EXPANDED OPINION; DECISION AND ENTRY SUSTAINING DEFENDANT’S MOTION TO DISMISS, TREATED AS ONE FOR SUMMARY JUDGMENT (DOC. #6); JUDGMENT TO BE ENTERED IN FAVOR OF DEFENDANT AND AGAINST PLAINTIFFS; TERMINATION ENTRY
Plaintiffs 1 are experienced skilled tradesmen (e.g., electricians, plumbers, millwrights, mechanical repairmen, and tinners), who were hired by Defendant Delphi Chassis Systems (“Delphi”) in 1999 and 2000. 2 Prior to interviewing for employment with Delphi, Plaintiffs each completed a job application, which contained information about them work background and experience, as well as their current employment status, including their pay and fringe benefits. Their applications revealed that their hourly rate of pay from their then-current employers was greater than that offered by Defendant.
As part of the hiring process, Plaintiffs were interviewed by Ms. Carol Duff (“Duff’), Delphi’s Hourly Employment Coordinator. Duff had access to the information contained on the job applications. During the interviews, Duff allegedly represented to and promised each of the Plaintiffs that, due to the work schedule the hours of work offered by Delphi to Plaintiffs), they would earn more pay for a fixed period of time than in their current jobs. Duff further informed each of the Plaintiffs that, until September of 2002, the work schedule guaranteed each Plaintiff the opportunity to work for seven days a week and twelve hours a day (“7/12”), with no reservations. Based on these representations, Plaintiffs resigned from their positions and accepted employment with Delphi. In December of 2000, Delphi unilaterally stopped the 7/12 Program without notice to Plaintiffs. Defendant has refused to reinstate the program, despite repeated requests. As a result, Plaintiffs have suffered extreme financial hardship and emotional distress.
On May 28, 2002, Plaintiffs initiated the instant litigation in the Montgomery County Court of Common Pleas, setting forth six claims for relief, to wit: (1) breach of implied contract; (2) promissory estoppel; (3) fraud in the inducement; (4) fraud; (5) misrepresentation; and (6) negligent infliction of emotional distress (Doc. # l). 3 On July 10, 2002, Defendant removed the action to this Court, asserting that subject matter jurisdiction exists due to both the existence of a federal question, 29 U.S.C. § 1331, and diversity of citizenship, 28 U.S.C. § 1332 (Doc. # 1).
I. Standard Governing Defendant’s Motion
Summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett,
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact.
Id.
at 323,
Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to “simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
II. Defendant’s Motion (Doc. # 6)
Defendant asserts that Plaintiffs’ claims must be dismissed, because they are inextricably intertwined with Delphi’s collective bargaining agreements with IUE-CWA and Local 755 (“the Union”) and, therefore, they are preempted by Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185. Defendant further argues that the claims are preempted by the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151-169. Thus, Defendant contends that Plaintiffs’ claims belong either before an arbitrator or the National Labor Relations Board (“NLRB”). Because the Court concludes that Plaintiffs’ claims are precluded by § 301, only that argument will be addressed.
A. Complete Preemption under Section 301 of the LMRA
There are two aspects to federal preemption of state law: conflict preemption and complete preemption. Conflict preemption arises where compliance with both federal and state law is a physically impossible, or “where state law stands as an
Under Section § 301 of the LMRA,
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect of the amount in controversy or without regard to the citizenship of the parties.
29 U.S.C. § 185(a). “[T]he preemptive force of § 301 is so powerful as to displace entirely any state cause of action ‘for violation of contracts between an employer and a labor organization.’ ”
Franchise Tax Bd. v. Construction Laborers Vacation Trust,
The reach of § 301 is not limitless, however. In
Caterpillar, Inc. v. Williams,
Section 301 preempts only state law claims that are “substantially dependent on analysis of a collective-bargaining agreement,” not claims that only “tangentially” involve CBA provisions. Furthermore, a defendant’s reliance on a CBA term purely as a defense to a state law claim does not result in section 301 [complete] preemption.
Fox v. Parker Hannifin Corp.,
In
DeCoe v. General Motors Corp.,
1. Breach of Implied Contract
Plaintiffs’ breach of contract claim is based on the allegation that Delphi offered them employment under a 7/12 program, which was guaranteed to continue until September of 2002. To prove a breach of contract claim, a plaintiff must show “the existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff.”
Doner v. Snapp,
2. Promissory Estoppel
To recover under the doctrine of promissory estoppel, a plaintiff must establish that: (1) the defendant made a clear, unambiguous promise; (2) the defendant should have reasonably expected the promise to induce action or forbearance on the part of the plaintiff; (3) the promise actually induced action or forbearance that was detrimental to the plaintiff; and (4) enforcement of the promise is necessary to avoid injustice.
Fisher v. Trinova Corp.,
— F.3d-,-,
3. Fraud in the Inducement, Fraud, Misrepresentation
Under Ohio law, to establish a claim of fraud, a plaintiff must prove that the defendant made a representation or concealment, material to the transaction at hand, made falsely with the intent to mislead the plaintiff, upon which the plaintiff justifiably relied to his detriment.
Burr v. Stark Cty. Bd. of Commrs.,
A closer question is whether interpretation of the CBA is necessary to establish that Delphi’s alleged representations were falsely made and with the intent to mislead. Addressing circumstances similar to that herein, the Eighth Circuit ruled that § 301 did
not
preempt the plaintiffs’ fraud claims.
Anderson v. Ford Motor Co.,
The Eleventh Circuit has also held that fraud claims premised on pre-hiring representations are not preempted by § 301. In
Varnum v. Nu-Car Carriers, Inc.,
Taking a contrary view, in
Aguilera v. Pirelli,
This Court finds the situation in
Adkins
to be distinguishable, and it agrees with the Eighth and Eleventh Circuits that Plaintiffs’ fraud claims do not require interpretation of the CBA. In
Adkins,
the plaintiffs were existing bargaining unit members, and their claims were based on a misrepresentation of their rights under a new collective bargaining agreement and of the effect of ratification on their seniority rights. Thus, an analysis of the former and new collective bargaining agreements was necessary to determine the rights that actually existed and if they had been misrepresented. In the present case, Plaintiffs were not members of the bargaining unit at the time the alleged misrepresentations were made. They have not asserted that Delphi misrepresented the provisions of the 12/7 program, as it exists under the collective bargaining agreement, nor have they asserted that Delphi lacked the ability under the CBA to terminate the program at any time. Thus, in order to resolve Plaintiffs’ claims herein, it is not necessary for the Court to determine whether the CBA permitted Delphi to terminate the 12/7 Program before September, 2002. Rather, the necessary inquiry is whether Delphi represented that the 12/7 program would continue until that date, knowing that it would be terminated (rightly or wrongfully) earlier.
See Kittle v. Prudential Ins. Co. of Amer.,
102
4. Negligent Infliction of Emotional Distress
Defendant’s Motion to Dismiss Plaintiffs’ negligent infliction of emotional distress claim is uncontested. Under Ohio law, claims of negligent infliction of emotional distress are generally limited to instances where the plaintiff is a bystander to an accident or was in fear of physical consequences to his own person.
Gearing v. Nationwide Ins. Co.,
B. Whether Plaintiff’s Claims are Subject to Conflict Preemption, in Light of the CBA
Defendant claims that the CBA addresses the same terms of employment as are contained in the Plaintiffs’ individual agreements, and thus Plaintiffs cannot prevail on their state law claims, due to conflict preemption. Specifically, it argues that the CBA contains provisions relating to hours of work, overtime and wages. It further notes that the CBA contains a provision on “full utilization,” which it equates with the 12/7 program. Delphi asserts that, due to these provisions, Plaintiffs individual contracts with the company are rendered unenforceable, because the individual agreements conflict with the terms of the CBA.
In
J.I. Case Co. v. NLRB,
Since that time, the federal courts of appeals, as well as state courts, have failed to reach a consensus as to whether individual employment contracts whose terms are within the scope of a CBA but are more advantageous may be enforced. As argued by Defendant, the Ninth Circuit has taken the position that state law based contract claims arising from alleged pre-employment misrepresentations
are
preempted by § 301 when the employee is subsequently hired under a CBA, stating, “when an independent agreement is inconsistent with the provisions of a collective bargaining agreement, the bargaining agreement controls.”
Aguilera,
In contrast, the Eighth Circuit has permitted claims by bargaining unit employees based on pre-hiring promises that fall within the purview of the CBA.
Anderson, supra.
The court of appeals further reasoned: “[W]e don’t think that because Ford had the right to displace [plaintiffs] under the terms of the collective bargaining agreement, the company also had the right to either misrepresent to [them] the terms and conditions of employment or to avoid contractual or quasi-contractual obligations based on pre-employment promises.”
However, as asserted by Defendant, the Sixth Circuit has implicitly articulated its
In
Ulrich,
salaried employees sought to return to their former bargaining unit positions, pursuant to terms of the collective bargaining agreement. Their requests were denied, due to an impeding sale of the corporate division, and the union refused to process their grievances, on the ground that, as salaried employees, they were no longer covered by the CBA. The Sixth Court concluded that the plaintiffs’ right to return and their request for seniority rights depended on rights created by the CBA. Thus, the plaintiffs’ state law claims turned on a determination of the language of the CBA and, therefore, they were inextricably intertwined with the CBA. The court of appeals reiterated its prior holding in
Maushund
that employees covered by a CBA cannot rely upon the existence of a separate, individual employment contract giving rise to state law claims.
Id.
at 938. In
Fox,
a bargaining unit employee brought state law contract, promissory estoppel and fraud claims against her employer, arising out of the company’s alleged failure to control coworkers’ harassment and the inadequate investigation of employee’s grievances and complaints. The Sixth Circuit held that the employee’s state law claims were preempted by § 301, reiterating that “employees covered by a CBA cannot rely upon the existence of a separate, individual employment contract giving rise to state law claims.” The Fox
court
recognized, however, that individual contracts are not necessarily rendered void upon accepting a bargaining unit position. It stated: “[RJights under individual employment contracts predating the existence of a CBA are not extinguished by the subsequent negotiation of a CBA, and promises made by an employer after the expiration of a CBA similarly may give rise to viable state law claims for breach of contract.”
We have had many opportunities to interpret and apply the §§ 301 pre-emption doctrine set forth in Lingle and Allis-Chalmers. We have not applied a cramped and narrow construction of the dictates of Lingle and Allis-Chalmers in reaching our decisions, nor have we limited §§ 301 pre-emption to cases wherethe precise meaning of precise words in the CBA is the crux of the state-based claim. Rather, we have found many state-based claims pre-empted because they have implicated the federal policies underlying federal labor law. In doing so, we have followed the dictates of the Court in Allis-Chalmers that “[t]hese policies require that ‘the relationships created by [a collective bargaining agreement]’ be defined by application of ‘an evolving federal common law grounded in national labor policy,’ ” Allis-Chalmers, 471 U.S. at 210-11 ,105 S.Ct. at 1911 , and that “state-law rights and obligations that do not exist independently of private agreements, and that as a result can be waived or altered by agreement of those parties, are preempted .... ” Allis-Chalmers, id. at 213,105 S.Ct. at 1912 .
In applying these principles, we have stated that §§ 301 preempts state law when “employment relationships which are subject to a collective bargaining agreement” are implicated, Maushund v. Earl C. Smith, Inc.,795 F.2d 589 , 591 (6th Cir.1986), or when “the rights to be vindicated and the relationship between the parties are created not by state law, but by the collective agreement itself,” Terwilliger v. Greyhound Lines, Inc.,882 F.2d 1033 (6th Cir.1989), cert. denied,495 U.S. 946 ,110 S.Ct. 2204 ,109 L.Ed.2d 531 (1990), or when a state-based claim requires examining the practices and customs of a workplace whose conditions are governed by a CBA, Ulrich v. Goodyear Tire & Rubber Co.,884 F.2d 936 (6th Cir.1989), or when “employees covered by .a CBA ... rely upon the existence of a separate, individual employment contract giving rise to state law claims.” Fox v. Parker Han-nifin Corp.,914 F.2d 795 (6th Cir.1990).
Jones v. General Motors Corp.,
Regardless of how this Court might resolve the question of the viability of state law claims based on pre-employment representations if presented with a tabula rasa, the Sixth Circuit has already spoken on this issue. Based on the Sixth Circuit’s decision in Maushund and its progeny, which have rejected state law breach of contract claims and other reliance-based claims, based on pre-employment representations, this Court is constrained to conclude that Plaintiffs’ breach of contract claims are precluded by § 301, because their relationship with Delphi concerning the 12/7 program is governed by a collective bargaining agreement and the terms of their individual contracts conflict with the CBA. Plaintiffs’ state law claims of promissory estoppel and fraud, which are likewise based on pre-employment representations concerning bargaining unit positions, are also conflict preempted by § 301. See Fox, supra. Accordingly, Defendant’s Motion to Dismiss Plaintiffs’ Complaint, treated as a motion for summary judgment (Doc. # 6), is SUSTAINED.
For the foregoing reasons, Defendant’s Motion to Dismiss, treated as a motion for summary judgment (Doc. # 6), is SUSTAINED.
Judgment will be entered in favor of the Defendant and against the Plaintiffs.
WHEREFORE, the captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
Notes
.Plaintiffs are Russell Johnson, Jeff Cohee, Tim Evans, Chris Schultz, James Saylor, Bob Snow, Doug Finkbine, Patrick Greggerson, Billy Farmer, Steve Maxwell, Don Stephens, Chuck Foster, Jeff Kelly, John Reinhart, and Richard Brown, Jr.
. The following facts are taken from Plaintiffs' Complaint (Doc. # 1).
. In Count Seven, Plaintiffs seek punitive damages.
. Defendant has submitted a copy of the collective bargaining agreement ("CBA”) between Delphi and the IUE. Plaintiffs have not mentioned the CBA in their Complaint, and the failure to do so does not constitute “artful pleading” as a means to avoid indications that they have asserted claims for breach of the CBA. As stated, infra, Plaintiffs’ claims are based on alleged contracts that were made independent of the CBA.
Defendant has raised § 301 preemption, based on the CBA, as a defensive argument to the viability of Plaintiffs' claims. In a Rule 12(b)(6) Motion, the Court would be prohibited from considering the CBA, because it constitutes materials outside of Plaintiffs' pleading. However, Plaintiffs have not disputed that Defendant's submission is an accurate copy of the CBA, and the presence of the CBA is dispositive of whether they may assert their state law claims, as a matter of law. Accordingly, the Court concludes that it is appropriate to consider the CBA and, consequently, to treat Defendant's Motion as one for summary judgment.
. The Eighth Circuit further noted that a plaintiff who is an employee covered by a CBA cannot avoid preemption simply by la-baling a claim for violation of the CBA as a state law fraud claim.
Id.
at 957 (citing
Bell v. Gas Serv. Co.,