OVERVIEW: Plaintiff filed a complaint against defendants Laborers' International Union of North America (LIUNA), and its attorney, alleging numerous counts of defamation and one count of intentional infliction of emotional distress. The defendants filed a motion to dismiss the complaint and/or for summary judgment on the ground that plaintiff's defamation claims were preempted under § 301 of the Labor Management Relations Act, 29 U.S.C.S. § 185(a). The plaintiff objected to the magistrate's report, The court held that because the resolution of plaintiff's claims required interpretation of the terms of the LIUNA constitution, the claims were pre-empted.

OUTCOME: Plaintiff's defamation claims were dismissed. The claims were preempted by the Labor Management Relations Act because resolution of the claims required interpretation of the Laborers' International Union of North America constitution.

CORE TERMS: pre-empted, labor contract, defamation, state-law, defamatory, pre-emption, duty, intentional infliction of emotional distress, allegedly defamatory, reasons discussed, bimonthly
 

 Civil Procedure : Appeals : Standards of Review : De Novo Review

Pursuant to 28 U.S.C.S. § 636(b)(1), the district court must make a de novo determination of those portions of a magistrate's report to which objections have been made.

 Labor & Employment Law : Collective Bargaining & Labor Relations

Section 301 of the Labor Management Relations Act provides: 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 to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C.S. § 185(a).

 Labor & Employment Law : Collective Bargaining & Labor Relations

The Supreme Court has stated that complete pre-emption of a plaintiff's state-law claims under Section 301 of the Labor Management Relations Act, 29 U.S.C.S. § 185(a), will be found only where resolution of the state-law claim is "inextricably intertwined" with consideration of the terms of the labor contract, or where the rights and obligations created under state-law do not exist independently of the labor contract. Where resolution of plaintiff's state-law claim depends on interpretation of the labor contract, the claim is pre-empted.

 Labor & Employment Law : Collective Bargaining & Labor Relations

The fact that the labor contract provides a remedy that plaintiff could pursue as an alternative to the state-law claim does not mean that pre-emption is required. A plaintiff may bring a state-law tort action against an employer, even where he could have brought a similar claim on a provision in the labor contract, so long as the state claim does not require interpretation of the labor contract. Likewise, the fact that the state-law analysis involves attention to the same factual considerations as a determination under that labor contract does not mandate pre-emption. A state-law claim will only be completely pre-empted where it cannot be resolved without interpretation of the labor contract.

 Labor & Employment Law : Collective Bargaining & Labor Relations

Where the labor contract imposes a duty upon the defendant to make the statements that are alleged to be defamatory, courts have repeatedly held that plaintiff's defamation claims are pre-empted.

COUNSEL: For PETER . CAPITANO, plaintiff: Robert H. Perk, Buffalo, NY.
 
For LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, ROBERT D. LUSKIN, COMEY, BOYD & LUSKIN, defendants: Lawrence J. Vilardo, Esq., Connors & Vilardo, Buffalo, NY.

JUDGES: HONORABLE RICHARD J. ARCARA, UNITED STATES DISTRICT COURT.

OPINIONBY: RICHARD J. ARCARA

OPINION: DECISION AND ORDER

BACKGROUND

On or about December 10, 1996, plaintiff Capitano filed a complaint in New York State court against defendants Laborers' International Union of North America ("LIUNA"), attorney Robert D. Luskin and the law firm of Comey, Boyd and Luskin, alleging numerous counts of defamation and one count of intentional infliction of emotional distress.

On January 17, 1997, defendants removed this case to federal court. On January 30, 1997, plaintiff moved to remand this case back to state court. On March 27, 1998, this Court denied plaintiff's motion to remand finding that at least two of plaintiff's claims (counts one and seven) were pre-empted under § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a). The Court noted that plaintiff's remaining defamation  [*2]  claims also appeared to be pre-empted, but declined to decide the issue at that juncture. The Court then referred the case to Magistrate Judge Foschio for further proceedings.

Defendants thereafter filed a motion to dismiss the complaint and/or for summary judgment on the ground that all of plaintiff's remaining defamation claims are also pre-empted. On September 7, 1999, Magistrate Judge Foschio filed a Report and Recommendation ("Report"), recommending that plaintiffs claims be dismissed.

Plaintiffs filed objections to the Report and defendants filed a response thereto. On November 23, 1999, the Court held oral argument on the objections.

DISCUSSION

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report to which objections have been made. Upon a de novo review, and after reviewing the submissions and hearing argument from the parties, the Court finds that all of plaintiffs claims should be dismissed as pre-empted.

The instant dispute is one of several related actions filed by various members of Local 210, Laborers' International Union of North America ("Local 210") against defendants.  [*3]  See Caci v. Laborers Int'l Union of North America, et al., 97-CV-0033A; Caci v. Laborers Int'l Union of North America et al., 97-CV-0034A; Fasciana v. Laborers Int'l Union of North America, et al., 97-CV-0833A; Panzcyskowski v. Laborers Int'l Union of North America et al., 97-CV-0036A. As in each of the related actions, the complaint in this case sets forth numerous claims of defamation brought by a member and/or officer of Local 210, plaintiff Capitano. The allegations, which are discussed in detail in the Magistrate Judge's Report and in this Court's March 1998 Decision and Order, n1 are virtually identical to the allegations set forth in the related actions in that the defamation claims are based upon the same allegedly defamatory statements. As noted above, this Court has previously determined in its March 1998 Decision and Order that counts one and seven of the complaint are pre-empted. Accordingly, the issue currently before the Court is whether plaintiff's remaining defamation claims are also pre-empted.
 
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n1 Familiarity with this Court's June 1998 Decision and Order is presumed.
 
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The defendants allege complete pre-emption of plaintiff's remaining defamation claims under § 301 of the LMRA. Section 301 of the LMRA, which provides:

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 to the amount in controversy or without regard to the citizenship of the parties.

 
29 U.S.C. § 185(a). The Supreme Court has stated that complete pre-emption of a plaintiff's state-law claims under Section 301 will be found only where resolution of the state-law claim is "inextricably intertwined" with consideration of the terms of the labor contract, or where the rights and obligations created under state-law do not exist independently of the labor contract. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985). Where resolution of plaintiff's state-law claim depends on interpretation of the labor contract, the claim is pre-empted. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 129 L. Ed. 2d 203, 114 S. Ct. 2239 (1994).  [*5] 

However, the fact that the labor contract provides a remedy that plaintiff could pursue as an alternative to the state-law claim does not mean that pre-emption is required. See Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 229 (3d Cir. 1995) ("plaintiff may bring a state-law tort action against an employer, even where he could have brought a similar claim on a provision in [the labor contract], so long as "the state claim does not require interpretation of the [labor contract.]"). Likewise, the fact that the state-law analysis involves attention to the same factual considerations as a determination under that labor contract does not mandate pre-emption. Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 409-10, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988). A state-law claim will only be completely pre-empted where it cannot be resolved without interpretation of the labor contract.

As previously determined in this Court's March 1998 Decision and Order, the LIUNA constitution is a labor contract within the meaning of Section 301 of the LMRA. Therefore, if resolution of plaintiff's claims requires interpretation of the terms of the LIUNA  [*6]  constitution, those claims are pre-empted.

The Court finds that all of plaintiff's remaining defamation claims are pre-empted under § 301 of the LMRA. As Magistrate Judge Foschio determined and as this Court intimated in its March 1998 Decision and Order, the issue of whether the statements alleged to be defamatory in counts two through ten of the complaint necessarily require interpretation of the LIUNA constitution. In other words, the issue of whether the complaint for trusteeship was necessary and whether Local 210 has been influenced or controlled by members and associates of organized crime necessary turns on whether plaintiff Capitano and others violated various provisions of the LIUNA constitution. This determination cannot be made without interpreting the LIUNA constitution. Because the veracity of the statements alleged to be defamatory cannot be resolved without interpretation of the LIUNA constitution itself, counts two, three, four, five, six, eight, nine and ten must be dismissed as pre-empted. In addition, plaintiff's intentional infliction of emotional distress claim raised in count eleven is dismissed for the reasons discussed in Magistrate Judge Foschio's Report.  [*7] 

Furthermore, as the Court indicated in its March 1998 Decision and Order, in situations where, as here, the labor contract imposes a duty upon the defendant to make the statements that are alleged to be defamatory, courts have repeatedly held that plaintiff's defamation claims are pre-empted. See e.g. Johnson v. Anheuser Busch, Inc., 876 F.2d 620 (8th Cir. 1989); Peek v. Philadelphia Coca-Cola Bottling Co., 1997 U.S. Dist. LEXIS 10138, 1997 WL 399379 (E.D. Pa. 1997) (pre-emption found where allegedly defamatory statements "overwhelmingly related to conduct that formed the substance of plaintiff's grievance and arbitration proceedings").

Here, most of the statements alleged to be defamatory were required to be made under the terms of the LIUNA constitution. Specifically, statements alleged to be defamatory in counts two and three are contained in letters sent to members of Local 210 notifying them of the hearing to be conducted regarding the appointment of a trustee. That notice was required pursuant to Article IX, § 7 of the LIUNA constitution. Similarly, the statements alleged to be defamatory in counts four, five and nine of the complaint were all contained in issues of  [*8]  The Laborer, a bimonthly publication that is published by LIUNA. Section 3 of the Ethics and Disciplinary Procedure n2 requires that the General Executive Board Attorney (defendant Luskin) "prepare reports concerning his . . . activities, the progress he . . . is making towards achieving the objectives and purposes of the Disciplinary Procedure, to be published on a bimonthly basis in The Laborer." As with the statements made in counts two and three, defendants were under a duty under the LIUNA constitution to make the statements alleged to be defamatory in counts four, five and nine. The issue of whether those statements exceeded the scope of defendants' duties under the LIUNA constitution will necessarily require interpretation of the constitution itself. Therefore, counts two, three, four, five and ten pre-empted on this basis also.
 
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n2 As noted in this Court's June 1998 Decision and Order, at 3, the Ethics and Disciplinary Procedure became part of the LIUNA constitution in January 1995.
 
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CONCLUSION  [*9] 

For the reasons discussed above, in the Magistrate Judge's Report, and in this Court's March 1998 Decision and Order, the Court hereby dismisses all of plaintiff's claims. The Clerk of the Court is directed to enter judgment in favor of defendants and to close this case.

IT IS SO ORDERED.

HONORABLE RICHARD J. ARCARA

UNITED STATES DISTRICT COURT
 
Dated: March 31, 2000