintiff employees, however, did not surrender.

     On April 14, Pipe Fitters Local Union No. 195 filed an unfair

labor practice charge against Bechtel, alleging violations of

§ 8(a)(1), (3), and (5) of the NLRA by “eliminat[ing] . . .

established,     organized    work        breaks”      and   discriminatorily

terminating    employees   “because       of   their   membership   in   and/or




                                      2
activities    on      behalf        of        their   collective       bargaining

representative.” On April 20, the International Union of Operating

Engineers, Local 450, and the Texas Laborers’ District Council and

Laborers’ 80 each filed the same charges against Bechtel.                      The

charges were later amended to assert identical allegations against

Mobil.    After investigating these charges, the National Labor

Relations Board refused to issue a complaint against Bechtel or

Mobil.

      After the failure of their NLRA claims, the 308 individual

plaintiffs   filed    suit     in    Texas       state   court   for    tortious

interference with contract, conspiracy to interfere with contract,

and   intentional    infliction      of   emotional      distress.      In   their

interference with contract claims, the plaintiffs charged that the

defendants “willfully and intentionally set about to cause or force

C. A. Turner Construction Company to terminate its contracts of

employment   with    Plaintiffs.”1              The   plaintiffs’    intentional

infliction claim merely asserted that this same tortious conduct

had caused them to suffer emotional distress.

      The defendants removed the case to federal district court and

later moved for summary judgment. The court granted that motion on


      1
     The plaintiffs also alleged that the “[d]efendants set about
to accomplish their objective by making false and misleading
accusations against the Plaintiffs and disparaging the reputations
of the Plaintiffs.” Because these alleged activities were part of
the alleged scheme to obtain the firing, we will not treat them as
separate from the central allegation that the defendants forced the
firing.




                                          3
the grounds that § 8 of the NLRA preempted the state law claims.

The plaintiffs appeal.

                                              II

      We   must    first       determine      whether         federal   jurisdiction     is

appropriate in this case. Because removal is an issue of statutory

construction, we review a district court’s determination of the

propriety of removal de novo.              Vasquez v. Alto Bonito Gravel Plant

Corp., 56 F.3d 689, 692 (5th Cir. 1995)(quoting Leffall v. Dallas

Ind. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994).                       We impose upon

the removing [party] the burden of establishing the existence of

subject matter jurisdiction.              Id.

      The district court allowed the defendants’ removal motion

based on federal question and diversity jurisdiction pursuant to 28

U.S.C. §§ 1331 and 1332, though either ground would have been

sufficient    to       establish       federal         jurisdiction.    We     begin   with

diversity.

      There   are       two     requirements            for    establishing     diversity

jurisdiction: (1) diversity of citizenship and (2) an amount in

controversy over $75,000.              28 U.S.C. § 1332.           Here, the defendants

admitted citizenship in Nevada, California, New York, and Virginia.

The defendants then asserted “on information and belief” that all

308 plaintiffs were citizens of Texas.                    The plaintiffs have failed

to   demonstrate        that    this    was    incorrect.           Because    unrebutted

allegations       of    citizenship       in       a    removal     petition    based    on

information       and   belief     is    sufficient           to   satisfy   the   removal




                                              4
statute, Jones v. Newton, 775 F.2d 1316, 1317-18 (5th Cir. 1985),

the defendants have satisfied the first requirement for diversity

jurisdiction.

      With   respect    to   the    amount    in   controversy,   damages     are

measured based on what is pled, not the relative likelihood of

actually securing a particular award.              See Horton v. Liberty Mut.

Ins. Co., 367 U.S. 348, 353, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961);

National Union Fire Ins. Co. of Pittsburgh v. Russell, 972 F.2d

628, 630 (5th Cir. 1992).           When the complaint does not allege a

specific amount of damages, the removing party must prove by a

preponderance of the evidence that the amount in controversy

exceeds $75,000.       Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335

(5th Cir. 1995).2      The court should first look to the complaint to

determine whether it is “facially apparent” that the plaintiffs’

claims are likely to exceed that amount.                  Id.   At that point,

jurisdiction is proper, unless the plaintiffs can establish that it

is   “legally   certain”     that    the     claim   is   for   less   than   the

jurisdictional amount.        De Aguilar v. Boeing Co., 47 F.3d 1404,

1412 (5th Cir. 1995).3

     2
     Although the defendants’ removal motion listed the amount in
controversy as $50,000, we treat that as an oversight based on an
old version of 28 U.S.C. § 1332. Regardless, it is the complaint
that is important for determining the amount in controversy, not
the defendants’ removal motion.
      3
      The De Augilar panel speculated about how a plaintiff might
do so:

      Plaintiff’s state complaint might cite, for example, to




                                        5
     It is apparent from the plaintiffs’ Third Amended Complaint

that they are suing individually rather than based on a single,

common injury.    For that reason, aggregation of actual damages

among the various plaintiffs is not possible in order to meet the

$75,000 requirement. Zahn v. International Paper Company, 414 U.S.

291, 294-95, 94 S.Ct. 505, 508-09, 38 L.Ed.2d 511 (1973).        Each

plaintiff’s claim must satisfy that amount for us to have diversity

jurisdiction over his or her claims.   Id.

     In this case, the plaintiffs did not allege a specific amount

of damages.   Instead, they asserted

     a loss of income both in the past and in the future, the
     total destruction of their relationship with their former
     employer, C. A. Turner Construction Company, and
     devastating damage to their precautions within the market
     of their chosen trade.        Plaintiffs have all been
     seriously damaged in their ability to secure alternative
     employment, resulting not only in loss of income and lost
     earning capacity, but in serious emotional distress and
     mental anguish occasioned by the loss of personal esteem
     resulting from their lack of work or opportunity to
     continue to work.

If proven, it would be reasonable to conclude that these damages

would meet the $75,000 threshold, especially given the severity




     a state law that prohibits recovery of damages that
     exceed those requested in the ad damnum clause and that
     prohibits the initial ad damnum to be increased by
     amendment. Absent such a statute, “[l]itigants who want
     to prevent removal must file a binding stipulation or
     affidavit with their complaints.”

De Aguilar, 47 F.3d at 1412 (quoting In re Shell Oil Co., 970 F.2d
355, 356 (7th Cir. 1992)(per curiam)).




                                 6
alleged.4    The plaintiffs conceded as much in their Third Amended

Petition: “This court has jurisdiction inasmuch as the amount in

controversy    exceeds   the   minimum   jurisdictional     limits   of   the

Court.”     Because the plaintiffs have made no attempt to establish

that it is “legally certain” that the amount would be less, we

believe     that   the   plaintiffs’     claims   satisfy     the    $75,000

requirement, and that we therefore have diversity jurisdiction over

these claims.

                                   III

                                    A

     The plaintiffs next take issue with the district court’s

determination that § 8 of the NLRA5 preempted their tortious

     4
      We are only concerned with actual damages and do not reach
the as yet unresolved question in this circuit of whether punitive
damages under Texas law may be aggregated in order to establish
diversity jurisdiction. Compare Ard v. Transcontinental Gas Pipe
Line Corp., 138 F.3d 596, 602 (5th Cir. 1998)(no aggregation under
Louisiana law) with Allen v. R&H Oil & Gas Co., 63 F.3d 1326,
1332-35 (5th Cir. 1995)(aggregation under Mississippi law).
     5
      Section 8(a) of the NLRA is codified at 29 U.S.C. § 158 and
reads, in relevant part:

     It shall be an unfair labor practice for an employer--
       (1) to interfere with, restrain, or coerce employees in
     the exercise of the rights guaranteed in § 157 of this
     title. . .
        (3) by discrimination in regard to hire or tenure of
     employment or any term or condition of employment to
     encourage or discourage membership in any labor
     organization. . .
         (5) to refuse to bargain collectively with the
     representatives of his employees, subject to the
     provisions of § 159(a) of this title.

Section 7, codified at 29 U.S.C. § 157 and referred to in § 8,




                                    7
interference with contract, conspiracy to interfere with contract,

and intentional infliction of emotional distress claims under Texas

law.     Whether a claim is preempted is an issue of law that we

review de novo. Windfield v. Groen Division, Dover Corp., 890 F.2d

764, 766 (5th Cir. 1989)(citing Vincent v. Trend Western Technical

Corp, 828 F.2d 563, 569 (9th Cir. 1987).

                                     B

       In San Diego Building Trades Council, Millmen’s Union, Local

2020 v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775

(1959), the Supreme Court enunciated a rule of preemption for state

law    based   claims   that   touched   on   areas   covered   by   federal

regulation under the NLRA:

       When an activity is arguably subject to § 7 or § 8 of the
       Act, the States as well as the federal courts must defer
       to the exclusive competence of the National Labor
       Relations Board if the danger of state interference with
       national policy is to be averted.

Garmon, however, provided for exceptions to this broad “arguably

subject” test when the challenged conduct is a mere “peripheral

concern” of federal labor law or touches “deeply rooted” local


reads:

        Employees shall have the right to self-organization, to
       form, join, or assist labor organizations, to bargain
       collectively through representatives of their own
       choosing, and to engage in other concerted activities for
       the purpose of collective bargaining or other mutual aid
       or protection, and shall also have the right to refrain
       from any or all of such activities except to the extent
       that such right may be affected by an agreement requiring
       membership in a labor organization as a condition of
       employment as authorized in § 158(a)(3) of this title.




                                     8
interests.     Id. at 243-44.      Subsequent cases have refined the

Garmon preemption doctrine and these exceptions.            The most notable

of these cases is Sears, Roebuck & Co. v. San Diego County Dist.

Council of Carpenters, 436 U.S. 180, 197-98, 98 S.Ct. 1745, 56

L.Ed.2d 209 (1978), where the Court held:

     The critical inquiry . . . is not whether the State is
     enforcing a law relating specifically to labor relations
     or one of general application but whether the controversy
     presented to the state court is identical to . . . that
     which could have been . . . presented to the Labor Board.

This case, however, was somewhat ambiguous because the court did

not suggest the analysis for determining when “controversies” might

be considered “identical.”

     During the 1983 term, the Court analyzed two separate cases

using the Sears framework that provide useful guidance.              In Local

926, International Union of Operating Engineers AFL-CIO v. Jones,

460 U.S. 669, 682, 103 S.Ct. 1453, 75 L.Ed.2d 368 (1983), the Court

looked to whether the controversies were the same “in a fundamental

respect.”    In that case, the plaintiff brought NLRB and state law

claims charging that a union had coerced his employer to fire him

because he was not a member of that union in good standing.

Because both controversies centered on whether a discharge was due

to union influence, the state law claims were preempted.              Id.   In

Belknap, Inc. v. Hale, 463 U.S. 491, 103 S.Ct. 3172, 77 L.Ed.2d 798

(1983), on the other hand, the Court focused not just on the

central     essence   of   the   two       claims,   but   instead   examined

similarities in the factual bases of each, the interests each




                                       9
sought to protect, and the relief requested as part of each one.

Id. at 510-11.6

     Both of these cases have been important in Garmon preemption

analysis in this circuit.      See, e.g., Sheet Metal Workers Local

Union No. 54, AFL-CIO v. E. F. Etie Sheet Metal Co., 1 F.3d 1464,

1470 (5th Cir. 1993)(relying on both standards); Hobbs v. Hawkins,

968 F.2d 471, 476 (5th Cir. 1992)(relying on the “fundamental

respect” criterion); Windfield v. Groen Division, Dover Corp., 890

F.2d 764 (5th Cir. 1989)(discussing both standards).

                                   C

     With each of these precedents offering some guidance, we turn

to consider the claims for tortious interference with contract and

conspiracy to interfere with contract that are before us. Thus, in

Jones, 460 U.S. 669, we note that the Supreme Court held that state

claims for tortious interference with contract can be preempted

under   the   Garmon   doctrine.   On   the   same   basis,   claims   for

conspiracy to interfere with contract may also be preempted.           But




    6
     In Belknap, the plaintiffs were replacement workers who sued
their employer for misrepresentation and breach of contract,
claiming that the defendant corporation had hired them as permanent
employees but then fired them when it agreed to a contract with the
striking union. The Court held that the claims were not preempted.
NLRA claims arising from these facts would have raised only the
rights of the strikers being infringed by the offer to the
replacement workers. The state claim, on the other hand, was based
on the rights of the replacement workers for damages irrespective
of the rights of strikers.     Moreover, reinstatement was not a
remedy available under state law but was under federal law.




                                   10
Jones does not stand for the proposition that either cause of

action is always preempted.

     We think that this case bears a close resemblance to Jones in

that both the NLRB and state law claims are fundamentally the same.

In the NLRB proceeding, the unions charged that Bechtel and Mobil

had forced C.A. Turner to eliminate the breaks without consulting

with the respective unions, and then to fire them for continuing to

take those breaks.   The plaintiffs made the same claim in state

court--that the defendants forced C. A. Turner to fire them for

taking en mass breaks.   This issue is central to both claims and

would be the focus of inquiry both before the NLRB and the court

reviewing the state law claims.

     Using the framework from Belknap buttresses the conclusion

that the controversies are the same. Both controversies arise from

the same set of facts--the defendants’ alleged conduct in obtaining

the firing of C.A. Turner’s employees.7     The interests in each

action were the same--the right of the employees to keep their jobs

after staging what amounted to an organized walkout.    It is true

that the remedies sought are somewhat different--back pay and other

job-related losses, plus reinstatement in the NLRB action, and in


      7
       The mere fact that the plaintiffs initially filed claims
based on these same facts with the NLRB can be influential in
finding preemption. That strongly suggests that the controversies
are the same. See Parker v. Connors Steel Co., 855 F.2d 1510, 1517
(11th Cir. 1988)(“By initially pursuing relief with the NLRB, the
employees have implicitly recognized the Board’s jurisdiction over
their claims.”)




                                  11
the state law proceeding, damages, which would include economic

losses plus non-economic-based damages. But that is frequently, if

not always, the case in such preemption questions that involve

administrative remedies as opposed to state court remedies.     By

itself, however, that is not enough to distinguish materially

between the NLRB charges and the interference-with-contract claims.

We thus conclude that the claims are essentially the same for

purposes of federal preemption.8




      8
       Another consideration determining whether this case falls
within the ambit of the NLRA is the relationship between the
defendants and plaintiffs. We believe that Bechtel, as a general
contractor, and Mobil, as the ultimate employer, have a sufficient
indicia of an employment relationship with the plaintiffs that
their alleged conduct arguably falls under the NLRA. Given the
nature of the work on the Mobil project, the plaintiffs’
allegations as to the day-to-day influence that the defendants had
over their work, the relationship between the plaintiffs as union
members engaging in a partial strike activity to enforce a previous
term of employment, and the defendants urging that they be fired
for that activity, we conclude that their interaction arguably
falls under the governance of the NLRA.        We have previously
acknowledged that a contractor may be liable to its subcontractors’
employees for anti-union actions even though it was not the
proximate employer. See Texas World Svc. Co. v. NLRB, 928 F.2d
1426 (5th Cir. 1991).




                                12
                                      D

     Just as with tortious interference claims, the NLRA may, based

on the same rationale, preempt claims for intentional infliction of

emotional distress.     See Smith v. Houston Oilers, Inc., 87 F.3d

717, 721 (5th Cir. 1996).         Courts have recognized, however, an

exception to Garmon preemption when claims rest on extreme and

outrageous conduct that is unrelated to an unfair labor practice:

     Simply stated, it is essential that the state tort be
     either unrelated to employment discrimination or a
     function of the particularly abusive manner in which the
     discrimination is accomplished or threatened rather than
     a function of the actual or threatened discrimination
     itself

Farmer v. United Bd. of Carpenters, 430 U.S. 290, 305, 97 S.Ct.

1056, 51 L.Ed.2d 338 (1977)(footnote omitted).          In Farmer, the

plaintiff, a union member, alleged that the defendants, a union and

union officials, had intentionally engaged in “‘outrageous conduct,

threats, intimidation, and words’ which caused [the plaintiff] to

suffer ‘grievous mental and emotional distress as well as great

physical damage.’”     Id.    The plaintiff attempted to prove that the

union’s campaign against him included “frequent public ridicule”

and “incessant verbal abuse,” although the opinion does not discuss

exactly what he alleged occurred.         The Court declined to preempt

that state law claim.        Instead, the Court held that the potential

interference with federal concerns was minimal because the tort

issue could be adjudicated without resolution of the underlying

labor dispute.   Id.    What little potential interference there was




                                     13
insufficient to counterbalance the legitimate and substantial state

interest in protecting its citizens.                 Id.

     In   this     case,    the     plaintiffs’        Third     Amended     Complaint

established the tortious interference claim as follows:

     The conduct referred to above [in the sections setting
     out the tortious-interference and conspiracy-to-interfere
     claims] engaged in by Defendants is outrageous and was
     intended to inflict emotional suffering and distress upon
     the Plaintiffs.     The above alleged tortious conduct
     [related to interference with contract] on the part of
     the Defendants did in fact cause the Plaintiffs to suffer
     from emotional distress and mental anguish.

The intentional infliction of emotional distress claimed here is

itself the actual firing, not the manner in which that firing

occurred.      There is a strong potential for interference with

federal law for that reason.              Thus, the Farmer exception does not

apply, and the tortious interference claim is also preempted by

federal law.

                                           IV

     We   turn    finally    to     the    plaintiffs’       contention      that   the

existence of genuine issues of material fact should have prevented

the district court from granting summary judgment on the issue of

preemption.      We can find no disputed factual issues, however, that

should have      prevented    the    district        court     from   ruling   on   the

defendants’    summary      judgment       motion,    nor    have     the   plaintiffs

pointed to any.       Their one suggestion is that the “Defendants’

motive for interfering with Appellants’ employment contracts” was

disputed.      But   that    does    not     alter    our    preemption      analysis.




                                           14
Whatever the motive prompting the defendants to seek the firings,

the plaintiffs’ state law and NLRB claims arise out of the same

facts and at their core are essentially the same.    Because we have

determined that the district court’s legal determination with

respect to preemption was proper, so was its summary judgment

determination.

                                V

     For the reasons stated herein, the district court’s decision

is

                                                    A F F I R M E D.




                               15
