

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                             

No. 95-1197

                   ALBERT A. FLIBOTTE, ET AL.,

                     Plaintiffs, Appellants,

                                v.

                 PENNSYLVANIA TRUCK LINES, INC.,

                       Defendant, Appellee.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

            [Hon. Nancy Gertner, U.S. District Judge]                                                              

                                             

                              Before

                Selya and Boudin, Circuit Judges,                                                          

                and Dowd,* Senior District Judge.                                                          

                                             

     Malcolm J. Barach for appellants.                                
     Regina C.  Reardon, with  whom Brian P.  Crowner and  Bray &amp;                                                                           
Reardon, P.C. were on brief, for appellee.                       

                                             

                        December 10, 1997
                                             

               
*Of the Northern District of Ohio, sitting by designation.

          SELYA,  Circuit Judge.  Having prevailed before a jury,                    SELYA,  Circuit Judge.                                         

plaintiff-appellant Albert  A. Flibotte saw his  apparent victory

turn  to ashes  when the  district  court entered  judgment as  a

matter of law  in favor of defendant-appellee  Pennsylvania Truck

Lines,  Inc. (PTL)  on the  ground that  Flibotte's   claims were

preempted by section 301 of the Labor Management Relations Act of

1947, 29 U.S.C.   185 (1994).  Flibotte beseeches us to reinstate

the jury verdict.  We are unable to do so.

                                I.                                          I.                                            

                            Background                                      Background                                                

          Flibotte,  a member of Teamsters Local 25, spent almost

three decades in PTL's employ.  This relationship persisted until

PTL terminated  him in 1987 for  his refusal to participate  in a

drug  testing procedure    a  refusal that, under  the applicable

collective bargaining agreement, "constitute[d]  a presumption of

intoxication."   National Master Freight Agreement, Art. 35, Sec.

3  (NMFA).   Local  25  filed a  grievance  on Flibotte's  behalf

pursuant  to the  NMFA and  eventually took  the case  to binding

arbitration.  The arbitrator found that Flibotte's ouster did not

violate  the   collective  bargaining  pact   and  rejected   the

grievance.

          Flibotte subsequently  filed a civil action against PTL

in  a Massachusetts  state court.   In  addition to  a derivative

claim  for loss  of consortium  on behalf  of Mrs.  Flibotte, the

complaint contained counts  for negligence, invasion of  privacy,

impairment  of civil rights,  defamation, negligent infliction of

                                2

emotional  distress,  and  intentional  infliction  of  emotional

distress.   Flibotte  alleged that  PTL  notified a  group of  37

employees, himself included, to report on March 13, 1987, for the

biennial  physical  examination  and  drug  test  required  under

federal  motor  carrier  safety  regulations;  that   he  refused

"because  his  examination  was  not  yet  due  and  because  the

[designated examination site] was rat-infested"; that, within one

week after he boycotted the scheduled test, he  took and passed a

drug  test  administered  by  his  own  physician;  and  that PTL

nonetheless  discharged him  summarily  on March  18,  1987.   He

claimed  that  in   so  doing,  PTL  wrongfully   terminated  his

employment  and,  in  the  bargain,  breached  various  state-law

duties.

          PTL  removed the  case to  the  United States  District

Court for the District of Massachusetts  on dual bases (diversity

of citizenship and  the existence of a federal  question).  After

the usual  preliminaries   including  the denial of  PTL's motion

for summary judgment    the case proceeded to  trial before Judge

Nelson and a jury.  During the ensuing eight-day trial, PTL twice

moved for judgment  as a matter of  law on the ground  of section

301 preemption.   Judge Nelson denied one such motion  at the end

of  the plaintiff's case  and the other  at the close  of all the

evidence.    In due  season,  the  jury  returned a  verdict  for

Flibotte  on three counts    negligence, negligent  infliction of

emotional  distress,  and  intentional  infliction  of  emotional

distress   and awarded him $625,000 in damages.

                                3

          Like the mills of the  gods, the mills of the judiciary

sometimes grind exceedingly slow.  On November 20, 1991, PTL made

a timely motion for judgment as a matter of law, see Fed. R. Civ.                                                              

P. 50(b), in which it again  hawked section 301 preemption.   The

motion  sat unresolved  when, in  April of  1992, PTL  sought the

bankruptcy court's  protection under Chapter  11, thus triggering

an  automatic stay of proceedings in the  district court.  See 11                                                                        

U.S.C.   362 (1990).  Some seventeen months later, the bankruptcy

court confirmed  a plan of reorganization.   PTL's emergence from

the toils  of bankruptcy  cleared the way  for resumption  of the

district  court proceedings.  By then,  however, Judge Nelson had

become disabled and  a considerable period of time elapsed before

the case was reassigned and a  new jurist, Judge Gertner, took up

the outstanding  motion.   She eventually  granted it,  provoking

this appeal.

          Flibotte's  objections  possess   both  procedural  and

substantive  dimensions.   First, he  argues  that Judge  Gertner

erred when  she purposed to revisit issues  previously decided by

Judge Nelson.  Second, he assails the merits of her determination

that section 301 preempts his  state-law claims.  We address each

of these objections in turn.

                               II.                                         II.                                            

                         Law of the Case                                   Law of the Case                                                  

          Flibotte's  procedural  objection   has  a  chameleonic

quality.   In  one  iteration,  it  implies  that  Judge  Gertner

improperly made fact-based determinations contrary to  those made

                                4

by her predecessor  and in flagrant disregard of  the truism that

the judge  who actually presides  over a  trial is in  a superior

position  to  make  such determinations.    Without  engaging the

myriad  counter-precedential assumptions  that  are essential  to

this objection,  it suffices to  say that the legal  framework in

which motions  for judgment  as a matter  of law  exist does  not

permit  courts  confronted   with  such  motions  to   engage  in

differential factfinding, see Veranda Beach Club Ltd. Partnership                                                                           

v.  Western Sur.  Co., 936  F.2d  1364, 1383-84  (1st Cir.  1991)                               

(discussing  applicable standards),  and there  is no  indication

here that Judge Gertner disobeyed these guidelines.

          Flibotte's next iteration  of his procedural  objection

is no more  rewarding.  He asserts  that a court is  bound by its

own  precedents,   and  that,   therefore,   Judge  Gertner   was

incompetent  to  revise  Judge  Nelson's  answers  to  the  legal

questions  posed by  the case.    This objection  is an  apparent

effort to  employ the venerable  law of the case  doctrine, which

states  in the  large  that,  unless  corrected by  an  appellate

tribunal, a  legal  decision made  at  one stage  of a  civil  or

criminal  case constitutes  the  law of  the case  throughout the

pendency of  the litigation.   See, e.g., United States  v. Bell,                                                                          

988 F.2d 247, 250 (1st Cir. 1993); Abbadessa v. Moore Bus. Forms,                                                                           

Inc., 987 F.2d 18, 22 (1st Cir. 1993).              

          This  principle is of  no real assistance  to Flibotte.

Although  temporally  distant  from  each other,  Judge  Nelson's

denial of PTL's motions for  summary judgment and for judgment as

                                5

a matter of law, on the one hand, and Judge Gertner's decision to

grant PTL's post-verdict motion for  judgment as a matter of law,

on the other hand, occurred in the context of a single trial of a

single case in a single court, with no intervening appeal.  Judge

Nelson  and Judge Gertner, therefore, play the same institutional

role for the purpose of this litigation.

          That confluence  of judicial identities  is dispositive

here.   "Under the law  of the case  doctrine, as it  is commonly

understood, it is not improper for a court to depart from a prior

holding if convinced that it  is clearly erroneous and would work

a manifest injustice."  Arizona  v. California, 460 U.S. 605, 619                                                        

n.8 (1983).  Moreover, it is perfectly appropriate for a judge to

refuse to direct  a verdict, permit the jury to  consider a case,

and thereafter  to grant  judgment  notwithstanding the  verdict.

See Talbot-Windsor  Corp. v.  Miller, 309 F.2d  68, 69  (1st Cir.                                              

1962).  Accordingly,  Judge Nelson would have been  free to grant

PTL  the  relief  that  it  sought  in  its  post-verdict  motion

notwithstanding  his  previous rulings;  and  Judge  Gertner, who

stood in his shoes, was at liberty to do the same.  Consequently,

Judge  Gertner did not arrogate unto  herself any undue authority

when  she  entertained  PTL's  renewed  post-verdict  motion  for

judgment as  a matter of  law and reached a  different conclusion

than had her co-equal predecessor.

                               III.                                         III.                                             

                      Section 301 Preemption                                Section 301 Preemption                                                      

          Having found  no procedural  glitch, we  turn to  Judge

                                6

Gertner's decision.   We review a ruling on a motion for judgment

as  a  matter  of  law  de novo,  applying  the  identical  legal

standards that constrain  the district court.   See Colasanto  v.                                                                       

Life Ins.  Co. of  N. Am.,  100 F.3d  203, 208  (1st Cir.  1996).                                   

Accordingly,  "the   evidence  and   all  reasonable   inferences

extractable   therefrom  must  be  examined  in  the  light  most

favorable to the nonmovant  and a [judgment as  a matter of  law]

should  be  granted only  when  the  evidence, viewed  from  this

perspective, is such that reasonable persons could reach but  one

conclusion."  Veranda Beach, 986 F.2d at 1383-84.1                                     

                                A.                                          A.                                            

                       The Legal Landscape                                 The Legal Landscape                                                    

          Read  literally,  section  301  confers  federal  court

jurisdiction  over "[s]uits for violation of contracts between an

employer  and a labor  organization representing employees  in an

industry  affecting  commerce."   Over  the  years,  however, the

                                                  

     1This  case has  a peculiar  twist.   It appears  that Judge
Gertner, though new to the case,  ruled on the motion without the
benefit of a trial transcript,  and a complete transcript has not
been prepared to  this date.  We  need not probe too  deeply into
the question  of which way  the absence of this  transcript cuts.
In most cases,  a transcript would form  an integral part  of the
court's decisional calculus on a post-verdict motion for judgment
as  a  matter  of law.    Here,  however,  the  critical issue   
preemption    embodies  a pure  question  of law  susceptible  to
resolution on the  face of the pleadings (as  supplemented by the
collective bargaining  agreement).  In  ruling on the  motion for
judgment as a matter of law, Judge Gertner hewed to this line and
did  not make  any extraneous  factual  findings or  assumptions.
Because the judge's analysis and  decision did not need to engage
any facts derived from trial testimony, this is the rare  case in
which  the absence  of a  trial transcript  is immaterial  to the
correctness of a ruling on  a post-verdict motion for judgment as
a matter of law.

                                7

Supreme  Court  has  placed  a  heavy  gloss  on  this  language,

beginning  with its  holding that  the  statute empowers  federal

courts  to craft  federal  common  law  reasonably  necessary  to

effectuate the objectives of section 301.  See Textile Workers v.                                                                        

Lincoln  Mills,  353  U.S. 448,  451  (1957).    This substantive                        

authority to declare federal common law soon formed the basis for

an  emerging jurisprudence of  preemption.  See  Martin v. Shaw's                                                                           

Supermarkets, Inc.,  105 F.3d  40, 41-42  (1st Cir.)  (recounting                            

development of section 301 preemption), cert. denied, 118 S.  Ct.                                                              

69 (1997).   Today, labor-law preemption casts  a relatively wide

net.   Thus,  section  301  preempts a  state-law  claim "if  the

resolution   of  [that]  claim  depends   on  the  meaning  of  a

collective-bargaining  agreement."  Lingle v. Norge Div. of Magic                                                                           

Chef, Inc., 486 U.S. 399, 405-06 (1988).                    

          This rule is  not without limitations.   The Court  has

cautioned  that "purely  factual  questions  about an  employee's

conduct or  an employer's  conduct and motives  do not  require a

court   to   interpret  any   term  of   a  collective-bargaining

agreement."  Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 262                                                        

(1994) (citation and internal quotation marks omitted).   It also

has warned that  section 301 "cannot be read  broadly to pre-empt

nonnegotiable  rights conferred  on  individual  employees  as  a

matter  of state  law."  Livadas  v. Bradshaw, 512  U.S. 107, 123                                                       

(1994).   Even  so, the  basic  test remains  that prescribed  by

Lingle and  its progeny:   that section 301 preempts  a state-law                

claim, whether founded  upon the state's positive  or common law,

                                8

if  a court,  in passing  upon the  claim,  would be  required to

interpret  the collective  bargaining  agreement.   See  id.   In                                                                      

practice, this test  boils down to whether the asserted state-law

claim plausibly can be said to depend upon the meaning of  one or

more provisions within the collective bargaining agreement.

          A state-law claim  can "depend" on  the "meaning" of  a

collective bargaining agreement  in two ways.  First,  a claim so

qualifies  if  it  alleges conduct  that  arguably  constitutes a

breach of a duty that  arises pursuant to a collective bargaining

agreement.  See United Steelworkers  v. Rawson, 495 U.S. 362, 369                                                        

(1990) ("[A]  state-law tort action  against an  employer may  be

pre-empted by   301 if the duty to the employee of which the tort

is  a violation is  created by a  collective-bargaining agreement

and without existence independent of the agreement.").  Second, a

claim  so  qualifies if  its resolution  arguably hinges  upon an

interpretation  of  the  collective bargaining  agreement.    See                                                                           

Allis-Chalmers Corp. v. Lueck, 471  U.S. 202, 220 (1985) (finding                                       

section 301  preemption "when resolution of a  state-law claim is

substantially dependent upon analysis of the term of an agreement

made between the parties  in a labor contract").   If a state-law

claim  depends  on  the  meaning  of  the  collective  bargaining

agreement  in either  of these  ways    that  is, under  Rawson's                                                                         

"duty" rubric or under Allis-Chalmers's "interpretation" rubric                                                 

it is preempted.

                                B.                                          B.                                            

                            The Merits                                      The Merits                                                

                                9

          At trial, Flibotte prevailed on three state-law claims:

negligence,  negligent  infliction  of  emotional  distress,  and

intentional infliction of  emotional distress.  Our review of the

pleadings,  supplemented by the  items that Flibotte  included in

the record  appendix on appeal (such as the collective bargaining

agreement)  confirms that  none of  these  three claims  involves

rights that are made non-negotiable  under state law and that all

of  them are preempted  by section 301.   For  clarity's sake, we

begin  with   the  negligence  claims  and  then   focus  on  the

intentional infliction claim.

          1.    Negligence.   If Flibotte's  two negligence-based                    1.    Negligence.                                    

claims are to  escape preemption, he must establish  that they do

not  spring  from  duties imposed  by  the  collective bargaining

agreement, but,  rather, that PTL has acted  "in a way that might

violate  the duty  of reasonable  care  owed to  every person  in

society."  Rawson, 495 U.S. at 371.  This would be  no mean feat.                           

Even assuming, favorably to Flibotte, that PTL allegedly breached

duties   derived  from  a  source  extrinsic  to  the  collective

bargaining agreement,  the  resolution of  the negligence  claims

nonetheless depends  upon the interpretation  of that  agreement.

Consequently,  those claims are preempted  under section 301.  We

explain briefly.

          Flibotte's damage  claim, as  framed in  his complaint,

links  both  his  economic  losses  and  his  emotional  distress

directly  to his  termination.    In order  to  prevail on  these

claims, he must prove that PTL wrongfully discharged him.  If PTL

                                10

acted within its contractual rights  in severing the tie, then it

could not have breached its general duty of care.  It is clear to

us that we  cannot resolve this question, involving the propriety

of  Flibotte's  firing,  without  substantial  inquiry  into  the

intricacies of the  collective bargaining agreement.   After all,

the appellant concedes that  PTL cashiered him because  he failed

to   appear  for  a  scheduled  drug  test,  and  the  collective

bargaining agreement in force here   the NMFA    governs both the

frequency  of testing, see  NMFA Uniform Testing  Procedure, Sec.                                    

IIB, and the  consequences of a failure to take  an offered test,

see NMFA, Art.  35, Sec. 3.  Hence, it is impossible to determine             

PTL's  negligence   without   inquiring  into   its  rights   and

obligations as described by the collective bargaining  agreement.

This mandatory consultation separates the instant case from those

that raise purely factual  questions and thus begets  section 301

preemption.

          If more were needed   and we do  not think that it is  

we   also  would  note  that  Flibotte's  negligence  claims  are

preempted to the  extent that they stem from  his contention that

the conditions of the requested test were unsanitary and violated

the  employer's duty to  provide a suitable  hygienic environment

for the  examination.   This  duty  derives from  the  employment

relationship as  defined in the collective  bargaining agreement,

and as such,  it cannot form the basis for a  state-law claim.  A

plaintiff  cannot  skirt  section 301  preemption  by  the simple

expedient   of   recharacterizing   an   employer's   substandard

                                11

performance of duties that devolve  upon it pursuant to the terms

of the  collective bargaining agreement  as a tort.   See Rawson,                                                                          

495 U.S. at 371-72.

          2.  Intentional Infliction of Emotional Distress.  This                    2.  Intentional Infliction of Emotional Distress.                                                                    

leaves only the  appellant's claim for intentional  infliction of

emotional distress.   To prevail  on that claim, Flibotte  had to

prove that PTL (1) intended  to inflict emotional distress by (2)

undertaking actions that were extreme and outrageous, thereby (3)

causing emotional  distress which (4) was severe.   See Wagenmann                                                                           

v. Adams,  829 F.2d 196, 213-14  (1st Cir. 1987); Agis  v. Howard                                                                           

Johnson Co., 355 N.E.2d 318-19 (Mass. 1976).  Under Massachusetts                     

law, "extreme  and outrageous  conduct" is  behavior that is  "so

outrageous  in character,  and so  extreme  in degree,  as to  go

beyond  all possible  bounds of  decency, and  to be  regarded as

atrocious,  and utterly  intolerable in  a  civilized community."

Foley v. Polaroid Corp., 508 N.E.2d 72, 82 (Mass. 1987).                                 

          PTL's  rights  and  obligations  under  the  collective

bargaining agreement are obviously central not only to an inquiry

into PTL's  intentions, but also  to an inquiry into  whether PTL

conducted itself in a sufficiently outrageous manner to give rise

to  liability  under  state  tort  law.   It  is  a  well-settled

principle that  a party cannot be liable if  it does no more than

"insist upon [its] legal rights in a permissible way, even though

[it]  was well  aware that  such insistence  is certain  to cause

emotional distress."  Restatement (Second)  of Torts,   46 cmt. g

(1965); see Rush  v. United Technologies, 930 F.2d  453, 456 (6th                                                  

                                12

Cir. 1991).  If PTL was within its rights to require  Flibotte to

take a drug test at the designated site and to terminate him when

he  refused to  do  so,  a claim  for  intentional infliction  of

emotional distress cannot lie.2  Because the  resolution of these

issues necessitates  examination  of  the  collective  bargaining

agreement, the claim is preempted.   See Allis-Chalmers, 471 U.S.                                                                 

at 213; see also  Jackson v. Liquid Carbonic Corp., 863 F.2d 111,                                                            

119 (1st Cir.  1988) (upholding section 301 preemption  in a drug

testing case on  the ground, inter alia, that  "[o]nly by probing                                                 

the contours  of the  [collective bargaining  agreement] can  one

answer  whether  the  [drug  testing]  program  was  legitimately

implemented").

                               IV.                                         IV.                                            

                            Conclusion                                      Conclusion                                                

          We  are not without sympathy for Flibotte, who obtained

a large verdict many years ago, then  was plunged into a longeval

legal limbo,  and ultimately saw  his prized damage  award vanish

when a  new judge came on the scene.    It is understandable that

Flibotte  views  the   newly  arrived  judge  as   the  juridical

equivalent  of the Grinch who stole  Christmas, but in actuality,

the judge did  no more  than her  duty.  As  she recognized,  the

resolution of  each of  Flibotte's state-law  claims requires  an
                                                  

     2It bears repeating that an  arbitrator has already ruled in
PTL's favor on the propriety of Flibotte's discharge, and that an
historic  reason for section 301's extensive preemptive scope was
"to ensure  that, when  developed, the resultant  rules would  be
applied  through  the  grievance procedures  agreed  upon between
unions and  management."  Jackson  v. Liquid Carbonic  Corp., 863                                                                      
F.2d 111, 114 (1st Cir. 1988).  This reason remains valid today.

                                13

examination of the  terms of the collective  bargaining agreement

and, as  a result,  the claims are  preempted under  section 301.

Because the district court correctly divined and applied the law,

we can go no further.

Affirmed.          Affirmed.                  

                                14
