England v. Thermo Products, Inc., 3:95-CV-756RM.

Citation956 F.Supp. 1446
Decision Date01 July 1996
Docket NumberNo. 3:95-CV-756RM.,3:95-CV-756RM.
PartiesOnie ENGLAND and Linda England, Plaintiffs, v. THERMO PRODUCTS, INC. and Mobile Health Care, Inc., Defendants.
CourtU.S. District Court — Northern District of Indiana

Paul B. Kusbach, Elihu D. Feustel, South Bend, IN, for Onie D. England, Linda England.

Byron L. Myers, Richard A. Smikle, George A. Norwood, Ice Miller Donadio and Ryan, Indianapolis, IN, for Thermo Products, Inc.

Edward N. Kalamaros, Patrick J. Hinkle, Edward N. Kalamaros & Associates, South Bend, IN, Byron L. Myers, Ice Miller Donadio and Ryan, Indianapolis, IN, for Mobile Health Care, Inc.

MEMORANDUM AND ORDER

MILLER, District Judge.

Plantiff Onie England brought this negligence suit in state court against his employer, defendant Thermo Products, Inc., and another party, Mobile Health Care, Inc., alleging with respect to Thermo Products that it had negligently failed to inform him that a chest X-ray taken as a condition of employment had demonstrated early indications of lung cancer. Linda England, Mr. England's wife, asserts a claim for loss of consortium. Thermo Products promptly removed the cause to this court on the theory that Mr England's claims are completely preempted by federal law. This cause is now before the court on Thermo Products' motion for summary judgment and on the Englands' motion for oral argument on the summary judgment motion. Because the parties' briefs adequately apprise the court of their positions, the court denies the Englands' motion for oral argument.

A party seeking summary judgment must demonstrate that no genuine issue of fact exists for trial and that the movant is entitled to judgment as a matter of law. If that showing is made and the motion's opponent would bear the burden at trial on the matter that forms the basis of the motion, the opponent must come forth with evidence to show what facts are in actual dispute. A genuine factual issue exists only when there is sufficient evidence for a jury to return a verdict for the motion's opponent. Summary judgment should be granted if no reasonable jury could return a verdict for the motion's opponent.

The parties cannot rest on mere allegations in the pleadings, or upon conclusory allegations in affidavits. The court must construe the facts as favorably to the non-moving party as the record will permit, and draw any permissible inferences from the materials before it in favor of the non-moving party, as long as the inferences are reasonable. The non-moving party must show that the disputed fact is material, or outcome-determinative, under applicable law.

Conery v. Bath Associates, 803 F.Supp. 1388, 1392-1393 (N.D.Ind.1992) (citations omitted). Applying these standards, for the reasons discussed below, the court finds that Thermo Products' motion for summary judgment must be granted.

I. FACTS

Onie England worked for defendant Thermo Products, Inc. since 1987 as a spray painter. At all times relevant to this case, Mr. England was represented by the General Teamsters Chauffeurs & Helpers Union Local 135 (the "Union"). The Union and Thermo Products are parties to a Collective Bargaining Agreement ("CBA") that governed the terms and conditions of Mr. England's employment. One of the several provisions of the CBA provided that all spray painters, such as Mr. England, would be required to have a chest X-ray taken at Thermo Products' expense on an annual basis. The specific provision of the CBA, under Article XVI ("Health and Safety"), provided that:

2. Physical and Mental Examinations. Any physical or mental examinations shall be promptly complied with by all employees, provided, however, that the Company shall pay for such physical and mental examinations. Welders and painters shall be required by the Company to have a chest x-ray during each year of the agreement, at Company expense. Such x-rays shall be scheduled by the Company and the employees scheduled during regular hours of work shall be paid any lost earnings resulting therefrom.

Pursuant to this provision of the CBA, Mr. England had an X-ray taken every year from 1988 to January 1995. After the first X-ray, in 1988, Mr. England received a copy of a corresponding report that noted the presence of "extensive biapical bullous disease." Mr. England took this report to his family physician, who told Mr. England that the X-ray showed that Mr. England had emphysema in one of his lungs. Other than this one time in 1988, Mr. England was never again provided with an X-ray report until he requested his reports in August 1995.

According to Mr. England, the 1995 report showed serious abnormalities that could indicate lung cancer and recommended further testing, and the 1994 report also showed abnormalities that indicated the beginning of lung cancer. Mr. England discovered in August 1995 that he has terminal lung cancer. Mr. England maintains that his lung cancer had not metastasized in January 1995, and had he been warned about his condition at that time, the cancer may have been subject to potentially life-saving treatment. Although Mr. England agrees that Thermo Products' duty to provide him with an annual chest X-ray arises solely from the CBA, he contends that Thermo Products had a derivative duty as a matter of Indiana common law to disclose the findings of the X-ray reports to its employees. Mr. England contends that Thermo Products breached this duty to disclose, and is liable for its negligence.

The CBA contained a grievance provision that must be followed "[s]hould any difference arise between the Company and the Union or between the Company and any employees in the bargaining unit in regard to rates of pay, hours of work, conditions of employment, or as to the meaning or application of the provisions of this Agreement." Mr. England never brought a grievance pertaining to this claim pursuant to this provision of the CBA.

II. FEDERAL PREEMPTION

Thermo Products' argument on behalf of its summary judgment motion is two-fold. First, Thermo Products contends that Mr. England's negligence claim is preempted by § 301 of the Fair Management Labor Relations Act ("LMRA"), 29 U.S.C. § 185. Second, Thermo Products contends that Mr. England's claim, when properly construed as a § 301 claim, must fail since Mr. England did not exhaust his administrative remedies before filing suit and because he has not alleged that the Union breached its duty of fair representation. The first issue — whether § 301 of the LMRA preempts Mr. England's claim — is of even more immediate importance than the parties suggest in their briefs, since if § 301 does not preempt Mr. England's claim, the case lacks any basis for federal jurisdiction and must be remanded to state court pursuant to 28 U.S.C. § 1447 without first passing on any of the pending motions. See 28 U.S.C. § 1447(b) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."); see also In re Continental Casualty Co., 29 F.3d 292, 293 (7th Cir.1994).

"The Supremacy Clause of Art. VI of the United States Constitution grants to Congress the power to preempt state law. Congress exercised this power by enacting § 301(a) of the LMRA, 29 U.S.C. § 185(a)...." Loewen Group Int'l. Inc. v. Haberichter, 65 F.3d 1417, 1420 (7th Cir. 1995) (citations omitted). Section 301(a) of the LMRA provides:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of parties.

29 U.S.C. § 185(a). In addition to providing federal jurisdiction over actions involving collective bargaining agreements, § 301 authorizes federal courts to fashion federal common law for enforcement of these agreements. Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); see also Loewen Group Int'l. Inc. v. Haberichter, 65 F.3d at 1421 ("This section provides federal court jurisdiction over controversies involving collective bargaining agreements and also authorizes federal courts to fashion a body of federal law for the enforcement of those agreements."). A court must apply federal law when resolving such disputes to "ensure uniform interpretation of collective-bargaining agreements, and thus to promote the peaceable, consistent resolution of labor-management disputes." Lingle v. Norge Division of Magic Chef, 486 U.S. 399, 404, 108 S.Ct. 1877, 1880, 100 L.Ed.2d 410 (1988) (citing Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962)); see also Loewen Group Int'l. Inc. v. Haberichter, 65 F.3d at 1421.

Section 301(a) of the LMRA thus provides that suits for violation of contracts between an employer and a labor organization present a federal question that arises under federal law, thus conferring original jurisdiction upon district courts. 29 U.S.C. § 185(a). The existence of federal question jurisdiction is determined by the "well-pleaded complaint rule": federal question jurisdiction exists only where the federal question appears on the face of the plaintiff's properly pleaded complaint. Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). A case may not be removed on the basis of a federal defense id. at 393, 107 S.Ct. at 2430, but a plaintiff cannot "`deny a defendant his right to a federal forum by artfully disguising an essentially federal law claim in terms of state law.'" Sluder v. United Mine Workers, 892 F.2d 549 (7th Cir.1989), cert. denied, 498 U.S. 810, 111 S.Ct. 45, 112 L.Ed.2d 21 (1990) (quoting Oglesby v. RCA Corp., 752 F.2d 272, 275 (7th Cir.1985)).

Determining whether the claim arises under state law or whether the claim actually alleges breach of a...

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