## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1632

___________ John G. Meyer, * * Appellant, * * v. * Appeal from the United States * District Court for the Eastern Schnucks Markets, Inc., * District of Missouri. and Cy Jansen, * * Appellees.

___________

Submitted: September 24, 1998 Filed: December 24, 1998

___________ Before WOLLMAN, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD , Circuit Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge. John Meyer is a meatc utter who has worked for Schnucks Markets since 1960. He beli eves that in recent years Schnucks managers have failed to enforce prope r sani tationprocedures in their meat departments and have condoned mixing outdate d meatw ith fresh meat and then selling the mixture as fresh. On several occasions , Mr. Meyer expressed his concerns about these matters to his supervisors. Mr. Meyer claims that in retaliation for his criticisms Schnucks allowed its supervisors to harass him and to criticize him publicly, and that Schnucks transferred him to a store farther-2-

away from his home. Mr. Meyer further asserts that Cy Jansen, a Sc hnucks vicepres ident, told him in the presence of other employees that he was "a poor an d substandard employee, that he was a trouble maker, that he h ad no right to question the improperh ealth and safety standards ... and that Plaintiff was a complainer an d sounded like a lawyer."

Mr. Meyer sued Schnucks and Mr. Jansen in Missouri state court for slander , intentional infliction of emotional distress, negligent infliction of emotional distress , tortious interference with a business relationship, and civil conspiracy. Schnuck s removed the case to federal court on the basis of federal-question jurisdiction. See 28 U.S.C. § 1441(b). Schnucks then moved to di smiss or for summary judgment, arguing that because all of Mr. Meyer's claims arose in the course of his employment the y co uld have been pursued through the grievance procedure set up by the collectiv e bar gaining agreement (CBA) in effect at Schnucks and were therefore completel y preempted by § 301 of th e Labor Management Relations Act (LMRA), see 29 U.S.C. § 185(a).

The district court rejected Schnucks's argument that all of the claims wer e preempted as too broad, and held that the slander claim was not preempted because it did no t depend on the interpretation of any provision of the CBA. See Luecke v

. Schnucks Markets, Inc. , 8 5 F.3d 356, 359-62 (8th Cir. 1996), cert. denied , 117 S. Ct. 517 (1996). The district court concluded, however, that the claims for intentiona l inflicti onof emotional distress and civil conspiracy were preempted because the y require dthe interpretation of the section of the CBA protecting employees agains t unju stifiable or discriminatory transfers. Since the district court had federal-question jurisd ictionover the transfer-based claims, it then reasoned, it was authorized t o exercise supplemental jurisdiction over the sta te-law claims. See 28 U.S.C. § 1367(a). Afte r a careful analysis, the district court granted summary judgment to Schnucks , holding that each of the five counts in Mr. Meyer's complaint either failed to state a claim or was preempted by the LMRA or Missouri workers' compensation law

. Mr. Meyer appeals.-3-

We hold thatnone of Mr. Meyer's claims, even those based on his transfer t o an other store, is preempted by the LMRA, and thus that the district court had n o remova ljurisdiction over the case. Since federal jurisdiction is lacking, we do no t reach the question of t

he propriety of summary judgment to Schnucks on Mr. Meyer's claims.

I. We note , first, that the district court was right to reject Schnucks's suggestio n that Mr. Meyer's claim was preempted by the LMRA merely because his complain t alleged facts that could have formed the basis for a grievance under the CBA. Th e Suprem e Court has held that the fact that a CBA provides for arbitrated disput e resolution for claims based on the same facts as those forming the basis for a plaintiff's complain t

does not mean that state-law causes of action based on those facts ar e preempted. There is no preemption unless the state-law claim itself is based on, o r depend ent

on an analysis of, the relevant CBA. Lingle v. Norge Division of Magi c Chef, Inc. , 486 U.S. 399, 405-06 (1988). A plaintiff is the master of his or her cause
o f action, and the fact that a claim could have been laid as a violation of a CBA does not necessarily mean that the LMRA preempt s it. We have applied this principle many times. See , e.g. , Luecke , 85 F.3d at 359, and Hanks v. General Motors Corp. , 906 F .2d 341, 343 (8th Cir. 1990).

We recognize that some of our cases do not seem to have applied Lingle in an appropriately narrow way. In Johnson v. Anheuser Busch , Inc. , 876 F.2d 620 , 624 (8th Cir. 1989), we held that a claim for slander did indeed depend on an analysis of th e CBA and was thus preempted, when the statements in question "relate[d] to a dispute
over an e vent occurring at the workplace and would be governed by the grievanc e procedure." In the same case, we held that claims arising from an employee's alleged wrongful discharge, s uch as intentional infliction of emotional distress, also depended
on rights a nd obligations created by the CBA and were thus preempted. Id . I n deciding whether the claims were preempted, moreover, we noted that we had to-4-

con sider defenses based on the CBA as well and thus took a broad view of what i t
means for a case to be substantially dependent upon an interpretation of a CBA. Id

. at 623.

On the other

hand, a separate line of our cases holds that claims based on state law that are intimately related to events at the workplace and could have been take n through the grievance process are not preempted as long as they involve purely factual questions and are not based on provisions of the CBA. Luecke , 85 F.3d at 359, holding that a s tate defamation action was not preempted, is such a case. "[N]o express o r implied ... provision" of the CBA, we said, "guides the factual inquiry into whether the speakers ac tually said [that] Luecke refused to take the [drug] test, whether thei r statements were false, whether malice attached, and whether damages resulted." Id. at 360. A number of our cases have also held that state-law retaliatory discharg e claims are not preempted by the LMRA, because they turn on purely factual questions about the employer's conduct and motives rather than on the scope of the employer's contractual authority to discha rge employees. See , e.g. , Humphrey v. Sequentia, Inc. , 58 F.3d 1238, 1244 (8th Cir. 1995). The fact that the defense to the claim relied upon the CBA, the employer asserting that there was "just cause " for the discharge under the CBA's terms, was held not to create a basis for LMRA preemption. Id.

Wh enfaced with conflicting precedents of this kind, we are free to choos e which line of cases to follow. Kostelec v. State Farm Fire a nd Cas. Co , 64 F.3d 1220, 1228 n.8 (8th Cir. 1995). We think t hat the narrower approach to LMRA preemption, which asks only whether the claim itself is necessarily grounded in rights established by a CBA, is more faithful to the Supreme Court's holding in Caterpillar, Inc. v

. Williams , 482 U.S. 386, 399 (1987), the basis for our holding in Humphrey , 58 F.3d at 1244. For there to be c omplete preemption, we believe that the claim must require the interpretation of some specif ic provision of a CBA; it is not enough that the events in question took place in the workpl ace or that a CBA creates rights and duties similar or identical to those on which the state-law claim is based.-5- II. Although the events underlying Mr. Meyer's complaint occurred on the job, the claims them selves are not inherently tied to any provision of the relevant CBA. T o prove slander, Mr. Meyer will have to produce evidence that Mr. Jansen made fals e statements that injured Mr. Meyer's reputation. The elements of tortious interference with a b usiness relationship are the existence of a contract or of a valid busines s expec tancy known to the defendant, intentional and unjustified interference causin g a breac h of the contract, and damages. Except for the existence of the valid business expectancy itself, which can be demonstrated by mere reference to the CBA without any analysis of it, neither of these causes of action is based on, or substantiall y dep endent

upon an interpretation of, the CBA. Therefore, neither of them i s auto matically preempted by the LMRA. For similar reasons, we see nothing in th e basic el ements of the other claims that requires analysis of the CBA for thei r resolution.

The district co urt believed that one aspect of Mr. Meyer's claims was based on the CBA. Noting that Mr. Meyer's transfer from one store to another was alluded to in two co unts of the complaint, and that section 8.9 of the CBA provides tha t "[t]ransfers from

one store to another will be made for justifiable reasons and will not be use d for the purpose of discriminating against any associate," the district court
conc luded, first, that Mr. Meyer's claim was based in part on a right not to b e unjustifiabl ytransferred and, second, that that right was created by, or was at leas t "substantiall y dependent on analysis of," the CBA. We do not believe, however, that any o f Mr. Meyer's claims is based on his contractual right not to be transferre d without justification.

The transfer is first featured in the second count of the complaint, which alleges that Mr . Jansen and other Schnucks supervisors retaliated against Mr. Meyer b y harassing him, publicly criticizing him, and transferring him to a store farther away from his home. Mr. Meyer claimed that these facts gave rise to a cause of action for intentional inflictio n of emotional distress under Missouri law. The fact that the CBA-6-

with Sc hnucks also prohibited the transfer of employees without justification or fo r discriminatory reasons has no legal significance in this context, since Mr. Meyer' s state-law claims are not dependent upon an interpretation of the CBA. To decide those claims, a trier of fact would have to consider only Schnucks's conduct and motives, and the effect of its behavior on Mr. Meyers. " '[P]urely factual questions' about a n empl oyee's conduct or an employer's conduct and motives do not 'requir[e] a court to interpr et any term of a collective-bargaining agreement.' " Hawaiian Airlines, Inc. v. Norris , 512 U.S. 246, 261 (1994), quoting Lingle , 486 U.S. at 407. It is not necessary to the success of Mr. Meyer's claim that any particu lar act that gave rise to it constitute
an in dependent tort or contract violation. See Restatement of Torts ( Second) § 46 , co mment b, at 72 (1965). Since the second count of Mr. Meyer's complaint is no t bas ed on rights created by, or substantially dependent on an analysis of, the CBA, i t is not preempted by the LMRA. The claim for intentional infliction of emotiona l distress was therefore not removable to federal court.

The transfe r also figures obliquely in the fifth count of the complaint, whic h asserts a civil conspiracy by the defendants. That count incorporates the second count, which itself, as we h ave said, relies partly on the alleged wrongful transfer. But since the wrongfulness of the transfer is not bottomed on rights created by the CBA, th e claim laid in the fifth count is not either, and it therefore cannot be preempted by the LMRA.
Since Mr. Meyer's state-law claims are not preempted by t he LMRA, the district court did not have removal jurisdiction over the case on that ground. We therefor e vacat e the district court's order granting summary judgment to Schnucks, and w e remand the case to the district court with directions that it remand the case to the state court from which it was wrongly removed.
JOHN R. GIBSON, Circuit Judge, dissents.-7-

A true copy.

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