                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-6-2004

Kline v. Security Guards Inc
Precedential or Non-Precedential: Precedential

Docket No. 03-3404




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Recommended Citation
"Kline v. Security Guards Inc" (2004). 2004 Decisions. Paper 177.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/177


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                      PRECEDENTIAL          B RI AN DOERRMAN; KENN ETH
                                            ECKERT; BERNARD EHRETS;
  IN THE UNITED STATES COURT                AN TO NI O E S P I N O S A ; JO S E P H
           OF APPEALS                       ESSICK; GARY ETTEL; BART FAUST;
      FOR THE THIRD CIRCUIT                 STEPHEN FAUST; EDWARD FELEGI;
                                            BRUCE FISH BU RN ; W ILLIA M
                                            F I SH E R ; G E R A L D F O G A R T Y ;
   NOS. 03-3404, 03-3610, 03-3620           RAYMOND FOLK, JR.; MICHAEL
                                            FREY; RICHARD FRITZ, JR., DERK
                                            FRONHEISER; CASEY GANSTER;
DAULPH KLINE; TERRY KLINE,                  JOHN GASPERETT I; JA M ES
individually, and On Behalf of All Others   GASPERETTI; SANDRA GAWNE;
Similarly Situated; DAVID J. BIGG;          DENNIS GAY; DONALD GEDDIO;
JOSEPH T. COULSON; ROBERT L.                GEORGE GEIGER; RONALD GOREY;
LASH; JOHN M . SPEARS, JR.,                 CARL GRAEFF; RITCHIE GRETH;
WILLIAM ALLEN; JAMES ALLEN;                 PERRY GRIESEMER; GILL GROVE;
JOHN        ALSVAN;         EDWARD          JOE GUIDO; JEFFREY HANNAHOE;
ANDERSON; KENNETH ARTERS, JR.;              D O U G L A S H A R R I S ; RI C HA R D
T O N Y A Z Z A R EL L O ; T E R RY         HARRIS; JAY HARTMAN; JOHN
BACHERT; GLENN BALTHA SER;                  HEFT; RODERICK HELLER; GLENN
THOMAS BARTASHUS; FRANCIS                   HELMAN; RICH HERB; JAMES HESS;
BEIERSCHMITT; GERALD BENDER;                ROSE MARIE HESSLER; PATRICK
JOE BICKELMAN; BRETT BILLINGS;              HOLLYWOOD; THOMAS HOLT; JOHN
JOSEPH BISCANTI; VERNON BLOOM,              HORNBERGER; MICHAEL HUBIAK;
JR.; MICHAEL             BODOLUS;           KEVIN IMPINK; GARY JAMES; CHRIS
CHRISTOPHER BORN; PATRICIA                  JONES; EDWIN JONES; MARVIN
BORRELL; JEFFREY BOSTON; DAVID              KACHEL; JOHN KAHN, JR.; WALTER
M. BRAMLEY; THOMAS BRENEMAN;                KATCHUR; HARRY KAUFFMAN;
WILLIAM BROWN; JOHN BUGERA;                 ALLAN KEHL; MARK KERBER;
A N T H O N Y B U O N O ; A N T HON Y       LARRY KLINE; WILLIAM KOCUR;
CALCAGNO, JR.; JOSEPH CARDELL;              MARK KRAM MES; ALBERT KUKLIS;
RICHARD CARL; WILLIAM                       GARY LECHNER; TERRY LEESE;
C A R P E N T E R ; ALAN CLOUSE R ;         BYRON LEIBY; GRANT LEONTI;
FRANK CRAMM ER, JR.; ALFRED                 TODD LESHER; JOHN LISA; ROBERT
CRAMMER, JR.; TERRY CROSSELY;               LONG; WALTER LOOSE; EDWARD
ROB E R T C R U P I;        ANDREW          L U B A S ; D A V I D LU C A R E L L I;
CUCCARO, JR.; LEE DALTON; MINH              R A Y M O N D L U T Z , I II ; G A R Y
DAO; ROBERT DAVIDSON; BRENT                 MADARA; JAMES MARKUS; KARL
DAVIS; TIMOTHY DEBECK;                      MATTERN; JEFFREY MAULICK;
MARGARE T DECKER; MARK                      JESSE MAY; EUGENE M CCLURE;
DETTERLINE; KENNETH DEW ALD;                RICHARD MERSINGER; LAWRENCE
THOMAS DIETRICH; JOHN DILALLO;              MICCICKE, JR.; WALTER MILLER;
RICHARD M IL LE R; T HO M AS                   W A W R Z Y N IA K , JR.; LARRY
MOYER; RICHARD MULHOLLAND;                     W E B B E R ;            K E N N E T H
MICHAEL MULLIGAN; THOMAS                       WE IDENHEIMER; KENNETH
MULUTZIE; R. MUNDELL; JOHN                     WEIKEL; VICTOR WELLER, JR.;
MURRAY;           CHRISTOPHER                  CALVIN WILLIAMS; LAWRENCE
NEITHAMER;              RAYMOND                WILLIAMS,              JR.; ROBERT
NEUHEIMER; DAWN NIEDZIELSKI;                   WILLIAMSON; RICHARD WOLF;
VITO NINFO; RAY OVERTON, JR.;                  MARC WO LFE ; MIK E XAV IOS;
GEORGE PALM, JR.; HOWARD                       TERRY ZERBE; JOHN ZIATS; STEVE
PALMER; DONALD PAPP; CRAIG                     ARTHUR; WIL LLIA M BANGS;
P A W L I NG ; DA VID P H I L L I P S;         WILLIAM BARNHART; THOMAS
WILLIAM PIANO; TIM PONATOSKI;                  BARRETT; RAYMOND BARTON;
RONALD PORRINO; RORY QUINTER;                  MARLIN BASHORE; BRIAN BATES;
TERRY RAEZER; DANIEL REEVES;                   PETER BECKER; RON BESSIL, JR.;
KE IT H R E IC H A R T ; S H IR L E Y          HELEN           BILLM AN;            JAY
REICHART; JEFFREY REIFSNYDER;                  B L A N K E N B I L L E R ; B R A D F O RD
DE NN IS RE MP ; LOU IS REYES;                 BOLL; ROBERT BORD; PAUL BOYER;
FLOYD RHODES, IV; LOUIS RODINO;                GREGORY BOYER; SAM BROBST;
JEFFREY ROTHERMEL; GEORGE                      R O B E R T C H ILA , SR .; L E W I S
SALTZMAN, 3RD; RANDY SANDERS;                  COLLINS; BRIAN CONRAD; FERRELL
SAMUEL S CH A EF ER ; M ICHAEL                 COOPER; GARY COOPER; ROBERT
SCHAEFFER; TERRY SCHAEFFER,                    COULTER; MICHAEL DAVIDSON;
SR.; JOHN SCHAICH; RANDY SCHIES;               DAVID DEANGELO; PAUL DELBO,
L IN D A S C H L E G E L ; D A R R E L L       SR .; RICH AR D D IEH L; L ARRY
SCHLEGEL, SR.;             DALLAS              DURHAM; GLENN FISHER; EVAN
SCHLIECHER; THOMAS SCHWARTZ;                   FOURNRIS; ANTHONY GATTO, JR.;
ANTHONY SEDOTI; EUGENE                         STEPHEN GERA S; A LFRED
SEDOTI; JAMES SELTZER; TIMOTHY                 GIAC OM INI; GEORGE GRENUS;
SHERMAN; GENE SHIMP; GEORGE                    LAFAYETTE HAYES; JOHN
SHIREY, JR.; CHRISTOPHER                       HECKMAN, SR.; RANDY HERTZOG;
SHOEMAKER; GEORGE SHUPP; PAUL                  DENNIS HILL; JOHN HORNING;
SILK; JOSEPH SPICA; RICHARD                    S H AW N INGRAM; STANLEY
S T IC H T E R ; CU RT IS ST IE LY ;           JOHNSON; RUSSELL KLINE; LESTER
DOUGLAS STROHL; THEODORE                       KLOCK; RICHARD KOHARCHECK;
SULLIVAN; NORMAN SUNDAY;                       KEITH KRAMMES; ROBIN KRICK;
JOSEPH TOKONITZ; FR EDERICK                    STEVEN KRUSZEWSKI; RAYMOND
TRATE, JR.; WALTERS VACULA;                    KUBACKI, JR.; S. KEITH KULP;
R I CH A RD VALENTINE; BARRY                   PA TR I CI A L A Y T O N ; T H O M A S
WALTERS; DAVID WALTERS; BRIAN                  L E C H N E R ; TH EO DO RE LEW IS;
W A L T E R S ;        R I C H A R D           JOSEPH LISA; ROSALIE LONG;

                                           2
JOSEPH MARONE; GEORGE                          MICHAEL R. HANSFORD; STEVEN J.
MATALAVAGE; JAMES MAY; JACK                    HAUGER; DENIS J. HEYDT; JOHN J.
MCNERNY, JR.; WILLIAM                          HOMKA, JR.; MARC HUNTZINGER;
MERRIWEATHER; H. DAVID MILLER;                 THOMAS C. ISETT; CHRISTOPHER W.
JANE MILLER; WILLIAM MOLINA;                   JONES; ROBERT C. JONES; Individually
ANDREW MOORE; GARY MOYER;                      and in his capacity as Pottstown Borough
SCOTT NEITHAMER; GLENN                         Manager; TIMOTHY O. KAHL; DIANE
NEWCOMB; MAURIO PETA; GERARD                   L E F F L E R ; G E R A L D E. L U T Z;
PETERKA; RANDALL PHILLIPS;                     WILLIAM M. MCANDREW; SCOTT R.
R I C HA R D P H ILLIP S; W ILLIA M            MELL; JEFFREY S. NOLL; GEORGE R.
PICKUP, JR.; MIKE PINKASAVAGE;                 O'NEILL; R IC K Y C. O S WA LD;
R O N A L D P R E SS L E Y ; JEFFRE Y          KENNETH A. PLANER; WILLIAM H.
PRINCE; DON QUIR E; STEVEN                     RAVERT; SALVATORE L. RIZZO;
REICHART; WIN FR E D R O MAN;                  GREGORY C. SANCINELLA;
KEVIN RORKE; BARRY SCHAEFFER;                  RICHARD D. TOLLAND; KENNETH
DONALD SCHIEN; TODD SWARTZ;                    WARFIELD; GARY L. WEISS; LARRY
GENE SEDOTI; WILLIAM SHUPP, III;               L. WOLFE; JOSEPH E. YAKAITIS;
ANNETTE SICENAVAGE; JAMES                      F R ANC IS M . ZE L L ER ; J O HN
S IM M O N S ; B A R R Y S NY D E R ;          CONTSICOS; HAROLD J. FASIG;
ROBERT SN YD ER , JR., D.                      CHARLES E. FELTY, JR.; DALE FOX;
STUBBLEBINE; ANGELO TADDEO;                    CARL FURILLO; MICHAEL GROSS;
S T E P H E N T H O M P S O N ; T ER R Y       TOM HOLLAND; MARK K. OUDINOT;
TRAYER; JOHN W ALCHAK, JR.;                    JEFFREY G. RACZKA, SR.; GERALD
ROBERT WALLACE; ARLAN                          B. RHOADS; ANTHONY W.
WEAVER; TERRY WENZ; RON                        ROTKISKE, JR.; RICHARD J. SEISLER,
W E S S N E R ; WADE W E S S N ER;             II; JOSEPH F. SHOUMLISKY,
RICHARD WOLF; ROBERT YENSER;
CHARLES ZAMBIASI; GREGORY D.                   Appellants in No. 03-3404
ARTERS; AARON C. AUGHTRY;                      Cross Appellees in Nos. 03-3610
KENNETH BAIR; GLENN D .                        and 03-3620
BEARSTIER; DALE A. BENDER;
M A R I O B I SB A N O ; HA R R Y E.                         v.
BOWERS, JR.; JIMMIE CALDWELL;
JOSEPH T. COULSTON, JR.; HOWARD                SECURITY GUARDS, INC.
C. CRAWFORD, JR.; KURT D. DAHMS;               Appellant in No. 03-3610
GREGORY L. DUFFIN; PATRICK J.                  Cross Appellee in No. 03-3404;
DUGGAN; ROY M . FLOWERS; LEROY
G. FREY; MICHAEL J. GALAVAGE;                  DANA CORPORATION
NATHAN A. GARBER; DERRICK L.                   Appellant in No. 03-3620
GRAVES; ARNEL C. GRETH;                        Cross Appellee in No. 03-3404

                                           3
                                               Scott F. Cooper (Argued)
                                               Scott A. Mayer
  On Appeal From the United States             Blank Rome
              District Court                   One Logan Square
For the Eastern District of Pennsylvania       Philadelphia, PA 19103
 (D.C. Civil Action No. 00-cv-00566)            Attorneys for Dana Corporation
    District Judge: Hon. Franklin S.            Appellant in No. 03-3620
             VanAntwerpen                       Cross Appellee in No. 03-3404
   Magistrate Judge: Hon. Linda K.
                Caracappa

                                                      OPINION OF THE COURT
         Argued June 29, 2004

 BEFORE: AMBRO, ALDISERT and
                                               STAPLETON, Circuit Judge:
    STAPLETON, Circuit Judges
                                                        Daulph Kline and Terry Kline
    (Opinion Filed: October 6, 2004)           brought suit in the Court of Common Pleas
                                               of Berks County, in the Commonwealth of
                                               Pennsylvania, against Dana Corporation
Joseph F. Roda (Argued)                        (“Dana”), Security Guards, Inc. (“SGI”),
Roda & Nast                                    and Radio Maintenance, Inc. (“RMI”;
801 Estelle Drive                              collectively, the “Defendants”) asserting
Lancaster, PA 17601                            n u m e r o u s c l a im s a r i s in g u n d e r
 Attorney for Daulph Kline, et al.             Pennsylvania law. Defendants thereafter
 Appellants in No. 03-3404                     removed the case to the United States
 Cross Appellees in Nos. 03-3610               District Court for the Eastern District of
 and 03-3620                                   Pennsylvania, contending that Appellants’
                                               claims were completely preempted by §
Scott L. Vernick                               301 of the Labor Management Relations
Joshua Horn (Argued)                           Act (“LMRA”), 29 U.S.C. § 185. RMI
Emil J. Kiehne                                 was ultimately dismissed as a party and
Fox Rothschild                                 judgment was entered in favor of Dana and
2000 Market Street                             SGI. This appeal followed. Because we
10th Floor                                     conclude that the District Court did not
Philadelphia, PA 19103                         have subject matter jurisdiction over any
 Attorneys for Security Guards, Inc.           of the state law claims asserted in the
 Appellant in No. 03-3610                      complaint, we will vacate the judgment
 Cross Appellee in No. 03-3404                 and remand to the District Court with
                                               instructions to return this case to the

                                           4
Pennsylvania Court of Common Pleas.                     employees at the Reading facility, Terry
                                                        and Daulph Kline, learned from certain
                       I.
                                                        SGI guards operating the guard booth that
         This case arises out of Dana’s                 the surveillance system had the capacity to
alleged surveillance of its hourly                      transm it to the mo nitor oral
employees at one of its facilities in                   communications taking place in the
Reading, Pennsylvania. Dana, a Virginia                 entryway. The Klines then reported this
corporation, is a manufacturer of                       fact to their Union representatives. Over
a u to m ob i l e a n d t r u c k a s s e m b l y       the course of the following weeks, the
components. During the relevant period,                 Union made inquiries of Dana’s
its hourly employees working at the                     management concerning its use of the
facility were represented by the United                 surveillance system.      These inquiries
Steel Workers of America, Local 3733 (the               resulted in the removal of the system on
“Union”) and were subject to a Collective               October 29, 1998.
Bargaining Agreement (“CBA”) between
                                                                Terry and Daulph Kline filed a
Dana and the Union.
                                                        complaint against Defendants in the Court
        On September 28, 1998, Dana                     of Common Pleas of Berks County, in the
installed an audio and video surveillance               Co mm onw ealth o f P e n n s y lv a nia ,
system in an entryway at its Reading                    asserting, in sixty-nine counts, (1) claims
facility.   The system was allegedly                    under the Pennsylvania Wire Tapping and
purchased from, and installed by, RMI. It               Electronic Surveillance Control Act (the
consisted of two cameras with built-in                  “Wiretap Act”), 18 Pa. Cons. Stat. § 5725;
microphones, a monitor with a built-in                  (2) claims under the Pennsylvania Private
speaker, and a twenty-four hour video                   Detective Act of 1953 (the “Detective
cassette recorder. The system enabled                   Act”), Pa. Stat. Ann. tit. 22, § 26; and (3)
Dana to monitor the entryway, which was                 various Pennsylvania common law tort
the location at which its hourly employees              causes of action, including invasion of
were required to “punch-in.” The cameras                privacy.1 Shortly thereafter, Defendants
automatically sent video and audio signals
to the monitor, which was located in a
                                                            1
guard booth adjacent to the entryway. The                    Thirty of those counts were asserted
guard booth was operated by employees of                against Defendants under § 5725 of the
SGI, a Pennsylvania corporation, which                  Wiretap Act, which provides a civil cause
had contracted with Dana since 1989 to                  of action for any person whose oral
provide it with security services. The SGI              communications are intercepted, disclosed,
guards operating the booth reported to, and             or used, to recover against any person who
were supervised by, Dana managers.                      intercepts, discloses, or uses such oral
                                                        communications in violation of the
        Approximately one week after
                                                        Wiretap Act. Four of the counts asserted
installation of the system, two hourly
                                                        civil conspiracy claims under § 16 of the

                                                    5
removed the case to the District Court for           appeal was filed following the entry of
the Eastern District of Pennsylvania and             final judgment
filed motions to dismiss. The Klines filed
                                                                         II.
a motion to remand. The District Court,
without opinion, denied both the                            We are presented with a final order
Defendants’ motions to dismiss and the               of a District Court to review. Accordingly,
Klines’ motion to remand. Accordingly,               we have appellate jurisdiction. 28 U.S.C.
the District Court retained jurisdiction and         § 1291. It is not clear, however, that the
allowed the matter to proceed.2 This                 District Court had subject matter
                                                     jurisdiction to enter that judgment, and we
                                                     are obliged to raise and resolve that
Detective Act, alleging that Dana, SGI,              jurisdictional issue before addressing the
and RMI violated, and conspired to                   merits of this appeal. Exxon Mobil Corp.
violate, this statute by forming a scheme to         v. Saudi Basic Industries Corp., 364 F.3d
intercept and disclose Plaintiffs’ oral              102, 104 (3d Cir. 2004).
communications to the detriment of their
rights to form, join, or assist a labor union,              According to Dana and SGI, the
and their constitutional rights to                   District Court possessed subject matter
association, collective bargaining, and              jurisdiction because at least three
assembly. Six counts asserted tort claims            categories of Appellants’ claims were
against Defendants for invasion of privacy.          completely preempted by § 301 of the
Twelve counts asserted that Defendants               Labor Management Relations A ct
had negligently or recklessly supervised             (“LMRA”), 29 U.S.C. § 185: (1) the
their duly authorized officers, agents,              Wiretap Act claims; (2) the tort law
servants, or employees, thereby causing              invasion of privacy claims; and (3) the tort
harm to Plaintiffs. Eight counts asserted            law negligent or reckless supervision
that Defendants had negligently or                   claims. Appellants insist, however, that
recklessly supervised the premises or                the LMRA was not implicated in any of
instrumentalities under their control. Six           their claims. We agree with Appellants
counts asserted a respondeat superior                that subject matter jurisdiction was
theory against Defendants for the actions            lacking.3
of their employees. Two counts asserted
that Dana had failed to exercise reasonable
care to protect Appellants as business               who were hourly employees at Dana’s
invitees. The final count asserted class             Reading facility.
action allegations.
                                                           3
                                                            “We exercise plenary review in
   2
    The District Court denied the Klines’            determining whether the District Court had
motion for class certification, and they             subject matter jurisdiction.” Bracken v.
were subsequ en tly j o i n e d by                   Matgouranis, 296 F.3d 160, 162 (3d Cir.
approximately 370 additional plaintiffs              2002) (citing Wujick v. Dale & Dale, Inc.,

                                                 6
                     A.                                      which provides that federal
                                                             jurisdiction exists only when
          “Only state-court actions that
                                                             a fede ral question is
originally could have been filed in federal
                                                             presented on the face of the
court may be removed to federal court by
                                                             plaintiff’s properly pleaded
the defendant.”        Caterpillar Inc. v.
                                                             complaint. See Gully v.
Williams, 482 U.S. 386, 392 (1987). If
                                                             First National Bank, 299
Appellants’ case could not have been filed
                                                             U.S. 109, 112-113, 57 S. Ct.
originally in federal court, then removal
                                                             96, 97-98, 81 L. Ed. 70
under 28 U.S.C. § 1441 was improper and
                                                             (1936). The rule makes the
Appellants would be entitled to the remand
                                                             plaintiff the master of the
they initially requested. See Roxbury
                                                             claim; he or she may avoid
Condo. Assoc., Inc. v. Anthony S. Cupo
                                                             federal jurisdiction by
Agency, 316 F.3d 224, 227 (3d Cir. 2003)
                                                             exclusive reliance on state
(“Removal jurisdiction under section 1441
                                                             law.
is . . . wholly derived from original federal
jurisdiction.”); see also 28 U.S.C. §               Id. As we have indicated, Appellants’
1447(c) (“If at any time before final               complaint in this case indeed sounded
judgment it appears that the district court         entirely in state law. That does not,
lacks subject matter jurisdiction, the case         however, end our analysis.
shall be remanded.”). Here, diversity
                                                             There is an exception to the well-
jurisdiction under 28 U.S.C. § 1332 was
                                                    pleaded complaint rule that precludes a
unavailable because SGI is a Pennsylvania
                                                    plaintiff from “avoid[ing] a federal forum
corporation and the Klines were both
                                                    by ‘artfully pleading’ what is, in essence,
Pennsylvania citizens. Accordingly, we
                                                    a federal claim solely in terms of state
must determine whether federal question
                                                    law.” Tifft v. Commonwealth Edison Co.,
jurisdiction existed under 28 U.S.C. §
                                                    366 F.3d 513 (7th Cir. 2004) (citing
1331. See Caterpillar, 482 U.S. at 392
                                                    Franchise Tax Bd. of State of Cal. v.
(“Absent diversity of citizenship, federal-
                                                    Construction Laborers Vacation Trust for
question jurisdiction is required [for
                                                    Southern California, 463 U.S. 1, 22
removal].”).
                                                    (1983)). This exception, described as an
      As the Supreme Court explained in             “independent corollary” to the well-
Caterpillar:                                        pleaded complaint rule is the so-called
                                                    “ c o m p l e t e p r e e m p t io n ” d o c t r in e .
       The presence or absence of
                                                    Caterpillar, 482 U.S. at 393.                      In
       federal-question jurisdiction
                                                    Caterpillar, the Supreme Court articulated
       is governed by the “well-
                                                    this doctrine as follows:
       pleaded complaint rule,”
                                                             On occasion, the Court has
                                                             concluded that the pre-
43 F.3d 790, 792 (3d Cir.1994)).

                                                7
       emptive force of a statute is                    defined in this chapter, or
       so “extraordinary” that it                       between any such labor
       “converts an ordinary state                      organ izations, m ay b e
       common-law complaint into                        brought in any district court
       one stating a federal claim                      of the United States having
       for purposes of the well-                        jurisdiction of the parties,
       pleaded complaint rule.”                         without respect to the
       Metropolitan Life Ins. Co.                       amount in controversy or
       [v. Taylor, 481 U.S. 58, 65                      without regard to the
       (1987)]. Once an area of                         citizenship of the parties.
       state law has been
                                                 29 U.S.C.§ 185(a). We have previously
       completely pre-empted, any
                                                 had occasion to review extensively the
       claim purportedly based on
                                                 Supreme Court’s jurisprudence regarding
       that pre-empted state law is
                                                 the complete preemption of state law
       c o n s i d e re d , f r o m i t s
                                                 claims under § 301 of the LMRA. See,
       inception, a federal claim,
                                                 e.g., Voilas v. General Motors Corp., 170
       and therefore arises under
                                                 F.3d 367, 373-76 (3d Cir. 1999); Trans
       federal law. See Franchise
                                                 Penn Wax Corp. v. McCandless, 50 F.3d
       Tax Board, supra, 463 U.S.,
                                                 217, 228-30 (3d Cir. 1995); Berda v. CBS,
       at 24, 103 S. Ct., at 2854
                                                 Inc., 881 F.2d 20, 22-25 (3d Cir. 1989).
       (“[I]f a federal cause of
                                                 Accordingly, we will review the relevant
       action completely pre-empts
                                                 principles only briefly.
       a state cause of action any
       complaint that comes within                       In Allis-Chalmers Corp. v. Lueck,
       the scope of the federal                  471 U.S. 202 (1985), the Supreme Court
       cause of action necessarily               set forth the standard for determining
       ‘arises under’ federal law”).             when a state law claim is completely
                                                 preempted by § 301: “[W]hen resolution of
Id.
                                                 a state-law claim is substantially
       Section 301 of the LMRA has been          dependent upon analysis of the terms of an
held to possess this preemptive force. See       agreement made between the parties in a
Franchise Tax Bd., 463 U.S. at 23. It            labor contract, that claim must either be
provides:                                        treated as a § 301 claim or dismissed as
                                                 pre-empted by federal labor-contract law.”
       Suits for violation of
                                                 Id. at 220 (citation omitted). In that case,
       contra cts b e t w e e n a n
                                                 the plaintiff brought a state tort claim
       employer and a labor
                                                 against his employer for the bad-faith
       organization representing
                                                 processing of an insurance claim. The
       employees in an industry
                                                 Court concluded that this cause of action
       affecting commerce as
                                                 was completely preempted by § 301

                                             8
because “[t]he duties imposed and rights                             collective agreement, and
established through the state tort . . . derive                      could have brought suit
from the rights and obligations established                          under § 301. As masters of
by the [collective-bargaining] contract,”                            the complaint, however,
and resolution of the dispute would                                  they chose not to do so.
therefore “inevitably . . . involve contract
                                                                     Moreover, . . . respondents’
interpretation.”    Id. at 217-18.         The
                                                                     complaint          is   not
Supreme Court noted, however, that “it
                                                                     substantially dependent
would be inconsistent with congressional
                                                                     upon interpretation of the
intent under [§ 301] to pre-empt state rules
                                                                     collective-bargainin g
that proscribe conduct, or establish rights
                                                                     agreement. It does not rely
and obligations, independent of a labor
                                                                     upon the co llective
contract.” Id. at 212.
                                                                     agreement indirectly, nor
          Subsequently, in Caterpillar, 482                          does it addre ss the
U.S. 386, the Court considered whether §                             relationship between the
301 permitted employees, who were                                    individual contracts and the
covered by a collective bargaining                                   collective agreement.
agreement, to bring state law contract
                                                              Id. at 394-95.       We have described
claims for breach of individual contracts
                                                              Caterpillar as standing for the proposition
between each employee and their
                                                              that “employees have the option of
employer. After reiterating that § 301
                                                              vindicating their interests by means of
“governs claims founded directly on rights
                                                              either a section 301 action or an action
c r e a te d b y c o ll e c ti v e -b a r g a i n i n g
                                                              brought under state law, as long as the
agreements, and also claims substantially
                                                              state-law action as pleaded does not
dependent on analysis of a collective
                                                              require interpretation of the collective
bargaining agreem ent,” the Court
                                                              bargaining agreement.” Voilas, 170 F.3d
concluded that the employees’ state claims
                                                              at 373-74 (citing Caterpillar, 482 U.S. at
for breach of their individual employment
                                                              394-95).
contracts were not preempted. Id. at 394
(internal quotation omitted). The Court                               The Supreme Court next addressed
reasoned:                                                     § 301 in Lingle v. Norge Division of Magic
                                                              Chef, Inc., 486 U.S. 399 (1988), where it
         Section 301 says nothing
                                                              considered whether that provision
         about the content or validity
                                                              completely preempted an employee’s state
         of individual employment
                                                              law retaliatory discharge claim against her
         contracts. It is true that
                                                              employer. The Court’s analysis focused
         respondents, bargaining unit
                                                              first upon the elements necessary to make
         members at the time of the
                                                              a prima facie retaliatory discharge claim
         plant closing, possessed
                                                              under the relevant state law: (1) discharge
         substantial rights under the

                                                          9
or a threat of discharge, and (2) a motive                  agreements. In other words,
to deter the employee from exercising her                   even if dispute resolution
rights. These elements, the court noted,                    pursuant to a collective-
constituted “purely factual questions                       bargaining agreement, on
pertain[ing] to the conduct of the employee                 the one hand, and state law,
and the conduct and motivation of the                       on the other, would require
employer,” neither of which “require[d] a                   addressing precisely the
court to interpret any term of a collective-                same set of facts, as long as
bargaining agreement.”          Id. at 407.                 the state-law claim can be
Accordingly, the Court concluded that the                   resolved           without
employee’s state claim was “independent”                    interpreting the agreement
of the relevant collective-bargaining                       i t se l f , t h e c la i m i s
agreement for purposes of § 301 because                     “ i n depe nden t” o f th e
“resolution of the state-law claim d[id] not                agreement for § 301 pre-
require construing the collectiv e                          emption purposes.
bargaining agreement.” Id. Morever, the
                                                     Id. at 409-410.
Court found it irrelevant that “the state-law
analysis might well involve attention to the                The Supreme Court addressed §
same factual considerations as the                   301 preemption most recently in Livadas v.
contractual determination of whether [the            Bradshaw, 512 U.S. 107 (1994). There,
employee] was fired for just cause [under            the Court was required to consider whether
her collective-bargaining agreement].” Id.           § 301 preempted a plaintiff’s state law
at 408. “[S]uch parallelism,” according to           claim to recover a statutory penalty arising
the Court, would not “render[] the state-            from her former employer’s payment of
law analysis dependent upon the                      late wages. The Court began its analysis
contractual analysis.” The Court opined              by summarizing the relevant controlling
that the reason for this was that                    principles:
       § 301 pre-emption merely                             [T]he pre-emption rule has
       ensures that federal law will                        been applied only to assure
       be the basis for interpreting                        that the purposes animating
       collective-bargainin g                               § 301 will be frustrated
       a g r e e m e nts, and s a ys                        neither by state laws
       nothing about the                                    purporting to determine
       substantive rights a State                           “questions relating to what
       may provide to workers                               the parties to a labor
       when adjudication of those                           agreement agreed, and what
       rights does not depend upon                          legal consequences were
       the interpre tation of                               intended to flow from
       [colle ctive-barg ainin g]                           breaches of that agreement,”


                                                10
      nor by parties’ efforts to                       [t]he only issue raised by
      renege on their arbitration                      [the plaintiff’s] claim ,
      promises by “relabeling” as                      whether [her employer]
      tort suits actions simply                        “willfully fail[ed] to pay”
      alleging breaches of duties                      her wages promptly upon
      assumed in colle ctive-                          severance, was a question of
      bargaining agreements . . . .                    state l a w , e n t i re ly
                                                       independent of any
      In [Allis-Chalmers] and in
                                                       understanding embodied in
      Lingle . . . , we underscored
                                                       the collective-bargaining
      the point that § 301 cannot
                                                       agreement betw een the
      be read broadly to pre-empt
                                                       union and the employer.
      n onn egotia ble r i g h ts
                                                       There is no indication that
      conferred on individual
                                                       there was a “dispute” in this
      employees as a matter of
                                                       case over the amount of the
      state law, and we stressed
                                                       penalty to which [the
      that it is the legal character
                                                       plaintiff] would be entitled,
      of a claim, as “independent”
                                                       and Lingle makes plain in so
      of rights u nder the
                                                       many words that when
      collective-b argain ing
                                                       liability is governed by
      agreement (and not whether
                                                       independent state law, the
      a grievance arising from
                                                       mere need to “look to” the
      “precisely the same set of
                                                       collec tive-barg aining
      facts” could be pursued) that
                                                       agreement for damages
      decides whether a state
                                                       computation is no reason to
      cause of action may go
                                                       hold the state-law claim
      forward. Finally, we were
                                                       defeated by § 301.
      clear that when the meaning
      of contract terms is not the              Id. at 124-25. Accordingly, the Court
      subject of dispute, the bare              concluded that the plaintiff’s state law
      fact that a collective-                   claim was not completely preempted by §
      bargaining agreement will                 301 of the LMRA.
      be consulted in the course of
                                                                    B.
      state-law litigation plainly
      does not require the claim to                    At the outset, we address Dana’s
      be extinguished.                          and SGI’s general contentions with respect
                                                to Appellants’ state law claims. According
Id. at 122-24 (internal citations and
                                                to Dana and SGI, the state claims go to the
footnotes omitted).       Applying these
                                                “core” of Dana’s management rights, a
principles, the Court reasoned that
                                                subject of collective bargaining. They also


                                           11
argue that Appellants’ state claims
“necessarily implic ate” th e
“Management’s Rights” and “Shop Rules”
                                                condition suspend work.
clauses of the CBA between Dana and the
U n i o n . 4         D a n a    a n d          Section 2. Promotions –
                                                Discipline – Discharge
                                                       The right to promote,
     4
      The relevant portion of the CBA           and the right to discipline
provides:                                       and discharge for proper
                                                cause are likewise the sole
         A R T I C L E 1 1 .
                                                responsib ility of th e
         MANAGEMENT’S
                                                Management. Provided, the
         RIGHTS
                                                claims of discriminatory
         Section 1. General                     promotions and of wrongful
                                                or unjust discipline or
                   T h e       U n i o n
                                                discharges shall be subject
         recognizes the rights and
                                                to the Grievance Procedure
         responsibilities belonging
                                                herein provided.
         solely to the Company, such
         as the rights to decide the                   Proper cause for
         number and location of                 discipline and discharge
         plants, the machine and tool           shall be determined in
         equipment, the products to             accordance with the rules
         b e m anuf acture d, th e              and procedures outlined in
         method of manufacture, the             Exhibit B, Shop Rules and
         schedules of production, the           violations of Shop Rules. If
         processes of manufacturing             no rule exists under the
         or assembling, together with           Shop       Rules     then
         all designing engineering              management’s rights would
         and the control of raw                 apply.
         materials,             semi-
                                                Section 3.         Order       and
         manufactured, and finished
                                                Efficiency
         parts w hich m ay b e
         i n c o rpor a t e d into th e                   (a) The right to hire
         products manufactured.                 and to maintain order and
                                                efficiency is the sole
                When required by
                                                r e s p o n s i b i l i ty o f t h e
         Management, employees
                                                Management.
         n ecessary to maintain
         protection of the Company’s                  (b) There will be no
         property shall under no                hiring of part-time or

                                           12
SGI therefore contend that the claims               was that the “foundation” of the state law
cannot be analyzed without reference to             tort and contract claims was “job security
the CBA. While it is true that the CBA              in the face of layoffs or discharge,” a
may be consulted in the course of litigating        mandatory subject of collective bargaining
Appellants’ claims, it does not follow that         and a subject covered in the collective
their claims are completely preempted.              bargaining agreement.        Id. at 230.
                                                    Consequently, the employer argued, the
       In Trans Penn Wax Corp. v.
                                                    claims were dependent upon the applicable
McCandless, 50 F.3d at 230-31, we
                                                    collective-bargaining agreement and
addressed, and rejected, a similar argument
                                                    should be preempted by § 301. We
in support of finding complete preemption
                                                    rejected this argument, reasoning that
under § 301. In that case, the plaintiff
employees were subject to a collective-                   [t]he employees have not
bargaining agreement between their                        alleged [that the employer]
employer and their union, but had also                    violated the terms and
entered into individual employment                        conditions of the collective
contracts in which the employer                           b a r g a i n in g a g r e em e n t .
guaranteed their job security. Several of                 While the state law claims
the employees were later terminated and                   here relate to job security,
thereafter brought state law claims against               they are grounded in the
their employer for breach of contract,                    guarantee given the
fraud, and intentional infliction of                      em p l o ye e s by [ the
emotional distress, relating to the                       employer]. The collective
representations made by the employer in                   bargaining agreement does
their individual employment contracts.                    not mention the individual
One of the arguments advanced by the                      employment contracts, nor
employer in favor of finding preemption                   does [the employer] explain
                                                          h o w t h e c l a i m s a re
                                                          substantially dependent on
              temporary employees                         analysis of the collective
              to do any work that                         bargaining agreement. The
              is performed by                             fact that job security is
              bargain ing unit                            addressed in the collective
              employees.                                  bargaining agreement is “of
                                                          no consequence, because
App. at 605. The “Shop Rules” exhibit to
                                                          [the employees] need not
the CBA prescribes conduct that covered
                                                          refer to ... the collective
employees are prohibited from engaging
                                                          bargaining agreement in
in, as well as procedures for dealing with
                                                          order to make out [their]
the prescribed infractions.
                                                          claim.” Berda, 881 F.2d at


                                               13
          27.                                                       bargaining agreement, so long as the state
                                                                    claim does not require interpretation of the
Id. at 230-31 (footnote omitted). In
                                                                    collective bargaining agreement.”).
rejecting the employer’s argument, we also
noted that “‘there is nothing novel about                                   Although Dana and SGI rely upon
recognizing that substantive rights in the                          the “Management’s Rights” and “Shop
labor relations context can exist without                           Rules” clauses of the CBA, they do not
i n t e rp r e t in g c o l l ec t i v e- b a r g a i n in g        point to any specific provision of these
agreements.” Id. at 231 (quoting Lingle,                            clauses that must be interpreted in order to
486 U.S. at 411).                                                   resolve Appellants’ claims. Nor can we
                                                                    identify any provision that would require
        Similarly here, Appellants have not
                                                                    interpretation.    A finding of § 301
alleged a violation of any term or
                                                                    preemption is not mandated simply by the
condition of the CBA. Nor does it appear
                                                                    contention that Appellants’ state law
from the face of their complaint that any of
                                                                    claims “necessarily implicate” the CBA.
their state claims are founded upon rights
                                                                    That is, the mere fact that we must look at
created by the CBA. Although their state
                                                                    the CBA in order to determine that it is
claims relate to conduct that Defendants
                                                                    silent on any issue relevant to Appellants’
engaged in at Appellants’ workplace, those
                                                                    state claims does not mean that we have
claims, as in Trans Penn Wax, are
                                                                    “interpreted” the CBA. As the Ninth
nonetheless grounded in substantive rights
                                                                    Circuit Court of Appeals has recently
granted under state law. Moreover, the
                                                                    stated in applying Livadas:
CBA itself makes no mention of the use of
video cameras, microphones, or other                                       [A]lleging a hypothetical
surveillance of any kind. Like Trans Penn                                  connection between the
Wax, the essential question is not whether                                 [state law] claim and the
Appellants’ claims relate to a subject –                                   terms of the CBA is not
management’s rights – contemplated by                                      enough to preempt the
the CBA. In fact, Caterpillar and Lingle                                   claim: adjudication of the
both recognize that a finding of                                           claim must require
preemption under § 301 is not required                                     interpretation of a provision
even if the same set of facts may give rise                                of the CBA. A creative
to a state law claim as well as an action for                              linkage between the subject
violation of the CBA.           Rather, the                                matter of the claim and the
dispositive question here is whether                                       wording of a CBA provision
Appellants’ state claims require any                                       is insufficient; rather, the
interpretation of a provision of the CBA.                                  proffered interpreta tion
Id. at 229 (“[A] plaintiff may bring a state                               argument must reach a
law tort action against an employer, even                                  reasonable level o f
where he could have brought a similar                                      credibility. Cf. Livadas, 512
claim based on a provision in his collective                               U.S. at 124-25, 114 S. Ct.

                                                               14
       2068. The argument does                      expectation of privacy is one that society is
       not become credible simply                   prepared to recognize as reasonable,”
       because the court may have                   which “is necessarily an objective
       to consult the CBA to                        standard.” Id.
       evaluate it; “look[ing] to”
                                                           Dana and SGI insist that this claim
       the CBA merely to discern
                                                    is completely preempted by § 301 of the
       that none of its terms is
                                                    LMRA because the justifiable expectation
       reasonably in dispute does
                                                    of Appellants cannot be determined
       not require preemption. Id.
                                                    without reference to Dana’s bargained-for
       at 125, 114 S. Ct. 2068.
                                                    management rights to direc t the
Cramer v. Consolidated Freightways Inc.,            supervision of employees. We regard this
255 F.3d 683, 691 (9th Cir. 2001) (en               argument as foreclosed by our decision in
banc).                                              Trans Penn Wax. As we have noted, the
                                                    employees in that case alleged that the
           With this background, we turn to
                                                    employer’s breach of its guarantees of job
each of the Appellants’ state law claims to
                                                    security, granted in individual contracts
d e t e r m in e wh ether th e y r equir e
                                                    with the employees, constituted fraud and
interpretation of the CBA.
                                                    the intentional infliction of emotional
                     1.                             distress. Under Pennsylvania law, one of
                                                    the elements required for a fraud claim
       Appellants claim that Defendants
                                                    was that the plaintiff justifiably relied on
violated § 5725 of the Wiretap Act. Such
                                                    the defendant’s misrepresentations. One
a claim requires a plaintiff to demonstrate:
                                                    of the essential elements of a cause of
“(1) that he engaged in [an oral]
                                                    action for intentional infliction of
communication; (2) that he possessed an
                                                    emotional distress was a showing that the
expectation that the communication would
                                                    defendant’s conduct was “extreme and
not be intercepted; (3) that his expectation
                                                    outrageous.” Much like Dana and SGI, the
was justifiable under the circumstances;
                                                    employer in that case argued that the only
and (4) that the defendant attempted to, or
                                                    way to determine whether the employees
success fully intercep ted the
                                                    were justified in relying upon its
communication, or encouraged another to
                                                    representations guaranteeing job security
do so.” Agnew v. Dupler, 717 A.2d 519,
                                                    or whether its conduct had been “extreme
522 (Pa. 1998). In Agnew, the Supreme
                                                    and outrageous” was to interpret the
Court of Pennsylvania held that “a
                                                    applic able collec tive barg ainin g
conversation amounts to a protected ‘oral
                                                    agreement.      In both instances, the
communication’ under the Wiretap Act
                                                    employer suggested, the collective
only where the speaker possessed a
                                                    bargaining agreement was part of the
reasonable expectation of privacy in the
                                                    context in which the issue had to be
conversation.” Id. at 523. Moreover, the
                                                    addressed. Arguably, for example, the
Court decided that “the standard for such

                                               15
collective-bargaining agreement could              consulted in the course of state law
have contained provisions that undermined          litigation plainly does not require the
the employees’ allegation that their               claims to be extinguished.” Livadas, 512
reliance upon the separate guarantees was          U.S. at 124.
justified. Nonetheless, we rejected the
                                                          Dana and SGI insist that their
employer’s argument, holding that neither
                                                   argument is supported by numerous cases
of these two tort claims was completely
                                                   that have found state law invasion of
preempted by § 301. We pointed out that
                                                   privacy claims completely preempted by §
the “justifiable reliance” and “extreme and
                                                   301. See, e.g., In re General Motors
outrageous conduct” were “purely factual
                                                   Corp., 3 F.3d 980, 982 (6th Cir. 1993);
questions,” the resolution of which did not
                                                   Mock v. T.G. & Y . Stores Co., 971 F.2d
“require[] interpretation of the collective
                                                   522 (10th Cir. 1992); In re Amoco
bargaining agreement [or] substantially
                                                   Petroleum Additives Co., 964 F.2d 706
depend[] on its construction.” Trans Penn
                                                   (7th Cir. 1992); and Kirby v. Allegheny
Wax, 50 F.3d at 232. The fact that a
                                                   Beverage Corp., 811 F.2d 253 (4th Cir.
collective bargaining agreement was part
                                                   1987).     We find these cases either
of the context in which an employee’s
                                                   inapposite or lacking in continued vitality
claim must be addressed thus did not
                                                   following the Supreme Court case law we
trigger complete preemption in the absence
                                                   have earlier discussed. Moreover, to the
of some substantial dispute over the
                                                   extent any of them is in tension with Trans
meaning of the collective bargaining
                                                   Penn Wax, we must, of course, remain
agreement.
                                                   faithful to that decision.
        Based on Trans Penn Wax, we must
                                                           In Kirby v. Allegheny Beverage
reject Dana and SGI’s contention that the
                                                   Corp., a plaintiff brought a state law
only way to determine whether Appellants
                                                   invasion of privacy claim against his
had a justifiable expectation of privacy is
                                                   employer after he was forced to submit to
by interpreting the CBA. Appellants’
                                                   a search of his person and then forced to
justifiable expectations can be determined
                                                   resign after refusing to submit to a search
by a state court simply by considering the
                                                   of his automobile. The employer removed
conduct of Dana and the facts and
                                                   the case to federal court and sought
circumstances of Appellants’ workplace.
                                                   dismissal on grounds of complete
Dana has provided no reason to believe
                                                   preemption by § 301 of the LMRA; the
that such a determination will require the
                                                   Court of Appeals for the Fourth Circuit
resolution of any dispute concerning rights
                                                   agreed. It reasoned that “the issues
or obligations contained in the CBA, and
                                                   presented by the search in this case are
we are unable to perceive one. “[W]hen
                                                   ‘grist for the mill of grievance procedures
the meaning of contract terms is not the
                                                   and arbitration.’” Id. at 256 (quoting
subject of dispute, the bare fact that a
                                                   Strachan v. Union Oil Co., 768 F.2d 703,
collective bargaining agreement will be
                                                   705 (5th Cir. 1985)). According to the

                                              16
Court, it was clear that the plaintiff could         state law claims did not depend on the
refuse to submit to the search, and if               meaning of the applicable collective-
dismissed, could have challenged the                 bargaining agreement.        Although the
t e r m i n at i on u nder the grieva nce            employee conceded that the collective-
procedures provided for in his CBA.                  bargaining agreement could have
Furthermore, the Court noted, if his union           authorized the surveillance, he noted that
had refused to submit a grievance, the               nothing in the agreement actually
plaintiff could have then sued his union for         mentioned cameras, locker rooms, or
breach of the duty of fair representation,           surveillance in general. The Court agreed
under the Supreme Court’s decision in                with Am oco, h ow ever, th at the
Vaca v. Sipes, 386 U.S. 171 (1967).                  management-rights provision of the
According to the Court, “the availability of         parties’ collective bargaining agreement
remedies under the labor contract                    could fairly be read as a “residual clause”
precludes appellant’s pursuit of those               commuting “everything that [was] neither
remedies in a state law tort action.” Kirby,         regulated nor forbidden by the . . .
811 F.2d at 256.                                     agreement . . . to [the] discretion” of the
                                                     employer. Since this arguable reading
        We are unable to reconcile this
                                                     wo uld a u t h o r iz e t h e c h a ll e n ge d
conclusion with the Supreme Court’s
                                                     surveillance, the Court concluded that a
decision in Caterpillar, which was decided
                                                     “state court could not award damages
four months after Kirby. As we noted
                                                     without first construing the collective
above, Caterpillar holds that an employee
                                                     bargaining agreement and rejecting
has the option of vindicating his interests
                                                     Am oco’s interpretatio n of the
by seeking a remedy available under a
                                                     management-rights clause.” Id. at 709.
collective-bargaining agreement or by
bringing a state court action, as long as the                   The Amoco Court relied primarily
state law action does not require                    on Kirby and Stikes v. Chevron USA, Inc.,
interpretation of the collective-bargaining          914 F.2d 1265 (9th Cir. 1990). Just as we
agreement. 482 U.S. at 394-95. Thus,                 have concluded that Kirby did not survive
Kirby’s holding – that the availability of a         Caterpillar, an en banc Ninth Circuit
labor contract remedy precluded a state              Court of Appeals has concluded that Stikes
tort action brought to vindicate the same            did not survive the ensuing Supreme Court
interests – did not survive Caterpillar.             j u r i s pr uden c e . See Cram er v.
                                                     Consolidated Freightways, Inc., 255 F.3d
       In In re Amoco Petroleum Additives
                                                     683, 692 (9th Cir. 2001) (en banc). Given
Co., an employee sued for invasion of
                                                     that jurisprudence, it is not clear to us that
privacy and intentional infliction of
                                                     we would have reached the same result
emotional distress after Amoco installed a
                                                     reached by the Amoco Court. In any event,
camera outside of the women’s locker
                                                     it is clear to us that the “Management
room.       With respect to complete
                                                     Rights” article of the agreement before us
preemption, the employee argued that his

                                                17
cannot arguably be read as a residual             program participation was to remain
clause committing everything not covered          confidential. The Court concluded that the
in the agreement to management’s                  duty of confidentiality alleged to have
discretion. For that reason, Amoco is             been violated arose from the collective-
inapposite here.                                  bargaining agreement, and the invasion of
                                                  privacy claim was therefore completely
       In Mock, an employee brought suit
                                                  preempted. Thus, the right allegedly
against T.G. & Y. for invasion of privacy
                                                  violated – the right to confidential use of
and intentional infliction of emotional
                                                  an employee drug and alcohol abuse
distress resulting from an investigation
                                                  counseling program – arose out of a
conducted by T.G. & Y. into employee
                                                  collective-bargaining agreement and,
misconduct and the employee’s subsequent
                                                  accordingly, the plaintiff was necessarily
termination. The Court held these claims
                                                  relying on the terms of the labor contract.
preempted, reasoning as follows:
                                                  Appellants in our case have made no
       Under the CBA, T.G&Y.                      reference, nor need they make reference, to
       could conduct such an                      any provision of the CBA.
       investigation and could
                                                                       2.
       terminate any employee for
       “just cause.” An analysis of                       Appellants also claim that
       whether T.G.&Y . acted                     Defendants committed the tort of invasion
       p ro p e rly or no t wil l                 of privacy. “An action for invasion of
       inevit a b l y r e q u i r e an            privacy is comprised of four distinct torts:
       analysis of what the CBA                   (1) intrusion upon se clusion, (2)
       permitted.                                 appropriation of name or likeness, (3)
                                                  publicity given to private life and (4)
Mock, 971 F.2d at 530. Thus, in Mock, as
                                                  publicity placing the person in a false
in Amoco, provisions of the collective
                                                  light.” Harris v. Easton Publishing Co.,
bargaining agreement could fairly be read
                                                  483 A.2d 1377, 1383 (Pa. Super. Ct. 1984)
to authorize the employer’s conduct.
                                                  (citing Marks v. Bell Tel. Co. of Pa., 331
       Finally, in In re General Motors           A.2d 424 (Pa. 1975); Vogel v. W.T. Grant
Corp., an employee brought suit against           Co., 327 A.2d 133, 136 (Pa. 1974)).
General Motors for invasion of privacy            Although the state law complaint does not
after General Motors, during the course of        specify which privacy tort Appellants
the employee’s grievance proceeding,              advance, the only cause of action arguably
allegedly revealed that the employee had          relevant to the interception of oral
sought drug and alcohol abuse counseling          communications in this case is intrusion
through an employee assistance program            upon Appellants’ seclusion.            The
prescribed by the applicable collective-          Pennsylvania courts have defined this
bargaining agreement.         Under the           claim, in accordance with the Restatement
collective-bargaining agreement, such             (Second) of Torts (1977), as follows: “One

                                             18
who intentionally intrudes, physically or             business invitees – Dana and SGI argue
otherwise, upon the solitude or seclusion             that we must find these claims completely
of another or his private affairs or                  preempted under Electrical Workers
concerns, is subject to liability to the other        (IBEW) v. Hechler, 481 U.S. 851 (1987),
for invasion of his privacy, if the intrusion         and Steelworkers v. Rawson, 495 U.S. 362,
would be highly offensive to a reasonable             364 (1990).
person.”    Harris, 483 A.2d at 1383
                                                                Neither Hechler nor Rawson is
(quoting Restatement (Second) of Torts §
                                                      applicable to Appellants’ tort claims. In
652B). Like Appellants’ Wiretap Act
                                                      Hechler, an employee of Florida Power
claim, this cause of action also requires
                                                      and Light Company sued her union after
that the plaintiff have a reasonable
                                                      she was injured performing a repair to an
expectation of privacy. See id. (“The
                                                      electrical substation. The basis of her
defendant is subject to liability under this
                                                      claim was that the union had breached a
section only when he has intruded into a
                                                      duty it assumed, pursuant to the relevant
private place, or has otherwise invaded a
                                                      collective-bargaining agreement, to ensure
private seclusion that the plaintiff has
                                                      that she would not be required or allowed
thrown about his person or affairs.” (citing
                                                      to take undue risks in the performance of
Restatement (Second) of Torts § 652B cmt.
                                                      her duties which were not commensurate
c)).
                                                      with her training and experience. The
        With respect to Appellants’                   Court held that this claim was completely
invasion of privacy claim, Dana and SGI               preempted by § 301 of the LMRA because
present arguments identical to those they             it was not sufficiently independent of the
raise in favor of extinguishing the Wiretap           c o l l ec t i v e- b a r g a in i n g a g re e m en t .
Act claims – namely that the expectation              According to the Court, the plaintiff’s tort
of privacy issue and the “highly offensive            claim was based on her allegation that her
to a reasonable person” issue must be                 union owed her a duty of care, but
determined in the light of the collective             “[u]nder common law . . . it is the
bargaining agreement. Again, based on                 employer, not a labor union, that owes
Trans Penn West, we reject these                      employees a duty to exercise reasonable
arguments.                                            care in providing a safe workplace.” Id. at
                                                      859. Accordingly, the Court reasoned, the
                     3.
                                                      plaintiff’s “allegations of negligence
       As for Appellants’ remaining tort              assume significance if – and only if – the
claims – negligent or reckless supervision            Union, in fact, had assumed the duty of
of Defendants’ officers, agents, servants;            care that the complaint alleges the Union
negligent or reckless supervision of                  breached.” Id. at 861. In order to
Defendants’ premises or instrumentalities             determine the union’s tort liability, a court
under their control; and failure to exercise          would have to examine the duty assumed
reasonable care to protect Appellants as              by the union in the collective-bargaining


                                                 19
agreement and the scope of that duty.                       delegates are accused of
This, according to the Court, was precisely                 acting in a way that might
the type of contract interpretation that                    v i o l a te t h e d u ty o f
implicated the complete preemption                          reasonable care owed to
doctrine. As in Allis-Chalmers, the Court                   every person in society.
held, the plaintiff was “precluded from                     There is no allegation, for
evading the pre-emptive force of § 301 by                   example, that members of
casting her claim as a state tort action.” Id.              t h e s a f e ty comm itte e
                                                            negligently caused damage
         Similarly, in Rawson, the plaintiffs,
                                                            to the structure of the mine,
survivors of four miners who were killed
                                                            an act that could be
in an underground mine fire, brought state
                                                            unreasonable irrespective of
law wrongful death actions against the
                                                            who committed it and could
deceaseds’ union alleging that the deaths
                                                            foreseeably cause injury to
were caused by the union’s fraudulent and
                                                            any person who might
negligent acts. The plaintiffs’ claims were
                                                            possibly be in the vicinity.
based on the contention that the union had,
through a collective-bargaining agreement                   . . . If the Union failed to
with the mine operator, caused to be                        perform a du ty in
established a management-labor safety                       connection with inspection,
committee. The plaintiffs argued that the                   it was a duty arising out of
union representatives had negligently                       the collective-bargaining
performed inspections that the union had                    agreement signed by the
promised to conduct, failing to uncover                     Union as the bargaining
obvious deficiencies. The Supreme Court,                    agent for the miners.
as in Hechler, again held that the wrongful                 Clearly, the enforcement of
death claim against the union was                           that agreement and the
completely preempted. The Court noted                       remedies for its breach are
that, like Hechler, the plaintiffs’ pleadings               matters governed by federal
indicated that the duty of care relied on as                law. . . . Pre-emption by
the basis of their tort suit was one                        federal law cannot be
allegedly assumed by the union in a                         avoided by characterizing
collective bargaining agreement. The                        the U nion’s negligent
Court further reasoned:                                     performance of what it does
                                                            on behalf of the members of
       As we see it . . . , [the
                                                            the bargaining unit pursuant
       plaintiffs’] tort claim cannot
                                                            to the term s of th e
       be described as independent
                                                            c o l l ec t i v e- b a r g ain in g
       of the collective-bargaining
                                                            contract as a state-law tort.
       agreement. This is not a
       situation where the Union’s                    Id. at 371-72.     Accordingly, the Court

                                                 20
held, the plaintiffs’ suit could only go                  form, join, or assist any
forward under federal law.                                labor organization of their
                                                          own choosing, to interfere
        In relying on Hechler and Rawson,
                                                          or hinder the lawful or
Dana and SGI refuse to acknowledge that
                                                          peaceful collective
the duty of care in both of those cases was
                                                          bargaining between
alleged to have arisen from a collective-
                                                          employees and employers,
bargaining agreement. In both of those
                                                          to pay, offer, or give any
cases, the unions, which did not otherwise
                                                          money, gratuity, favor,
have any duty of care under state law, were
                                                          consideration, or other thing
the defendants being sued. In this case,
                                                          of value , dire ctl y or
however, Appellants’ claims did not
                                                          indirectly, to any person, for
invoke any duty of care prescribed by the
                                                          any verbal or written report
CBA, and no consultation with the CBA is
                                                          of the lawful activities of
necessary in order to define the scope of
                                                          employees in the exercise of
the duties alleged to have been breached.
                                                          their right of self-
Accordingly, whatever duties Dana was
                                                          organization, to form, join,
alleged to have had with respect to
                                                          or assist labor organizations,
supervision its employees, agents and
                                                          and to bargain collectively
premises, or protection of business
                                                          through representatives of
invitees, those duties are independent of
                                                          their own choosing, . . . .
the CBA. As such, Appellants’ claims
arising from negligent or reckless breach          Pa. Stat. Ann. tit. 22, § 26. In order to
of those duties are not completely                 state a cause of action for civil conspiracy
preempted by § 301 of the LMRA.                    under Pennsylvania law, a plaintiff must
                                                   allege: “(1) a combination of two or more
                     4.
                                                   persons acting with a common purpose to
       Section 16 of New Jersey’s                  do an unlawful act or to do a lawful act by
Detective Act provides, in relevant part:          unlawful means or for an unlawful
                                                   purpose; (2) an overt act done in pursuance
       It is unlawful for the holder
                                                   of the common purpose; and (3) actual
       of a license issued under this
                                                   legal damage.” McGuire v. Shubert, 722
       act, or for any employee of
                                                   A.2d 1087, 1092 (Pa. Super. Ct. 1998)
       such licensee, knowingly to
                                                   (citing Kadel v. McMonigle, 624 A.2d
       commit any of the following
                                                   1059, 1063 (Pa. Super. Ct. 1993)).
       acts, within or without the
       Commonwealth               of                       Ap pella n t s ’ De tecti v e A ct
       Pennsylvania: . . . to                      conspiracy claim is not based on any right
       interfere with, restrain, or                or duty created by the collective
       coerce employees in the                     bargaining agreement, and litigation of
       exercise of their right to                  that claim will not require interpretation of

                                              21
that agreement. It necessarily follows that           This did not provide the District Court
§ 301 does not completely preempt this                with subject matter jurisdiction, however.
claim.
                                                              In San Diego Building Trades
        This conclusion is not inconsistent           Council v. Garmon, 359 U.S. 236, 244
with San Diego Building Trades Council v.             (1959), the Supreme Court held that
Garmon, 359 U.S. 236 (1959), and its                  “[w]hen it is clear or may fairly be
progeny. It is true that to the extent                assumed that the activities which a State
Appellants       assert that Defendants               purports to regulate are protected by § 7 of
interfered with their rights to form, join, or        the National Labor Relations Act, or
assist a labor union, as well as their rights         constitute an unfair labor practice under §
to collective bargaining, these claims                8, due regard for the federal enactment
appear to be preempted by §§ 7 and 8 of               requires that state jurisdiction must yield.”
the National Labor Relations Act                      Thus, §§ 7 and 8 of the NLRA may
(“NLRA”), 29 U.S.C. §§ 157 and 158.5                  provide Defendants with a preemption
                                                      defense to Appellants’ claims under § 16
                                                      of the Detective Act upon remand to the
   5
     Section 7 of the NLRA provides:                  state court. Such preemption, however, is
        Employees shall have the                      not the type of complete preemption that
        right to self-organization, to                would provide Defendants with a basis for
        form, join, or assist labor                   federal question jurisdiction. See Ethridge
        organizations, to bargain                     v. Harbor House Restaurant, 861 F.2d
        collective ly through                         1389, 1396-1401 (9th Cir. 1988) (holding
        representatives of their own                  that “sections 7 and 8 [of the NLRA] do
        choosing, and to engage in                    not confer original federal question
        other concerted activities for                jurisdiction on the federal district courts”);
        the purpose of collective                     U nite d A ss’n of Journeymen &
        bargaining or other mutual                    Apprentices of Plumbing & Pipe Fitting
        aid or protection, and shall                  Indus., Local No. 57 v. Bechtel Power
        also have the right to refrain                Corp., 834 F.2d 884, 886-87 (10th Cir.
        from any or all of such                       1987) (same); see also Caterpillar, 482
        activities except to the                      U.S. at 392-93 (distinguishing between
        extent that such right may                    preemption as a defense to a state law
        be affected by an agreement                   claim and complete preemption as a basis
        requiring membership in a                     for federal question jurisdiction).
        labor organization as a
        condition of employment as
        a u t h o r iz e d in sectio n                labor practice for an employer to interfere
        158(a)(3) of this title.                      with, restrain, or coerce employees in the
29 U.S.C. § 157. Section 8(a)(1) provides,            exercise of the rights guaranteed in section
in relevant part that “[i]t shall be an unfair        157 of this title.” 29 U.S.C. § 158(a)(1).

                                                 22
                    C.
       In summary, Appellants’ claims do
not involve rights or duties created by the
collective bargaining agreement. Nor do
those claims raise “‘questions relating to
what the parties to a labor agreement
agreed, and what legal consequences were
intended to flow from breaches of that
agreement.’” Livadas, 512 U.S. at 122-23
(quoting Lueck, 471 U.S. at 211). Rather,
our analysis indicates that the state laws
invoked by Appellants confer upon them
substantive rights that are independent of
any rights available under the CBA.
Under such circumstances, the Supreme
Court has held, it would be inconsistent
with Congress’ intent under § 301 to find
complete preemption.           See Allis-
Chambers, 471 U.S. at 212.
                   III.
      For the foregoing reasons, the
judgment of the District Court will be
vacated and this case will be remanded to
the District Court with instructions to
remand it to the Court of Common Pleas
of Berks County, Pennsylvania.




                                              23
