Foreman v. AS Mid-America, Inc., MID-AMERIC

• Decision Date: 25 September 1998
• Docket Number: Nos. S-97-209,S-97-222,INC,MID-AMERIC,s. S-97-209
• Parties: , 159 L.R.R.M. (BNA) 2434, 136 Lab.Cas. P 10,258 Earl FOREMAN et al., Appellants, v. AS, Appellee. , through
• Court: Nebraska Supreme Court

Page 290

586 N.W.2d 290

255 Neb. 323, 159 L.R.R.M. (BNA) 2434, 136 Lab.Cas. P 10,258

Earl FOREMAN et al., Appellants, v. AS MID-AMERICA, INC., Appellee.

Nos. S-97-209, through S-97-222.

Supreme Court of Nebraska.

Sept. 25, 1998.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment. On a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists.

Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

4. Summary Judgment: Appeal and Error. In an appellate review, the grant of a motion for summary judgment may be affirmed on any ground available to the trial court, even if it is not the same reasoning the trial court relied upon.

5. Summary Judgment: Jurisdiction. A summary judgment motion based on jurisdictional grounds is treated as and serves the same purpose as a demurrer on jurisdictional grounds.

6. Summary Judgment: Jurisdiction: Pleadings. A summary judgment motion based on a jurisdictional defect is treated the same as a demurrer based on a jurisdictional defect for purposes applying the rule regarding repleading.

7. Summary Judgment: Jurisdiction: Pleadings. After a summary judgment motion on jurisdictional grounds has been granted, but where a reasonable possibility exists that the jurisdictional defect may be cured by amendment and a cause of action may be stated, denying the plaintiff the opportunity to replead is an abuse of discretion.

8. Labor and Labor Relations: Federal Acts: Actions: Presumptions. State causes of action are presumptively preempted if they concern conduct that is actually or arguably either prohibited or protected by the National Labor Relations Act.

9. Labor and Labor Relations: Federal Acts: Actions. A state cause of action may be sustained if the behavior sought to be regulated is of only peripheral concern to federal labor law or touches interests deeply rooted in local feeling and responsibility.

10. Labor and Labor Relations: Federal Acts. For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the National Labor Relations Act prohibits.

11. Labor and Labor Relations: Employment Contracts. Employee handbooks, rules, and oral representations can be the bases for a contractual obligation with or without the existence of a collective bargaining agreement.

12. Fraud: Proof. To recover in an action for fraud based on misrepresentation of a material fact, a plaintiff must prove that (1) the defendant represented a material fact; (2) the represented fact was untrue; (3) the defendant knew that the represented fact was untrue, recklessly made the representation as a positive assertion without knowledge concerning the truth of the representation, or made the representation negligently as the result of a lack of reasonable care in ascertaining the fact represented or in the absence of skill and competence required by a particular business or profession; (4) the misrepresentation was made with the intention that the plaintiff would rely on it; (5) the plaintiff reasonably relied on the misrepresentation; and (6) as the result of such reliance, the plaintiff was damaged.

13. Mental Distress: Proof. To recover for intentional infliction of emotional distress, the plaintiff must show that (1) there has been intentional or reckless conduct, (2) the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community, and (3) the conduct caused emotional distress so severe that no reasonable person should be expected to endure it.

Alan L. Plessman and Susan I. Strong, of Plessman Law Offices, Lincoln, for appellants.

Joseph S. Turner, of Seyfarth, Shaw, Fairweather & Geraldson, and Douglas J. Peterson, of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, for appellee.

WHITE, C.J., CAPORALE, WRIGHT, CONNOLLY, GERRARD, and McCORMACK, JJ., and HASTINGS, C.J., Retired.

PER CURIAM.

This case involves a consolidated lawsuit brought by 14 former AS Mid-America, Inc., employees as a result of a labor strike that occurred at the AS Mid-America printing plant located in Lincoln, Nebraska. The question presented is whether these 14 nonunion employees' various breach of contract claims, fraudulent misrepresentation claims, and intentional infliction of emotional distress claims are preempted by either § 301 of the Labor Management Relations Act (LMRA), codified at 29 U.S.C. § 171 et seq. (1994), or the National Labor Relations Act (NLRA), 29 U.S.C. § 157 et seq. (1994).

On January 18, 1994, 10 of the 14 appellants filed suit against AS Mid-America in the Lancaster County District Court. Appellants subsequently amended their petitions on December 11, 1995, adding four additional appellants. The 14 appellants are Dene Dixon, Larry Masters, Michael Riggs, Brian Faust, Ralph Chloupek, Jeffrey Reedy, Michael Werger, Raymond Thomason, Kenneth Chloupek, Paul Rada, Jerry Study, Kent Watson, Jr., Earl Foreman, and Lynn Dowding. Appellants' second amended petitions sought damages against AS Mid-America for the company's alleged breach of a third-party beneficiary contract, breach of an oral contract, breach of an implied unilateral contract, fraudulent misrepresentation, and intentional infliction of emotional distress.

On January 9, 1996, AS Mid-America denied the allegations therein, contending that appellants' claims were preempted by the NLRA, preempted by § 301 of the LMRA, barred by the statute of limitations, barred for failure to exhaust administrative remedies, and improperly joined. On May 28, AS Mid-America filed a motion for summary judgment based on these same allegations, generally claiming that there was no genuine issue as to any material fact. On January 30, 1997, the district court granted AS Mid-America's motion for summary judgment, finding that appellants' claims were preempted by the NLRA. Appellants filed an appeal in the Nebraska Court of Appeals on February 18, and we removed the case to our docket pursuant to our power to regulate the caseloads of the Court of Appeals and this court. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).

Appellants' sole assignment of error is that the Lancaster County District Court erred in sustaining AS Mid-America's motion for summary judgment, finding appellants' causes of action preempted by the NLRA.

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Houghton v. Big Red Keno, 254 Neb. 81, 574 N.W.2d 494 (1998); Barnett v. Peters, 254 Neb. 74, 574 N.W.2d 487 (1998). On a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists. Darrah v. Bryan Memorial Hosp., 253 Neb. 710, 571 N.W.2d 783 (1998); Gans v. Parkview Plaza Partnership, 253 Neb. 373, 571 N.W.2d 261 (1997). In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Barnett v. Peters, supra; Chalupa v. Chalupa, 254 Neb. 59, 574 N.W.2d 509 (1998). In an appellate review, the grant of a motion for summary judgment may be affirmed on any ground available to the trial court, even if it is not the same reasoning the trial court relied upon. Logan Ranch v. Farm Credit Bank, 238 Neb. 814, 472 N.W.2d 704 (1991). See, also, Gustin v. Scheele, 250 Neb. 269, 549 N.W.2d 135 (1996); Crystal Clear Optical v. Silver, 247 Neb. 981, 531 535 (1995); Wymore v. Wymore, 239 Neb. 940, 479 N.W.2d 778 (1992).

A summary judgment motion based on jurisdictional grounds is treated as and serves the same purpose as a demurrer on jurisdictional grounds. Concerned Citizens v. Department of Environ. Contr., 244 Neb. 152, 505 N.W.2d 654 (1993); Kerndt v. Ronan, 236 Neb. 26, 458 N.W.2d 466 (1990); Nelson v. Sioux City Boat Club, 216 Neb. 484, 344 N.W.2d 634 (1984). A summary judgment motion based on a jurisdictional defect is treated the same as a demurrer based on a jurisdictional defect for purposes applying the rule regarding repleading. Concerned Citizens v. Department of Environ. Contr., supra. Consequently, after a summary judgment motion on jurisdictional grounds has been granted, but where a reasonable possibility exists that the jurisdictional defect may be cured by amendment and a cause of action may be stated, denying the plaintiff the opportunity to replead is an abuse of discretion. Id.

Resolving every controverted fact in favor of appellants and affording them the benefit of every reasonable inference deducible from the evidence, the following is disclosed: This suit arose out of a labor strike that occurred on April 27, 1993, at AS Mid-America's commercial printing plant located in Lincoln, Nebraska. Before the strike, the Lincoln plant was unionized and operated under a collective bargaining agreement (CBA) between AS Mid-America and the Graphic Communications...