### The HONORAB LE 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. *

_______________ Submitted: January 9, 1996 Filed: June 4, 1996

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

CAMPBELL, Senior Circuit Judge

.

Pl aintiff-appellant Michael Luecke appeals from a district cour t order granting summary judgment to defendant-appellee Schnuck Markets, Inc

. ("Schnuck") on the gr ound 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.

### 2 Luecke, a Schnuck employee and membe r 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 u rine sample, pursuant to Schnuck's new unilaterally adopted drug an d alcohol policy (effective September 14, 1992). The policy, which wa s written and disseminated to employees, provided in relevant part: "[I]f

an Assoc iate has an 'on the job accident' which results in a lost tim e situation there will be a blood test and/or urinalysis test as a routine part of the investiga tion of the circumstances present at the time of the accident." Schnuck says it adopted the policy pursuant to article 5 of it s col lective-bargaining agreement, which grants management the right t o direct its work force.

Lueck e says that he offered to produce a urine sample with hi s clothes removed except for the part of his shirt around his bandaged wrist

. This apparently was unacceptable to medical personnel. Luecke left withou t 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 tha t Kramer then informed his wife, without knowing who she was, that Luecke ha d "refused" to take a drug test, and that his empl oyment would be terminated within 24 hours if he did not take one. Kramer offers a somewhat differen t version of this conve rsation in an affidavit; she says that after medical personnel informed her that Luecke had refused to take a drug test, sh e tried to contact him at home and spoke with someone "who eventuall y ident ified herself as being Mr. Luecke's wife." Kramer left a messag e 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 L uecke to have published within and without the company th e allegedly false statement that Luecke had "refused" to take a drug test.

In October 1994 Luecke sued Schnuck in state court, allegin g 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 dru g te st. Schnuck removed the action to federal court, arguing tha t plai ntiff's claim arose under section 301 of the LMRA, which confer s federal jurisdiction over actions for a breach of a contract between a n employer a nd a labor organization. Schnuck then moved to dismiss th e action , or in the alternative, for summary judgment, contending tha t pla intiffs' claim was preempted, was time-barred, and failed to state a cause of action. The district court granted summary judgment to Schnuck, findin g that plaintiff's state law defamation claim was preempted b y section 301 of the LMRA. This appeal followed.

II. Discussion

We revi ew a grant of summary judgment de novo to determine whethe r 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 questio n jurisdiction on the theory that the LMRA preempted plaintiff's state law defamat ion claim. Plaintiff countered that the claim was not preempte d 1 and that the case should

### 4

be returned to the state court.

For federal question jurisdiction, the federal question generall y must appe ar on the face of the complaint. See Caterpillar, Inc. v . Wil liams , 482 U.S. 386, 392 (1987). An exception to this rule, ofte n applied in labor cases, holds that when "an area of state law has bee n completely pre-empted , any claim purportedly based on that pre-empted stat e law is considered, from its inception, a federal claim, and therefor e arises under federal law." Id. at 393 (emphasis supplied). Applying this exception, the district court held that plaintiff's defamation claim was "inextricablyintertwined" with the terms of Schnuck's collective

bargai ning agreement with its employees, and was therefore preempted b y section 3 01 of the LMRA. See id. at 394 ("Section 301 governs claim s founded directly on rights created by collective-bargaining agreements, an d also claims 'substantially dependent on analysis of a collective-bargainin g agreement.'") (internal citation omitted). The district court held that the s tatements challenged by Luecke "involve the ongoing employmen t relationship between plaintiff and defendant and concern a work-relate d injury and its subsequent investigation. As such, they are governed by th e griev ance procedures set forth in the collective-bargaining agreement. " The court also quoted from an early settlement letter to Schnuck fro m Luecke's attorney, who referred to the statement s in question as occurring "[a]s a r esult of Schnucks' attempt to enforce a drug testing policy i n violat ion 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 con tracts between an employer and a labor organization representing employees in a n industry affecting commerce as defined in this chapter, . . . may be brought in any di strict court of the United States having jurisdiction of the parties . . . . 29 U.S.C. § 185(a).
5 preempted by section 301 only if the claim is "inextricably intertwined" 2 with the terms of a collective-bargaining agreem ent. Allis-Chalmers Corp.

v. Lueck , 471 U.S. 202, 213 (1985). The unanimo us Court has stated, "[A]n applicati on of state law is pre-empted by § 301 of the Labor Managemen t Relations Act of 1947 only if such application r equires the interpretation of a collective-bargaining agreement." Lingle , 486 U.S. 399 at 41 3 (footnote omitted); see also Livadas v. Bradshaw , 114 S. Ct. 2068, 207 8 (1994 ) ("[W]e were clear [in Lingle ] that when the meaning of contrac t ter ms is not the subject of dispute, the bare fact that a collective

bargai ning agreement will be consulted in the course of state-la w litiga tion plainly does not require the claim to be extinguished[.]" ) (citing L ingle , 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

ar ising under the collective bargaining agreement without compellin g preemption." Hanks v. General Motors Corp. , 906 F.2d 341, 343 (8th Cir. 1990) (citing Lingle , 486 U.S. at 407-408).

In Lin gle , an employee's state-law action against her employe r allegi ng that she was discharged in unlawful retaliation for claimin g worker 's compensation benefits was declared to be independent of th e col lective-bargaining agreement even though the agreement expressl y prohibited discharge without proper or just caus e and provided a grievance procedure to resolve any disputes over the interpretation or application of the agreement. Li ngle , 486 U.S. at 401-402. The Court explained that the pertinent factual inquiry in the state retaliatory discharge action di d not turn on any term of the agreement, but rather on the employee's

### Although subsection (1) of MAI 23.10 generally govern s 3 

### de famation claims brought by a private plaintiff, the element s stated here are derived from 23.10(2), which applies when a defen dant's statements are qualifiedly privileged. At ora l argument, the defendant's coun sel said that Schnuck would assert a qualified privilege defense. To the extent this defense i s 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 a nd the employer's conduct and motivation. See id. at 407

. Becaus e resolution of the state-law action did not require a n interpretation of the collective-bargaining agreement, allowing it to be indepe ndentlybrought was "consistent both with the policy of fosterin g uniform, certain adju dication of disputes over the meaning of collectivebargaining agreements and with cases that have p ermitted separate fonts of
su bstantive rights to remain unpre-empted by other federal labor-la w statutes." Id. at 410-411.
In light of the foregoing, we conclu de that the district court erred in holding that plaintiff's state defamation act ion was preempted. Luecke alleges in the action that Kramer and other Schnuck employees, actin g within the scope of their authority, published f alse statements with total disregard for their f alsity, injuring his reputation in the community and business profession. To recover damages under s tate 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 wit h knowl edge of or reckless disregard as to their falsity, that they wer e heard by others, and that they tended to expose Luecke to hatred o r 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 sai d

3 to whom, whether it w as false and knowingly or recklessly so, and whether damages r esulted -- we look to see whether an interpretation of th e collective-bargaining agreement will be required in order to resolve the state claim.

### In ascertaining whether the state action will require a n 4 

### interpretation of the collecti ve-bargaining agreement, we consider probabl e 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 (9t h 6 

### Cir. 1991) (employee's state law claims were preempted by section 301 where the "allegations turn on the propriety of [the com pany]'s Drug Policy and cannot be assessed without examining the CBA t o determine whether the Drug Policy was a valid term and condi tion of empl oyment[]"); Jackson v. Liquid Carbonic Corp. , 863 F.2d 111 , 118 , 121 (1st Cir. 1988) (employee's state law claims wer e preempted by section 301 where "[t]he central thesis of his sui t questions whether [the employer]'s drug-testing protocol wa s reasonable[]" in light of the union's cession of authority to the empl oyer to conduct medical examinations and to post reasonabl e 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 it s defenses depends upon interpreting two articles of the collective

4 bargaining agreement "and/or policies implemented pursuant to tha t agreement." First, Schnuck argues that it adopted the drug testing policy , enforcement of which underlay the allegedly defamatory statements, pursuan t to authority conferred in article 5 of the agreement, giving management th e 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 procedur es 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 complain t atta cks the propriety of Schnuck's drug policy or Schnuck's right t o 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 challeng e Schnuck's right to require its employees to be tested. Nor is plaintiff contes ting management's right to suspend or discharge an employee fo r 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 dep end upon construing article 5: no express or implied term in tha t provis ion guides the factual inquiry into whether the speakers actuall y said Luecke refused to take the test, whether th eir statements were false, whethe r malice attached, and whether damages resulted. See Hawaiia n Airlines, Inc. v. Norris , 114 S. Ct. 2239, 2248 (1994) (reiteratin g Lingle 's holding that a state law claim involving "purely factua l questio ns" that do not turn upon the terms of a collective-bargainin g 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 th e terms or provisions of that agreement shed any light on the appropriatenes s of [the employer's] conduct[]"); Tellez v. Pacific Gas & Elec. Co. , 81 7 F.2d 536, 538 (9th Cir.) (defamation claim against employer who distribute d
a suspens ion letter saying employee had bought drugs on the job was no t preempted, as claim d id not assert rights under the collective-bargaining agree ment, and the agreement did not require management to send such a letter or provide guidelines if such a letter wa s sent), cert. denied , 484 U.S. 908 (1987).

Neither is Luecke's claim dependent upon a construction of articl e 6, which sets forth g rievance procedures. As in Lingle , these procedures are available for a broad range of disputes, andthe mere possibility that Luecke could file a grievance on these same facts does not dictate that hi s claimis 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 

### th e defamatory statements occurred "[a]s a result of Schnuck' s attempt to enforce a drug testing policy in violation of th e Collec tive Bargaining Agreement with Local 88." The letter wa s written a few months after the union filed its grievance regarding that policy. The complaint, filed almost two years later, c ontains no indication that the drug te sting policy was being challenged in the ac tion, and Luecke's counsel expressly confirmed at ora l argument that it was not.
9 through the grievance process but whether the state law tort claim being asserted purports to give meaning to the terms of the labor contract." ) (ci ting Keehr v. Consolidated Freightways, Inc. , 825 F.2d 133, 137 (7t h Cir. 1 987)). Here, the state law defamation action will not, to an y 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

Sc hnuck nevertheless maintains that the state action would requir e interp reting article 6, because permitting Luecke to bring a defamatio n action in state court opens the door to other em ployees 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 doe s 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 collec tive-bargaining agreement. Schnuck says that it will assert a defens e of qualified privilege which will require reference to th e 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 inter est in or duty with respect to the subject matter, to a perso n having a corresponding interest or duty. Carter v. Willert Home Products, Inc. , 714

### The recent collective-bargaining agreement provides tha t 8 

### com panyrecords "shall be kept in strict confidence, and neithe r said records nor the contents thereof shall be disseminated to any third party except upon writte n authorization by the Associate, or to the extent required by law, or to the extent required by th e 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 dru g testing policy. Her communications, the argument goes, were simply made in go od faith furtherance of Schnuck's right to control the work forc e under article 5. However, Luecke's defamation claim does not deny tha t Kram er was acting pursuant to authority granted by Schnuck, nor tha t 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 fals e informatio n about his refusal to be tested. Article 5, however, sai d nothing about the procedures to be followed in conducting investigations and enforcing policies of the employer. The collective-bargainin g agreement in effect at the time this action aros e made no mention whatever of a drug testing policy or of procedures for enforcement, nor did i t impose any requirement of confidentiality.

We recognize that, since the incident in question, Schnuck has expressly incorporated the drug testing policy into its current collective

bargain ing agreement. The new agreement apparently contains languag e prohibiting dissemina tion of records or their contents to any third party except wit h the employee's written consent or for other limited reasons. 8 We need not, and do not, decide whether a defamation claim of the typ e brought here would be preempted under these express terms; it is enoug h that the earlier cont rolling 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 unilaterallyadopted, unwritten termination policy followed i n practice for years, absent clear and unmistakable evidence t hat the union accepted the policy and waived its members' rights unde r 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-bargainin g agreement].") (citation omitted); Jackson , 863 F.2d at 120 ( viewing a unilaterally passed drug tes ting policy as a "working condition" within the scope of a collective-bargaining agreement, to b e evaluated for reasonableness, where union had accepted employer's authority to conduct medical e xaminations and to pass "reasonable" rules).
11 unilaterally promulga ted a written drug testing policy which included the
same confidentiality provision. But absent its incorporation within the collective-bargaining agreement -- or absent inc orporation of a compatible manag ement rights clause, e.g. , covering the performance of medica l examinations, or some longstanding practice or custom from which to infer incorporation

-- we do n ot believe that Schnuck's unilateral adoption of the polic y rend ered its language, in these circumstances, a literal part of th e agre ement for purposes of the test set out in Lingle

. We conclude tha t 9 while the provisions of the collective-bargaining agreement will perhaps be " consulted," they need not be interpreted in order to resolve an y qualified privilege defense that Schnuck may rai se 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 statelawlitigation plainly does not require the claim to be extinguished" ) (citing Lingle , 486 U.S. at 413 n.12).

The insta nt case is distinguishable from Johnson v. Anheuser Busch, Inc. , 8 76 F.2d 620 (8th Cir. 1989), in which an employee accused by co

workers of slashing tires in a company lot was discharged for violatin g plant rules. He grieved the discharge, was reinstated, and then brought multiple tort claims, including libel and slander, against his employer an d co-workers. This

### 12

circuit held that the libel claim against the employer was preempted b y section 301. Because the allegedly false accusations resulted in th e employee's discharge for violating specific misconduct rules, consideratio n of the collective-bargaining agreement was neede d to ascertain whether the discharge was wrongful. See id. at 624. The slander claim against the co

worke rs was also preempted, because the allegedly false accusation s "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 element s of that claim did not require construction of any term of the agreement. See id. at 625.

Unlike Jo hnson , Luecke's claim against his employer does not depend
on con struing a term of the collective-bargaining agreement. Lueck e ultimate lytook the required drug test, which was negative, and n o discharge or other discipline resulted. The allegedly defamatory statemen t by Kramer was part of the company's attempt to enforce Schnuck's dru g testing policy, but the collective-bargaining agreement then in effect sai d nothing a bout such a policy or its enforcement, or even about some mor e general management right to require medical examinations to ensur e employees' fitness. But cf. Strachan v. Union Oil Co. , 768 F.2d 703, 705 (5t h Cir. 1985) (holding that suspended employees suspected of drug us e
were preempted from suing their employer for defamation and other torts, where "[t]he issues c oncerning the medical examinations and involving the blood and urine tests are clearly within the power of the company under th e collective bargaining agreement to insist upon medical examinations when there is doubt as to the physical condition of an employee at work[]"); se e also Bagby

v. General Motors Corp. , 976 F.2d 919 (5th Cir. 1992) (holding tha t defamation claim arising out of temporary suspension of worker wa s pree mpted, where employer followed specific disciplinary procedures i n collective-bargaining agreement and company policy).

### 13 As we find that Luecke's defamation action is not preempted b y section 301, there is no federal question author izing federal jurisdiction over the case. We remand the case to the distri ct 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.