United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-1632

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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.

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Submitted: September 24, 1998

Filed: December 24, 1998

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Before WOLLMAN, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

John Meyer is a meatcutter who has worked for Schnucks Markets since 1960.

He believes that in recent years Schnucks managers have failed to enforce proper

sanitation procedures in their meat departments and have condoned mixing outdated

meat with 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
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away from his home. Mr. Meyer further asserts that Cy Jansen, a Schnucks vicepresident, told him in the presence of other employees that he was "a poor and

substandard employee, that he was a trouble maker, that he had no right to question the

improper health and safety standards ... and that Plaintiff was a complainer and

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. Schnucks

removed the case to federal court on the basis of federal-question jurisdiction. See 28

U.S.C. § 1441(b). Schnucks then moved to dismiss or for summary judgment, arguing

that because all of Mr. Meyer's claims arose in the course of his employment they

could have been pursued through the grievance procedure set up by the collective

bargaining agreement (CBA) in effect at Schnucks and were therefore completely

preempted by § 301 of the Labor Management Relations Act (LMRA), see 29 U.S.C.

§ 185(a). 

The district court rejected Schnucks's argument that all of the claims were

preempted as too broad, and held that the slander claim was not preempted because it

did not depend on the interpretation of any provision of the CBA. See Luecke v.

Schnucks Markets, Inc., 85 F.3d 356, 359-62 (8th Cir. 1996), cert. denied, 117 S. Ct.

517 (1996). The district court concluded, however, that the claims for intentional

infliction of emotional distress and civil conspiracy were preempted because they

required the interpretation of the section of the CBA protecting employees against

unjustifiable or discriminatory transfers. Since the district court had federal-question

jurisdiction over the transfer-based claims, it then reasoned, it was authorized to

exercise supplemental jurisdiction over the state-law claims. See 28 U.S.C. § 1367(a).

After 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.
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We hold that none of Mr. Meyer's claims, even those based on his transfer to

another store, is preempted by the LMRA, and thus that the district court had no

removal jurisdiction over the case. Since federal jurisdiction is lacking, we do not

reach the question of the 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 suggestion

that Mr. Meyer's claim was preempted by the LMRA merely because his complaint

alleged facts that could have formed the basis for a grievance under the CBA. The

Supreme Court has held that the fact that a CBA provides for arbitrated dispute

resolution for claims based on the same facts as those forming the basis for a plaintiff's

complaint does not mean that state-law causes of action based on those facts are

preempted. There is no preemption unless the state-law claim itself is based on, or

dependent on an analysis of, the relevant CBA. Lingle v. Norge Division of Magic

Chef, Inc., 486 U.S. 399, 405-06 (1988). A plaintiff is the master of his or her cause

of action, and the fact that a claim could have been laid as a violation of a CBA does

not necessarily mean that the LMRA preempts 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 the

CBA and was thus preempted, when the statements in question "relate[d] to a dispute

over an event occurring at the workplace and would be governed by the grievance

procedure." In the same case, we held that claims arising from an employee's alleged

wrongful discharge, such as intentional infliction of emotional distress, also depended

on rights and obligations created by the CBA and were thus preempted. Id. In

deciding whether the claims were preempted, moreover, we noted that we had to
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consider defenses based on the CBA as well and thus took a broad view of what it

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 taken

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 state defamation action was not preempted, is such a case. "[N]o express or

implied ... provision" of the CBA, we said, "guides the factual inquiry into whether the

speakers actually said [that] Luecke refused to take the [drug] test, whether their

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 discharge

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 discharge 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. 

When faced with conflicting precedents of this kind, we are free to choose

which line of cases to follow. Kostelec v. State Farm Fire and Cas. Co, 64 F.3d 1220,

1228 n.8 (8th Cir. 1995). We think that 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 complete preemption, we believe that the claim must require

the interpretation of some specific provision of a CBA; it is not enough that the events

in question took place in the workplace or that a CBA creates rights and duties similar

or identical to those on which the state-law claim is based.
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II.

Although the events underlying Mr. Meyer's complaint occurred on the job, the

claims themselves are not inherently tied to any provision of the relevant CBA. To

prove slander, Mr. Meyer will have to produce evidence that Mr. Jansen made false

statements that injured Mr. Meyer's reputation. The elements of tortious interference

with a business relationship are the existence of a contract or of a valid business

expectancy known to the defendant, intentional and unjustified interference causing

a breach 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 substantially

dependent upon an interpretation of, the CBA. Therefore, neither of them is

automatically preempted by the LMRA. For similar reasons, we see nothing in the

basic elements of the other claims that requires analysis of the CBA for their

resolution.

The district court 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 counts of the complaint, and that section 8.9 of the CBA provides that

"[t]ransfers from one store to another will be made for justifiable reasons and will not

be used for the purpose of discriminating against any associate," the district court

concluded, first, that Mr. Meyer's claim was based in part on a right not to be

unjustifiably transferred and, second, that that right was created by, or was at least

"substantially dependent on analysis of," the CBA. We do not believe, however, that

any of Mr. Meyer's claims is based on his contractual right not to be transferred

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 by

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 infliction of emotional distress under Missouri law. The fact that the CBA
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with Schnucks also prohibited the transfer of employees without justification or for

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 an

employee's conduct or an employer's conduct and motives do not 'requir[e] a court to

interpret 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 particular act that gave rise to it constitute

an independent tort or contract violation. See Restatement of Torts (Second) § 46,

comment b, at 72 (1965). Since the second count of Mr. Meyer's complaint is not

based on rights created by, or substantially dependent on an analysis of, the CBA, it

is not preempted by the LMRA. The claim for intentional infliction of emotional

distress was therefore not removable to federal court.

The transfer also figures obliquely in the fifth count of the complaint, which

asserts a civil conspiracy by the defendants. That count incorporates the second count,

which itself, as we have said, relies partly on the alleged wrongful transfer. But since

the wrongfulness of the transfer is not bottomed on rights created by the CBA, the

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 the LMRA, the district

court did not have removal jurisdiction over the case on that ground. We therefore

vacate the district court's order granting summary judgment to Schnucks, and we

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.
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A true copy.

Attest:

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