The HONORABLE LEVIN H. CAMPBELL, United States Circuit Judge *

for the First Circuit, sitting by designation.

1

________________

No. 95-3080

________________

Michael Luecke, *

*

Plaintiff-Appellant, * Appeal for the United States 

* District Court for the Eastern

v. * District of Missouri. 

*

Schnucks Markets, Inc., a *

Missouri Corporation. *

*

Defendant-Appellee. *

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Submitted: January 9, 1996

 Filed: June 4, 1996

________________

Before WOLLMAN, CAMPBELL, , and MURPHY, Circuit Judges. *

CAMPBELL, Senior Circuit Judge.

Plaintiff-appellant Michael Luecke appeals from a district court

order granting summary judgment to defendant-appellee Schnuck Markets, Inc.

("Schnuck") on the ground that plaintiff's state law defamation action is

preempted by section 301 of the Labor Management Relations Act (LMRA).

Based on our reading of the Supreme Court's rule in Lingle v. Norge Div.,

Magic Chief, 486 U.S. 399 (1988), and related cases, we reverse.

I.
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Luecke, a Schnuck employee and member of Local 88 of the United Food

and Commercial Workers, injured his hand while working on November 10,

1992. He reported to a medical facility selected by Schnuck to have his

hand bandaged, and then was asked to disrobe completely in order to give

a urine sample, pursuant to Schnuck's new unilaterally adopted drug and

alcohol policy (effective September 14, 1992). The policy, which was

written and disseminated to employees, provided in relevant part: "[I]f

an Associate has an 'on the job accident' which results in a lost time

situation there will be a blood test and/or urinalysis test as a routine

part of the investigation of the circumstances present at the time of the

accident." Schnuck says it adopted the policy pursuant to article 5 of its

collective-bargaining agreement, which grants management the right to

direct its work force. 

Luecke says that he offered to produce a urine sample with his

clothes removed except for the part of his shirt around his bandaged wrist.

This apparently was unacceptable to medical personnel. Luecke left without

giving a urine sample. That afternoon, Jenise Kramer, a Schnuck manager,

called Luecke's house and was told that he was not there. Luecke says that

Kramer then informed his wife, without knowing who she was, that Luecke had

"refused" to take a drug test, and that his employment would be terminated

within 24 hours if he did not take one. Kramer offers a somewhat different

version of this conversation in an affidavit; she says that after medical

personnel informed her that Luecke had refused to take a drug test, she

tried to contact him at home and spoke with someone "who eventually

identified herself as being Mr. Luecke's wife." Kramer left a message

whose "substance" was that after being involved in a work-related accident,

Luecke had "failed to have a drug test," and "if he failed to take a drug

test as soon as possible, his employment could be terminated."

Kramer and Luecke spoke on November 11, and the following day, Luecke

took a drug test. As the results were negative, no
 As complete diversity was not satisfied here, the presence 1

of a federal question was necessary for a proper removal.

3

discipline followed. Thereafter, Kramer and other Schnuck employees are

said by Luecke to have published within and without the company the

allegedly false statement that Luecke had "refused" to take a drug test.

In October 1994 Luecke sued Schnuck in state court, alleging

defamation based upon Kramer's communication to Luecke's wife, and Kramer's

and other employees' publication of Luecke's alleged refusal to take a drug

test. Schnuck removed the action to federal court, arguing that

plaintiff's claim arose under section 301 of the LMRA, which confers

federal jurisdiction over actions for a breach of a contract between an

employer and a labor organization. Schnuck then moved to dismiss the

action, or in the alternative, for summary judgment, contending that

plaintiffs' claim was preempted, was time-barred, and failed to state a

cause of action. The district court granted summary judgment to Schnuck,

finding that plaintiff's state law defamation claim was preempted by

section 301 of the LMRA. This appeal followed.

II. Discussion

We review a grant of summary judgment de novo to determine whether

the record shows "that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law."

Fed.R.Civ.P. 56(c). In so doing, we construe the facts in the light most

favorable to the non-movant, plaintiff.

The dispositive question is that of subject matter jurisdiction. In

removing the case to federal court, the defendant asserted federal question

jurisdiction on the theory that the LMRA preempted plaintiff's state law

defamation claim. Plaintiff countered that the claim was not preempted

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and that the case should
4

be returned to the state court.

For federal question jurisdiction, the federal question generally

must appear on the face of the complaint. See Caterpillar, Inc. v.

Williams, 482 U.S. 386, 392 (1987). An exception to this rule, often

applied in labor cases, holds that when "an area of state law has been

completely pre-empted, any claim purportedly based on that pre-empted state

law is considered, from its inception, a federal claim, and therefore

arises under federal law." Id. at 393 (emphasis supplied). Applying this

exception, the district court held that plaintiff's defamation claim was

"inextricably intertwined" with the terms of Schnuck's collectivebargaining agreement with its employees, and was therefore preempted by

section 301 of the LMRA. See id. at 394 ("Section 301 governs claims

founded directly on rights created by collective-bargaining agreements, and

also claims 'substantially dependent on analysis of a collective-bargaining

agreement.'") (internal citation omitted). The district court held that

the statements challenged by Luecke "involve the ongoing employment

relationship between plaintiff and defendant and concern a work-related

injury and its subsequent investigation. As such, they are governed by the

grievance procedures set forth in the collective-bargaining agreement."

The court also quoted from an early settlement letter to Schnuck from

Luecke's attorney, who referred to the statements in question as occurring

"[a]s a result of Schnucks' attempt to enforce a drug testing policy in

violation of the Collective Bargaining Agreement with Local 88."

Concluding that the case was properly removed, the court granted summary

judgment in defendant's favor on preemption grounds.

The Supreme Court has made clear that a state law claim is
 Section 301 provides: 2

(a) Suits for violation of contracts between an employer

and a labor organization representing employees in an

industry affecting commerce as defined in this chapter,

. . . may be brought in any district court of the United

States having jurisdiction of the parties . . . .

29 U.S.C. § 185(a).

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preempted by section 301 only if the claim is "inextricably intertwined" 2

with the terms of a collective-bargaining agreement. Allis-Chalmers Corp.

v. Lueck, 471 U.S. 202, 213 (1985). The unanimous Court has stated, "[A]n

application of state law is pre-empted by § 301 of the Labor Management

Relations Act of 1947 only if such application requires the interpretation

of a collective-bargaining agreement." Lingle, 486 U.S. 399 at 413

(footnote omitted); see also Livadas v. Bradshaw, 114 S. Ct. 2068, 2078

(1994) ("[W]e were clear [in Lingle] that when the meaning of contract

terms is not the subject of dispute, the bare fact that a collectivebargaining agreement will be consulted in the course of state-law

litigation plainly does not require the claim to be extinguished[.]")

(citing Lingle, 486 U.S. at 413 n.12). The proposition follows that "a

state law claim may involve analysis of the same set of facts as a claim

arising under the collective bargaining agreement without compelling

preemption." Hanks v. General Motors Corp., 906 F.2d 341, 343 (8th Cir.

1990) (citing Lingle, 486 U.S. at 407-408). 

In Lingle, an employee's state-law action against her employer

alleging that she was discharged in unlawful retaliation for claiming

worker's compensation benefits was declared to be independent of the

collective-bargaining agreement even though the agreement expressly

prohibited discharge without proper or just cause and provided a grievance

procedure to resolve any disputes over the interpretation or application

of the agreement. Lingle, 486 U.S. at 401-402. The Court explained that

the pertinent factual inquiry in the state retaliatory discharge action did

not turn on any term of the agreement, but rather on the employee's
 Although subsection (1) of MAI 23.10 generally governs

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defamation claims brought by a private plaintiff, the elements

stated here are derived from 23.10(2), which applies when a

defendant's statements are qualifiedly privileged. At oral

argument, the defendant's counsel said that Schnuck would assert a

qualified privilege defense. To the extent this defense is

applicable, plaintiff would carry an additional burden of showing

that the defamatory statements were made with malice. Carter v.

Willert Home Products, Inc., 714 S.W.2d 506, 513 (Mo. banc 1986).

6

conduct and the employer's conduct and motivation. See id. at 407.

Because resolution of the state-law action did not require an

interpretation of the collective-bargaining agreement, allowing it to be

independently brought was "consistent both with the policy of fostering

uniform, certain adjudication of disputes over the meaning of collectivebargaining agreements and with cases that have permitted separate fonts of

substantive rights to remain unpre-empted by other federal labor-law

statutes." Id. at 410-411.

In light of the foregoing, we conclude that the district court erred

in holding that plaintiff's state defamation action was preempted. Luecke

alleges in the action that Kramer and other Schnuck employees, acting

within the scope of their authority, published false statements with total

disregard for their falsity, injuring his reputation in the community and

business profession. To recover damages under state law, Luecke will need

to establish that Kramer or other employees stated that he had "refused"

to take a drug test, that the statements were false and were made with

knowledge of or reckless disregard as to their falsity, that they were

heard by others, and that they tended to expose Luecke to hatred or

ridicule and damaged his reputation. Nazeri v. Missouri Valley College,

860 S.W.2d 303 (Mo. banc 1993); Missouri Approved Instruction (MAI)

23.10(2). Keeping in mind the central factual inquiry -- what was said

3

to whom, whether it was false and knowingly or recklessly so, and whether

damages resulted -- we look to see whether an interpretation of the

collective-bargaining agreement will be required in order to resolve the

state claim. 
 In ascertaining whether the state action will require an

4

interpretation of the collective-bargaining agreement, we consider

probable defenses as well as the claim itself. See Hanks v.

General Motors Corp., 859 F.2d 67, 70 (8th Cir. 1988).

 The parties have not included in the record on appeal a

5

complete copy of the collective-bargaining agreement in effect at

the time this action arose. We accordingly limit our review to the

provisions relied upon by Schnuck in support of preemption.

 Cf. Schlacter-Jones v. Gen. Tel., 936 F.2d 435, 441 (9th

6

Cir. 1991) (employee's state law claims were preempted by section

301 where the "allegations turn on the propriety of [the company]'s

Drug Policy and cannot be assessed without examining the CBA to

determine whether the Drug Policy was a valid term and condition of

employment[]"); Jackson v. Liquid Carbonic Corp., 863 F.2d 111,

118, 121 (1st Cir. 1988) (employee's state law claims were

preempted by section 301 where "[t]he central thesis of his suit

questions whether [the employer]'s drug-testing protocol was

reasonable[]" in light of the union's cession of authority to the

employer to conduct medical examinations and to post reasonable

rules), cert. denied, 490 U.S. 1107 (1989).

7

The answer, on the record here, is "no."

Schnuck contends that resolution of the defamation claim and its

defenses depends upon interpreting two articles of the collective4

bargaining agreement "and/or policies implemented pursuant to that

agreement." First, Schnuck argues that it adopted the drug testing policy,

enforcement of which underlay the allegedly defamatory statements, pursuant

to authority conferred in article 5 of the agreement, giving management the

right to direct its work force, "including the right to plan, direct and

control operation, . . . [and] suspend and discharge for proper cause."

Second, article 6 establishes grievance procedures to be followed for "any

differences, disputes or complaints aris[ing] over the interpretation or

application of the contents of this Agreement." Conferences are pursued

first, then arbitration if necessary.5

But this is not a case where the state-law defamation complaint

attacks the propriety of Schnuck's drug policy or Schnuck's right to

require drug tests. What is challenged is the 6
8

employer's alleged dissemination to others of supposedly false information,

i.e., that plaintiff had refused to submit to the test. Plaintiff's

counsel reiterated at oral argument that his client did not challenge

Schnuck's right to require its employees to be tested. Nor is plaintiff

contesting management's right to suspend or discharge an employee for

failure to take the test. Luecke took the drug test, passed it, and was

not suspended or discharged. Resolving Luecke's defamation claim will not

depend upon construing article 5: no express or implied term in that

provision guides the factual inquiry into whether the speakers actually

said Luecke refused to take the test, whether their statements were false,

whether malice attached, and whether damages resulted. See Hawaiian

Airlines, Inc. v. Norris, 114 S. Ct. 2239, 2248 (1994) (reiterating

Lingle's holding that a state law claim involving "purely factual

questions" that do not turn upon the terms of a collective-bargaining

agreement are not preempted by section 301); see also Hanks, 906 F.2d at

345 (tort claims against employer who required employee to work with a

person who sexually abused her daughter were not preempted, as "none of the

terms or provisions of that agreement shed any light on the appropriateness

of [the employer's] conduct[]"); Tellez v. Pacific Gas & Elec. Co., 817

F.2d 536, 538 (9th Cir.) (defamation claim against employer who distributed

a suspension letter saying employee had bought drugs on the job was not

preempted, as claim did not assert rights under the collective-bargaining

agreement, and the agreement did not require management to send such a

letter or provide guidelines if such a letter was sent), cert. denied, 484

U.S. 908 (1987). 

Neither is Luecke's claim dependent upon a construction of article

6, which sets forth grievance procedures. As in Lingle, these procedures

are available for a broad range of disputes, and the mere possibility that

Luecke could file a grievance on these same facts does not dictate that his

claim is preempted. See Lingle, 486 U.S. at 408-410; Hanks, 906 F.2d at

345 ("The crucial issue under Allis-Chalmers is not whether a claim can be

taken
 Luecke's counsel stated in an early settlement letter that 7

the defamatory statements occurred "[a]s a result of Schnuck's

attempt to enforce a drug testing policy in violation of the

Collective Bargaining Agreement with Local 88." The letter was

written a few months after the union filed its grievance regarding

that policy. The complaint, filed almost two years later, contains

no indication that the drug testing policy was being challenged in

the action, and Luecke's counsel expressly confirmed at oral

argument that it was not.

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through the grievance process but whether the state law tort claim being

asserted purports to give meaning to the terms of the labor contract.")

(citing Keehr v. Consolidated Freightways, Inc., 825 F.2d 133, 137 (7th

Cir. 1987)). Here, the state law defamation action will not, to any

material degree, give meaning to the terms of article 5 or 6. The record

shows that the union grieved the implementation of the drug testing policy

pursuant to article 5. Luecke is not repeating that effort; he represents

that he has no intention to do so. 

7

Schnuck nevertheless maintains that the state action would require

interpreting article 6, because permitting Luecke to bring a defamation

action in state court opens the door to other employees doing the same and

forgoing arbitration. The short answer to this is that employees are not

required to use grievance procedures exclusively, in preference to state

lawsuits, so long as a parallel state action does not require interpreting

the collective-bargaining agreement. Lingle, 486 U.S. at 408-410.

Nor do Schnuck's likely defenses depend upon an interpretation of the

collective-bargaining agreement. Schnuck says that it will assert a

defense of qualified privilege which will require reference to the

agreement. To make out such a defense, Schnuck would have to show that an

otherwise defamatory statement was made in good faith by a speaker who had

an interest in or duty with respect to the subject matter, to a person

having a corresponding interest or duty. Carter v. Willert Home Products,

Inc., 714
 The recent collective-bargaining agreement provides that

8

company records "shall be kept in strict confidence, and neither

said records nor the contents thereof shall be disseminated to any

third party except upon written authorization by the Associate, or

to the extent required by law, or to the extent required by the

Company for use in any proceeding involving the Associate."

10

S.W.2d 506, 513 (Mo. banc 1986) (citation omitted). 

Schnuck contends that in speaking to Luecke's wife, its manager,

Jenise Kramer, was carrying out her duty to ensure compliance with the drug

testing policy. Her communications, the argument goes, were simply made

in good faith furtherance of Schnuck's right to control the work force

under article 5. However, Luecke's defamation claim does not deny that

Kramer was acting pursuant to authority granted by Schnuck, nor that

Schnuck had a right to control its work force. What plaintiff contests is

Kramer's right to pass along to his wife or others the allegedly false

information about his refusal to be tested. Article 5, however, said

nothing about the procedures to be followed in conducting investigations

and enforcing policies of the employer. The collective-bargaining

agreement in effect at the time this action arose made no mention whatever

of a drug testing policy or of procedures for enforcement, nor did it

impose any requirement of confidentiality. 

We recognize that, since the incident in question, Schnuck has

expressly incorporated the drug testing policy into its current collectivebargaining agreement. The new agreement apparently contains language

prohibiting dissemination of records or their contents to any third party

except with the employee's written consent or for other limited reasons.8

We need not, and do not, decide whether a defamation claim of the type

brought here would be preempted under these express terms; it is enough

that the earlier controlling agreement was entirely devoid of such terms.

To be sure, two months before the present incident, management had
 See Jimeno v. Mobil Oil Corp., 66 F.3d 1514 (9th Cir. 1995) 9

(refusing to imply into collective-bargaining agreement a

unilaterally adopted, unwritten termination policy followed in

practice for years, absent clear and unmistakable evidence that the

union accepted the policy and waived its members' rights under

state law); but cf. Schlacter-Jones, 936 F.2d at 440 ("A drug and

alcohol testing program is a working condition 'whether or not it

is specifically discussed in the [collective-bargaining

agreement].") (citation omitted); Jackson, 863 F.2d at 120 (viewing

a unilaterally passed drug testing policy as a "working condition"

within the scope of a collective-bargaining agreement, to be

evaluated for reasonableness, where union had accepted employer's

authority to conduct medical examinations and to pass "reasonable"

rules).

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unilaterally promulgated a written drug testing policy which included the

same confidentiality provision. But absent its incorporation within the

collective-bargaining agreement -- or absent incorporation of a compatible

management rights clause, e.g., covering the performance of medical

examinations, or some longstanding practice or custom from which to infer

incorporation 

-- we do not believe that Schnuck's unilateral adoption of the policy

rendered its language, in these circumstances, a literal part of the

agreement for purposes of the test set out in Lingle. We conclude that

9

while the provisions of the collective-bargaining agreement will perhaps

be "consulted," they need not be interpreted in order to resolve any

qualified privilege defense that Schnuck may raise in the state defamation

proceeding. See Livadas, 114 S. Ct. at 2079 ("the bare fact that a

collective-bargaining agreement will be consulted in the course of statelaw litigation plainly does not require the claim to be extinguished")

(citing Lingle, 486 U.S. at 413 n.12).

The instant case is distinguishable from Johnson v. Anheuser Busch,

Inc., 876 F.2d 620 (8th Cir. 1989), in which an employee accused by coworkers of slashing tires in a company lot was discharged for violating

plant rules. He grieved the discharge, was reinstated, and then brought

multiple tort claims, including libel and slander, against his employer and

co-workers. This
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circuit held that the libel claim against the employer was preempted by

section 301. Because the allegedly false accusations resulted in the

employee's discharge for violating specific misconduct rules, consideration

of the collective-bargaining agreement was needed to ascertain whether the

discharge was wrongful. See id. at 624. The slander claim against the coworkers was also preempted, because the allegedly false accusations

"relate[d] to a dispute over an event occurring at the workplace and would

be governed by the grievance procedure" in the agreement. Id. However,

the libel claim against a co-worker was not preempted, because the elements

of that claim did not require construction of any term of the agreement.

See id. at 625.

Unlike Johnson, Luecke's claim against his employer does not depend

on construing a term of the collective-bargaining agreement. Luecke

ultimately took the required drug test, which was negative, and no

discharge or other discipline resulted. The allegedly defamatory statement

by Kramer was part of the company's attempt to enforce Schnuck's drug

testing policy, but the collective-bargaining agreement then in effect said

nothing about such a policy or its enforcement, or even about some more

general management right to require medical examinations to ensure

employees' fitness. But cf. Strachan v. Union Oil Co., 768 F.2d 703, 705

(5th Cir. 1985) (holding that suspended employees suspected of drug use

were preempted from suing their employer for defamation and other torts,

where "[t]he issues concerning the medical examinations and involving the

blood and urine tests are clearly within the power of the company under the

collective bargaining agreement to insist upon medical examinations when

there is doubt as to the physical condition of an employee at work[]"); see

also Bagby v. General Motors Corp., 976 F.2d 919 (5th Cir. 1992) (holding

that defamation claim arising out of temporary suspension of worker was

preempted, where employer followed specific disciplinary procedures in

collective-bargaining agreement and company policy). 
13

As we find that Luecke's defamation action is not preempted by

section 301, there is no federal question authorizing federal jurisdiction

over the case. We remand the case to the district court with instructions

to remand it to the state court from which it was removed.

So ordered.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.