                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-25-1996

PA Nurses Assoc v. PA State Ed Assoc
Precedential or Non-Precedential:

Docket 95-7457,95-7458,95-7645




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Recommended Citation
"PA Nurses Assoc v. PA State Ed Assoc" (1996). 1996 Decisions. Paper 115.
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                    No. 95-7457


         PENNSYLVANIA NURSES ASSOCIATION,
                                       Appellant
                        v.

     PENNSYLVANIA STATE EDUCATION ASSOCIATION;
   DEBRA FERGUSON; RICHARD LEWIS; JEFFREY LEWIS;
KAREN SCHRADER; ALFRED NELSON, JR.; THOMAS FERGUSON



                    No. 95-7458


         PENNSYLVANIA NURSES ASSOCIATION

                        v.

     PENNSYLVANIA STATE EDUCATION ASSOCIATION;
   DEBRA FERGUSON; RICHARD LEWIS; JEFFREY LEWIS;
KAREN SCHRADER; ALFRED NELSON, JR.; THOMAS FERGUSON,
                                         Appellants



                    No. 95-7645



     PENNSYLVANIA STATE EDUCATION ASSOCIATION;
   DEBRA FERGUSON; RICHARD LEWIS; JEFFREY LEWIS;
KAREN SCHRADER; ALFRED NELSON, JR.; THOMAS FERGUSON,
                                         Petitioners

                        v.

         PENNSYLVANIA NURSES ASSOCIATION,
                                       Respondent

           HONORABLE WILLIAM W. CALDWELL,
                                       Nominal Respondent
         On Appeal from the United States District Court
             for the Middle District of Pennsylvania
                 (District Court No. 94-cv-00880)



                         Argued May 20, 1996

                 Before:  SLOVITER, Chief Judge,
                             SAROKIN
and ROSENN, Circuit Judges

                  (Opinion Filed July 25, l996)




Thomas A. French (Argued)
David F. O'Leary
Rhoads & Sinon
Harrisburg, PA 17108-1146

Barbara J. Sapin
American Nurses Association
Washington, DC 20024

         Attorneys for Appellant in No. 95-7457,
                    and Appellee in No. 95-7458

Robert H. Chanin (Argued)
National Educational Association
Washington, DC 20036

Jonathan Walters
Markowitz & Richman
Philadelphia, PA 19107

         Attorneys for Appellees in No. 95-7457,
                     Appellants in No. 95-7458,
                 and Petitioners in No. 95-7645

Todd J. Shill
Rhoads & Sinon
Harrisburg, PA   17108-1146

         Attorney for Respondent in No. 95-7645



                         OPINION OF THE COURT


SLOVITER, Chief Judge.
         The contesting parties in this case are two labor
organizations who vied for the right to represent the nurses at
eight health-care facilities in Pennsylvania and Delaware.
Pennsylvania Nurses Association (PNA), the organization that had
previously been the bargaining agent, filed an action asserting
eleven state-law tort claims against the Pennsylvania State
Education Association and six individuals associated with it,
four of whom had previously been PNA's representatives
(collectively referred to as "PSEA"). The district court entered
judgment on the pleadings for PSEA on nine of the claims on the
ground that they were preempted by the National Labor Relations
Act. It rejected PSEA's contention of preemption on the
remaining claims and remanded them to the state court. PNA
appeals the district court order to the extent that it entered
judgment for PSEA. PSEA, as cross-appellant, appeals from the
disposition of the two surviving claims.
                                I.
                        PROCEDURAL HISTORY
         Because this appeal arises from the district court's
grant of a motion for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c), we accept as true the
well-pleaded allegations in the complaint and draw all inferences
therefrom in favor of PNA. United States v. City of
Philadelphia, 644 F.2d 187, 190 (3d Cir. 1980). Accordingly, we
set forth the facts as PNA alleges them.
         PNA is both a professional association of nurses and a
nurses' labor union; PSEA is a school employees' labor union.
Before June 30, 1993, PNA represented approximately 9,000 nurses
through sixty local bargaining units in Pennsylvania and
Delaware. During that period, defendants Debra Ferguson, Richard
Lewis, Jeffrey Lewis, and Karen Schrader worked for PNA as labor
representatives. Sometime thereafter, these representatives
decided that they no longer wanted to work for PNA and would be
more likely to secure positions with another union if they could
bring along with them the local PNA units they represented.
Debra Ferguson, in particular, sought a position with PSEA,
offering to bring with her as many of PNA's local units as
possible. She accordingly developed a plan to work with PSEA to
enlist the help of the other defendant PNA representatives in
shifting PNA local units and their leadership away from PNA and
toward PSEA.
         PNA claims that to further the conspiracy that it
alleges, PSEA sought authorization from its Board of Directors to
allow it to represent nurses as well as teachers; met with the
executive and negotiating committees of various PNA local units
along with the labor representatives, who were still employees of
PNA, to persuade them to disassociate from PNA and join PSEA;
provided Debra Ferguson and the other named PNA representatives
with PSEA propaganda, election cards, and other materials to aid
them in inducing PNA local units to join PSEA; held meetings with
PNA local memberships and, with the defendant PNA
representatives, spoke in favor of affiliating with PSEA instead
of PNA; "produced and promulgated false, malicious, and
defamatory propaganda designed to destroy the reputation of PNA,"
App. at 22; offered employment with PSEA as an incentive to Debra
Ferguson and the other defendant labor representatives to assist
in affiliating the PNA local units with PSEA; and sought to
induce other PNA labor representatives to leave PNA and become
PSEA employees and to bring their local PNA units with them.
         PNA also contends that the individual defendants who
were its former labor representatives failed to negotiate in good
faith successor collective bargaining agreements on behalf of
their PNA units, which enabled PSEA's subsequent efforts to
represent the units after the agreements expired; disparaged the
reputation of PNA and its officials to persuade unit members to
disassociate from the union; solicited unit members to sign
election cards for PSEA representation; and engaged in disloyal
activities including the creation and distribution of propaganda
promoting PSEA at the expense of PNA.
         PNA originally filed its complaint in the Court of
Common Pleas of Dauphin County, setting forth the following
eleven state-law claims in separate counts against one or more of
the defendants: I) breach of fiduciary duty, II) fraud and
deceit, III) defamation, IV) commercial disparagement, V) unfair
competition, VI) vicarious liability, VII) interference with
present contractual relations (between PNA and its former
representatives), VIII) interference with present and prospective
contractual relations (between PNA and its local units), IX)
interference with present and prospective contractual relations
(between PNA and health care employers), X) aiding and abetting,
and XI) conspiracy. PNA sought compensatory and punitive
damages.
         PSEA removed the case to federal court on the ground
that some of the claims were preempted by the National Labor
Relations Act (NLRA), 29 U.S.C.    151-169, and/or the Labor
Management Relations Act (LMRA), 29 U.S.C.    141-187, and moved
for judgment on the pleadings on that basis. In an order dated
June 6, 1995, and amended July 28, 1995, the district court
granted PSEA's motion, dismissing counts II, IV, V, VI, VII,
VIII, IX, X and XI to the extent that they were based on conduct
covered by the NLRA, and denied the motion as to counts I (breach
of fiduciary duty) and III (defamation), concluding that these
claims were not preempted. The court remanded the case to the
state court for disposition of the two remaining claims. PNA
appealed. PSEA cross-appealed and filed a petition for writ of
mandamus as an alternative.
         PNA has not challenged our jurisdiction over PSEA's
cross-appeal, but we must consider the jurisdictional question
even where the parties are prepared to concede it. Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986); PAS v.
Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993). 28 U.S.C.
1447(d) states that "[a]n order remanding a case to the State
court from which it was removed is not reviewable on appeal or
otherwise." This bar to review, however, has been held to apply
only to remand orders issued pursuant to 28 U.S.C.   1447(c),
that is, where the case was remanded due to a defect in the
removal procedures or for lack of subject matter jurisdiction.
Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712, 1718 (1996);
Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 346
(1976); Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 222 (3d
Cir. 1995); Balazik v. County of Dauphin, 44 F.3d 209, 212-13 (3d
Cir. 1995). Here, the district court relied upon the
discretionary ground stated in 28 U.S.C.   1367(c)(3), which
permits a district court to decline to exercise supplemental
jurisdiction over state claims where it has dismissed all claims
over which it has original jurisdiction. Accordingly, 28 U.S.C.
  1447(d) is inapplicable. See Trans Penn Wax, 50 F.3d at 224-
25; PAS, 7 F.3d at 352.
         Moreover, because the district court's remand order
divested the federal court of all control over the action, our
cases suggest that we would have jurisdiction under 28 U.S.C.
1291. See Powers v. Southland Corp., 4 F.3d 223, 231 n.9 (3d
Cir. 1993); Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1211
n.6 (3d Cir.), cert. denied, 502 U.S. 908 (1991); Carteret Sav.
Bank, FA v. Shushan, 919 F.2d 225, 228 n.7 (3d Cir. 1990);
McLaughlin v. ARCO Polymers, Inc., 721 F.2d 426, 428 n.1 (3d Cir.
1983). The recent decision in Quackenbush supports this view.
See 116 S. Ct. at 1719. In light of our decision that we have
appellate jurisdiction, the petition for mandamus filed in this
case is moot.
                               II.
                            DISCUSSION
                                A.
                         NLRA Preemption
         It is well established that state-law claims are
presumptively preempted by the NLRA when they concern conduct
that is actually or arguably either protected or prohibited by
the NLRA, Belknap, Inc. v. Hale, 463 U.S. 491, 498 (1983), and by
the LMRA when such claims rely upon an interpretation of a
collective bargaining agreement, Lingle v. Norge Div. of Magic
Chef, Inc., 486 U.S. 399, 405-06 (1988).
         The general framework for determining whether
particular state-law claims are preempted by the NLRA remains
that initially established by the Supreme Court in San Diego
Building Trades Council v. Garmon, 359 U.S. 236, 243-45 (1959),
and more recently summarized as follows:
         [S]tate regulations and causes of action are
         presumptively preempted if they concern conduct that is
         actually or arguably either prohibited or protected by
         the Act. The state regulation or cause of action may,
         however, be sustained if the behavior to be regulated
         is behavior that is of only peripheral concern to the
         federal law or touches interests deeply rooted in local
         feeling and responsibility. In such cases, the State's
         interest in controlling or remedying the effects of the
         conduct is balanced against both the interference with
         the National Labor Relations Board's ability to
         adjudicate controversies committed to it by the Act,
         and the risk that the State will sanction conduct that
         the Act protects.

Belknap, 463 U.S. at 498-99 (citations omitted) (emphasis added);
see also Local 926, Int'l Union of Operating Eng'rs v. Jones, 460
U.S. 669, 676 (1983).
         Either of the polarities of the Garmon analysis,
arguable protection or arguable prohibition, will ordinarily
suffice. In this case, the district court examined both
protection and prohibition under the NLRA in ruling on PSEA's
preemption claim. The court rejected PSEA's argument that the
conduct alleged was protected by the NLRA, concluding that
"section 7 does not protect a labor union's conduct in secretly
enlisting another union's labor representative in a scheme to
defraud the latter union of its right to represent various groups
of workers."   PSEA does not challenge that holding on appeal.
         On the other hand, when the district court focused on
the prohibition prong of the Garmon/Belknap formulation it
concluded that the nine claims set forth in Counts II and IV
through XI were preempted because they were arguably prohibited
by two provisions of the NLRA, primarily section 8(b)(1)(A) but
also section 9. Section 8(b)(1)(A) makes it "an unfair labor
practice for a labor organization or its agents . . . (1) to
restrain or coerce (A) employees in the exercise of the rights
guaranteed in [section 7 of the NLRA]." See 29 U.S.C.    158(b).
Section 7 protects employees' rights to organize and, inter alia,
to choose their bargaining agents.
         PNA argues that the conduct it alleges PSEA and the
individual defendants engaged in was directed at PNA, rather than
the nurses, and therefore the conduct must necessarily have been
unrelated to employees' organizational rights, which is the
concern of section 7. We do not agree. Conduct which undermines
the union representing a unit of employees, and thereby induces
those employees to change their affiliation, arguably "constrains
or coerces" those employees in their ability to exercise their
free choice of an exclusive representative.
         Indeed, in one of the various branches of the PNA/PSEA
controversy, PNA itself filed an unfair labor practice charge
with the NLRB, complaining that PSEA engaged in activities
similar to those it asserts here at the Polyclinic Medical Center
which interfered with PNA's collective bargaining agreement with
that employer. The NLRB ruled that the conduct of both PSEA and
the employer violated section 8 of the NLRA. See Polyclinic
Medical Ctr., 315 N.L.R.B. 1257 (1995), enforced sub nom.Pennsylvania
State Educ. Ass'n v. NLRB, 79 F.3d 139 (D.C. Cir.
1996). Both PNA's complaint and the Board's ruling illustrate
the proposition that action targeted at a rival union may
restrain employees in the exercise of their section 7 rights.
Thus, even if the conduct here was directed at PNA, as it
contends, rather than at the nurse-employees, it does not follow
that section 8(b)(1) rights were not impacted.
         Section 9 of the NLRA, the other provision the district
court referred to as supporting its determination of preemption,
gives the NLRB jurisdiction over selection of the union
bargaining representative. As part of that responsibility, the
NLRB has the authority to resolve disputes among competing unions
and take action needed to ensure the workers' freedom of choice,
including, if necessary, invalidation of an election. See NLRB
v. Savair Mfg. Co., 414 U.S. 270, 276-79 (1974); Weyerhaeuser
Co., 247 N.L.R.B. 978, 978 n.2 (1980). Inasmuch as the conduct
of which PNA complains arises, in essence, from a dispute or
series of disputes between competing unions, each of whom sought
to be the employees' exclusive representative, we agree with the
district court that the conduct alleged may also have affected
rights under section 9 as well as section 8(b)(1).

         Notably, for preemption purposes a court need not
decide whether the conduct alleged would be deemed to be
prohibited by the NLRA, since it is enough that the conduct upon
which the state causes of action are based is "arguably"
prohibited. As the Court stated in Garmon, it is for the NLRB,
not the courts, to decide whether the particular controversy
falls within the scope of section 7 or 8 of the NLRA:
              At times it has not been clear whether
         the particular activity regulated by the
         States was governed by   7 or   8 or was,
         perhaps, outside both these sections. But
         courts are not primary tribunals to
         adjudicate such issues. It is essential to
         the administration of the Act that these
         determinations be left in the first instance
         to the National Labor Relations Board.

              . . . .

         . . . In the absence of the Board's clear
         determination that an activity is neither
         protected nor prohibited or of compelling
         precedent applied to essentially undisputed
         facts, it is not for this Court to decide
         whether such activities are subject to state
         jurisdiction.

Garmon, 359 U.S. at 244-46.
         PNA suggests that even if the conduct alleged is
arguably prohibited by the NLRA, as the district court found,
this is not a case in which preemption should be applied.
The Supreme Court's cases have referred to two circumstances in
which state law is not preempted, even if the conduct at issue is
arguably protected or prohibited by the NLRA. Those exceptions
apply if the alleged conduct is of only "peripheral concern" to
the NLRA, or "touches on interests . . . deeply rooted in local
feeling and responsibility." Jones, 460 U.S. at 676 (citing
Garmon, 359 U.S. at 243-44).
         In this case, it is evident that we could not
characterize the conduct at issue as of "peripheral concern" to
the NLRA because it involves the core activities with which the
Act is concerned: union organizing and the employees' election
of an exclusive bargaining representative. However, we must also
consider PNA's contention that this case falls within the local
interest exception.
         The Supreme Court has ordinarily applied this exception
in cases where the conduct alleged concerned activity
traditionally recognized to be the subject of local regulation,
most often involving threats to public order such as violence,
threats of violence, intimidation and destruction of property.
See Lodge 76, Int'l Ass'n of Machinists v. Wisconsin Employment
Relations Comm'n, 427 U.S. 132, 136 (1976); Garmon, 359 U.S. at
247-48; see, e.g., UAW v. Russell, 356 U.S. 634 (1958) (upholding
state court jurisdiction to entertain action by employee for harm
resulting from strikers' threats of violence and exclusion by
force). The Court has extended this exception to cover acts of
trespass, see Sears, Roebuck & Co. v. San Diego County Dist.
Council of Carpenters, 436 U.S. 180, 190-98 (1978), and certain
personal torts, such as intentional infliction of emotional
distress, see Farmer v. United Bhd. of Carpenters, Local 25, 430
U.S. 290, 304-05 (1977), and malicious libel, see Linn v. United
Plant Guard Workers of America, Local 114, 383 U.S. 53, 57-63
(1966).
         At least with regard to the nine claims which the
district court found preempted (Counts II, IV, V, VI, VII, VIII,
IX, X and XI), PNA has not demonstrated that any of these falls
within the category of claims which the Court has determined
"touch[] interests deeply rooted in local feeling and
responsibility." Belknap, 463 U.S. at 498. Although PNA claims
that "in a free market economy that places economic actors in
competition with one another, the states have a substantial
interest in policing the market to ensure that free competition
does not degenerate into the law of the jungle," Appellant's
Brief at 40, when the competition is between unions such matters
are the particular concern of the NLRA. PNA has cited no
authority supporting its argument that market regulation of
competing labor organizations is a matter so rooted in local
concern as to prevent preemption by the federal labor laws.
         Even were we to conclude that the issue presented is
one of particular state concern, the Court has cautioned that in
such circumstances, any state concern must be balanced against
the risk that the exercise of state jurisdiction over the tort
claim would interfere with the regulatory jurisdiction of the
NLRB. Jones, 460 U.S. at 676 (whether targeted conduct
implicates local interests "involves a sensitive balancing of any
harm to the regulatory scheme established by Congress"); Sears,
436 U.S. at 188-89 (preemption decision turns on "the nature of
the particular interests being asserted and the effect upon the
administration of national labor policies" of permitting state
court jurisdiction); Farmer, 430 U.S. at 297 (examination of both
"the state interests in regulating the conduct in question and
the potential for interference with the federal regulatory
scheme" informs exceptions to NLRA preemption). As the Court
explained in Sears:
              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 (as in Garner) or different from (as in Farmer) that
         which could have been, but was not, presented to the
         Labor Board. For it is only in the former situation
         that a state court's exercise of jurisdiction
         necessarily involves a risk of interference with the
         unfair labor practice jurisdiction of the Board which
         the arguably prohibited branch of the Garmon doctrine
         was designed to avoid.

436 U.S. at 197.
         In the instant matter, much of the conduct forming the
basis of the state tort claims also underlies the potential
unfair labor practice charges, and the same facts would need to
be determined in each proceeding. This creates a risk of
conflicting rulings from the state court and the Board, and
threatens state interference with the NLRB's enforcement of
national labor relations policy. See Jones, 460 U.S. at 682
(state claim preempted where fundamental element of claim also
had to be proved to make out a case under   8 (b)(1)(B) of the
NLRA).
         Because PNA's state claims would overlap with NLRB
issues, this case is distinguishable from Sears, upon which PNA
relies. In Sears, the employer filed a trespass action in state
court in an effort to end the union's picketing on its property.
The Supreme Court rejected the union's claim that the action was
preempted, noting that the controversy regarding the location of
the picketing was unrelated to the issue Sears might have
presented to the Board. To make out a state-law claim of
trespass, Sears needed only to prove the location of the Union's
picketing. An unfair labor practice charge, on the other hand,
would have focused on the objectives of the picketing, an issue
"completely unrelated to the simple question whether a trespass
had occurred." 436 U.S. at 198. Thus "permitting the state
court to adjudicate Sears' trespass claim would create no
realistic risk of interference with the Labor Board's primary
jurisdiction to enforce the statutory prohibition against unfair
labor practices." Id.
         Similarly, in Belknap, Inc. v. Hale, 463 U.S. 491
(1983), another case relied on by PNA, the issues presentable in
the two fora would have been unrelated. During a strike the
employer had made offers of permanent employment to the
replacement workers, but after the strike was resolved the
employer laid off the replacement workers to make room for
returning strikers. The fired replacement workers sued in state
court for misrepresentation and breach of their employment
contracts. The Supreme Court concluded that the replacement
workers' state court action was not preempted. It noted that
issues as to whether the strike was to protest unfair labor
practices and whether the employer was obliged to accept
returning strikers were matters for the Board, whereas the state
court action there concerned the employer's obligations to
replacement workers rather than union members one issue would not
trench upon the others. The controversies before the Board
"would [not] have anything in common with the question whether
Belknap made misrepresentations to replacements that were
actionable under state law. The Board would be concerned with
the impact on strikers not with whether the employer deceived
replacements." Belknap, 463 U.S. at 510. Maintaining the
misrepresentation action therefore "would not interfere with the
Board's determination of matters within its jurisdiction and
. . . such an action is of no more than peripheral concern to the
Board and the federal law." Id. at 510-11.
         In the case before us, by contrast, the allegations
that PSEA and the individual defendants sought to undermine PNA
and influence the outcome of the nurses' representation election
would be the focus of both the unfair labor practice charges and
PNA's state-law claims. The risk of conflicting rulings and
interference with Board enforcement of national labor policy is
evident.
         Having determined that the claim at issue here (1)
involves activity that is actually or arguably prohibited by the
NLRA; (2) does not involve an issue deeply rooted in local
feeling and responsibility; and (3) would risk substantial
interference with the jurisdiction of the NLRA were it litigated
in the state courts, we conclude that Counts II, IV, V, VI, VII,
VIII, IX, X and XI are preempted under the Garmon analysis.
           In reaching this conclusion, we reject PNA's attempt
to replace the well-established Garmon analysis with an
"identical controversy" test for preemption, which it urges this
court to adopt based upon a statement in Sears and fragments of
statements from other Supreme Court cases where the Court found
no preemption.
         Building upon its argument that the interests protected
by PNA's state claims are different than those involved in an
unfair labor practice case because they concern the common law
rights of PNA as an entity, not the collective bargaining rights
of its members, PNA argues that the claims that would be
presented to the state court which involve PSEA's alleged
interference with the operations of PNA are not identical to
those that would be brought before the NLRB. Therefore, PNA
concludes that under its identical controversy test there is no
preemption. PNA also emphasizes that the state court could award
it the $1,300,000 in damages it seeks for PSEA's alleged campaign
to cripple and destroy PNA as a competitor, whereas the NLRB
lacks authority to award such damages in an unfair labor practice
proceeding. PNA thus insists that permitting its claim to go
forward in state court poses no risk of interference with an NLRB
proceeding.
         While a respected commentator has noted that the
Supreme Court's decisions in the labor preemption cases since
1945 "have been somewhat unclear if not inconsistent," Robert A.
Gorman, Basic Text on Labor Law 766 (1976), we see no basis to
hold, as PNA suggests, that the Supreme Court's more recent cases
have replaced the analytic framework of Garmon and Belknap. Thus
we see no justification for a court to abandon consideration of
the threshold question, which is whether the matter at issue is
peripheral to the concerns of the NLRA or a matter of particular
local concern, and substitute therefor PNA's "identical
controversy" test.
         As the district court recognized, a Board proceeding
and a state-law cause of action will, by definition, deal with
different claims and if their lack of identity were conclusive,
the state claims would never be preempted. This would require us
to abandon more than half a century of federal policy that places
exclusive jurisdiction over issues of national labor relations in
the hands of the agency created by Congress to deal with them.
Absent more explicit direction from Congress or the Supreme
Court, we see no reason to do so.
         PSEA also relies on the NLRA for its claim of
preemption of yet another cause of action asserted by PNA, the
claim for defamation in Count III. In that count, PNA alleges
that all of the defendants caused the dissemination of false and
unprivileged statements to local PNA members, intending to
destroy the reputation and good name of PNA in the professional
community. The district court rejected PSEA's preemption claim
based on the Supreme Court's holding in Linn v. United Plant
Guard Workers of America, Local 114, 383 U.S. 53 (1966).
         In its cross-appeal, PSEA contends that Linn is
inapplicable.
         The lawsuit in Linn that was the subject of the
preemption issue had been brought by a managerial employee of
the Pinkerton National Detective Agency, whose employees were the
subject of a union organizing campaign. Linn, an assistant
general manager at Pinkerton, alleged that the union and the
other defendants distributed leaflets and other written material
containing defamatory material about him. The Supreme Court
rejected the argument that the suit was preempted, concluding
instead that "where either party to a labor dispute circulates
false and defamatory statements during a union organizing
campaign, the court does have jurisdiction to apply state
remedies if the complainant pleads and proves that the statements
were made with malice and injured him." Id. at 55.
         PSEA contends that Linn is inapplicable because it
concerned defamation of an individual who would have had no
opportunity to obtain relief from the NLRB, whereas PNA is not
without remedy since it can ask the NLRB to overturn the outcome
of an election that may have been tainted by the allegedly
defamatory statements.
         Despite the initial appeal of PSEA's argument, upon
close reading of Linn we conclude that this argument must fail.
Nothing in the Supreme Court's Linn decision suggests any
distinction between defamation of an individual and defamation of
a labor union, nor did the Court suggest that the injured party
should be permitted to seek relief in only one forum. To the
contrary, the Court noted that in some situations it would be
appropriate for a defamed union to seek relief both in the state
courts and from the Board. See 383 U.S. at 66 ("When the Board
and state law frown upon the publication of malicious libel,
albeit for different reasons, it may be expected that the injured
party will request both administrative and judicial relief.").
Specifically, it acknowledged that "[a]n unsuccessful union would
. . . seek to set the election results aside as the fruits of an
employer's malicious libel. And a union may be expected to
request similar relief for defamatory statements which contribute
to the victory of a competing union." In such a situation, "the
courts and the Board [would not] act at cross purposes since, as
we have seen, their policies would not be inconsistent." Id. at
66-67. Insofar as PSEA's preemption argument as to the
defamation cause of action rests on the identity of the victim,
Linn is conclusive.
         Alternatively, PSEA contends that the defamation claim
fails as a matter of law because the majority of the alleged
statements were merely expressions of opinion, and therefore PNA
cannot prove that they are false, let alone made with knowledge
or reckless disregard for their falsity. But it is plain that at
least the statement that PNA "had been indicted by the United
States Attorney's office for election fraud" was a statement of
fact, see App. at 40, and some of the statements set forth in
paragraph 30 of the Complaint may also have been stated as fact.
Additionally, PNA met its burden of pleading that the defendant
employees made these statements with malice and knowledge of
their falsity. See App. at 46-48. Because we must accept the
allegations of the complaint as true and construe all inferences
in PNA's favor, we will not look beyond the pleadings to assess
the viability of PNA's cause of action for defamation but,
rather, leave this task to the state court to which this cause of
action was remanded.
                               B.
                   LMRA Section 301 Preemption
         In addition to its reliance on the preemptive force of
the NLRA, PSEA also claimed that the LMRA preempted Count I
(breach of fiduciary duty) and Count II (fraud and deceit).
          The district court rejected PSEA's claim, although as
noted earlier Count II was among the nine causes of action the
court held were preempted by the NLRA. PSEA challenges in its
cross-appeal the court's ruling of non-preemption of Counts I and
II on LMRA grounds.
         The Supreme Court has explained the principle of
preemption pursuant to   301 of the LMRA as follows:

         if 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.

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399,405-06
(1988). See also Trans Penn Wax Corp. v. McCandless, 50 F.3d
217, 228 (3d Cir. 1995). This principle extends beyond suits
alleging contract violations to suits grounded in tort as well.
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-11 (1985).
Section 301 does not, however, "pre-empt state rules that
proscribe conduct, or establish rights and obligations,
independent of a labor contract." Id. at 212. Only state-law
rights and obligations that depend upon an interpretation of the
collective bargaining agreement are preempted.
         PSEA contends that these two state tort claims are
preempted by the LMRA because their resolution turns on an
interpretation of the collective bargaining agreement between PNA
and the Professional Staff Organization (PSO), the union that
represented four of the individual defendants -- Debra Ferguson,
Richard Lewis, Jeffrey Lewis, and Karen Schrader ("employee
defendants").
         PSEA argues that any duties of loyalty and truthfulness
on which PNA bases its claims against the employee defendants for
breach of fiduciary duty and fraud could only have arisen out of
PSO's collective bargaining agreement with PNA, which was the
exclusive contract governing the employee defendants'
relationship with PNA. A determination whether the employees had
breached such duties would accordingly require interpretation of
that agreement. The district court rejected this argument
because it found nothing in the collective-bargaining agreement
giving rise to the fiduciary duties allegedly breached.
         PSEA insists, however, that fiduciary duties may be
implied from the collective-bargaining agreement and that the
determination of an implied term in the agreement is exclusively
a matter of federal contract interpretation. See Allis-Chalmers,
471 U.S. at 215 ("The assumption that the labor contract creates
no implied rights is not one that state law may make. Rather, 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 [the employer's]
conduct breached that implied contract provision.").
         But Counts I and II of PNA's complaint are not grounded
in the collective-bargaining agreement between PNA and PSO nor in
any independent employment contracts between the employee
defendants and PNA. Instead, these counts are based on
Pennsylvania common law which recognizes, under agency
principles, a duty of loyalty by an employee to an employer. SeeSylvester
v. Beck, 178 A.2d 755, 757 (Pa. 1962); SHV Coal, Inc.
v. Continental Grain Co., 545 A.2d 917, 920-21 (Pa. Super. Ct.
1988)(citing Restatement (Second) of Agency    394, 387, 400,
401), rev'd on other grounds, 587 A.2d 702 (1991).
         Even if PNA could have grounded its action on an
implied duty in the agreement, it need not have done so. As the
Supreme Court has stated, "the plaintiff is the master of the
complaint," and "may, by eschewing claims based on federal law,
choose to have the cause heard in state court." Caterpillar Inc.
v. Williams, 482 U.S. 386, 398-99 (1987). Thus, "a plaintiff
covered by a collective-bargaining agreement is permitted to
assert legal rights independent of that agreement." Id. at 396
(emphasis in original). Counts I and II therefore do not require
an interpretation of the collective-bargaining agreement and are
not preempted by section 301. It follows that we find no basis to
support PSEA's cross-appeal on either of the grounds it asserts.
                               III.
                            CONCLUSION
         For the foregoing reasons, we will affirm the order of
the district court, which dismissed nine of the claims asserted
by PNA as preempted by the NLRA and, after holding that counts I
and III are not preempted, remanded those counts to state court.
Each party to bear its own costs.
________________________




PENNSYLVANIA NURSES ASSOCIATION v. PENNSYLVANIA STATE EDUCATION
ASSOCIATION, et al.
Nos. 95-7457/7458/7645



ROSENN, Circuit Judge, concurring and dissenting.

         Except as to the Pennsylvania Nurses Association's
(PNA's) allegations charging the defendants with interfering with
present and prospective contractual relations with local
bargaining units and employers (Counts VIII and IX), the
remaining counts of the complaint allege that four PNA employees,
while on PNA's payroll, betrayed their employer, engaged in fraud
and deceit, defamation, and other acts of personal misconduct in
violation of Pennsylvania's common law duty of basic loyalty by
an employee to an employer. Several of these counts also charge
the Pennsylvania State Education Association (PSEA) and some or
all of the other defendants with unfair competition, commercial
disparagement, conspiracy, and other conduct in violation of
state law.
         The majority opinion holds that the Labor Management
Relations Act (LMRA) does not preempt the specific charges
relating to breach of fiduciary duty (Count I) and fraud and
deceit (Count II), and affirms the district court's order
remanding Count I to state court. The majority concludes: (1)
that these counts are not grounded in either the collective
bargaining agreement between PNA and PSO nor in any independent
contracts between the employee defendants and PNA; and (2) they
do not require an interpretation of the collective bargaining
agreement. I concur and also agree that there is no basis to
support the PSEA's cross-appeal.
         I concur further with the majority's conclusion that
the NLRA does not preempt PNA's claim for defamation in Count
III. I agree that the Supreme Court's decision in Linn v. United
Plant Guard Workers of America, 383 U.S. 53 (1966) controls.
         On the other hand, the majority concludes that the
remaining allegations are preempted by the National Labor
Relations Act (NLRA). Except for Counts VIII and IX which are
arguably preempted, I do not believe that the NLRA preempts the
other seven counts.
         Although the plan allegedly concocted by the four
former employees of PNA eventually enveloped the PSEA, the
allegations, except as to Counts VIII and IX, have nothing
whatsoever to do with the core activities of the NLRA. These
counts do not involve traditional union organization activities,
employees' election of an exclusive bargaining representative, or
unfair labor practices. Rather, they basically concern forbidden
conduct between employees and their employer, and activities of a
competing employer that is prohibited by common law, not by
federal law. A state court's authority to resolve allegations of
fraud, commercial disparagement, unfair competition, interference
with employment contracts, and conspiracy in no way invades the
central scheme of the NLRA. Because presentation of these
allegations to a state court does not offend federal labor
policy, I would reverse the judgment of the district court
insofar as it held the remaining seven counts preempted. I
therefore respectfully dissent.

                                I.
         As does the majority, I accept as true the well-pleaded
allegations in PNA's complaint and draw all inferences therefrom
in favor of PNA. PNA is a professional association of registered
nurses and a nurses labor union. Prior to June 30, 1993, it
represented over 9000 nurses for collective bargaining purposes
in 60 local bargaining units (locals). These locals were located
in private hospitals and public sector institutions in
Pennsylvania and Delaware.
         PNA employed defendant Debra Ferguson as a labor
representative on February 1, 1983, to serve in its labor union
and collective bargaining program. As a labor representative,
she had the responsibility for, inter alia, organizing locals,
negotiating collective bargaining agreements between PNA and
hospitals that employed their member nurses, and administering
and enforcing collective bargaining agreements through grievance
and arbitration procedures. Her responsibilities also included
communications between PNA and its locals, and providing for the
cultivation and maintenance of organizational relationships
between them. As a paid labor representative of PNA, she also
had the duty to keep her employer apprised of local unit
activities, to act honestly, in good faith and in the best
interests of PNA. This required that she take all necessary and
appropriate measures to protect the PNA locals from raids by
competing labor unions. PNA also hired the defendants Richard
Lewis, Jeffrey Lewis, and Karen Schrader as labor representatives
with similar duties.
         Apparently, sometime in the first half of 1993, these
PNA employees decided that they wanted to become employed as
labor representatives by some other labor union and determined
that they would be able to achieve such employment more readily
if they could bring with them PNA locals that they represented in
their capacity as labor representatives of PNA. They therefore
undertook a program, although on PNA's payroll, to undermine
their locals' relationship and loyalty to PNA by convincing them
to disaffiliate.
         Debra Ferguson had developed a strong interest in
affiliating with PSEA, a labor union engaged in representing
school employees. Her husband, Thomas, formerly employed with
PNA until 1988, was employed by PSEA as a labor representative.
Debra Ferguson sought to gain employment with PSEA by offering to
bring with her as many PNA locals as possible. To do this, she
developed a scheme, along with her husband and another PSEA
representative, Alfred Nelson, to enlist the assistance of
Richard Lewis, Jeffrey Lewis, and Karen Schrader to sway the PNA
local and their leadership from PNA to affiliation with PSEA,
with each eventually becoming employed with PSEA. Under their
plan, they would act as PSEA labor representatives to the former
PNA locals. PSEA knowingly assented and collaborated, and Thomas
Ferguson and Alfred Nelson actively assisted. PSEA offered
employment to and actively assisted and encouraged Debra Ferguson
and her three co-employees in their efforts to make the switch in
affiliation.
         Under federal law, PNA had the exclusive right to
negotiate and enter into new collective bargaining agreements
during the period of time from 90 days before the existing
contract between PNA and the employers expired. In other words,
during this 90-day period, prior to the expiration of a
collective bargaining agreement, no competing union is permitted
to interfere with PNA's exclusive right to bargain for a new
agreement on behalf of its local. Only in the event that a
renewal contract is not reached prior to contract expiration
could a competing union such as PSEA seek representation of the
local.
         Collective bargaining contracts between PNA and various
hospitals were scheduled to expire during July and August of
1993, and Debra Ferguson and her three co-labor representatives
led PNA to believe that they were faithfully negotiating renewal
agreements on behalf of PNA. They led PNA to believe that they
were protecting its interests as exclusive bargaining agent for
the locals. However, pursuant to the plan of the four former
employees and with the knowledge and active assistance of PSEA's
representatives, Debra Ferguson and the other plotters, while
still employed by PNA and presumably acting in its best
interests, undertook to do the following: (1) They refrained
from negotiating renewal agreements for the PNA locals under
their responsibility, allowing the agreements to expire. This
deprived PNA of its exclusive right to bargain on behalf of its
locals prior to contract expiration; it rendered PNA vulnerable
to other unions and gave PSEA the opportunity to seek
representation of PNA locals; (2) They disparaged PNA's
reputation, and the reputation of its officials, in their efforts
to persuade locals to disaffiliate from PNA.
         The defendant labor representatives actively solicited
PNA locals to sign election cards for PSEA representation and
engaged in other disloyal and improper activities, including the
distribution of propaganda promoting PSEA at the expense of PNA.
They also encouraged and aided PSEA to expand its union
parameters to include representation of nurses.
         Finally, Debra Ferguson and her three co-employees,
with the assistance of PSEA, Thomas Ferguson, and Alfred Nelson,
produced and promulgated false, malicious and defamatory
propaganda designed to destroy the reputation of PNA, including a
false report that PNA officials had been criminally indicted by
the federal government. The conspiratorial conduct of PSEA and
the individual defendants, the complaint alleges, was designed to
cripple and destroy PNA as a nurses union and to facilitate the
succession of PSEA as the primary nurses' union in Pennsylvania.


                               II.
         The majority relies on the preemption doctrine as
literally stated by the Supreme Court in San Diego Building
Trades Council v. Garmon, 359 U.S. 236 (1959). Garmon held that
where a labor relations activity is arguably subject to sections
7 or 8 of the NLRA, as the picketing there involved, "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." Id.at 245.
The majority concludes that the NLRA arguably prohibits
the conduct alleged in PNA's complaint. Thus, it holds the seven
counts identified in note 1 herein preempted.
         I do not believe that the foregoing conduct is
prohibited or arguably prohibited by either Sections 8 or 9 of
the NLRA. As the majority explains, NLRA Section 8 prohibits
conduct that restrains or coerces employees in their right to
organize or bargain collectively through representation of their
own choosing. 29 U.S.C.     157, 158. The conduct referred to in
the seven counts was not directed at the employees of the
employer hospitals represented by PNA, but was directed at PNA as
a legal entity. It neither restrained nor coerced employees of
the hospitals or government facilities in their right to organize
or bargain collectively through representatives of their own
choosing. No campaigning, organizing or election processes were
involved because the defendants' activities preceded such
possibility.
         Similarly, the conduct of which PNA complains in no way
restrains or coerces employees in their right to organize. It is
aimed at PNA. When PNA's four former employees commenced their
scheme to switch the PNA locals to a union with whom they would
seek employment, there was no organizational campaign on the part
of PSEA or any other union to represent these locals. The
existing contracts were not yet open to competing unions. No
NLRA election procedures were involved; no validation or
invalidation of an election conducted by the NLRB was sought.
There was no recognitional dispute at that time between PNA and
PSEA.
         The majority points to the recent case of Polyclinic
Medical Center, 315 N.L.R.B. 1257 (1995), enforced sub nom.Pennsylvania
State Educ. Ass'n v. NLRB, 79 F.3d 139 (D.C. Cir.
1996) to "illustrate the proposition that action targeted at a
rival union may restrain employees in the exercise of their
Section 7 rights." (Maj. Op. p. 10) Polyclinic, however, is an
example of a case properly before the Board, and wholly
distinguishable from the case before this court. It in no way
involves the issue before us in this case. PNA was the charging
party in that case where it appropriately complained that the
hospital-employer engaged in an unfair labor practice by
unlawfully withdrawing recognition of PNA and entering into a
bargaining agreement with PSEA, absent evidence that PSEA enjoyed
the support of the majority of employees. The Board ordered
Polyclinic to, inter alia, cease and desist from recognizing and
bargaining with PSEA unless PSEA demonstrates its majority
status. The District of Columbia Court of Appeals enforced the
order, finding that Polyclinic and PSEA engaged in a collective
bargaining agreement in violation of the NLRA. Pennsylvania
State Educ. Ass'n, 79 F.3d at 154. In contrast, the case before
us presents no issue of representation or election procedure.
         The majority believes that Section 9 of the NLRA also
arguably prohibits the conduct alleged in this case because the
Section gives the NLRB the authority "to resolve disputes among
competing unions, and take action needed to insure the workers'
freedom of choice, including, if necessary, invalidation of an
election." (Maj. Op. p. 11) Although this case has a union
background, that alone does not grant the Board exclusive
jurisdiction over every controversy arising between an employer
and its employees or over every dispute between two unions.
Surely, no one would suggest that the NLRB has jurisdiction over
a land dispute merely because the parties are two distinct
unions. No one would suggest that the Board has jurisdiction
over a contractual dispute with respect to the right to operate a
recreation camp for children because the dispute is between
competing unions. Here, as discussed, the alleged conduct
involves PNA as an employer and four individual defendants in
their capacity as employees, over their contractual rights and
duties unrelated to any collective bargaining agreement; it also
involves conspiratorial conduct between those employees and
another union wholly unrelated to authorities under the
jurisdiction of the NLRB. Section 9 grants the Board authority
to resolve representation disputes among competing unions. The
parties in this case do not request the Board's intervention in
an election or representation proceeding.

                               III.
         It must be noted that, in Garmon, the Court also carved
out exceptions to the general rule of preemption that recognized
traditional factors that preserve state jurisdiction. It
concluded that where the activity was merely of "peripheral
concern" to the Labor Management Relations Act, the states retain
the power to regulate. 359 U.S. at 243. States also retain
jurisdiction over matters of compelling local interest. Id. at
247. Thus, states should be free to award damages under state
tort law for violent conduct, or for a basic breach of or
interference with a contract between an employer and employee
unrelated to any collective bargaining agreement.
         The majority here dismisses the "peripheral concern"
exception without discussion, concluding that the conduct at
issue involves "core activities with which the Act is concerned:
union organizing and the employees' election of an exclusive
bargaining representative." (Maj. Op. p. 12) I do not believe
the majority categorizes PNA's claims correctly. This case does
not implicate the core concerns of the Act. Rather, it primarily
requires a forum that can determine PNA's rights as an employer
vis a vis its own employees, not the employees it represents for
purposes of collective bargaining, and whether PNA's employees
violated those rights. Further, PNA seeks damages for the
conduct of all the defendants which had not yet reached a point
over which the NLRB had jurisdiction.
         Thus, PNA brought this suit for damages only in the
state court for breach of fiduciary duty by its four former
employees and business agents, for their fraud, deceit, and
defamatory actions; it charged PSEA and its agents for unfair
competition and interference in the employment contracts between
PNA and its former labor representatives; and it sued all of the
defendants for commercial disparagement and conspiracy. These
are matters that traditionally have occupied the attention and
jurisdiction of state courts and at best are only of peripheral
concern to the National Labor Relations Board.
         Moreover, the state of Pennsylvania has a substantial
interest in protecting the rights of its citizens against the
fraudulent and other misconduct alleged in this case. Under
Pennsylvania law, an agent, or employee, owes a duty of loyalty
to his employer, and must act with utmost good faith and loyalty
in furtherance of the employer's interests. Kademenos v.
Equitable Life Assurance Soc. of U.S., 513 F.2d 1073, 1076 (3rd
Cir. 1975); Garbish v. Malvern Fed. Sav. & Loan Ass'n, 517 A.2d
547, 553-54 (Pa.Super 1986).
         Although the Court has sustained the right of Congress
to legislate in the areas of labor relations, Congress has not
completely occupied the field. "[T]he areas that have been
preempted by federal authority and thereby withdrawn from state
power are not susceptible of delineation by fixed metes and
bounds." Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 480
(1954). As the Court observed in Garner v. Teamsters Local 776,
346 U.S. 485 (1953), the Labor Management Relations Act "leaves
much to the states, though Congress has refrained from telling us
how much." Id. at 488.
         For almost a quarter of a century following the
enactment of the NLRA in 1935, the Court has endeavored to
justify its preemption decisions in terms of congressional intent
to preempt, "although the Act offers no specific guidance for
applying this principle." 2 Patrick Hardin, The Developing Labor
Law 1657 (3rd ed. 1992). Many of the Court's decisions "appear
to have been based on pragmatic analysis of relevant fact and
circumstances, but the results often were ascribed to the will of
Congress." Id. at 1658.
         In the 25 years that has elapsed since Garmon, the
Court has refined, and perhaps even extended its exceptions to
preemption. The Court has warned that:
              While the Garmon formulation accurately reflects
              the basic federal concern with potential state
              interference with national labor policy, the
              history of the labor pre-emption doctrine in this
              Court does not support an approach which sweeps
              away state court jurisdiction over conduct
              traditionally subject to state regulation without
              careful consideration of the relative impact of
              such a jurisdictional bar on the various interests
              affected.

Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 188 (1977); see
also Farmer v. Carpenters, 430 U.S. 290, 302 (1976).
("[I]nflexible application of the [Garmon] doctrine is to be
avoided, especially where the state has a substantial interest in
regulation of the conduct at issue and the state's interest is
one that does not threaten undue interference with the federal
regulatory scheme.").
         Post-Garmon case law reveals that the Court has made a
detailed factual analysis in each case before it in an effort to
ascertain whether the claims in the state court would offend
federal policies established by the Board. Under the current
status of the law, the Court is concerned with not only
preserving federal jurisdiction in labor cases, but has
exhibited, since Garmon, a sensitive and pragmatic concern for
the preservation of claims in state court that do not encroach
upon the Board's jurisdiction.
         In Farmer, the Court concluded that Hill, a member of
the Carpenter's Union who complained of union discrimination in
its hiring hall and other tortious conduct, could pursue a tort
action brought in a state court against the union and its
officials to recover damages for intentional affliction of
emotional distress. 430 U.S. at 292-93. The Court reasoned
that, in light of the discrete concerns of the federal scheme and
state tort law, the potential for interference with the Board's
proceedings if a complaint were filed with the court "is
insufficient to counterbalance the legitimate and substantial
interest of the State in protecting its citizens." Id. at 304.
In Sears, the Court noted that when a claim involves conduct
arguably prohibited by the Act, the "critical inquiry" is
"whether the controversy presented to the state court is
identical to . . . or different from . . . that which could have
been, but was not, presented to the labor board." 436 U.S. at
197.
         The majority dismisses PNA's "identical controversy"
argument asserting that PNA is attempting to construct a new
exception to Garmon, or replace Garmon's analytical framework
with a new test. I do not suggest that this court abandon the
Garmon analysis. However, I believe the "identical controversy"
test can aid courts in determining if conduct "arguably
prohibited" by the NLRA may be litigated in a state court.
Supreme Court case law focusses on whether the conduct is central
to the Act, whether the state interest in regulation is
compelling, and whether the state's exercise of jurisdiction
risks interference with the federal regulatory scheme. See e.g.Belknap,
463 U.S. 491, Farmer, 430 U.S. 290, Linn, 383 U.S. 53.
         I disagree with the majority here that the Supreme
Court's decision in Belknap, 463 U.S. 491, is distinguishable.
In fact, Belknap strongly supports PNA's position that its seven
counts are not preempted. In that case, negotiations for a new
contract between the union and employer reached an impasse, some
employees struck, and the employer unilaterally granted a wage
increase to employers who stayed on the job. The wage increase
became the basis for an unfair labor practice charge filed by the
union with the Board and the employer countered with charges of
its own. The employer hired replacement workers, promising
permanent employment, but dismissed them to make room for the
returning strikers. The replacement workers sued under state law
theories of misrepresentation and breach of employment contract.
Despite the unfair labor practice proceedings before the Board
growing out of the strike, the Court held that the Act did not
preempt the replacement workers state law suit. It stated:
              [T]he suit for damages for breach of contract
              could still be maintained without in any way
              prejudicing the jurisdiction of the Board or the
              interest of the federal law in insuring the
              replacement of the strikers. The interests of the
              Board and the NLRA, on the one hand, and the
              interests of the State in providing a remedy to
              its citizens for breach of contract, on the other,
              are "discrete" concerns. We see no basis for
              holding that permitting the contract cause of
              action will conflict with the rights of either the
              strikers or the employer or would frustrate any
              policy of the federal labor laws.
Id. at 512 (citations omitted). In so holding, the court found
that the returning workers' claims were not "identical" to the
controversy before the Board. The Board's focus was on the
rights of the striking workers, while the state court would focus
on the rights of the replacement workers. Id. at 510.
         In the instant case, even if a proceeding were
initiated before the Board, the interests, as in Belknap, are
different. The Board would be concerned with the defendants'
coercive conduct towards the union nurses affecting their freedom
of choice; the state court would be concerned with the breach of
the defendants' obligations to PNA. As in Belknap, the state
court in this case "in no way offers [the plaintiff] an
alternative forum for obtaining relief that the Board can
provide." Id. at 510. Although not dispositive, an important
factor in preemption analysis is that the NLRB is unable to award
relief to PNA for the alleged damage caused by PSEA and the
individual defendants. See, e.g. Farmer, 430 U.S. at 304 (noting
that the Board could not award damages for plaintiff's alleged
pain, suffering, and medical expenses), Linn v. Plant Guard
Workers, 383 U.S. 53, 64 (1965) (noting the Board's inability to
provide redress for personal injury caused by malicious libel).
         This case is distinguishable from Operating Engineers
v. Jones, 460 U.S. 669 (1982). In Jones, a newly appointed
supervisor filed a charge before the NLRB, alleging that the
union instigated the supervisor's discharge because he was not a
member in good standing with the union. The Board declined to
issue a complaint. The supervisor then filed suit in state
court, alleging that the union interfered with his employment
contract by coercing the company to breach the contract. The
Supreme Court found the supervisor's state law claim preempted by
the NLRA.
         The Court found that the alleged conduct was arguably
prohibited by the Act, and that the controversy before the state
court was identical to that brought before the Board. In Jones,
the resolution of both the state law and the Board action
involved an analysis of whether the union coerced the employer
into terminating the supervisor. In the instant case, however,
there could only be the remote possibility that the Board might
be called upon to determine if the defendants coerced the nurses
in the collective bargaining units in the exercise of their
Section 7 rights. In contrast, the state court would focus on
whether the defendants' conduct injured PNA.
         Unlike Jones, the exercise of state jurisdiction over
the common law tort claims in the instant case would not have any
effect on federal labor policy. The court would focus on the
conduct as it specifically affected the employer-employee
relationship between PNA and the individual defendants, not
employees in the collective bargaining units, and on PSEA's
entrepreneurial behavior in violation of state law. Thus, state
jurisdiction here creates no significant risk of impact on
federal labor law.

                               IV.
         In contrast to the seven counts discussed above, I
acknowledge that PNA's Counts VIII and IX involve matters
appropriate for the Board. In Count VIII, PNA alleges that the
defendants interfered with its relationship with its local
bargaining units. PNA asserts that the defendants were aware of
its right to bargain with its locals prior to the expiration of
their bargaining agreements. The defendants allegedly interfered
with PNA's prospective contractual relations with the local units
with the intent to displace PNA as the exclusive bargaining
agent. Similarly, in Count IX, PNA alleges that the defendants
interfered with the collective bargaining agreements between PNA
and various health care employers.
         These two counts focus on the bargaining agreements and
the relationship between PNA, their locals, and their employers.
The alleged behavior is arguably prohibited by both Sections 8
and 9 of the NLRA. In contrast to the seven counts discussed
above, Counts VIII and IX involve core concerns of the Act.
Thus, I agree with the majority that the NLRA preempts Counts
VIII and IX.

                                V.
         To recapitulate, I respectfully dissent from the
opinion of the majority in affirming the order of the district
court dismissing Counts II, IV, V, VI, VII, X and XI as preempted
by the NLRA. However, I concur with the majority that the NLRA
preempts Counts VIII and IX of PNA's complaint.
         I further concur with the majority in affirming the
order of the district court in holding that Counts I and III are
not preempted and directing each side in this appeal to bear its
own costs.
