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. e du/thir dc ir c uit_1996/115UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 95-7457

PENNSYLVANIA NURSES ASSOCIATION, Appe llant

v.

PENNSYLVANIA STATE EDUCATION ASSOCIATIO N; DEBRA FERGUSON; RICHARD LEWIS; JEFFREY LE WIS;
KAREN SCHRADER; ALFRED NELSON, JR.; THOMAS F ERGUSON

No. 95-7458

PENNSYLVANIA NURSES ASSOCIATION

v.

PENNSYLVANIA STATE EDUCATION ASSOCIATIO N; DEBRA FERGUSON; RICHARD LEWIS; JEFFREY LE WIS; KAREN SCHRADER; ALFRED NELSON, JR.; THOMAS F ERGUSON, App ellants

No. 95-7645

PENNSYLVANIA STATE EDUCATION ASSOCIATIO N; DEBRA FERGUSON; RICHARD LEWIS; JEFFREY LE WIS; KAREN SCHRADER; ALFRED NELSON, JR.; THOMAS F ERGUSON,

Pet itioners

v.

PENNSYLVANIA NURSES ASSOCIATION, Resp ondent

HONORABLE WILLIAM W. CALDWELL,

Nomin al RespondentOn Appeal from the United States District Court

for the Middle District of Pennsylvani a (District Court No. 94-cv-00880)

Argued May 20, 1996

Before: SLOVITER, Chief Judge,

SAROKIN and ROSENN, Circuit Judges

(Opinion Filed July 25, l996)

Thomas A. French (Argued) David F. O'Leary

Rhoads & Sinon Harrisburg, PA 17108-1146

Barbara J. Sapin

American Nurses Association Washington, DC 20024

Attorneys for Appellant in No. 95-7457, and Appellee in No. 95-7458

Robert H. Chanin (Argued)

National Educational Association Washington, DC 20036

Jonathan Walters

Markowitz & Richman Philadelphia, PA 19107

Attorneys for Appellees in No. 95-7457, Appellants in No. 95-7458,

and Petitioners in No. 95-7645

Todd J. Shill

Rhoads & Sinon Harrisburg, PA 17108-1146

Attorney for Respondent in No. 95-7645

OPINION OF THE COURT

SLOVITER, Chief Judge.The contesting parties in this case are tw o labor

organizations who vied for the right to represent t he nurses at eight health-care facilities in Pennsylvania and De laware. Pennsylvania Nurses Association (PNA), the organiza tion that had previously been the bargaining agent, filed an acti on asserting eleven state-law tort claims against the Pennsylvan ia State

Education Association and six individuals associate d with it, four of whom had previously been PNA's representati ves (collectively referred to as "PSEA"). The district court entered judgment on the pleadings for PSEA on nine of the c laims on the ground that they were preempted by the National Lab or Relations Act. It rejected PSEA's contention of preemption o n the remaining claims and remanded them to the state cou rt. PNA appeals the district court order to the extent that it entered judgment for PSEA. PSEA, as cross-appellant, appea ls from the disposition of the two surviving claims.

I.

PROCEDURAL HISTORY Because this appeal arises from the distri ct court's grant of a motion for judgment on the pleadings pur suant to Federal Rule of Civil Procedure 12(c), we accept as true the well-pleaded allegations in the complaint and draw all inferences therefrom in favor of PNA. United States v. City o f Philadelphia, 644 F.2d 187, 190 (3d Cir. 1980). Ac cordingly, we set forth the facts as PNA alleges them. PNA is both a professional association of nurses and a nurses' labor union; PSEA is a school employees' la bor union. Before June 30, 1993, PNA represented approximately 9,000 nurses through sixty local bargaining units in Pennsylvani a and Delaware. During that period, defendants Debra Fer guson, Richard Lewis, Jeffrey Lewis, and Karen Schrader worked for PNA as labor representatives. Sometime thereafter, these repres entatives decided that they no longer wanted to work for PNA and would be more likely to secure positions with another union if they could bring along with them the local PNA units they repr esented. Debra Ferguson, in particular, sought a position wi th PSEA, offering to bring with her as many of PNA's local u nits as possible. She accordingly developed a plan to work with PSEA to enlist the help of the other defendant PNA represen tatives in shifting PNA local units and their leadership away from PNA and

toward PSEA. PNA claims that to further the conspiracy that it alleges, PSEA sought authorization from its Board o f Directors to allow it to represent nurses as well as teachers; m et with the executive and negotiating committees of various PNA local units along with the labor representatives, who were stil l employees of PNA, to persuade them to disassociate from PNA and join PSEA; provided Debra Ferguson and the other named PNA rep resentatives with PSEA propaganda, election cards, and other mat erials to aid them in inducing PNA local units to join PSEA; held meetings with PNA local memberships and, with the defendant PNA representatives, spoke in favor of affiliating with PSEA instead of PNA; "produced and promulgated false, malicious, and defamatory propaganda designed to destroy the reput ation of PNA,"App. at 22; offered employment with PSEA as an ince ntive to Debra

Ferguson and the other defendant labor representati ves to assist in affiliating the PNA local units with PSEA; and s ought to induce other PNA labor representatives to leave PNA and become PSEA employees and to bring their local PNA units w ith them.

PNA also contends that the individual defe ndants who were its former labor representatives failed to neg otiate in good faith successor collective bargaining agreements on behalf of their PNA units, which enabled PSEA's subsequent ef forts to represent the units after the agreements expired; d isparaged the reputation of PNA and its officials to persuade uni t members to disassociate from the union; solicited unit members to sign election cards for PSEA representation; and engaged in disloyal activities including the creation and distribution of propaganda promoting PSEA at the expense of PNA. PNA originally filed its complaint in the Court of Common Pleas of Dauphin County, setting forth the f ollowing eleven state-law claims in separate counts against one or more of the defendants: I) breach of fiduciary duty, II) f raud and deceit, III) defamation, IV) commercial disparageme nt, V) unfair competition, VI) vicarious liability, VII) interfer ence with present contractual relations (between PNA and its former representatives), VIII) interference with present a nd prospective contractual relations (between PNA and its local un its), IX) interference with present and prospective contractu al relations (between PNA and health care employers), X) aiding and abetting, and XI) conspiracy. PNA sought compensatory and pu nitive damages.

PSEA removed the case to federal court on the ground that some of the claims were preempted by the Natio nal Labor Relations Act (NLRA), 29 U.S.C.  151-169, and/or the Labor Management Relations Act (LMRA), 29 U.S.C.  141-187, and moved for judgment on the pleadings on that basis. In an order dated June 6, 1995, and amended July 28, 1995, the distri ct court granted PSEA's motion, dismissing counts II, IV, V, VI, VII, VIII, IX, X and XI to the extent that they were bas ed on conduct covered by the NLRA, and denied the motion as to co unts I (breach of fiduciary duty) and III (defamation), concluding that these claims were not preempted. The court remanded the case to the state court for disposition of the two remaining cl aims. PNA appealed. PSEA cross-appealed and filed a petition for writ of

mandamus as an alternative. PNA has not challenged our jurisdiction ov er PSEA's cross-appeal, but we must consider the jurisdiction al question even where the parties are prepared to concede it. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (19 86); PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993). 28 U.S.C.  1447(d) states that "[a]n order remanding a case to the State

court from which it was removed is not reviewable o n appeal or otherwise." This bar to review, however, has been held to apply only to remand orders issued pursuant to 28 U.S.C.  1447(c), that is, where the case was remanded due to a defec t in the removal procedures or for lack of subject matter ju risdiction. Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712, 1718 (1996);Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 3 36, 346

(1976); Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 222 (3d Cir. 1995); Balazik v. County of Dauphin, 44 F.3d 2 09, 212-13 (3d Cir. 1995). Here, the district court relied upon t he discretionary ground stated in 28 U.S.C.  1367(c)(3), which permits a district court to decline to exercise sup plemental jurisdiction over state claims where it has dismiss ed all claims over which it has original jurisdiction. According ly, 28 U.S.C.

 1447(d) is inapplicable. See Trans Penn Wax, 50 F .3d at 224- 25; PAS, 7 F.3d at 352. Moreover, because the district court's rem and order

divested the federal court of all control over the action, our cases suggest that we would have jurisdiction under 28 U.S.C.  1291. See Powers v. Southland Corp., 4 F.3d 223, 2 31 n.9 (3d Cir. 1993); Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1211 n.6 (3d Cir.), cert. denied, 502 U.S. 908 (1991); C arteret Sav. Bank, FA v. Shushan, 919 F.2d 225, 228 n.7 (3d Cir. 1990); McLaughlin v. ARCO Polymers, Inc., 721 F.2d 426, 42 8 n.1 (3d Cir. 1983). The recent decision in Quackenbush supports this view. See 116 S. Ct. at 1719. In light of our decision t hat we have appellate jurisdiction, the petition for mandamus f iled in this

case is moot.

II.

DISCUSSION

A. NLRA Preemption

It is well established that state-law clai ms are presumptively preempted by the NLRA when they conce rn conduct that is actually or arguably either protected or pr ohibited by the NLRA, Belknap, Inc. v. Hale, 463 U.S. 491, 498 (1983), and by the LMRA when such claims rely upon an interpretati on of a collective bargaining agreement, Lingle v. Norge Di v. of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988). The general framework for determining whet her particular state-law claims are preempted by the NL RA remains that initially established by the Supreme Court in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 24 3-45 (1959), and more recently summarized as follows: [S]tate regulations and causes of action a re presumptively preempted if they concern co nduct that is actually or arguably either prohibited or protected by the Act. The state regulation or cause of action may, however, be sustained if the behavior to b e regulated is behavior that is of only peripheral con cern to the federal law or touches interests deeply ro oted in local feeling and responsibility. In such cases , the State's interest in controlling or remedying the e ffects of the conduct is balanced against both the inter ference with

the National Labor Relations Board's abili ty to adjudicate controversies committed to it b y the Act,

and the risk that the State will sanction conduct that the Act protects.

Belknap, 463 U.S. at 498-99 (citations omitted) (em phasis added);see also Local 926, Int'l Union of Operating Eng'rs v. Jones, 460

U.S. 669, 676 (1983). Either of the polarities of the Garmon ana lysis, arguable protection or arguable prohibition, will o rdinarily suffice. In this case, the district court examined both protection and prohibition under the NLRA in ruling on PSEA's preemption claim. The court rejected PSEA's argume nt that the conduct alleged was protected by the NLRA, concludi ng that "section 7 does not protect a labor union's conduct in secretly enlisting another union's labor representative in a scheme to defraud the latter union of its right to represent various groups of workers." PSEA does not challenge that holding on appeal. On the other hand, when the district court focused on the prohibition prong of the Garmon/Belknap formula tion it

concluded that the nine claims set forth in Counts II and IV through XI were preempted because they were arguabl y prohibited by two provisions of the NLRA, primarily section 8( b)(1)(A) but also section 9. Section 8(b)(1)(A) makes it "an un fair labor practice for a labor organization or its agents . . . (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in [section 7 of the NLRA]." See 29 U.S .C.  158(b). Section 7 protects employees' rights to organize an d, inter alia, to choose their bargaining agents. PNA argues that the conduct it alleges PSE A and the individual defendants engaged in was directed at PN A, rather than the nurses, and therefore the conduct must necessar ily have been unrelated to employees' organizational rights, whic h is the concern of section 7. We do not agree. Conduct wh ich undermines the union representing a unit of employees, and the reby induces those employees to change their affiliation, arguab ly "constrains or coerces" those employees in their ability to exe rcise their free choice of an exclusive representative. Indeed, in one of the various branches of the PNA/PSEA controversy, PNA itself filed an unfair labor pract ice charge with the NLRB, complaining that PSEA engaged in act ivities similar to those it asserts here at the Polyclinic Medical Center which interfered with PNA's collective bargaining a greement with that employer. The NLRB ruled that the conduct of both PSEA and the employer violated section 8 of the NLRA. See P olyclinic Medical Ctr., 315 N.L.R.B. 1257 (1995), enforced su b nom.Pennsylvania State Educ. Ass'n v. NLRB, 79 F.3d 139 (D.C. Cir. 1996). Both PNA's complaint and the Board's ruling illustrate the proposition that action targeted at a rival uni on may restrain employees in the exercise of their section 7 rights. Thus, even if the conduct here was directed at PNA, as it contends, rather than at the nurse-employees, it do es not follow that section 8(b)(1) rights were not impacted. Section 9 of the NLRA, the other provision the district court referred to as supporting its determination o f preemption, gives the NLRB jurisdiction over selection of the u nion bargaining representative. As part of that respons ibility, the NLRB has the authority to resolve disputes among co mpeting unions

and take action needed to ensure the workers' freed om of choice, including, if necessary, invalidation of an electio n. See NLRBv. Savair Mfg. Co., 414 U.S. 270, 276-79 (1974); We yerhaeuser

Co., 247 N.L.R.B. 978, 978 n.2 (1980). Inasmuch as the conduct of which PNA complains arises, in essence, from a d ispute or series of disputes between competing unions, each o f whom sought to be the employees' exclusive representative, we a gree with the district court that the conduct alleged may also ha ve affected rights under section 9 as well as section 8(b)(1).

Notably, for preemption purposes a court n eed not decide whether the conduct alleged would be deemed to be prohibited by the NLRA, since it is enough that the conduct upon which the state causes of action are based is "argu ably" prohibited. As the Court stated in Garmon, it is f or the NLRB, not the courts, to decide whether the particular co ntroversy falls within the scope of section 7 or 8 of the NLR A:
At times it has not been clear whethe r the particular activity regulated by the States was governed by  7 or  8 or was, perhaps, outside both these sections. But courts are not primary tribunals to adjudicate such issues. It is essential t o the administration of the Act that these

determinations be left in the first instan ce to the National Labor Relations Board.

. . . .

. . . In the absence of the Board's clear determination that an activity is neither protected nor prohibited or of compelling precedent applied to essentially undispute d facts, it is not for this Court to decide whether such activities are subject to sta te jurisdiction.

Garmon, 359 U.S. at 244-46. PNA suggests that even if the conduct alle ged is arguably prohibited by the NLRA, as the district co urt found, this is not a case in which preemption should be ap plied. The Supreme Court's cases have referred to two circ umstances in which state law is not preempted, even if the condu ct at issue is arguably protected or prohibited by the NLRA. Thos e exceptions apply if the alleged conduct is of only "peripheral concern" to the NLRA, or "touches on interests . . . deeply roo ted in local feeling and responsibility." Jones, 460 U.S. at 67 6 (citing Garmon, 359 U.S. at 243-44). In this case, it is evident that we could not characterize the conduct at issue as of "peripheral concern" to

the NLRA because it involves the core activities wi th which the Act is concerned: union organizing and the employe es' election of an exclusive bargaining representative. However , we must also

consider PNA's contention that this case falls with in the local interest exception. The Supreme Court has ordinarily applied t his exceptionin cases where the conduct alleged concerned activi ty

traditionally recognized to be the subject of local regulation, most often involving threats to public order such a s violence, threats of violence, intimidation and destruction o f property. See Lodge 76, Int'l Ass'n of Machinists v. Wisconsi n Employment Relations Comm'n, 427 U.S. 132, 136 (1976); Garmon, 359 U.S. at 247-48; see, e.g., UAW v. Russell, 356 U.S. 634 (19 58) (upholding state court jurisdiction to entertain action by emp loyee for harm resulting from strikers' threats of violence and ex clusion by force). The Court has extended this exception to c over acts of trespass, see Sears, Roebuck & Co. v. San Diego Cou nty Dist. Council of Carpenters, 436 U.S. 180, 190-98 (1978), and certain personal torts, such as intentional infliction of e motional distress, see Farmer v. United Bhd. of Carpenters, Local 25, 430 U.S. 290, 304-05 (1977), and malicious libel, see L inn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 57-63 (1966). At least with regard to the nine claims wh ich the district court found preempted (Counts II, IV, V, V I, VII, VIII, IX, X and XI), PNA has not demonstrated that any of these falls within the category of claims which the Court has d etermined "touch[] interests deeply rooted in local feeling a nd responsibility." Belknap, 463 U.S. at 498. Althou gh PNA claims that "in a free market economy that places economic actors in competition with one another, the states have a sub stantial interest in policing the market to ensure that free competition does not degenerate into the law of the jungle," Ap pellant's Brief at 40, when the competition is between unions such matters are the particular concern of the NLRA. PNA has ci ted no authority supporting its argument that market regul ation of competing labor organizations is a matter so rooted in local concern as to prevent preemption by the federal lab or laws. Even were we to conclude that the issue pr esented is one of particular state concern, the Court has caut ioned that in such circumstances, any state concern must be balan ced against the risk that the exercise of state jurisdiction ov er the tort claim would interfere with the regulatory jurisdict ion of the NLRB. Jones, 460 U.S. at 676 (whether targeted con duct implicates local interests "involves a sensitive ba lancing of any harm to the regulatory scheme established by Congre ss"); Sears, 436 U.S. at 188-89 (preemption decision turns on "t he nature of the particular interests being asserted and the eff ect upon the administration of national labor policies" of permi tting state court jurisdiction); Farmer, 430 U.S. at 297 (exami nation of both "the state interests in regulating the conduct in q uestion and the potential for interference with the federal reg ulatory scheme" informs exceptions to NLRA preemption). As the Court explained in Sears: The critical inquiry . . . is not whe ther the State is enforcing a law relating specific ally to labor relations or one of general application bu t whether the controversy presented to the state court i s identical to (as in Garner) or different from (as in Farmer) that which could have been, but was not, presen ted to theLabor Board. For it is only in the former situation

that a state court's exercise of jurisdict ion necessarily involves a risk of interferenc e with the unfair labor practice jurisdiction of the Board which the arguably prohibited branch of the Garm on doctrine was designed to avoid.

436 U.S. at 197. In the instant matter, much of the conduct forming the basis of the state tort claims also underlies the p otential unfair labor practice charges, and the same facts w ould need to be determined in each proceeding. This creates a r isk of conflicting rulings from the state court and the Bo ard, and

threatens state interference with the NLRB's enforc ement of national labor relations policy. See Jones, 460 U. S. at 682 (state claim preempted where fundamental element of claim also had to be proved to make out a case under  8 (b)(1)(B) of the NLRA). Because PNA's state claims would overlap w ith NLRB issues, this case is distinguishable from Sears, up on which PNA relies. In Sears, the employer filed a trespass ac tion in state court in an effort to end the union's picketing on its property. The Supreme Court rejected the union's claim that t he action was preempted, noting that the controversy regarding th e location of the picketing was unrelated to the issue Sears migh t have presented to the Board. To make out a state-law cl aim of trespass, Sears needed only to prove the location o f the Union's picketing. An unfair labor practice charge, on the other hand, would have focused on the objectives of the picketi ng, an issue "completely unrelated to the simple question whethe r a trespass had occurred." 436 U.S. at 198. Thus "permitting the state court to adjudicate Sears' trespass claim would cre ate no
realistic risk of interference with the Labor Board 's primary jurisdiction to enforce the statutory prohibition a gainst unfair labor practices." Id. Similarly, in Belknap, Inc. v. Hale, 463 U .S. 491 (1983), another case relied on by PNA, the issues p resentable in the two fora would have been unrelated. During a s trike the employer had made offers of permanent employment to the replacement workers, but after the strike was resol ved the employer laid off the replacement workers to make r oom for returning strikers. The fired replacement workers sued in state court for misrepresentation and breach of their emp loyment contracts. The Supreme Court concluded that the re placement workers' state court action was not preempted. It noted that issues as to whether the strike was to protest unfa ir labor practices and whether the employer was obliged to a ccept returning strikers were matters for the Board, wher eas the state court action there concerned the employer's obligat ions to replacement workers rather than union members one i ssue would not trench upon the others. The controversies before t he Board "would [not] have anything in common with the quest ion whether Belknap made misrepresentations to replacements tha t were
actionable under state law. The Board would be con cerned withthe impact on strikers not with whether the employe r deceived

replacements." Belknap, 463 U.S. at 510. Maintain ing the misrepresentation action therefore "would not inter fere with the Board's determination of matters within its jurisdi ction and . . . such an action is of no more than peripheral concern to the

Board and the federal law." Id. at 510-11. In the case before us, by contrast, the al legations that PSEA and the individual defendants sought to u ndermine PNA and influence the outcome of the nurses' representa tion election would be the focus of both the unfair labor practic e charges and PNA's state-law claims. The risk of conflicting ru lings and

interference with Board enforcement of national lab or policy is

evident. Having determined that the claim at issue here (1) involves activity that is actually or arguably proh ibited by the NLRA; (2) does not involve an issue deeply rooted i n local feeling and responsibility; and (3) would risk subs tantial interference with the jurisdiction of the NLRA were it litigated in the state courts, we conclude that Counts II, IV , V, VI, VII, VIII, IX, X and XI are preempted under the Garmon a nalysis. In reaching this conclusion, we reject P NA's attempt to replace the well-established Garmon analysis wit h an "identical controversy" test for preemption, which it urges this court to adopt based upon a statement in Sears and fragments of statements from other Supreme Court cases where the Court found no preemption. Building upon its argument that the intere sts protected by PNA's state claims are different than those invo lved in an unfair labor practice case because they concern the common law rights of PNA as an entity, not the collective barg aining rights of its members, PNA argues that the claims that wou ld be presented to the state court which involve PSEA's a lleged interference with the operations of PNA are not ide ntical to those that would be brought before the NLRB. There fore, PNA concludes that under its identical controversy test there is no preemption. PNA also emphasizes that the state cou rt could award it the $1,300,000 in damages it seeks for PSEA's al leged campaign to cripple and destroy PNA as a competitor, whereas the NLRB lacks authority to award such damages in an unfair labor practice proceeding. PNA thus insists that permitting its c laim to go forward in state court poses no risk of interferenc e with an NLRB proceeding. While a respected commentator has noted th at the Supreme Court's decisions in the labor preemption c ases since

1945 "have been somewhat unclear if not inconsisten t," Robert A. Gorman, Basic Text on Labor Law 766 (1976), we see no basis to hold, as PNA suggests, that the Supreme Court's mor e recent cases have replaced the analytic framework of Garmon and Belknap. Thus we see no justification for a court to abandon cons ideration of the threshold question, which is whether the matter at issue is peripheral to the concerns of the NLRA or a matter of particular local concern, and substitute therefor PNA's "ident ical controversy" test. As the district court recognized, a Board proceedingand a state-law cause of action will, by definition , deal with

different claims and if their lack of identity were conclusive, the state claims would never be preempted. This wo uld require us to abandon more than half a century of federal poli cy that places exclusive jurisdiction over issues of national labo r relations in the hands of the agency created by Congress to deal with them. Absent more explicit direction from Congress or the Supreme Court, we see no reason to do so.

PSEA also relies on the NLRA for its claim of preemption of yet another cause of action asserted by PNA, the claim for defamation in Count III. In that count, PNA alleges

that all of the defendants caused the dissemination of false and unprivileged statements to local PNA members, inten ding to destroy the reputation and good name of PNA in the professional community. The district court rejected PSEA's pree mption claim based on the Supreme Court's holding in Linn v. Uni ted Plant Guard Workers of America, Local 114, 383 U.S. 53 (1 966). In its cross-appeal, PSEA contends that Li nn is inapplicable. The lawsuit in Linn that was the subject o f the preemption issue had been brought by a managerial e mployee of the Pinkerton National Detective Agency, whose empl oyees were the subject of a union organizing campaign. Linn, an a ssistant general manager at Pinkerton, alleged that the unio n and the

other defendants distributed leaflets and other wri tten material containing defamatory material about him. The Supr eme Court rejected the argument that the suit was preempted, concluding instead that "where either party to a labor dispute circulates false and defamatory statements during a union orga nizing campaign, the court does have jurisdiction to apply state remedies if the complainant pleads and proves that the statements were made with malice and injured him." Id. at 55. PSEA contends that Linn is inapplicable be cause it

concerned defamation of an individual who would hav e had no opportunity to obtain relief from the NLRB, whereas PNA is not without remedy since it can ask the NLRB to overtur n the outcome of an election that may have been tainted by the al legedly defamatory statements. Despite the initial appeal of PSEA's argum ent, upon close reading of Linn we conclude that this argumen t must fail. Nothing in the Supreme Court's Linn decision sugges ts any
distinction between defamation of an individual and defamation of a labor union, nor did the Court suggest that the i njured party should be permitted to seek relief in only one foru m. To the contrary, the Court noted that in some situations i t would be appropriate for a defamed union to seek relief both in the state courts and from the Board. See 383 U.S. at 66 ("Wh en the Board and state law frown upon the publication of malicio us libel, albeit for different reasons, it may be expected th at the injured party will request both administrative and judicial relief."). Specifically, it acknowledged that "[a]n unsuccessf ul union would

. . . seek to set the election results aside as the fruits of an employer's malicious libel. And a union may be exp ected to request similar relief for defamatory statements wh ich contributeto the victory of a competing union." In such a si tuation, "the

courts and the Board [would not] act at cross purpo ses since, as we have seen, their policies would not be inconsist ent." Id. at 66-67. Insofar as PSEA's preemption argument as to the defamation cause of action rests on the identity of the victim,

Linn is conclusive. Alternatively, PSEA contends that the defa mation claim fails as a matter of law because the majority of th e alleged statements were merely expressions of opinion, and therefore PNA cannot prove that they are false, let alone made wi th knowledge or reckless disregard for their falsity. But it is plain that at least the statement that PNA "had been indicted by the United States Attorney's office for election fraud" was a statement of fact, see App. at 40, and some of the statements se t forth in paragraph 30 of the Complaint may also have been st ated as fact. Additionally, PNA met its burden of pleading that t he defendant employees made these statements with malice and kno wledge of their falsity. See App. at 46-48. Because we must accept the allegations of the complaint as true and construe a ll inferences in PNA's favor, we will not look beyond the pleadin gs to assess the viability of PNA's cause of action for defamati on but, rather, leave this task to the state court to which this cause of

action was remanded.

B. LMRA Section 301 Preemption In addition to its reliance on the preempt ive force of the NLRA, PSEA also claimed that the LMRA preempted Count I (breach of fiduciary duty) and Count II (fraud and deceit). The district court rejected PSEA's claim, although as noted earlier Count II was among the nine causes of action the court held were preempted by the NLRA. PSEA challe nges in its cross-appeal the court's ruling of non-preemption o f Counts I and II on LMRA grounds. The Supreme Court has explained the princi ple of preemption pursuant to  301 of the LMRA as follows:

if the resolution of a state-law claim dep ends upon the meaning of a collective-bargaining agreeme nt, the application of state law (which might lead to
inconsistent results since there could be as many state-law principles as there are States) is pre-empted and federal labor-law principles -- necess arily uniform throughout the Nation -- must be employed to resolve the dispute.

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399,405-06 (1988). See also Trans Penn Wax Corp. v. McCandles s, 50 F.3d 217, 228 (3d Cir. 1995). This principle extends bey ond suits alleging contract violations to suits grounded in t ort as well. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-11 (1985). Section 301 does not, however, "pre-empt state rule s that proscribe conduct, or establish rights and obligati ons, independent of a labor contract." Id. at 212. Onl y state-law rights and obligations that depend upon an interpre tation of thecollective bargaining agreement are preempted.

PSEA contends that these two state tort cl aims are preempted by the LMRA because their resolution turn s on an interpretation of the collective bargaining agreeme nt between PNA and the Professional Staff Organization (PSO), the union that represented four of the individual defendants -- De bra Ferguson, Richard Lewis, Jeffrey Lewis, and Karen Schrader (" employee defendants"). PSEA argues that any duties of loyalty and truthfulness on which PNA bases its claims against the employee defendants for breach of fiduciary duty and fraud could only have arisen out of PSO's collective bargaining agreement with PNA, whi ch was the exclusive contract governing the employee defendant s' relationship with PNA. A determination whether the employees had breached such duties would accordingly require inte rpretation of that agreement. The district court rejected this a rgument because it found nothing in the collective-bargaini ng agreement giving rise to the fiduciary duties allegedly breac hed. PSEA insists, however, that fiduciary duti es may be implied from the collective-bargaining agreement an d that the determination of an implied term in the agreement i s exclusively a matter of federal contract interpretation. See A llis-Chalmers, 471 U.S. at 215 ("The assumption that the labor con tract creates no implied rights is not one that state law may mak e. Rather, it is a question of federal contract interpretation wh ether there was an obligation under this labor contract to prov ide the payments in a timely manner, and, if so, whether [t he employer's] conduct breached that implied contract provision.")

. But Counts I and II of PNA's complaint are not grounded in the collective-bargaining agreement between PNA and PSO nor in any independent employment contracts between the em ployee defendants and PNA. Instead, these counts are base d on Pennsylvania common law which recognizes, under age ncy principles, a duty of loyalty by an employee to an employer. SeeSylvester v. Beck, 178 A.2d 755, 757 (Pa. 1962); SHV Coal, In c. v. Continental Grain Co., 545 A.2d 917, 920-21 (Pa. Super. Ct. 1988)(citing Restatement (Second) of Agency  394, 387, 400, 401), rev'd on other grounds, 587 A.2d 702 (1991). Even if PNA could have grounded its action on an implied duty in the agreement, it need not have don e so. As the Supreme Court has stated, "the plaintiff is the mas ter of the complaint," and "may, by eschewing claims based on federal law,

choose to have the cause heard in state court." Ca terpillar Inc. v. Williams, 482 U.S. 386, 398-99 (1987). Thus, "a plaintiff covered by a collective-bargaining agreement is per mitted to assert legal rights independent of that agreement." Id. at 396 (emphasis in original). Counts I and II therefore do not require an interpretation of the collective-bargaining agre ement and are not preempted by section 301. It follows that we fi nd no basis to support PSEA's cross-appeal on either of the ground s it asserts.

III.

CONCLUSION For the foregoing reasons, we will affirm the order of the district court, which dismissed nine of the cla ims assertedby PNA as preempted by the NLRA and, after holding that counts I

and III are not preempted, remanded those counts to state court. Each party to bear its own costs.

________________________

PENNSYLVANIA NURSES ASSOCIATION v. PENNSYLVANIA STA TE EDUCATION ASSOCIATION, et al. Nos. 95-7457/7458/7645

ROSENN, Circuit Judge, concurring and dissenting.

Except as to the Pennsylvania Nurses Assoc iation's (PNA's) allegations charging the defendants with in terfering with present and prospective contractual relations with local bargaining units and employers (Counts VIII and IX) , the remaining counts of the complaint allege that four PNA employees, while on PNA's payroll, betrayed their employer, en gaged in fraud and deceit, defamation, and other acts of personal misconduct inviolation of Pennsylvania's common law duty of basi c loyalty by

an employee to an employer. Several of these count s also charge the Pennsylvania State Education Association (PSEA) and some or all of the other defendants with unfair competition , commercial disparagement, conspiracy, and other conduct in vio lation of

state law. The majority opinion holds that the Labor Management Relations Act (LMRA) does not preempt the specific charges relating to breach of fiduciary duty (Count I) and fraud and deceit (Count II), and affirms the district court's order remanding Count I to state court. The majority con cludes: (1) that these counts are not grounded in either the co llective bargaining agreement between PNA and PSO nor in any independent contracts between the employee defendants and PNA; and (2) they do not require an interpretation of the collective bargaining agreement. I concur and also agree that there is n o basis to support the PSEA's cross-appeal. I concur further with the majority's concl usion that the NLRA does not preempt PNA's claim for defamatio n in Count III. I agree that the Supreme Court's decision in Linn v. United Plant Guard Workers of America, 383 U.S. 53 (1966) controls. On the other hand, the majority concludes that the remaining allegations are preempted by the National Labor Relations Act (NLRA). Except for Counts VIII and I X which are arguably preempted, I do not believe that the NLRA preempts the

other seven counts. Although the plan allegedly concocted by t he four former employees of PNA eventually enveloped the PS EA, the allegations, except as to Counts VIII and IX, have nothing

whatsoever to do with the core activities of the NL RA. These counts do not involve traditional union organizatio n activities, employees' election of an exclusive bargaining repr esentative, or unfair labor practices. Rather, they basically con cern forbidden conduct between employees and their employer, and a ctivities of a competing employer that is prohibited by common law , not by federal law. A state court's authority to resolve allegations of fraud, commercial disparagement, unfair competition , interference with employment contracts, and conspiracy in no way invades the central scheme of the NLRA. Because presentation o f these allegations to a state court does not offend federa l labor policy, I would reverse the judgment of the distric t court insofar as it held the remaining seven counts preem pted. I therefore respectfully dissent.

I. As does the majority, I accept as true the well-pleaded allegations in PNA's complaint and draw all inferen ces therefrom in favor of PNA. PNA is a professional association of registered nurses and a nurses labor union. Prior to June 30, 1993, it represented over 9000 nurses for collective bargain ing purposes in 60 local bargaining units (locals). These local s were located in private hospitals and public sector institutions in Pennsylvania and Delaware. PNA employed defendant Debra Ferguson as a laborrepresentative on February 1, 1983, to serve in its labor union

and collective bargaining program. As a labor repr esentative, she had the responsibility for, inter alia, organiz ing locals, negotiating collective bargaining agreements betwee n PNA and hospitals that employed their member nurses, and ad ministering and enforcing collective bargaining agreements thro ugh grievance and arbitration procedures. Her responsibilities a lso included communications between PNA and its locals, and prov iding for the cultivation and maintenance of organizational relat ionships between them. As a paid labor representative of PN A, she also had the duty to keep her employer apprised of local unit activities, to act honestly, in good faith and in t he best interests of PNA. This required that she take all necessary and appropriate measures to protect the PNA locals from raids by competing labor unions. PNA also hired the defenda nts Richard Lewis, Jeffrey Lewis, and Karen Schrader as labor r epresentatives

with similar duties. Apparently, sometime in the first half of 1993, these PNA employees decided that they wanted to become em ployed as labor representatives by some other labor union and determined that they would be able to achieve such employment more readily if they could bring with them PNA locals that they represented in their capacity as labor representatives of PNA. Th ey therefore undertook a program, although on PNA's payroll, to undermine their locals' relationship and loyalty to PNA by co nvincing them

to disaffiliate. Debra Ferguson had developed a strong inte rest in affiliating with PSEA, a labor union engaged in rep resenting school employees. Her husband, Thomas, formerly em ployed with PNA until 1988, was employed by PSEA as a labor rep resentative. Debra Ferguson sought to gain employment with PSEA by offering to bring with her as many PNA locals as possible. To do this, she developed a scheme, along with her husband and anot her PSEA representative, Alfred Nelson, to enlist the assist ance of Richard Lewis, Jeffrey Lewis, and Karen Schrader to sway the PNA local and their leadership from PNA to affiliation with PSEA, with each eventually becoming employed with PSEA. Under their plan, they would act as PSEA labor representatives to the former PNA locals. PSEA knowingly assented and collaborat ed, and Thomas Ferguson and Alfred Nelson actively assisted. PSEA offered employment to and actively assisted and encouraged Debra Ferguson and her three co-employees in their efforts to make the switch in

affiliation. Under federal law, PNA had the exclusive r ight to negotiate and enter into new collective bargaining agreements during the period of time from 90 days before the e xisting contract between PNA and the employers expired. In other words, during this 90-day period, prior to the expiration of a collective bargaining agreement, no competing union is permitted to interfere with PNA's exclusive right to bargain for a new agreement on behalf of its local. Only in the even t that a renewal contract is not reached prior to contract e xpiration could a competing union such as PSEA seek represent ation of the

local.Collective bargaining contracts between PN A and various

hospitals were scheduled to expire during July and August of 1993, and Debra Ferguson and her three co-labor rep resentatives led PNA to believe that they were faithfully negoti ating renewal agreements on behalf of PNA. They led PNA to belie ve that they were protecting its interests as exclusive bargaini ng agent for the locals. However, pursuant to the plan of the f our former employees and with the knowledge and active assista nce of PSEA's representatives, Debra Ferguson and the other plott ers, while still employed by PNA and presumably acting in its best interests, undertook to do the following: (1) They refrained from negotiating renewal agreements for the PNA loc als under their responsibility, allowing the agreements to ex pire. This deprived PNA of its exclusive right to bargain on b ehalf of its locals prior to contract expiration; it rendered PN A vulnerable to other unions and gave PSEA the opportunity to se ek representation of PNA locals; (2) They disparaged P NA's reputation, and the reputation of its officials, in their efforts to persuade locals to disaffiliate from PNA. The defendant labor representatives active ly solicited PNA locals to sign election cards for PSEA represen tation and engaged in other disloyal and improper activities, including the distribution of propaganda promoting PSEA at the ex pense of PNA. They also encouraged and aided PSEA to expand its u nion parameters to include representation of nurses. Finally, Debra Ferguson and her three co-e mployees, with the assistance of PSEA, Thomas Ferguson, and A lfred Nelson, produced and promulgated false, malicious and defam atory propaganda designed to destroy the reputation of PN A, including a false report that PNA officials had been criminally indicted by the federal government. The conspiratorial conduct of PSEA and the individual defendants, the complaint alleges, w as designed to cripple and destroy PNA as a nurses union and to fa cilitate the succession of PSEA as the primary nurses' union in Pennsylvania.

II. The majority relies on the preemption doct rine as literally stated by the Supreme Court in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959). Gar mon held that where a labor relations activity is arguably subjec t to sections 7 or 8 of the NLRA, as the picketing there involved , "the States

as well as the federal courts must defer to the exc lusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be av erted." Id.at 245. The majority concludes that the NLRA arguably prohi bits the conduct alleged in PNA's complaint. Thus, it h olds the seven counts identified in note 1 herein preempted. I do not believe that the foregoing conduc t is prohibited or arguably prohibited by either Section s 8 or 9 of the NLRA. As the majority explains, NLRA Section 8 prohibits conduct that restrains or coerces employees in thei r right to organize or bargain collectively through representa tion of their own choosing. 29 U.S.C.  157, 158. The conduct referred to inthe seven counts was not directed at the employees of the

employer hospitals represented by PNA, but was dire cted at PNA as a legal entity. It neither restrained nor coerced employees of the hospitals or government facilities in their rig ht to organize or bargain collectively through representatives of their own choosing. No campaigning, organizing or election p rocesses were involved because the defendants' activities precede d such possibility. Similarly, the conduct of which PNA compla ins in no way restrains or coerces employees in their right to or ganize. It is aimed at PNA. When PNA's four former employees com menced their

scheme to switch the PNA locals to a union with who m they would seek employment, there was no organizational campai gn on the part of PSEA or any other union to represent these local s. The existing contracts were not yet open to competing u nions. No NLRA election procedures were involved; no validati on or invalidation of an election conducted by the NLRB w as sought. There was no recognitional dispute at that time bet ween PNA and

PSEA. The majority points to the recent case of Polyclinic Medical Center, 315 N.L.R.B. 1257 (1995), enforced sub nom.Pennsylvania State Educ. Ass'n v. NLRB, 79 F.3d 139 (D.C. Cir. 1996) to "illustrate the proposition that action ta rgeted at a rival union may restrain employees in the exercise of their Section 7 rights." (Maj. Op. p. 10) Polyclinic, h owever, is an example of a case properly before the Board, and wh olly distinguishable from the case before this court. I t in no way

involves the issue before us in this case. PNA was the charging party in that case where it appropriately complaine d that the hospital-employer engaged in an unfair labor practi ce by unlawfully withdrawing recognition of PNA and enter ing into a bargaining agreement with PSEA, absent evidence tha t PSEA enjoyed the support of the majority of employees. The Boar d ordered Polyclinic to, inter alia, cease and desist from re cognizing and bargaining with PSEA unless PSEA demonstrates its m ajority status. The District of Columbia Court of Appeals enforced the order, finding that Polyclinic and PSEA engaged in a collective bargaining agreement in violation of the NLRA. Pen nsylvania State Educ. Ass'n, 79 F.3d at 154. In contrast, th e case before us presents no issue of representation or election procedure. The majority believes that Section 9 of th e NLRA also arguably prohibits the conduct alleged in this case because the Section gives the NLRB the authority "to resolve di sputes among competing unions, and take action needed to insure the workers' freedom of choice, including, if necessary, invalid ation of an election." (Maj. Op. p. 11) Although this case ha s a union background, that alone does not grant the Board exc lusive jurisdiction over every controversy arising between an employer and its employees or over every dispute between two unions. Surely, no one would suggest that the NLRB has juri sdiction over a land dispute merely because the parties are two d istinct unions. No one would suggest that the Board has ju risdiction over a contractual dispute with respect to the righ t to operate a recreation camp for children because the dispute is betweencompeting unions. Here, as discussed, the alleged conduct

involves PNA as an employer and four individual def endants in their capacity as employees, over their contractual rights and duties unrelated to any collective bargaining agree ment; it also involves conspiratorial conduct between those emplo yees and another union wholly unrelated to authorities under the jurisdiction of the NLRB. Section 9 grants the Boa rd authority to resolve representation disputes among competing unions. The parties in this case do not request the Board's int ervention in an election or representation proceeding.

III. It must be noted that, in Garmon, the Cour t also carved out exceptions to the general rule of preemption th at recognized traditional factors that preserve state jurisdictio n. It concluded that where the activity was merely of "pe ripheral concern" to the Labor Management Relations Act, the states retain the power to regulate. 359 U.S. at 243. States al so retain jurisdiction over matters of compelling local inter est. Id. at 247. Thus, states should be free to award damages under state tort law for violent conduct, or for a basic breach of or interference with a contract between an employer an d employee unrelated to any collective bargaining agreement. The majority here dismisses the "periphera l concern" exception without discussion, concluding that the c onduct at

issue involves "core activities with which the Act is concerned: union organizing and the employees' election of an exclusive bargaining representative." (Maj. Op. p. 12) I do not believe the majority categorizes PNA's claims correctly. T his case does not implicate the core concerns of the Act. Rather , it primarily requires a forum that can determine PNA's rights as an employer vis a vis its own employees, not the employees it r epresents for purposes of collective bargaining, and whether PNA' s employees violated those rights. Further, PNA seeks damages for the conduct of all the defendants which had not yet rea ched a point over which the NLRB had jurisdiction. Thus, PNA brought this suit for damages on ly in the state court for breach of fiduciary duty by its fou r former employees and business agents, for their fraud, dec eit, and defamatory actions; it charged PSEA and its agents for unfair competition and interference in the employment cont racts between PNA and its former labor representatives; and it su ed all of the defendants for commercial disparagement and conspir acy. These are matters that traditionally have occupied the at tention and jurisdiction of state courts and at best are only o f peripheral

concern to the National Labor Relations Board. Moreover, the state of Pennsylvania has a substantial interest in protecting the rights of its citizens a gainst the fraudulent and other misconduct alleged in this cas e. Under Pennsylvania law, an agent, or employee, owes a dut y of loyalty to his employer, and must act with utmost good fait h and loyalty in furtherance of the employer's interests. Kademe nos v. Equitable Life Assurance Soc. of U.S., 513 F.2d 107 3, 1076 (3rd Cir. 1975); Garbish v. Malvern Fed. Sav. & Loan Ass 'n, 517 A.2d547, 553-54 (Pa.Super 1986).

Although the Court has sustained the right of Congress to legislate in the areas of labor relations, Congr ess has not completely occupied the field. "[T]he areas that h ave been preempted by federal authority and thereby withdraw n from state power are not susceptible of delineation by fixed m etes and bounds." Weber v. Anheuser-Busch, Inc., 348 U.S. 4 68, 480 (1954). As the Court observed in Garner v. Teamste rs Local 776, 346 U.S. 485 (1953), the Labor Management Relations Act "leaves much to the states, though Congress has refrained f rom telling us

how much." Id. at 488. For almost a quarter of a century followin g the enactment of the NLRA in 1935, the Court has endeav ored to justify its preemption decisions in terms of congre ssional intent to preempt, "although the Act offers no specific gu idance for applying this principle." 2 Patrick Hardin, The De veloping Labor Law 1657 (3rd ed. 1992). Many of the Court's decis ions "appear to have been based on pragmatic analysis of relevan t fact and circumstances, but the results often were ascribed to the will of Congress." Id. at 1658. In the 25 years that has elapsed since Gar mon, the Court has refined, and perhaps even extended its ex ceptions to preemption. The Court has warned that:

While the Garmon formulation accurate ly reflects the basic federal concern with potent ial state interference with national labor poli cy, the history of the labor pre-emption doct rine in this Court does not support an approach wh ich sweeps away state court jurisdiction over co nduct traditionally subject to state regula tion without

careful consideration of the relative impact of such a jurisdictional bar on the vari ous interests

affected.

Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 1 88 (1977); see also Farmer v. Carpenters, 430 U.S. 290, 302 (1976)

. ("[I]nflexible application of the [Garmon] doctrine is to be avoided, especially where the state has a substanti al interest in regulation of the conduct at issue and the state's interest is

one that does not threaten undue interference with the federal regulatory scheme.").

Post-Garmon case law reveals that the Cour t has made a detailed factual analysis in each case before it in an effort to

ascertain whether the claims in the state court wou ld offend federal policies established by the Board. Under t he current status of the law, the Court is concerned with not only preserving federal jurisdiction in labor cases, but has exhibited, since Garmon, a sensitive and pragmatic concern for the preservation of claims in state court that do n ot encroach upon the Board's jurisdiction. In Farmer, the Court concluded that Hill, a member of the Carpenter's Union who complained of union discr imination in its hiring hall and other tortious conduct, could p ursue a tort action brought in a state court against the union a nd itsofficials to recover damages for intentional afflic tion of

emotional distress. 430 U.S. at 292-93. The Court reasoned that, in light of the discrete concerns of the fede ral scheme and state tort law, the potential for interference with the Board's proceedings if a complaint were filed with the cour t "is insufficient to counterbalance the legitimate and s ubstantial interest of the State in protecting its citizens." Id. at 304. In Sears, the Court noted that when a claim involve s conduct arguably prohibited by the Act, the "critical inqui ry" is "whether the controversy presented to the state cou rt is

identical to . . . or different from . . . that whi ch could have been, but was not, presented to the labor board." 436 U.S. at

197. The majority dismisses PNA's "identical co ntroversy" argument asserting that PNA is attempting to constr uct a new exception to Garmon, or replace Garmon's analytical framework with a new test. I do not suggest that this court abandon the Garmon analysis. However, I believe the "identical controversy" test can aid courts in determining if conduct "argu ably prohibited" by the NLRA may be litigated in a state court. Supreme Court case law focusses on whether the cond uct is central to the Act, whether the state interest in regulatio n is compelling, and whether the state's exercise of jur isdiction risks interference with the federal regulatory sche me. See e.g.Belknap, 463 U.S. 491, Farmer, 430 U.S. 290, Linn, 383 U.S. 53. I disagree with the majority here that the Supreme Court's decision in Belknap, 463 U.S. 491, is disti nguishable. In fact, Belknap strongly supports PNA's position t hat its seven counts are not preempted. In that case, negotiatio ns for a new contract between the union and employer reached an impasse, some employees struck, and the employer unilaterally gra nted a wage increase to employers who stayed on the job. The w age increase became the basis for an unfair labor practice charg e filed by the union with the Board and the employer countered wit h charges of its own. The employer hired replacement workers, p romising permanent employment, but dismissed them to make ro om for the returning strikers. The replacement workers sued u nder state law theories of misrepresentation and breach of employm ent contract. Despite the unfair labor practice proceedings befor e the Board growing out of the strike, the Court held that the Act did not preempt the replacement workers state law suit. It stated: [T]he suit for damages for breach of contract
could still be maintained without in any way prejudicing the jurisdiction of the B oard or the

interest of the federal law in insuri ng the replacement of the strikers. The int erests of the Board and the NLRA, on the one hand, and the interests of the State in providing a remedy to its citizens for breach of contract, on the other,

are "discrete" concerns. We see no b asis for holding that permitting the contract cause of action will conflict with the rights of either the strikers or the employer or would fru strate any policy of the federal labor laws.Id. at 512 (citations omitted). In so holding, the court found

that the returning workers' claims were not "identi cal" to the controversy before the Board. The Board's focus wa s on the rights of the striking workers, while the state cou rt would focus on the rights of the replacement workers. Id. at 5 10. In the instant case, even if a proceeding were initiated before the Board, the interests, as in Be lknap, are

different. The Board would be concerned with the d efendants' coercive conduct towards the union nurses affecting their freedom of choice; the state court would be concerned with the breach of the defendants' obligations to PNA. As in Belknap, the state court in this case "in no way offers [the plaintiff ] an alternative forum for obtaining relief that the Boa rd can provide." Id. at 510. Although not dispositive, a n important factor in preemption analysis is that the NLRB is u nable to award relief to PNA for the alleged damage caused by PSEA and the individual defendants. See, e.g. Farmer, 430 U.S. at 304 (noting that the Board could not award damages for plaintif f's alleged pain, suffering, and medical expenses), Linn v. Pla nt Guard Workers, 383 U.S. 53, 64 (1965) (noting the Board's inability to provide redress for personal injury caused by malic ious libel). This case is distinguishable from Operatin g Engineers v. Jones, 460 U.S. 669 (1982). In Jones, a newly a ppointed supervisor filed a charge before the NLRB, alleging that the union instigated the supervisor's discharge because he was not a member in good standing with the union. The Board declined to issue a complaint. The supervisor then filed suit in state court, alleging that the union interfered with his employment contract by coercing the company to breach the cont ract. The Supreme Court found the supervisor's state law clai m preempted by

the NLRA. The Court found that the alleged conduct w as arguably prohibited by the Act, and that the controversy bef ore the state court was identical to that brought before the Boar d. In Jones,

the resolution of both the state law and the Board action involved an analysis of whether the union coerced t he employer into terminating the supervisor. In the instant ca se, however, there could only be the remote possibility that the Board might be called upon to determine if the defendants coerc ed the nurses in the collective bargaining units in the exercise of their Section 7 rights. In contrast, the state court wou ld focus on whether the defendants' conduct injured PNA. Unlike Jones, the exercise of state jurisd iction over

the common law tort claims in the instant case woul d not have any effect on federal labor policy. The court would fo cus on the conduct as it specifically affected the employer-em ployee relationship between PNA and the individual defenda nts, not employees in the collective bargaining units, and o n PSEA's entrepreneurial behavior in violation of state law. Thus, state jurisdiction here creates no significant risk of im pact on

federal labor law.

IV.In contrast to the seven counts discussed above, I

acknowledge that PNA's Counts VIII and IX involve m atters appropriate for the Board. In Count VIII, PNA alle ges that the defendants interfered with its relationship with it s local bargaining units. PNA asserts that the defendants were aware of its right to bargain with its locals prior to the e xpiration of their bargaining agreements. The defendants allege dly interfered with PNA's prospective contractual relations with t he local units with the intent to displace PNA as the exclusive ba rgaining agent. Similarly, in Count IX, PNA alleges that th e defendants interfered with the collective bargaining agreement s between PNA and various health care employers. These two counts focus on the bargaining a greements and the relationship between PNA, their locals, and the ir employers. The alleged behavior is arguably prohibited by both Sections 8

and 9 of the NLRA. In contrast to the seven counts discussed above, Counts VIII and IX involve core concerns of the Act. Thus, I agree with the majority that the NLRA preem pts Counts

VIII and IX.

V. To recapitulate, I respectfully dissent fr om the opinion of the majority in affirming the order of t he district court dismissing Counts II, IV, V, VI, VII, X and X I as preempted by the NLRA. However, I concur with the majority t hat the NLRA preempts Counts VIII and IX of PNA's complaint. I further concur with the majority in affi rming the order of the district court in holding that Counts I and III are not preempted and directing each side in this appea l to bear its

own costs.