IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-11223

RICHARD KAUFMAN, Etc; ET AL

Plaintiffs

RICHARD KAUFMAN, DR, On behalf of himself and all others similarly

situated; JACK MARUT, On behalf of himself and all others similarly

situated; C ANTHONY WAINSRIGHT, On behalf of himself and all others

similarly situated; JEFFREY KRASNOFF, DR, On behalf of himself and

all others similarly situated

Plaintiffs-Appellees

versus

ALLIED PILOTS ASSOCIATION; ET AL

Defendants

ALLIED PILOTS ASSOCIATION; RICHART T LAVOY; BRIAN A MAYHEW; DAVID

ALDRICH; STANLEY BISSELL; J S DITTY; ERNEST DRYER; DAVID DUQUEMIN;

MARK HUNNIBEL; JEFF MARCHAND; STEVE ROACH; RANDY TROMMER

Defendants-Appellants

STEVEN CARLI, On behalf of himself and all others similarly

situated; SHON PREJEAN, On behalf of himself and all others

similarly situated

Plaintiffs-Appellees

versus

ALLIED PILOTS ASSOCIATION; RICHART T LAVOY; BRIAN A MAYHEW

Defendants-Appellants

_______________________

CENTER FOR REHABILITATIVE MEDICINE

Plaintiff-Appellee

versus

ALLIED PILOTS ASSOCIATION

Defendant-Appellant2 _______________________

JIM CASHION, Individually and on behalf of the Plaintiff Class;

JOELLEN CASHION, Individually and on behalf of the Plaintiff Class

Plaintiffs-Appellees

versus

ALLIED PILOTS ASSOCIATION; ET AL

Defendants

ALLIED PILOTS ASSOCIATION; RICHARD T LAVOY; BRIAN A MAYHEW; L G

FOSTER; ROBERT AMES; NORMAN A PATTERSON, JR; DENNIS M BRESLIN

Defendants-Appellants

_______________________

MARK LEWIS, on behalf of himself and all others similarly situated

Plaintiff-Appellee

versus

ALLIED PILOTS ASSOCIATION; RICHARD T LAVOY; BRIAN A MAYHEW

Defendants-Appellants

_______________________

NANCY GEIDEL; ET AL

Plaintiffs

NANCY GEIDEL; RALPH A MACDONALD; MARY C CASCINO; DAVE ROGERS;

CAROLYN ROGERS

Plaintiffs-Appellees

versus

ALLIED PILOTS ASSOCIATION

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

November 21, 2001

Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.3

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A union of airline pilots violated the order of a federal

court by continuing its work slowdown. The union has since paid

substantial fines for viol ating the order and now faces suits

seeking money damages under state law for the stoppage damages

caused by the slowdown activity that violated the court order.

These claimants attempt to run their state claims around G arm o n

preemption under an argument that state law would not here

interf ere with the federal labor machinery and its distinct

remedial schemes for labor peace because the conflict complained of

violates a federal court order. At the same time the state law

claimants argue that they are not seeking to supplement the federal

order by their suits. The district court accepted these arguments.

We do not and reverse. We are persuaded that the claims are

preempted under the Garmon doctrine and do not reach the question

of preemption under the Airline Deregulation Act.

I

The Allied Pilots Association is the exclus ive bargaining

agent for the pilot s of American Airlines, Inc. From February 6

through February 9, 1999 the APA staged a “sick-out”—an organized

false reporting of illness to effect a work stoppage. On February

10, American sought and received a temporary restraining order from1 Am. Airlines, Inc. v. Allied Pilots Ass’n

, 53 F. Supp.2d 909, 913 (N.D.

Tex. 1999).

2 Am. Airlines, Inc. v. Allied Pilots Ass’n

, 228 F.3d 574, 586-87 (5th Cir.

2000).

3 The plaintiffs originally asserted claims under (1 ) the Railway Labor

Act; (2) the Racketeer Influenced and Corrupt Organizations Act; (3) state common

law claims of civil conspiracy, negligence per se, and tortious interference with

contract.

4 The district court dismissed all of t he plaintiffs’ claims that were

predicated on pre-TRO conduc t

, including tortious interference with contract,

which was dismissed on Garmon preemption grounds. The plaintiffs do not appeal

the dismissal of their pre-TRO-based claims and apparently concede that those

claims are properly Garmon preempted. Therefore, our only task is to decide

whether the entering of the TRO changes this result for their post-TRO tortious

interference claims.

4 the United States District Court for the Northern District of Texas

against the APA. The TRO, among other things, required the APA to

make “all reasonable efforts” to end the sick-out. The APA

manifestly did not do so, and on February 12, the trial judge heard

American’s motion to hold the APA in contempt. Ultimately, the

district court awarded American $45 million in c ompensatory

damages, 1 a ruling which was upheld by this Court. 2

This is a class action brought against the APA to recover

economic damages claimed by over 300,000 displaced passengers as a

result of the sick-out. The plaintiffs originally asserted both

federal and state claims, 3 and the district court dismissed all

claims with prejudice except a state claim of tortious interference

with contract arising from post-TRO conduct of the APA. 4 Finding

that this claim was not preempted by federal law, the district

court dismissed the claim without prejudice to its being refiled in

state court. The APA now appeals that decision.5 359 U.S. 236 (1959). G armon preemption, first applied in the context of

the National Labor Relations Act, 29 U.S.C. § 151 et seq.

, has been extended to

the RLA. Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co.

, 394 U

. S.

369, 383 (1969).

6 Garmon , 359 U.S. at 238.

7 Id. at 243

.

8 Id.

5 II

A

We review questions of federal preemption de novo , including

Garmon preemption, wh ich gets its name from the Supreme Court’s

ruling in San Diego Building Trades Council v. Garmon. 5 In G armon

,

an employer sued a union in state court to recover da mages from

picketing that allegedly violated the National Labor Relations Act.

The Court held that this state remedy was preempted by federal law

because the state courts must yield to the exclusive jurisdiction

of the NLRB—even when the NLRB has declined to take jurisdiction. 6

Preemption is necessary because “the exercise of state power over

a particular area of activity threaten[s] interference with the

clearly indicated policy of industrial relations ....” 7 C oncerned

with “conflict in its broadest sense” the Court eschewed a focus on

the t ype of state regulation or claim, and adopted an approach

that looks to the “nature of the activities which the States have

sought to regulate.” 8 G armon has broad scope, and requires federal

preemption of state causes of action “if they attach liability to9 Mobile Mechanical Contractors Ass’n, Inc. v. Carlough

, 664 F.2d 481, 487

(5th Cir. 1981).

10 Garmon , 359 U.S. at 244.

11 Id. at 247 (“It is true that we have allowed t he States to grant

compensation for the consequences

... of conduct marked by violence and imminent

threats to the public order.”).

12 See, e.g., Youngdahl v. Rainfair, Inc.

, 355 U.S. 131, 139-40 (1957)

(upholding state court injunction against violent picketing).

13 Garmon , 359 U.S. at 243.

14 The RLA requires that “minor disputes” including those over the meaning

of a collective bargaining agreement provision on pay, rules, or working

conditions, be submitted to binding arbitration in the event that negotiations

fail to produce a solution. 45 U.S.C. § 152. Federal district courts may (as

here) enjoin strikes over minor disputes in enforcing the RLA. C onsolidated Rail

Corp. v. Railway Labor Executives Ass’n , 491 U.S. 299, 304 (1989).

6 conduct that is arguably protected ... or arguably prohibited” by

federal labor relations law. 9

Garmon itself recognized two exceptions to preemption. First,

some conduct will “touch[] interests so deeply rooted in local

feeling and responsibility that ... [the Court] could not infer

Congress had dep r ived the States of the power to act.” 10 The

classic example of this exception, provided by the Court in Garmon

itself, 11 is that of union activities involving v iolence. 1 2 The

second exception is for matters only of “periphera l concern” to

federal labor relations law. 13 Neither of these exceptions apply

here. The sick-out was non-violent and certainly, irrespective of

the TRO issue, cannot be characterized as “peripheral ” to labor

r elations law, since it is itself a work stoppage, one which a

district court found to be prohibited by the RLA. 1415 Farmer v. United Brotherhood of Carpenters and Joiners of Am.

, 430 U.S.

290, 297 (1977) (stating that a court must “determine the scope of the general

rule by examining the state interests in regulating the conduct in question and

the potential for interference with the federal regulatory scheme.”).

16 Motor Coach Emp l oyees v. Lockridge

, 403 U.S. 274, 297-98 (1971); see

also Windfield v. Groen Div. Dover Corp. , 890 F.2d 764, 766 (5th Cir. 1989).

17 United Mine Workers v. Gibbs

, 383 U.S. 715, 718-20 (1966) (preempting

damages remedy unde r state law for injury resulting from peaceful portion of

union protesting at mine that caused contractor to lose employment and haulage

contract); Jackson Terminal , 394 U.S.at 381-82 (holding that state court could

not issue injunction against peaceful strike sought by third-party railroad

terminal operator to avoid economic damages from shutdown of terminal).

18 475 U.S. 282 (1986).

7 The Court has explicitly rejected a formalistic implementation

of Garmon , and invited a balancing of state interests and federal

regulatory interests in analyzing the preemption question. 15 The

Court has thus refused to apply Garmon preemption where “it is safe

to presume that judicial supervision [ by the states] will not

disserve the interests promoted by the federal labor statutes.” 16

At the same time, Garmon preemption is not confined to state

claims made by parties to the labor relationship and th ird-party

claims may also be preempted, because they similarly threaten the

balance of labor-management relations. 17 In W isconsin Department

of Industry, Labor & Human Relations v. Gould, Inc

. , 18 the Cou r t

reaffirmed the Garmon preemption principle as “prevent[ing] states

not only from setting forth standards of conduct inconsistent with

the substantive requirements of the NLRA, but also from providing

their own regulatory or judicial remedies for conduct prohibited or19 Id. at 286 (emphasis added).

20 Id . at 283.

21 Id. at 289.

22 Carlough , 664 F.2d at 487.

8 arguably prohibited by the Act.” 19 In G ould the Court struck down

a Wisconsin statute that prevented the state fr om doing business

with companies that had been judicially deter mined to have

committed three separate violations of the NLRA within a five year

period. 2 0 “That Wisconsin has chosen to use its spending power

rather than its police power in enacting the debarment statute does

not significantly lessen the inherent potential for conflict when

two separate remedies are brought to bear on the same activity.” 21

Garmon preemption must extend to all types of state regulation that

conflicts with federal labor relations law, whether that is by

state statute, or state judicial supervision, whether in litigation

between parties to the labor relationship or between downstream

injured persons and parties to the labor relationship.

B

We have previously stated that Garmon preemption is required

when a state cause of action poses “a serious risk of conflict with

national labor policy.” 22 The Court has directed that we look not

to the effect on labor-management relations of allowing a

par ticular claim to proceed, but rather to conflict in the23 Garmon , 359 U.S. at 242 (“The nature of the judicial process precludes

an ad hoc inquiry into the special problems of labor-managem ent relations

involved in a particular s e t of occurrences in order to ascertain the precise

nature and degree of the federal-state conflict.”).

24 Gould

, 475 U.S. at 286 (quoting Garmon

, 359 U.S. at 247 ("[T]o allow the

S tate to grant a remedy

... which has been withheld from the Nati onal Labor

Relations Board only accentuates the danger of conflict ....”)).

9 “broadest sense.” 23 G ould reminds us that adding state remedies or

penalties to the mix wo uld be a “conflict” necessitating

preemption. 24

The plaintiffs take a narrow view of what constitutes such a

conflict and argue that the federal and state legal regimes cannot

be in conflict in this case, since a violation of the TRO is, of

course, a violation of federal law. If the two regimes are not

contradictory, they reason, there can be no p reemption. This

argument cannot stand in light of G ould

. In G ould the plaintiff

was being punished by the state remedial scheme for its violations

of federal labor law. There was no contradiction between the two

regimes, only a supplementation of the federal remedial scheme by

the state. Therefore, the plaintiffs’ niggardly view of “conflict”

itself conflicts with the Supreme Court’s decision in Gould , and

must be rejected.

Garmon preemption does not dep end on the merits of an

adjudication of the conduct’s legality under federal labor law—both

prohibited and protected conduct are shielded from liability under

state law. Plaintiffs argue, however, and the district court

agreed, that the TRO put the APA on notice that its conduct was2 5 Gould

, 475 U.S. at 283-84 (finding that Garmon required pree mption of

statutory regime that punished firms that “found by judicially enforced orders

of the National Labor Relations Board to have violated the NLRA in three separate

cases within a 5 year period.”); see also Sears, Roebuck, and Co. v. San Diego

County Dist. Council of Carpenters

, 436 U.S. 180, 187 (1978) (distinguishing

those activities that are “arguably” prote cted or prohibited from those, even

more deserving of preemption, where “it is clear or may fairly be assumed that

the subject matter which the state court sought to regula te ... is either

prohibited or protected by the Federal Act.” (internal quotation omitted)).

26 See Sheet Metal Workers Local Union No. 54, AFL-CIO v. E.F. Etie Sheet

Metal Co.

, 1 F. 3d 1464, 1470 (5th Cir. 1993) (“That inquiry requires not only

looking to the factual bases of each controv ersy, but also examining the

interests protected by each claim and the relief requested.”).

10 illegal, and therefore Garmon preemption is not needed to vindicate

t he goals of federal labor law. We must disagree—if conduct is

clearly

protected or prohibited by federal labor law, to our eyes

the case for preemption is stronger. 2 5 Consequentially, the

issuance of the TRO, indicating that the sick-out was likely to be

found illegal under the RLA, only enhances the case for preemption

of the state claim here. The concern of G armon is not so much with

the righting of labor wrongs, the concern of the labor relations

laws themselves, as with the uniformity and singularity of remedy

provided by federal law. It is a national labor policy—as this

case makes vivid.

T he district court also found that attaching liability t o

post-TR O conduct that violates state law will not meaningfully

disrupt labor-management relations—that is, that it wil l not

seriously harm the federal regulatory scheme for labor relations.

Garmon pre emption requires the balancing of state interests with

federal regulatory interests. 26 However, irrespective of the state27 Cf. Local 926, Int’l Union of Operating Engineers AFL-CIO v. Jones

, 460

U.S. 669, 689 (1983) (Rehnq u ist, J., dissenting) (“There can be no doubt that

safeguarding the integrity of contractual relations is an interest of paramount

importance in an economy such as ours.”).

28 See, e.g., Farmer, 430 U.S. at 304-05 (refusing to preempt state claim

of intentional infliction of emotional distress arising out of discrimination in

hiring hall practices because proof of state claim required proof of “outrageous

conduct” and the “potential for interference is insufficient to counterbalance

the legitimate and substantial interest of the State in protecting its

citizens”) ; Belk napp v. Hale , 463 U.S. 491, 510-12 (1983) (holding breach of

contract and misrepresentation claims by replacement workers against employer not

preempted even though conduct was arguably prohibited by NLRA because the Board

would focus on strikers’ rights, not replacement workers’ rights); Windfield, 890

F.2d at 769-70 (refusing to preempt state claims a r ising out of employer’s

personal guarantee to former employee because they require d only a “discrete,

narrow inquiry into the relationship between [the employee] and his former

employer.”).

29 The plaintiffs argued in the district court that their claims based upon

pre-TRO conduct were not Garmon preempted, but the district court held that those

claims were preempted, and the plaintiffs do not appeal that determination.

11 interest in protecting private parties from interference with their

freedom of contract, 27 the activities here are so fundamental that

Garmon preemption must immunize them from state tort liability if

the RLA structure is to be preserved. While courts have refused to

apply Ga rmon preemption to state tort claims that served

substantial state interests and did not threaten interference with

the federal regulatory scheme, 28 this is not our case. Slicing the

claim i nto before and after the TRO does not change the reality

that the state law is being asked to take hold of the same

controversy as the federal labor laws.

Finally, we are not persuaded by the plaintiffs’ effort to

distinguish the p re-TRO conduct of the APA from its post-TRO

cond uct. 2 9 “It is the conduct being regulated, n ot the formal

description of governing legal standards

, that is the proper focus30 Lockridge

, 403 U.S. at 292 (emphasis added) (applying Garmon preemption

to a state law claim for breach of contract arising out of a union’s

discrimination against the plaintiff).

31 Northside Realty Associates, Inc. v. United States

, 605 F.2d 1348, 1356-

57 (5th Cir. 1979) (holding that compensatory damages for nonparties could not

be granted as part of Government’s remedy in civil contempt proceeding against

real estate corporation).

12 of concern.” 30 The existence of a TRO does not transform conduct

c onstituting a work-stoppage, and therefore central to federal

labor relations law, into conduct falling outside of the ambit of

Garmon

. We note also that any effort to characterize this suit as

arising out of a violation of the TRO encounters an additional

blockade—the pl aintiffs are not entitled to any remedy for

violation of a TRO to which they are not a party. 31

III

The APA also argues that the plaintiffs’ claims are preempted

by the Airline Deregulation Act. Since we have concluded that

those claims are Garmon preempted, we need not reach the question

of ADA preemption.

IV

Becau se the plaintiffs’ state law claims of tortious

interference with c ontract are G armon preempted, we REMAND this

case to the district court and instruct that the claims be

DISMISSED with prejudice.13