* Pursuant to 5 TH C IR

. R. 47.5, the court has determined th a t

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-41588

_____________________

ANTHONY VOLENTINE; HARRY C. ANDERSON;

JASON W. APODACA; ARTHUR M. ARNOLD, JR.;

JOE E. ASHCRAFT; ET AL.,

Plaintiffs-Appellants,

versus

BECHTEL, INC.; MOBIL CHEMICAL CO.,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(1:98-CV-1609)

_________________________________________________________________ February 9, 2000

Before JOLLY, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge: *

The 308 plaintiffs, construction workers and union members,

were fired by C. A. Turner Contractors, their employer--allegedly

because of pressure from the defendants Bec htel, the general

con tractor, and Mobil, the owner--when they took unauthorized,

organized breaks spec i fically forbidden by orders of Bechtel.

After losing their unfair la bor practice charges before the

National Labor Relations Board, the plaintiffs have now sued the

defendants based on state law claims of tortious interference with

contract, conspiracy to interfere with contract, and intentional2

infliction of emotional distress. The district court dismissed the

complaint on summary judgment, holding that the plaintiffs’ claims

were preempted under § 8 of the National Labor Relations Act. For

the reasons that follow, we affirm.

I

In August 1996, Mobil began its Olefins Expansion Project in

Beaumont, Texas. Mobil had hired Bechtel, Inc. as the general

contractor , and Bechtel had hired Turner as a subcontractor for

construction work. On April 9, 1998, Bechtel’s construction site

manager for the project, Sam Stoddard, sent a letter to its

subcontractors, informing them that the company would no l onger

allow organized mass breaks or o rganized break areas because of

alleged abuse of those breaks. Bechtel continued to allow for nonmass breaks necessary for worker safety, though Bechtel explained

that the subcontractors would have to pay for that break time

themselves.

On April 13, almost all of Turner’s employees dec ided to

di sregard the order and continued their practice of taking mass

breaks. Turner fired the employees taking the breaks that day.

The plaintiff employees, however, did not surrender.

On April 14, Pipe Fitters Local Union No. 195 filed an unfair

labor practice charge against Bechtel, alleging v i olations of

§ 8(a)(1), (3), and (5) of the NLRA by “eliminat[ing]

. . .

established, organized work breaks” and discriminatorily

terminating employees “because of their membership in and/or1 The plaintiffs also alleged that the “[d]efendants set about

to accomplish their obj ective by making false and misleading

accusations against the Plaintiffs and disparaging the reputations

of the Plaintiffs.” Because these alleged activities were part of

the alleged scheme to obtain the firing, we will not treat them as

separate from the central allegation that the defendants forced the

firing.

3 activities on behalf of their collective bargaining

representative.” On April 20, the International Union of Operating

Engineers, Local 450, and the Texas Laborers’ District Council and

Laborers’ 80 each filed the same charges against Bechtel. The

charges were later amended to assert identical allegations against

Mobil. After investigating these charges, the National Labor

Relations Board refused to issue a c omplaint against Bechtel or

Mobil.

After the failure of their NLRA claims, t he 308 individual

plaintiffs filed suit in Texas state court for t ortious

interference with contract, conspiracy to interfere with contract,

and intentional inflic tion of emotional distress. In their

interference with contract claims, the plaintiffs charged that the

defendants “willfully and intentionally set about to cause or force

C. A. Turner Cons truction Company to terminate its contracts of

employment with Plaintiffs.” 1 The plaintiffs’ intentional

infliction claim merely asserted that this same tortious conduct

had caused them to suffer emotional distress.

The defendants removed the case to federal district court and

later moved for summary judgment. The court granted that motion on4

the grounds that § 8 of the NLRA preempted the state law claims.

The plaintiffs appeal.

II

We must first determine whether federal jurisdiction is

appropriate in this case. Because removal is an issue of statutory

construction, we review a district court’s determination of the

propriety of removal de novo. V asquez v. Alto Bonito Gravel Plant

Corp. , 56 F.3d 689, 692 (5th Cir. 1995)( quoting Leffall v. Dallas

Ind. Sch. Dist.

, 28 F.3d 521, 524 (5th Cir. 1994). We impose upon

t he removing [party] the burden of establishing the existence of

subject matter jurisdiction. Id.

The district court allo wed the defendants’ removal motion

based on federal question and diversity jurisdiction pursuant to 28

U.S.C. §§ 1331 and 1332, though either ground would have been

sufficient to establish fed eral jurisdiction. We begin with

diversity.

There are two requirements for establishing diversity

ju risdiction: (1) diversity of citizenship and (2) an amount in

controversy over $75,000. 28 U.S.C. § 1332. Here, the defendants

admitted citizenship in Nevada, California, New York, and Virginia.

The defendants then asserted “on information and belief” that all

308 plaintiffs were citizens of Texas. The plaintiffs have failed

t o demonstrate that this was incorrect. Because unrebutted

allegations of citizenship in a removal petition based on

information and belief i s sufficient to satisfy the removal2 Although the defendants’ removal motion listed the amount in

controversy as $50,000, we treat that as an oversight based on an

old version of 28 U.S.C. § 1332. Regardless, it is the complaint

that is important for determining the amount in controversy, not

the defendants’ removal motion.

3 The De Augilar panel speculated about how a plaintiff might

do so:

Plaintiff’s state complaint might cite, for example, to

5 statute, Jones v. Newton , 775 F.2d 1316, 1317-18 (5th Cir. 1985),

the defendants have satisfied the first requirement for diversity

jurisdiction.

With respect to the amount in controversy, damages are

measured based on what is pled, not the relative likelihood of

actually securing a particular award. See Horton v. Liberty Mut.

Ins. Co ., 367 U.S. 348, 353, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961);

National Union Fire Ins. Co. of Pittsburgh v. Russell

, 972 F.2d

628, 630 (5th Cir. 1992). When the complaint does not allege a

specific amount of damages, the removing party must prove by a

preponderance of the evidence that the amount in controversy

excee ds $75,000. A llen v. R&H Oil & Gas Co.

, 63 F.3d 1326, 1335

(5th Cir. 1995). 2 The court should first look to the complaint to

determine whe ther it is “facially apparent” that the plaintiffs’

claims are likely to exceed that amount. I d. At that point,

jurisdiction is proper, unless the plaintiffs can establish that it

is “legally certain” that the claim is for less than the

jurisdictional amount. D e Aguilar v. Boeing Co.

, 47 F.3d 1404,

1412 (5th Cir. 1995). 3a state law that prohibits recovery of damages that

exceed those requested in the ad damnum clause and that

prohibits the initial ad damnum t o be increased by

amendment. Absent such a statute, “[l]itigants who want

to prevent remo val must file a binding stipulation or

affidavit with their complaints.”

De Aguilar

, 47 F.3d at 1412 (quoting In re Shell Oil Co.

, 970 F.2d

355, 356 (7th Cir. 1992)(per curiam)).

6 It is apparent from the plaintiffs’ Third A mended Complaint

that they are suing individually rather than based on a single,

common injury. For that reason, aggregation of actual damages

among the various plaintiffs is not possible in order to meet the

$75,000 requirement. Z ahn v. International Paper Company

, 414 U.S.

291, 294-95, 94 S.Ct. 505, 508-09, 38 L.Ed.2d 511 (1973). Each

plaintiff’s claim must satisfy that amount for us to have diversity

jurisdiction over his or her claims. Id.

In this case, the plaintiffs did not allege a specific amount

of damages. Instead, they asserted

a loss of income both in the past and in the future, the

total destruction of their relationship with their former

employer, C. A. Turner Construction Company, and

devastating damage to their precautions within the market

of their chosen trade. Plaintiffs have all been

seriously damaged in their ability to secure alternative

employment, resulting not only in loss of income and lost

earning capacity, but in serious emotional distress and

mental anguish occasioned by the loss of personal esteem

resulting from their lack of work or opportunity to

continue to work.

If proven, it would be reasonable to conclude that these damages

wo uld meet the $75,000 threshold, especially given the severity4 We are only concerned with actual damages and do not reach

the as yet unresolved question in this circuit of whether punitive

damages under Texas law may be aggregated in order to establish

diversity jurisdiction. Compare Ard v. Transcontinental Gas Pipe

Line Corp.

, 138 F.3d 596, 602 (5th Cir. 1998)(no aggregation under

Louisiana law) with Allen v. R&H Oil & Gas Co.

, 63 F.3d 1326,

1332-35 (5th Cir. 1995)(aggregation under Mississippi law).

5 Section 8(a) of the NLRA is codified at 29 U.S.C. § 158 and

reads, in relevant part:

It shall be an unfair labor practice for an employer--

(1) to interfere with, restrain, or coerce employees in

the exercise of the rights guaranteed in § 157 of this

title. . .

(3) by discrimination in regard to hire or tenure of

employment or any term or condition of employment to

encourage or discourage membership in any labor

organization. . .

(5) to refuse to bargain collectively with the

representatives of his employees, subject to the

provisions of § 159(a) of this title.

Section 7, codified at 29 U.S.C. § 157 and referred to in § 8,

7 alleged. 4 The plaintiffs conceded as much in their Third Amended

Petition: “This court has jur isdiction inasmuch as the amount in

controversy exceeds the minimum jurisdictional limits of the

Court.” Because the plaintiffs have made no attempt to establish

that it is “legally certain” that the amo unt would be less, we

believe that the plaintiffs’ clai ms satisfy the $75,000

requirement, and that we therefore have diversity jurisdiction over

these claims.

III

A

The plaintiffs next take issue with the district court’s

determination that § 8 of the NLRA 5 preempted their tortiousreads:

Employees shall have the right to self-organization, to

form, join, or assist labor organizations, to bargain

collectively through representatives of their own choosing, and to engage in other concerted activities for

the purpose of collective bargaining or other mutual aid

or protection, and shall also have the right to refrain

from any or all of such activities except to the extent

that such right may be affected by an agreement requiring

membership in a labor organization as a condition of

employment as authorized in § 158(a)(3) of this title.

8 interference with contract, conspiracy to interfere with contract,

and intentional infliction of emotional distress claims under Texas

law. Whether a claim is preempted is an issue of law that we

review de novo

. W indfield v. Groen Division, Dover Corp.

, 890 F.2d

764, 766 (5th Cir. 1989)( citing Vincent v. Trend Western Technical

Corp , 828 F.2d 563, 569 (9th Cir. 1987).

B

In San Diego Building Trades Council, Millmen’s Union, Local

2020 v. Garmon , 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775

(1959), the Supreme Court enunciated a rule of preemption for state

law based claims that touched on area s covered by federal

regulation under the NLRA:

When an activity is arguably subject to § 7 or § 8 of the

Act, the States as well as the federal courts must defer

to the exclusive competen ce of the National Labor

Relations Board if the danger of state interference with

national policy is to be averted.

Garmon

, however, prov ided for exceptions to this broad “arguably

subject” test when the chall enged conduct is a mere “peripheral

concern” of federal labor law or touches “deeply rooted” local9

interests. I d. at 243-44. Subsequent cases have refined the

Garmon preemption doctrine and these exceptions. The most notable

o f these cases is S ears, Roebuck & Co. v. San Diego County Dist.

Council of Carpenters

, 436 U.S. 180, 197-98, 98 S.Ct. 1745, 56

L.Ed.2d 209 (1978), where the Court held:

The critical inquiry . . . is not whether the State is

enforcing a law relating specifically to labor relations

or one of general application but whether the controversy

presented to the state court is identical to . . . that

which could have been

. . . presented to the Labor Board.

This case, however, was s omewhat ambiguous because the court did

not suggest the analysis for determining when “controversies” might

be considered “identical.”

During the 1983 term, the Court analyzed two separate cases

using the Sears framework that provide useful guidance. In Local

926, International Union of Operating Engineers AFL-CIO v. Jones

,

460 U.S. 669, 682, 103 S.Ct. 1453, 75 L.Ed.2d 368 (1983), the Court

looked to whether the controversies were the same “in a fundamental

respect.” In that case, the plaintiff brought NLRB and state law

claims charging that a union had coerced his employer to fire him

because he was not a member of that union in good standing.

Because both controversies centered on whether a discharge was due

to union influence, the state law claims were preempted. Id. In

Belknap, Inc. v. Hale

, 463 U.S. 491, 103 S.Ct. 3172, 77 L.Ed.2d 798

(1983), on th e other hand, the Court focused not just on the

central essence of the two claims, but instead examined

similarities in the factual bases of each, t he interests each6 In Belknap

, the plaintiffs were replacement workers who sued

the ir employer for misrepresentation and breach of contract,

claiming that the defendant corporation had hired them as permanent

employees but then fired them when it agreed to a contract with the

striking union. The Court held that the claims were not preempted.

NLRA claims arising from these facts would have raised only the

rights of the strikers being infringed by the offer to the

replacement workers. The state claim, on the other hand, was based

on the rights of the replacement workers for damages irrespective

of the rights of strikers. Moreover, reinstatement was not a

remedy available under state law but was under federal law.

10 sought to protect, and the relief requested as part of each one.

Id. at 510-11. 6

Both of these cases have been important in Garmon preemption

analysis in this circuit. S ee

, e.g.

, Sheet Metal Workers Local

Union No. 54, AFL-CIO v. E. F. Etie Sheet Metal Co ., 1 F.3d 1464,

1470 (5th Cir. 1993)(relying on both standards); Hobbs v. Hawkins

,

968 F.2d 471, 476 (5th Cir. 1992)(relying on the “fundamental

respect” criterion); Windfield v. Groen Division, Dover Corp.

, 890

F.2d 764 (5th Cir. 1989)(discussing both standards).

C

With each of these precedents offering some guidance, we turn

to consider the claims for tortious interference with contract and

conspiracy to interfere with contract that are before us. Thus, in

Jones

, 460 U.S. 669, we note that the Supreme Court held that state

claims for tortio us interference with contract can be preempted

under the Garmon doctrine. On the same basis, claims for

conspiracy to interfere with contract may also be preempted. But7 The mere fact that the plaintiffs initially filed claims

based on these same facts with the NLR B can be influential in

finding preemption. That strongly suggests that the controversies

are the same. S ee Parker v. Connors Steel Co.

, 855 F.2d 1510, 1517

(11th Cir. 1988)(“By initially pursuing relief with the NLRB, the

employees have implicitly recognized the Board’s jurisdiction over

their claims.”)

11 Jones does not stand for the proposition that either cause of

action is always preempted.

We think that this case bears a close resemblance to Jones in

that both the NLRB and state law claims are fundamentally the same.

In the NLRB proceeding, the unions charged that Bechtel and Mobil

had forced C.A. Turner to eliminate the breaks without consulting

with the respective unions, and then to fire them for continuing to

take those breaks. The plaintiffs made the same claim in state

court--that the defendants forced C. A. Turner to fire them for

taking en mass breaks. This issue is central to both claims and

would be the focus of inquiry bot h before the NLRB and the court

reviewing the state law claims.

Using the framework from Belknap bu ttresses the conclusion

that the controversies are the same. Both controversies arise from

the same set of facts--the defendants’ alleged conduct in obtaining

the firing of C.A. Turner ’s employees. 7 The interests in each

action were the same--the right of the employees to keep their jobs

after staging what amounted t o an organized walkout. It is true

that the remedies sought are somewhat different--back pay and other

job-related losses, plus reinstatement in the NLRB action, and in8 Another consideration determining whether this case falls

within the ambit of the NLRA is the relationship between the

defendants and plaintiffs. We believe that Bechtel, as a general

contractor, and Mobil, as the ultimate employer, have a sufficient

indicia of an e mployment relationship with the plaintiffs that

their alleged conduct arguably falls under the NLRA. Given the

nature of the work on the Mobil project, the plaintiffs’

allegations as to the day-to-day influence that the defendants had

over their work, the relationship between the plaintiffs as union

members engaging in a partial strike activity to enforce a previous

term of employment, and the defendants urging that they be fired

for that activity, we conclude that their interaction a rguably

falls under the governance of the NLRA. We have previously

acknowledged that a contractor may be liable to its subcontractors’

employees for anti-union actions even though it was not the

proximate employer. See Texas World Svc. Co. v. NLRB , 928 F.2d

1426 (5th Cir. 1991).

12 the state law proceeding, damages, which would include economic

losses plus non-economic-based damages. But that is frequently, if

not always, the case in such preemption questions that involve

administrative remedies as opposed to state court r emedies. By

itself, however, that is not enough to distinguish materially

between the NLRB charges and the interference-with-contract claims.

We thus conclude that the claims are essentially the same for

purposes of federal preemption. 813 D

Just as with tortious interference claims, the NLRA may, based

on the same rationale, preempt claims for intentional infliction of

emotional distress. S ee Smith v. Houston Oilers, Inc.

, 87 F.3d

717, 721 (5th Cir. 1996). Courts have recognized, however, an

exception to Garmon preemption when claims rest on extreme and

outrageous conduct that is unrelated to an unfair labor practice:

Simply s tated, it is essential that the state tort be

either unrelated to employment discrimination or a

function of the particularly abusive manner in which the

discrimination is accomplished or threatened rather than

a function of the actual or threatened d iscrimination

itself

Farmer v. United Bd. of Carpenters

, 430 U.S. 290, 305, 97 S.Ct.

1056, 51 L.Ed.2d 338 (1977)(footnote omitted). In F armer

, the

plaintiff, a union member, alleged that the defendants, a union and

union officials, had intentionally engaged in “‘outrageous conduct,

threats, intimidation, and words’ which caused [the plaintiff] to

suffer ‘grievous mental and emotional dis tress as well as great

physical damage.’” I d. The plaintiff attempted to prove that the

union’s campaig n against him included “frequent public ridicule”

and “incessant verbal abuse,” although the opinion does not discuss

exactly what he alleged occurred. The Court declined to preempt

that state law claim. Instead, the Court held that the potential

interferenc e with federal concerns was minimal because the tort

issue could be adjudicated without resolution of the underlying

labor dispute. Id. What little potential interference there was14

insufficient to counterbalance the legitimate and substantial state

interest in protecting its citizens. Id.

In this case, the plaintiffs’ Third Amended Complaint

established the tortious interference claim as follows:

The con duct referred to above [in the sections setting

out the tortious-interference and co nspiracy-to-interfere

claims] engaged in by Defendants is outra geous and was

intended to inflict emotional suffering and distress upon

the Pl a intiffs. The above alleged tortious conduct

[related to interference with contract] on the part of

the Defendants did in fact cause the Plaintiffs to suffer

from emotional distress and mental anguish.

The intenti onal infliction of emotional distress claimed here is

itself the actual firing, not the manner in which that firing

occ urred. There is a strong potential for interference with

federal law for that reason. Thus, the Farmer exception does not

apply, and the tortious interference claim is also preem pted by

federal law.

IV

We turn finally to the plaintiffs’ contention that the

existence of genuine issues of material fact should have prevented

the district court from granting summary judgment on the issue of

preemption. We can find no disputed factual issues, however, that

should have prevented the district court from ruling on the

defendants’ summary judgment motion, nor ha ve the plaintiffs

pointed to any. Their one suggestion is that the “Defendants’

motive for interfering with Appellants’ employment contracts” was

disputed. But that does not alter our preemption analysis.15

Whatever the motive prompting the defendants to seek the firings,

the plaintiffs’ state law and NLRB claim s arise out of the same

facts and at their core are essentially the same. Because we have

determined that th e district court’s legal determination with

respect to preemption was proper, so was its summary judg ment

determination.

V

For the reasons stated herein, the district court’s decision

is

A F F I R M E D.