1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-25-1996

PA Nurses Assoc v. PA State Ed Assoc

Precedential or Non-Precedential:

Docket 95-7457,95-7458,95-7645

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Recommended Citation

"PA Nurses Assoc v. PA State Ed Assoc" (1996). 1996 Decisions. Paper 115.

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 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 No. 95-7457 

 

 PENNSYLVANIA NURSES ASSOCIATION, 

 Appellant 

 v. 

 PENNSYLVANIA STATE EDUCATION ASSOCIATION; 

 DEBRA FERGUSON; RICHARD LEWIS; JEFFREY LEWIS; 

 KAREN SCHRADER; ALFRED NELSON, JR.; THOMAS FERGUSON 

 

 No. 95-7458 

 

 PENNSYLVANIA NURSES ASSOCIATION 

 

 v. 

 PENNSYLVANIA STATE EDUCATION ASSOCIATION; 

 DEBRA FERGUSON; RICHARD LEWIS; JEFFREY LEWIS; 

 KAREN SCHRADER; ALFRED NELSON, JR.; THOMAS FERGUSON, 

 Appellants 

 

 No. 95-7645 

 

 PENNSYLVANIA STATE EDUCATION ASSOCIATION; 

 DEBRA FERGUSON; RICHARD LEWIS; JEFFREY LEWIS; 

 KAREN SCHRADER; ALFRED NELSON, JR.; THOMAS FERGUSON, 

 Petitioners 

 v. 

 PENNSYLVANIA NURSES ASSOCIATION, 

 Respondent 

 HONORABLE WILLIAM W. CALDWELL, 

 Nominal Respondent 

 

 
 On Appeal from the United States District Court 

 for the Middle District of Pennsylvania 

 (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 two labor 

organizations who vied for the right to represent the nurses at 

eight health-care facilities in Pennsylvania and Delaware. 

Pennsylvania Nurses Association (PNA), the organization that had 

previously been the bargaining agent, filed an action asserting 

eleven state-law tort claims against the Pennsylvania State 

Education Association and six individuals associated with it, 

four of whom had previously been PNA's representatives 

(collectively referred to as "PSEA"). The district court entered 

judgment on the pleadings for PSEA on nine of the claims on the 

ground that they were preempted by the National Labor Relations 

Act. It rejected PSEA's contention of preemption on the 

remaining claims and remanded them to the state court. PNA 

appeals the district court order to the extent that it entered 

judgment for PSEA. PSEA, as cross-appellant, appeals from the 

disposition of the two surviving claims. 

 I. 

 PROCEDURAL HISTORY 

 Because this appeal arises from the district court's 

grant of a motion for judgment on the pleadings pursuant 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 of 

Philadelphia, 644 F.2d 187, 190 (3d Cir. 1980). Accordingly, 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' labor union. 

Before June 30, 1993, PNA represented approximately 9,000 nurses 

through sixty local bargaining units in Pennsylvania and 

Delaware. During that period, defendants Debra Ferguson, Richard 

Lewis, Jeffrey Lewis, and Karen Schrader worked for PNA as labor 

representatives. Sometime thereafter, these representatives 

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 represented. 

Debra Ferguson, in particular, sought a position with PSEA, 

offering to bring with her as many of PNA's local units as 

possible. She accordingly developed a plan to work with PSEA to 

enlist the help of the other defendant PNA representatives 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 of Directors to 

allow it to represent nurses as well as teachers; met with the 

executive and negotiating committees of various PNA local units 

along with the labor representatives, who were still employees of 

PNA, to persuade them to disassociate from PNA and join PSEA; 

provided Debra Ferguson and the other named PNA representatives 

with PSEA propaganda, election cards, and other materials 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 reputation of PNA," 
App. at 22; offered employment with PSEA as an incentive to Debra 

Ferguson and the other defendant labor representatives to assist 

in affiliating the PNA local units with PSEA; and sought to 

induce other PNA labor representatives to leave PNA and become 

PSEA employees and to bring their local PNA units with them. 

 PNA also contends that the individual defendants who 

were its former labor representatives failed to negotiate in good 

faith successor collective bargaining agreements on behalf of 

their PNA units, which enabled PSEA's subsequent efforts to 

represent the units after the agreements expired; disparaged the 

reputation of PNA and its officials to persuade unit 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 following 

eleven state-law claims in separate counts against one or more of 

the defendants: I) breach of fiduciary duty, II) fraud and 

deceit, III) defamation, IV) commercial disparagement, V) unfair 

competition, VI) vicarious liability, VII) interference with 

present contractual relations (between PNA and its former 

representatives), VIII) interference with present and prospective 

contractual relations (between PNA and its local units), IX) 

interference with present and prospective contractual relations 

(between PNA and health care employers), X) aiding and abetting, 

and XI) conspiracy. PNA sought compensatory and punitive 

damages. 

 PSEA removed the case to federal court on the ground 

that some of the claims were preempted by the National 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 district court 

granted PSEA's motion, dismissing counts II, IV, V, VI, VII, 

VIII, IX, X and XI to the extent that they were based on conduct 

covered by the NLRA, and denied the motion as to counts 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 claims. PNA 

appealed. PSEA cross-appealed and filed a petition for writ of 

mandamus as an alternative. 

 PNA has not challenged our jurisdiction over PSEA's 

cross-appeal, but we must consider the jurisdictional question 

even where the parties are prepared to concede it. Bender v. 

Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986); 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 on 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 defect in the 

removal procedures or for lack of subject matter jurisdiction. 

Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712, 1718 (1996); 
Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 346 

(1976); Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 222 (3d 

Cir. 1995); Balazik v. County of Dauphin, 44 F.3d 209, 212-13 (3d 

Cir. 1995). Here, the district court relied upon the 

discretionary ground stated in 28 U.S.C.  1367(c)(3), which 

permits a district court to decline to exercise supplemental 

jurisdiction over state claims where it has dismissed all claims 

over which it has original jurisdiction. Accordingly, 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 remand 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, 231 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); Carteret Sav. 

Bank, FA v. Shushan, 919 F.2d 225, 228 n.7 (3d Cir. 1990); 

McLaughlin v. ARCO Polymers, Inc., 721 F.2d 426, 428 n.1 (3d Cir. 

1983). The recent decision in Quackenbush supports this view. 

See 116 S. Ct. at 1719. In light of our decision that we have 

appellate jurisdiction, the petition for mandamus filed in this 

case is moot. 

 II. 

 DISCUSSION 

 A. 

 NLRA Preemption 

 It is well established that state-law claims are 

presumptively preempted by the NLRA when they concern conduct 

that is actually or arguably either protected or prohibited by 

the NLRA, Belknap, Inc. v. Hale, 463 U.S. 491, 498 (1983), and by 

the LMRA when such claims rely upon an interpretation of a 

collective bargaining agreement, Lingle v. Norge Div. of Magic 

Chef, Inc., 486 U.S. 399, 405-06 (1988). 

 The general framework for determining whether 

particular state-law claims are preempted by the NLRA remains 

that initially established by the Supreme Court in San Diego 

Building Trades Council v. Garmon, 359 U.S. 236, 243-45 (1959), 

and more recently summarized as follows: 

 [S]tate regulations and causes of action are 

 presumptively preempted if they concern conduct 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 be regulated 

 is behavior that is of only peripheral concern to the 

 federal law or touches interests deeply rooted in local 

 feeling and responsibility. In such cases, the State's 

 interest in controlling or remedying the effects of the 

 conduct is balanced against both the interference with 

 the National Labor Relations Board's ability to 

 adjudicate controversies committed to it by the Act, 

 and the risk that the State will sanction conduct that 

 the Act protects. 

Belknap, 463 U.S. at 498-99 (citations omitted) (emphasis 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 analysis, 

arguable protection or arguable prohibition, will ordinarily 

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 argument that the 

conduct alleged was protected by the NLRA, concluding 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 formulation it 

concluded that the nine claims set forth in Counts II and IV 

through XI were preempted because they were arguably 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 unfair 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 and, inter alia, 

to choose their bargaining agents. 

 PNA argues that the conduct it alleges PSEA and the 

individual defendants engaged in was directed at PNA, rather than 

the nurses, and therefore the conduct must necessarily have been 

unrelated to employees' organizational rights, which is the 

concern of section 7. We do not agree. Conduct which undermines 

the union representing a unit of employees, and thereby induces 

those employees to change their affiliation, arguably "constrains 

or coerces" those employees in their ability to exercise 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 practice charge 

with the NLRB, complaining that PSEA engaged in activities 

similar to those it asserts here at the Polyclinic Medical Center 

which interfered with PNA's collective bargaining agreement with 

that employer. The NLRB ruled that the conduct of both PSEA and 

the employer violated section 8 of the NLRA. See Polyclinic 

Medical Ctr., 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). Both PNA's complaint and the Board's ruling illustrate 

the proposition that action targeted at a rival union 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 does 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 of preemption, 

gives the NLRB jurisdiction over selection of the union 

bargaining representative. As part of that responsibility, the 

NLRB has the authority to resolve disputes among competing unions 

and take action needed to ensure the workers' freedom of choice, 

including, if necessary, invalidation of an election. See NLRB 
v. Savair Mfg. Co., 414 U.S. 270, 276-79 (1974); Weyerhaeuser 

Co., 247 N.L.R.B. 978, 978 n.2 (1980). Inasmuch as the conduct 

of which PNA complains arises, in essence, from a dispute or 

series of disputes between competing unions, each of whom sought 

to be the employees' exclusive representative, we agree with the 

district court that the conduct alleged may also have affected 

rights under section 9 as well as section 8(b)(1). 

 

 Notably, for preemption purposes a court need 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 "arguably" 

prohibited. As the Court stated in Garmon, it is for the NLRB, 

not the courts, to decide whether the particular controversy 

falls within the scope of section 7 or 8 of the NLRA: 

 At times it has not been clear whether 

 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 to 

 the administration of the Act that these 

 determinations be left in the first instance 

 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 undisputed 

 facts, it is not for this Court to decide 

 whether such activities are subject to state 

 jurisdiction. 

Garmon, 359 U.S. at 244-46. 

 PNA suggests that even if the conduct alleged is 

arguably prohibited by the NLRA, as the district court found, 

this is not a case in which preemption should be applied. 

The Supreme Court's cases have referred to two circumstances in 

which state law is not preempted, even if the conduct at issue is 

arguably protected or prohibited by the NLRA. Those exceptions 

apply if the alleged conduct is of only "peripheral concern" to 

the NLRA, or "touches on interests . . . deeply rooted in local 

feeling and responsibility." Jones, 460 U.S. at 676 (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 with which the 

Act is concerned: union organizing and the employees' election 

of an exclusive bargaining representative. However, we must also 

consider PNA's contention that this case falls within the local 

interest exception. 

 The Supreme Court has ordinarily applied this exception 
in cases where the conduct alleged concerned activity 

traditionally recognized to be the subject of local regulation, 

most often involving threats to public order such as violence, 

threats of violence, intimidation and destruction of property. 

See Lodge 76, Int'l Ass'n of Machinists v. Wisconsin 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 (1958) (upholding 

state court jurisdiction to entertain action by employee for harm 

resulting from strikers' threats of violence and exclusion by 

force). The Court has extended this exception to cover acts of 

trespass, see Sears, Roebuck & Co. v. San Diego County Dist. 

Council of Carpenters, 436 U.S. 180, 190-98 (1978), and certain 

personal torts, such as intentional infliction of emotional 

distress, see Farmer v. United Bhd. of Carpenters, Local 25, 430 

U.S. 290, 304-05 (1977), and malicious libel, see Linn v. United 

Plant Guard Workers of America, Local 114, 383 U.S. 53, 57-63 

(1966). 

 At least with regard to the nine claims which the 

district court found preempted (Counts II, IV, V, VI, VII, VIII, 

IX, X and XI), PNA has not demonstrated that any of these falls 

within the category of claims which the Court has determined 

"touch[] interests deeply rooted in local feeling and 

responsibility." Belknap, 463 U.S. at 498. Although PNA claims 

that "in a free market economy that places economic actors in 

competition with one another, the states have a substantial 

interest in policing the market to ensure that free competition 

does not degenerate into the law of the jungle," Appellant's 

Brief at 40, when the competition is between unions such matters 

are the particular concern of the NLRA. PNA has cited no 

authority supporting its argument that market regulation of 

competing labor organizations is a matter so rooted in local 

concern as to prevent preemption by the federal labor laws. 

 Even were we to conclude that the issue presented is 

one of particular state concern, the Court has cautioned that in 

such circumstances, any state concern must be balanced against 

the risk that the exercise of state jurisdiction over the tort 

claim would interfere with the regulatory jurisdiction of the 

NLRB. Jones, 460 U.S. at 676 (whether targeted conduct 

implicates local interests "involves a sensitive balancing of any 

harm to the regulatory scheme established by Congress"); Sears, 

436 U.S. at 188-89 (preemption decision turns on "the nature of 

the particular interests being asserted and the effect upon the 

administration of national labor policies" of permitting state 

court jurisdiction); Farmer, 430 U.S. at 297 (examination of both 

"the state interests in regulating the conduct in question and 

the potential for interference with the federal regulatory 

scheme" informs exceptions to NLRA preemption). As the Court 

explained in Sears: 

 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 (as in Garner) or different from (as in Farmer) that 

 which could have been, but was not, presented to the 
 Labor Board. For it is only in the former situation 

 that a state court's exercise of jurisdiction 

 necessarily involves a risk of interference with the 

 unfair labor practice jurisdiction of the Board which 

 the arguably prohibited branch of the Garmon 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 potential 

unfair labor practice charges, and the same facts would need to 

be determined in each proceeding. This creates a risk of 

conflicting rulings from the state court and the Board, and 

threatens state interference with the NLRB's enforcement 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 with NLRB 

issues, this case is distinguishable from Sears, upon which PNA 

relies. In Sears, the employer filed a trespass action in state 

court in an effort to end the union's picketing on its property. 

The Supreme Court rejected the union's claim that the action was 

preempted, noting that the controversy regarding the location of 

the picketing was unrelated to the issue Sears might have 

presented to the Board. To make out a state-law claim of 

trespass, Sears needed only to prove the location of the Union's 

picketing. An unfair labor practice charge, on the other hand, 

would have focused on the objectives of the picketing, an issue 

"completely unrelated to the simple question whether a trespass 

had occurred." 436 U.S. at 198. Thus "permitting the state 

court to adjudicate Sears' trespass claim would create no 

realistic risk of interference with the Labor Board's primary 

jurisdiction to enforce the statutory prohibition against unfair 

labor practices." Id. 

 Similarly, in Belknap, Inc. v. Hale, 463 U.S. 491 

(1983), another case relied on by PNA, the issues presentable in 

the two fora would have been unrelated. During a strike the 

employer had made offers of permanent employment to the 

replacement workers, but after the strike was resolved the 

employer laid off the replacement workers to make room for 

returning strikers. The fired replacement workers sued in state 

court for misrepresentation and breach of their employment 

contracts. The Supreme Court concluded that the replacement 

workers' state court action was not preempted. It noted that 

issues as to whether the strike was to protest unfair labor 

practices and whether the employer was obliged to accept 

returning strikers were matters for the Board, whereas the state 

court action there concerned the employer's obligations to 

replacement workers rather than union members one issue would not 

trench upon the others. The controversies before the Board 

"would [not] have anything in common with the question whether 

Belknap made misrepresentations to replacements that were 

actionable under state law. The Board would be concerned with 
the impact on strikers not with whether the employer deceived 

replacements." Belknap, 463 U.S. at 510. Maintaining the 

misrepresentation action therefore "would not interfere with the 

Board's determination of matters within its jurisdiction 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 allegations 

that PSEA and the individual defendants sought to undermine PNA 

and influence the outcome of the nurses' representation election 

would be the focus of both the unfair labor practice charges and 

PNA's state-law claims. The risk of conflicting rulings and 

interference with Board enforcement of national labor policy is 

evident. 

 Having determined that the claim at issue here (1) 

involves activity that is actually or arguably prohibited by the 

NLRA; (2) does not involve an issue deeply rooted in local 

feeling and responsibility; and (3) would risk substantial 

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 analysis. 

 In reaching this conclusion, we reject PNA's attempt 

to replace the well-established Garmon analysis with 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 interests protected 

by PNA's state claims are different than those involved in an 

unfair labor practice case because they concern the common law 

rights of PNA as an entity, not the collective bargaining rights 

of its members, PNA argues that the claims that would be 

presented to the state court which involve PSEA's alleged 

interference with the operations of PNA are not identical to 

those that would be brought before the NLRB. Therefore, PNA 

concludes that under its identical controversy test there is no 

preemption. PNA also emphasizes that the state court could award 

it the $1,300,000 in damages it seeks for PSEA's alleged 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 claim to go 

forward in state court poses no risk of interference with an NLRB 

proceeding. 

 While a respected commentator has noted that the 

Supreme Court's decisions in the labor preemption cases since 

1945 "have been somewhat unclear if not inconsistent," Robert A. 

Gorman, Basic Text on Labor Law 766 (1976), we see no basis to 

hold, as PNA suggests, that the Supreme Court's more recent cases 

have replaced the analytic framework of Garmon and Belknap. Thus 

we see no justification for a court to abandon consideration 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 "identical 

controversy" test. 

 As the district court recognized, a Board proceeding 
and 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 would require us 

to abandon more than half a century of federal policy that places 

exclusive jurisdiction over issues of national labor 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, intending to 

destroy the reputation and good name of PNA in the professional 

community. The district court rejected PSEA's preemption claim 

based on the Supreme Court's holding in Linn v. United Plant 

Guard Workers of America, Local 114, 383 U.S. 53 (1966). 

 In its cross-appeal, PSEA contends that Linn is 

inapplicable. 

 The lawsuit in Linn that was the subject of the 

preemption issue had been brought by a managerial employee of 

the Pinkerton National Detective Agency, whose employees were the 

subject of a union organizing campaign. Linn, an assistant 

general manager at Pinkerton, alleged that the union and the 

other defendants distributed leaflets and other written material 

containing defamatory material about him. The Supreme 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 organizing 

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 because it 

concerned defamation of an individual who would have had no 

opportunity to obtain relief from the NLRB, whereas PNA is not 

without remedy since it can ask the NLRB to overturn the outcome 

of an election that may have been tainted by the allegedly 

defamatory statements. 

 Despite the initial appeal of PSEA's argument, upon 

close reading of Linn we conclude that this argument must fail. 

Nothing in the Supreme Court's Linn decision suggests any 

distinction between defamation of an individual and defamation of 

a labor union, nor did the Court suggest that the injured party 

should be permitted to seek relief in only one forum. To the 

contrary, the Court noted that in some situations it 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 ("When the Board 

and state law frown upon the publication of malicious libel, 

albeit for different reasons, it may be expected that the injured 

party will request both administrative and judicial relief."). 

Specifically, it acknowledged that "[a]n unsuccessful union would 

. . . seek to set the election results aside as the fruits of an 

employer's malicious libel. And a union may be expected to 

request similar relief for defamatory statements which contribute 
to the victory of a competing union." In such a situation, "the 

courts and the Board [would not] act at cross purposes since, as 

we have seen, their policies would not be inconsistent." 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 defamation claim 

fails as a matter of law because the majority of the alleged 

statements were merely expressions of opinion, and therefore PNA 

cannot prove that they are false, let alone made with 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 set forth in 

paragraph 30 of the Complaint may also have been stated as fact. 

Additionally, PNA met its burden of pleading that the defendant 

employees made these statements with malice and knowledge of 

their falsity. See App. at 46-48. Because we must accept the 

allegations of the complaint as true and construe all inferences 

in PNA's favor, we will not look beyond the pleadings to assess 

the viability of PNA's cause of action for defamation 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 preemptive 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 challenges in its 

cross-appeal the court's ruling of non-preemption of Counts I and 

II on LMRA grounds. 

 The Supreme Court has explained the principle of 

preemption pursuant to  301 of the LMRA as follows: 

 if the resolution of a state-law claim depends upon the 

 meaning of a collective-bargaining agreement, 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 -- necessarily 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. McCandless, 50 F.3d 

217, 228 (3d Cir. 1995). This principle extends beyond suits 

alleging contract violations to suits grounded in tort as well. 

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-11 (1985). 

Section 301 does not, however, "pre-empt state rules that 

proscribe conduct, or establish rights and obligations, 

independent of a labor contract." Id. at 212. Only state-law 

rights and obligations that depend upon an interpretation of the 
collective bargaining agreement are preempted. 

 PSEA contends that these two state tort claims are 

preempted by the LMRA because their resolution turns on an 

interpretation of the collective bargaining agreement between PNA 

and the Professional Staff Organization (PSO), the union that 

represented four of the individual defendants -- Debra 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, which was the 

exclusive contract governing the employee defendants' 

relationship with PNA. A determination whether the employees had 

breached such duties would accordingly require interpretation of 

that agreement. The district court rejected this argument 

because it found nothing in the collective-bargaining agreement 

giving rise to the fiduciary duties allegedly breached. 

 PSEA insists, however, that fiduciary duties may be 

implied from the collective-bargaining agreement and that the 

determination of an implied term in the agreement is exclusively 

a matter of federal contract interpretation. See Allis-Chalmers, 

471 U.S. at 215 ("The assumption that the labor contract creates 

no implied rights is not one that state law may make. Rather, it 

is a question of federal contract interpretation whether there 

was an obligation under this labor contract to provide the 

payments in a timely manner, and, if so, whether [the 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 employee 

defendants and PNA. Instead, these counts are based on 

Pennsylvania common law which recognizes, under agency 

principles, a duty of loyalty by an employee to an employer. SeeSylvester 

v. Beck, 178 A.2d 755, 757 (Pa. 1962); SHV Coal, Inc. 

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 done so. As the 

Supreme Court has stated, "the plaintiff is the master of the 

complaint," and "may, by eschewing claims based on federal law, 

choose to have the cause heard in state court." Caterpillar Inc. 

v. Williams, 482 U.S. 386, 398-99 (1987). Thus, "a plaintiff 

covered by a collective-bargaining agreement is permitted 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 agreement and are 

not preempted by section 301. It follows that we find no basis to 

support PSEA's cross-appeal on either of the grounds it asserts. 

 III. 

 CONCLUSION 

 For the foregoing reasons, we will affirm the order of 

the district court, which dismissed nine of the claims asserted 
by 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 STATE EDUCATION 

ASSOCIATION, et al. 

Nos. 95-7457/7458/7645 

ROSENN, Circuit Judge, concurring and dissenting. 

 Except as to the Pennsylvania Nurses Association's 

(PNA's) allegations charging the defendants with interfering 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, engaged in fraud 

and deceit, defamation, and other acts of personal misconduct in 
violation of Pennsylvania's common law duty of basic loyalty by 

an employee to an employer. Several of these counts 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 violation 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 concludes: (1) 

that these counts are not grounded in either the collective 

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 no basis to 

support the PSEA's cross-appeal. 

 I concur further with the majority's conclusion that 

the NLRA does not preempt PNA's claim for defamation 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 IX which are 

arguably preempted, I do not believe that the NLRA preempts the 

other seven counts. 

 Although the plan allegedly concocted by the four 

former employees of PNA eventually enveloped the PSEA, the 

allegations, except as to Counts VIII and IX, have nothing 

whatsoever to do with the core activities of the NLRA. These 

counts do not involve traditional union organization activities, 

employees' election of an exclusive bargaining representative, or 

unfair labor practices. Rather, they basically concern forbidden 

conduct between employees and their employer, and activities 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 of these 

allegations to a state court does not offend federal labor 

policy, I would reverse the judgment of the district court 

insofar as it held the remaining seven counts preempted. I 

therefore respectfully dissent. 

 I. 

 As does the majority, I accept as true the well-pleaded 

allegations in PNA's complaint and draw all inferences 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 bargaining purposes 

in 60 local bargaining units (locals). These locals were located 

in private hospitals and public sector institutions in 

Pennsylvania and Delaware. 

 PNA employed defendant Debra Ferguson as a labor 
representative on February 1, 1983, to serve in its labor union 

and collective bargaining program. As a labor representative, 

she had the responsibility for, inter alia, organizing locals, 

negotiating collective bargaining agreements between PNA and 

hospitals that employed their member nurses, and administering 

and enforcing collective bargaining agreements through grievance 

and arbitration procedures. Her responsibilities also included 

communications between PNA and its locals, and providing for the 

cultivation and maintenance of organizational relationships 

between them. As a paid labor representative of PNA, she also 

had the duty to keep her employer apprised of local unit 

activities, to act honestly, in good faith and in the 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 defendants Richard 

Lewis, Jeffrey Lewis, and Karen Schrader as labor representatives 

with similar duties. 

 Apparently, sometime in the first half of 1993, these 

PNA employees decided that they wanted to become employed 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. They therefore 

undertook a program, although on PNA's payroll, to undermine 

their locals' relationship and loyalty to PNA by convincing them 

to disaffiliate. 

 Debra Ferguson had developed a strong interest in 

affiliating with PSEA, a labor union engaged in representing 

school employees. Her husband, Thomas, formerly employed with 

PNA until 1988, was employed by PSEA as a labor representative. 

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 another PSEA 

representative, Alfred Nelson, to enlist the assistance 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 collaborated, 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 right to 

negotiate and enter into new collective bargaining agreements 

during the period of time from 90 days before the existing 

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 event that a 

renewal contract is not reached prior to contract expiration 

could a competing union such as PSEA seek representation of the 

local. 
 Collective bargaining contracts between PNA and various 

hospitals were scheduled to expire during July and August of 

1993, and Debra Ferguson and her three co-labor representatives 

led PNA to believe that they were faithfully negotiating renewal 

agreements on behalf of PNA. They led PNA to believe that they 

were protecting its interests as exclusive bargaining agent for 

the locals. However, pursuant to the plan of the four former 

employees and with the knowledge and active assistance of PSEA's 

representatives, Debra Ferguson and the other plotters, 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 locals under 

their responsibility, allowing the agreements to expire. This 

deprived PNA of its exclusive right to bargain on behalf of its 

locals prior to contract expiration; it rendered PNA vulnerable 

to other unions and gave PSEA the opportunity to seek 

representation of PNA locals; (2) They disparaged PNA's 

reputation, and the reputation of its officials, in their efforts 

to persuade locals to disaffiliate from PNA. 

 The defendant labor representatives actively solicited 

PNA locals to sign election cards for PSEA representation and 

engaged in other disloyal and improper activities, including the 

distribution of propaganda promoting PSEA at the expense of PNA. 

They also encouraged and aided PSEA to expand its union 

parameters to include representation of nurses. 

 Finally, Debra Ferguson and her three co-employees, 

with the assistance of PSEA, Thomas Ferguson, and Alfred Nelson, 

produced and promulgated false, malicious and defamatory 

propaganda designed to destroy the reputation of PNA, 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, was designed to 

cripple and destroy PNA as a nurses union and to facilitate the 

succession of PSEA as the primary nurses' union in Pennsylvania. 

 II. 

 The majority relies on the preemption doctrine as 

literally stated by the Supreme Court in San Diego Building 

Trades Council v. Garmon, 359 U.S. 236 (1959). Garmon held that 

where a labor relations activity is arguably subject 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 exclusive 

competence of the National Labor Relations Board if the danger of 

state interference with national policy is to be averted." Id.at 245. 

The majority concludes that the NLRA arguably prohibits 

the conduct alleged in PNA's complaint. Thus, it holds the seven 

counts identified in note 1 herein preempted. 

 I do not believe that the foregoing conduct is 

prohibited or arguably prohibited by either Sections 8 or 9 of 

the NLRA. As the majority explains, NLRA Section 8 prohibits 

conduct that restrains or coerces employees in their right to 

organize or bargain collectively through representation of their 

own choosing. 29 U.S.C.  157, 158. The conduct referred to in 
the seven counts was not directed at the employees of the 

employer hospitals represented by PNA, but was directed at PNA as 

a legal entity. It neither restrained nor coerced employees of 

the hospitals or government facilities in their right to organize 

or bargain collectively through representatives of their own 

choosing. No campaigning, organizing or election processes were 

involved because the defendants' activities preceded such 

possibility. 

 Similarly, the conduct of which PNA complains in no way 

restrains or coerces employees in their right to organize. It is 

aimed at PNA. When PNA's four former employees commenced their 

scheme to switch the PNA locals to a union with whom they would 

seek employment, there was no organizational campaign on the part 

of PSEA or any other union to represent these locals. The 

existing contracts were not yet open to competing unions. No 

NLRA election procedures were involved; no validation or 

invalidation of an election conducted by the NLRB was sought. 

There was no recognitional dispute at that time between 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 targeted at a 

rival union may restrain employees in the exercise of their 

Section 7 rights." (Maj. Op. p. 10) Polyclinic, however, is an 

example of a case properly before the Board, and wholly 

distinguishable from the case before this court. It in no way 

involves the issue before us in this case. PNA was the charging 

party in that case where it appropriately complained that the 

hospital-employer engaged in an unfair labor practice by 

unlawfully withdrawing recognition of PNA and entering into a 

bargaining agreement with PSEA, absent evidence that PSEA enjoyed 

the support of the majority of employees. The Board ordered 

Polyclinic to, inter alia, cease and desist from recognizing and 

bargaining with PSEA unless PSEA demonstrates its majority 

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. Pennsylvania 

State Educ. Ass'n, 79 F.3d at 154. In contrast, the case before 

us presents no issue of representation or election procedure. 

 The majority believes that Section 9 of the NLRA also 

arguably prohibits the conduct alleged in this case because the 

Section gives the NLRB the authority "to resolve disputes among 

competing unions, and take action needed to insure the workers' 

freedom of choice, including, if necessary, invalidation of an 

election." (Maj. Op. p. 11) Although this case has a union 

background, that alone does not grant the Board exclusive 

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 jurisdiction over 

a land dispute merely because the parties are two distinct 

unions. No one would suggest that the Board has jurisdiction 

over a contractual dispute with respect to the right to operate a 

recreation camp for children because the dispute is between 
competing unions. Here, as discussed, the alleged conduct 

involves PNA as an employer and four individual defendants in 

their capacity as employees, over their contractual rights and 

duties unrelated to any collective bargaining agreement; it also 

involves conspiratorial conduct between those employees and 

another union wholly unrelated to authorities under the 

jurisdiction of the NLRB. Section 9 grants the Board authority 

to resolve representation disputes among competing unions. The 

parties in this case do not request the Board's intervention in 

an election or representation proceeding. 

 III. 

 It must be noted that, in Garmon, the Court also carved 

out exceptions to the general rule of preemption that recognized 

traditional factors that preserve state jurisdiction. It 

concluded that where the activity was merely of "peripheral 

concern" to the Labor Management Relations Act, the states retain 

the power to regulate. 359 U.S. at 243. States also retain 

jurisdiction over matters of compelling local interest. 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 and employee 

unrelated to any collective bargaining agreement. 

 The majority here dismisses the "peripheral concern" 

exception without discussion, concluding that the conduct 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. This 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 represents 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 reached a point 

over which the NLRB had jurisdiction. 

 Thus, PNA brought this suit for damages only in the 

state court for breach of fiduciary duty by its four former 

employees and business agents, for their fraud, deceit, and 

defamatory actions; it charged PSEA and its agents for unfair 

competition and interference in the employment contracts between 

PNA and its former labor representatives; and it sued all of the 

defendants for commercial disparagement and conspiracy. These 

are matters that traditionally have occupied the attention and 

jurisdiction of state courts and at best are only of peripheral 

concern to the National Labor Relations Board. 

 Moreover, the state of Pennsylvania has a substantial 

interest in protecting the rights of its citizens against the 

fraudulent and other misconduct alleged in this case. Under 

Pennsylvania law, an agent, or employee, owes a duty of loyalty 

to his employer, and must act with utmost good faith and loyalty 

in furtherance of the employer's interests. Kademenos v. 

Equitable Life Assurance Soc. of U.S., 513 F.2d 1073, 1076 (3rd 

Cir. 1975); Garbish v. Malvern Fed. Sav. & Loan Ass'n, 517 A.2d 
547, 553-54 (Pa.Super 1986). 

 Although the Court has sustained the right of Congress 

to legislate in the areas of labor relations, Congress has not 

completely occupied the field. "[T]he areas that have been 

preempted by federal authority and thereby withdrawn from state 

power are not susceptible of delineation by fixed metes and 

bounds." Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 480 

(1954). As the Court observed in Garner v. Teamsters Local 776, 

346 U.S. 485 (1953), the Labor Management Relations Act "leaves 

much to the states, though Congress has refrained from telling us 

how much." Id. at 488. 

 For almost a quarter of a century following the 

enactment of the NLRA in 1935, the Court has endeavored to 

justify its preemption decisions in terms of congressional intent 

to preempt, "although the Act offers no specific guidance for 

applying this principle." 2 Patrick Hardin, The Developing Labor 

Law 1657 (3rd ed. 1992). Many of the Court's decisions "appear 

to have been based on pragmatic analysis of relevant 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 Garmon, the 

Court has refined, and perhaps even extended its exceptions to 

preemption. The Court has warned that: 

 While the Garmon formulation accurately reflects 

 the basic federal concern with potential state 

 interference with national labor policy, the 

 history of the labor pre-emption doctrine in this 

 Court does not support an approach which sweeps 

 away state court jurisdiction over conduct 

 traditionally subject to state regulation without 

 careful consideration of the relative impact of 

 such a jurisdictional bar on the various interests 

 affected. 

Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 188 (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 substantial 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 Court has made a 

detailed factual analysis in each case before it in an effort to 

ascertain whether the claims in the state court would offend 

federal policies established by the Board. Under the 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 not encroach 

upon the Board's jurisdiction. 

 In Farmer, the Court concluded that Hill, a member of 

the Carpenter's Union who complained of union discrimination in 

its hiring hall and other tortious conduct, could pursue a tort 

action brought in a state court against the union and its 
officials to recover damages for intentional affliction of 

emotional distress. 430 U.S. at 292-93. The Court reasoned 

that, in light of the discrete concerns of the federal scheme and 

state tort law, the potential for interference with the Board's 

proceedings if a complaint were filed with the court "is 

insufficient to counterbalance the legitimate and substantial 

interest of the State in protecting its citizens." Id. at 304. 

In Sears, the Court noted that when a claim involves conduct 

arguably prohibited by the Act, the "critical inquiry" is 

"whether the controversy presented to the state court is 

identical to . . . or different from . . . that which could have 

been, but was not, presented to the labor board." 436 U.S. at 

197. 

 The majority dismisses PNA's "identical controversy" 

argument asserting that PNA is attempting to construct 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 "arguably 

prohibited" by the NLRA may be litigated in a state court. 

Supreme Court case law focusses on whether the conduct is central 

to the Act, whether the state interest in regulation is 

compelling, and whether the state's exercise of jurisdiction 

risks interference with the federal regulatory scheme. 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 distinguishable. 

In fact, Belknap strongly supports PNA's position that its seven 

counts are not preempted. In that case, negotiations for a new 

contract between the union and employer reached an impasse, some 

employees struck, and the employer unilaterally granted a wage 

increase to employers who stayed on the job. The wage increase 

became the basis for an unfair labor practice charge filed by the 

union with the Board and the employer countered with charges of 

its own. The employer hired replacement workers, promising 

permanent employment, but dismissed them to make room for the 

returning strikers. The replacement workers sued under state law 

theories of misrepresentation and breach of employment contract. 

Despite the unfair labor practice proceedings before 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 Board or the 

 interest of the federal law in insuring the 

 replacement of the strikers. The interests 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 basis for 

 holding that permitting the contract cause of 

 action will conflict with the rights of either the 

 strikers or the employer or would frustrate 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 "identical" to the 

controversy before the Board. The Board's focus was on the 

rights of the striking workers, while the state court would focus 

on the rights of the replacement workers. Id. at 510. 

 In the instant case, even if a proceeding were 

initiated before the Board, the interests, as in Belknap, are 

different. The Board would be concerned with the defendants' 

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 Board can 

provide." Id. at 510. Although not dispositive, an important 

factor in preemption analysis is that the NLRB is unable 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 plaintiff's alleged 

pain, suffering, and medical expenses), Linn v. Plant Guard 

Workers, 383 U.S. 53, 64 (1965) (noting the Board's inability to 

provide redress for personal injury caused by malicious libel). 

 This case is distinguishable from Operating Engineers 

v. Jones, 460 U.S. 669 (1982). In Jones, a newly appointed 

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 contract. The 

Supreme Court found the supervisor's state law claim preempted by 

the NLRA. 

 The Court found that the alleged conduct was arguably 

prohibited by the Act, and that the controversy before the state 

court was identical to that brought before the Board. In Jones, 

the resolution of both the state law and the Board action 

involved an analysis of whether the union coerced the employer 

into terminating the supervisor. In the instant case, however, 

there could only be the remote possibility that the Board might 

be called upon to determine if the defendants coerced the nurses 

in the collective bargaining units in the exercise of their 

Section 7 rights. In contrast, the state court would focus on 

whether the defendants' conduct injured PNA. 

 Unlike Jones, the exercise of state jurisdiction over 

the common law tort claims in the instant case would not have any 

effect on federal labor policy. The court would focus on the 

conduct as it specifically affected the employer-employee 

relationship between PNA and the individual defendants, not 

employees in the collective bargaining units, and on PSEA's 

entrepreneurial behavior in violation of state law. Thus, state 

jurisdiction here creates no significant risk of impact on 

federal labor law. 

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

acknowledge that PNA's Counts VIII and IX involve matters 

appropriate for the Board. In Count VIII, PNA alleges that the 

defendants interfered with its relationship with its local 

bargaining units. PNA asserts that the defendants were aware of 

its right to bargain with its locals prior to the expiration of 

their bargaining agreements. The defendants allegedly interfered 

with PNA's prospective contractual relations with the local units 

with the intent to displace PNA as the exclusive bargaining 

agent. Similarly, in Count IX, PNA alleges that the defendants 

interfered with the collective bargaining agreements between PNA 

and various health care employers. 

 These two counts focus on the bargaining agreements and 

the relationship between PNA, their locals, and their 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 preempts Counts 

VIII and IX. 

 V. 

 To recapitulate, I respectfully dissent from the 

opinion of the majority in affirming the order of the district 

court dismissing Counts II, IV, V, VI, VII, X and XI as preempted 

by the NLRA. However, I concur with the majority that the NLRA 

preempts Counts VIII and IX of PNA's complaint. 

 I further concur with the majority in affirming the 

order of the district court in holding that Counts I and III are 

not preempted and directing each side in this appeal to bear its 

own costs.