Pennsylvania Nurses Ass'n v. Pennsylvania State Educ. Ass'n

• Citation: 90 F.3d 797
• Decision Date: 25 July 1996
• Docket Number: 95-7458,Nos. 95-7457,s. 95-7457
• Parties: 152 L.R.R.M. (BNA) 2901, 65 USLW 2124 PENNSYLVANIA NURSES ASSOCIATION, Appellant, v. PENNSYLVANIA STATE EDUCATION ASSOCIATION; Debra Ferguson; Richard Lewis; Jeffrey Lewis; Karen Schrader; Alfred Nelson, Jr.; Thomas Ferguson. PENNSYLVANIA NURSES ASSOCIATION v. PENNSYLVANIA STATE EDUCATION ASSOCIATION; Debra Ferguson; Richard Lewis; Jeffrey Lewis; Karen Schrader; Alfred Nelson, Jr.; Thomas Ferguson, Appellants. 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. , and 95-7645.
• Court: U.S. Court of Appeals — Third Circuit

Page 797

90 F.3d 797

152 L.R.R.M. (BNA) 2901, 65 USLW 2124

PENNSYLVANIA NURSES ASSOCIATION, Appellant, v. PENNSYLVANIA STATE EDUCATION ASSOCIATION; Debra Ferguson;

Richard Lewis; Jeffrey Lewis; Karen Schrader;

Alfred Nelson, Jr.; Thomas Ferguson.

PENNSYLVANIA NURSES ASSOCIATION v. PENNSYLVANIA STATE EDUCATION ASSOCIATION; Debra Ferguson;

Richard Lewis; Jeffrey Lewis; Karen Schrader;

Alfred Nelson, Jr.; Thomas Ferguson,

Appellants.

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.

Nos. 95-7457, 95-7458, and 95-7645.

United States Court of Appeals,

Third Circuit.

Argued May 20, 1996.

Decided July 25, 1996.

Sur Petition for Rehearing in No. 95-7457 Aug. 26, 1996.

Thomas A. French (argued), David F. O'Leary, Rhoads & Sinon, Harrisburg, PA, Barbara J. Sapin, American Nurses Association, Washington, DC, for Appellant in No. 95-7457, and Appellee in No. 95-7458.

Robert H. Chanin (argued), National Educational Association, Washington, DC, Jonathan Walters, Markowitz & Richman, Philadelphia, PA, for Appellees in No. 95-7457, Appellants in No. 95-7458, and Petitioners in No. 95-7645.

Todd J. Shill, Rhoads & Sinon, Harrisburg, PA, for Respondent in No. 95-7645.

Before: SLOVITER, Chief Judge, and SAROKIN and ROSENN, Circuit Judges.

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 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.

                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 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 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, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (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., --- U.S. ----, ----, 116 S.Ct. 1712, 1718, 135 L.Ed.2d 1 (1996); Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 346, 96 S.Ct. 584, 590, 46 L.Ed.2d 542 (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.

the two remaining claims. PNA appealed. PSEA cross-appealed and filed a petition for writ of mandamus as an alternative.

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, 112 S.Ct. 302, 116 L.Ed.2d 245 (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 --- U.S. at ----, 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, 103 S.Ct. 3172, 3177, 77 L.Ed.2d 798 (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, 108 S.Ct. 1877, 1881-82, 100 L.Ed.2d 410 (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....