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Thompson v. Hibbing Taconite Holding Co.: US District Court : CIVIL PROCEDURE | LABOR - Labor Mgmt Relations preemption regarding various claims regarding firing after drug test

COMPANY, a Minnesota corporation,
corporation, ONTARIO HIBBING
COMPANY, a Minnesota corporation, and
a Minnesota corporation d/b/a Hibbing
Taconite Company,
Civil No. 08-868 (JRT/RLE)
Wayne A. Kenas, KENAS LAW FIRM, LTD., 6617 Warren Avenue,
Edina, MN 55439, for plaintiff.
Kenneth A. Kimber and R. Thomas Torgerson, HANFT FRIDE PA, Suite
1000, 130 West Superior Street, Duluth, MN 55802-2094, for defendants.
This case arises out of the termination of Dennis Thompson by defendants
Hibbing Taconite Holding Company, Cliffs Mining Company, Ontario Hibbing
Company, and Pickands Hibbing Corporation (collectively, Hibbing Taconite).1
Hibbing Taconite operates a mine in Hibbing, Minnesota, and Thompson was employed
by Hibbing Taconite as a truck driver in one of its mining pits. Thompson was
1 The named defendants are a part of an unincorporated joint venture titled Hibbing Joint
- 2 -
terminated after allegedly submitting a fake urine sample during a company drug test and
testing positive for methamphetamine use. After unsuccessfully grieving his termination,
Thompson filed this action in state court. Thompson brings claims for violations of the
Minnesota Drug and Alcohol Testing in the Workplace Act, invasion of privacy, breach
of contract, defamation, and two violations of Minnesota state laws governing access to
employee records. Hibbing Taconite removed this case to federal court, alleging that a
number of Thompsons claims are preempted by the Labor Management Relations Act
(LMRA). Thompson now moves to remand the case to state court. For the reasons set
forth below, Thompsons motion is denied.
Hibbing Taconite operates a taconite mining operation near Hibbing, Minnesota.
Thompson was employed by Hibbing Taconite as a production off-the-road truck driver
in the mining pit from 1989 until his termination on January 26, 2007. Hibbing
Taconites employees, including Thompson, are represented by the United Steelworkers
of America (Union).
Working conditions at Hibbing Taconite are governed by a collective bargaining
agreement (CBA) negotiated by Hibbing Taconite and the Union. The CBA in effect
at all times relevant here was entered into on August 1, 2004. That CBA includes the
following passage:
The Company will not require an employee to submit to a test for drug or
alcohol use in the absence of objective facts that establish reasonable cause
to believe that the employee is intoxicated or impaired when reporting to or
while on the job unless such testing is a professionally recommended
- 3 -
element of the employees rehabilitation program. . . . Any drug testing will
be performed in accordance with Federal and State laws where applicable.
(Kern Aff., Ex. A at 16.)
On April 1, 2005, Hibbing Taconite announced that it was adopting a new drug
policy. (Kern Aff., Ex. D.) This policy includes a description of the circumstances
where Hibbing Taconite intended to test its employees. This description, which appears
to have been taken nearly verbatim from Minnesotas Drug and Alcohol Testing in the
Workplace Act, included the following:
2. Reasonable Suspicion Testing
The Company may request or require an employee to undergo drug and
alcohol testing if the Company has a reasonable suspicion that the
employee: (1) is under the influence of drugs or alcohol; (2) has violated
the Companys policy prohibiting the use, possession, sale or transfer of
drugs or alcohol while the employee is working or while the employee is on
the Companys premises or operating the Companys vehicle, machinery,
or equipment; (3) has sustained a personal injury or has caused another
employee to sustain a personal injury; or (4) has caused a work-related
accident or was operating or helping to operate machinery, equipment or
other vehicles involved in a work-related accident.
* * *
7. Refusal to Test and Consequences
A[n] . . . employee has the right to refuse to undergo Company requested or
required drug and alcohol testing. Refusal shall be considered
insubordination and shall subject . . . an employee to discipline up to and
including discharge.
(Kern Aff., Ex. E at 6-7.)
This new policy was adopted without the consent of the Union. The Union
responded by filing a grievance, arguing that Hibbing Taconite had unilaterally amended
- 4 -
the CBA by expanding the circumstances in which it would test its employees. (Kern
Aff., Ex. E at 8.) The arbitrator agreed, holding that the reasonable cause standard set
forth in the CBA was still the governing standard, and that anything in the new policy
that departed from that standard was unenforceable. The arbitrator identified several
specific circumstances outlined in the policy that would not satisfy the CBAs reasonable
cause standard, and Hibbing Taconite later amended its policy accordingly. (Kern Aff.,
Ex. F.)
On December 25, 2006, Thompson was operating a truck at the mine. At some
point during his shift, several co-workers outside of the truck were unable to get his
attention. Thompsons co-workers continued to try to get his attention, and an eightminute
period ensued when he was unresponsive to text messages, radio calls, and horn
blasts. Hibbing Taconite concluded that it had reasonable suspicion of drug use based on
Thompsons non-responsiveness, and asked him to submit to testing. Thompson signed a
consent form agreeing to the test, took the test, and was placed on administrative leave
pending the results.
On January 3, 2007, Hibbing Taconite informed Thompson that the test
administered on December 25 was positive for methamphetamine. Hibbing Taconite
suspended him for five days and scheduled a pre-suspension hearing for the same day.
Thompson appeared at the hearing with Union representation, and indicated a desire to
return to work once the suspension was complete. Thompson indicates that Hibbing
Taconite responded by requiring him to sign a Last Chance Agreement, which included
several conditions Thompson needed to meet in order to retain his job. Those conditions
- 5 -
included a chemical use evaluation, and a requirement that he provide a negative
urinalysis screen before returning to work.
Thompson indicates that at the hearing he was directed to see a psychologist at
Fairview that day, and that he was repeatedly instructed to take his return-to-work test
in the next week. Thompson reported for the test on January 10, and signed a form
acknowledging he would be fired if he submitted a false urine sample. Nonetheless,
Thompson submitted a urine sample that the Medical Center recognized as unusually
cold and was later determined to be false. Approximately two hours after submitting the
false sample, Thompson was asked for another sample, which a medical center employee
watched him produce. This second sample tested positive for methamphetamine.
Hibbing Taconite contends that if the Medical Center had not caught the fake sample,
Thompson would have been released to drive the production truck in the mine with
methamphetamine in his system. On January 11, 2007, Thompson checked into an
inpatient program for substance abuse.
On January 22, while Thompson was still in treatment, Hibbing Taconite and the
Union conducted a pre-suspension hearing concerning Thompsons most recent incident.
The Union made no challenge to the finding that Thompson had submitted a false urine
sample. On January 25, Hibbing Taconite placed Thompson on a five-day suspension for
violating the companys drug policy and for submitting the false urine sample. The
following day, Hibbing Taconite converted the five-day suspension to discharge effective
- 6 -
After unsuccessfully grieving his termination, Thompson filed this action in state
court on March 6, 2008. Thompson included the following six claims: (1) Thompson
alleges that Hibbing Taconite violated the Minnesota Drug and Alcohol Testing in the
Workplace Act, see Minn. Stat. 181.950-181.957, and Hibbing Taconites own drug
testing policies by (a) requiring him to take a drug test without reasonable suspicion,
(b) requiring him to sign an improper Last Chance Agreement, (c) requiring him to take a
return to duty test, (d) terminating him without giving him an opportunity to participate in
rehabilitation, (e) failing to give him a proper acknowledgment form to sign before any
drug testing, (f) subjecting him to a breath test, and (g) improperly collecting and testing
his specimens; (2) Thompson alleges that the conduct described under Count I also
constitutes common law invasion of privacy; (3) Thompson alleges that Hibbing
Taconites alleged violations of its own testing policies constitute a breach of contract;
(4) Thompson alleges that Hibbing Taconite gave him defamatory reasons for his firing,
and that he was therefore forced to re-publish this defamatory material to later
prospective employers; (5) Thompson alleges that Hibbing Taconite violated a Minnesota
state law requiring the production of employee assistance records upon his request, see
Minn. Stat. 181.980; and (6) Thompson alleges that Hibbing Taconite violated a
Minnesota state law requiring it to honor his request to review his personnel records, see
Minn. Stat. 181.961.
On March 26, 2008, Hibbing Taconite removed this case to federal court, arguing
that Thompsons first four claims are preempted by the Labor Management Relations Act
(LMRA) because they are interwoven with the terms of the CBA. Thompson now
- 7 -
moves to remand the case to state court, arguing that his claims are not preempted
because they rely entirely on state law.
As the party opposing remand, Hibbing Taconite has the burden of establishing
federal subject matter jurisdiction. In re Bus. Mens Assurance Co. of Am., 992 F.2d 181,
183 (8th Cir. 1993). The Court is required to resolve all doubts about federal jurisdiction
in favor of remand. Id. However, a district court has no discretion to remand a claim that
states a federal question. Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 542
(8th Cir. 1996).
As a general rule, a plaintiff can avoid removal to federal court by alleging only
state law claims. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). In addition, a
defense arising under federal law, including the defense that one or more claims are
preempted by federal law, generally does not give the defendant the right to remove to
federal court. Id. at 392-93. However, complete preemption provides an exception to
this rule, and is different from preemption used only as a defense. Complete preemption
can arise when Congress intends that a federal statute preempt a field of law so
completely that state law claims are considered to be converted into federal causes of
action. Gaming Corp., 88 F.3d at 543. Only those claims that fall within the
preemptive scope of the particular statute . . . are considered to make out federal
- 8 -
questions, but the presence of even one federal claim gives the defendant the right to
remove the entire case to federal court. Id. (citation omitted).
The complete preemption doctrine has been consistently applied in the context
of claims brought under the LMRA. See Chapman v. Lab One, 390 F.3d 620, 629 (8th
Cir. 2004). The LMRA grants federal courts jurisdiction over suits for violations of
contracts between an employer and a labor organization representing employees in an
industry affecting commerce. 29 U.S.C. 185(a). The Supreme Court has interpreted
the LMRA as preempting state-law claims in situations where the resolution of that claim
substantially depends upon interpreting the terms of the collective bargaining agreement.
See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413 (1988). If the state-law
claim is founded directly on rights created by the labor contract, or is inextricably
intertwined with consideration of the terms of the labor contract, the state-law claim is
preempted. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985). Such claims
must be resolved through the grievance and arbitration procedures contained in the
[CBA] or brought under . . . the [LMRA]. Nanstad v. N. States Power Co.,
No. 06-3087, 2007 WL 474966, at *3 (D. Minn. Feb. 9, 2007). Defenses, as well as
claims, must be considered in determining whether resolution of the state-law claim
requires construing the labor contract. Id.
A claim is not preempted under the LMRA, however, if its resolution does not
require interpretation of the CBA. St. John v. Intl Assn of Machinists & Aerospace
Workers, 139 F.3d 1214, 1217 (8th Cir. 1998). In other words, a claim is not preempted
simply because it requires reference to the [CBA]. Nanstad, 2007 WL 474966, at *3. In
- 9 -
addition, a claim is not preempted where an employee invokes nonnegotiable state-law
rights . . . independent of any right established by contract. Allis-Chalmers Corp., 471
U.S. at 213.
A. Count I
In Count I of his complaint, Thompson alleges that Hibbing Taconite committed
multiple violations of Minnesotas Drug and Alcohol Testing in the Workplace Act
(DATWA). See Minn. Stat. 181.950-181.957. Allegations that Hibbing Taconite
violated such non-negotiable state law rights do not require an interpretation of the CBA,
and would not be preempted under the LMRA. See Lingle, 486 U.S. at 411-12.
However, Count I also includes the following allegation:
65. On or about December 25, 2006, Defendant failed to follow its
procedures relating to determination of reasonable suspicion necessary to
subject employees to drug and alcohol testing.
This allegation is followed by four additional allegations that Hibbing Taconite violated
its own testing policy. (See Complaint 67, 68, 69, 78.) Whether Hibbing Taconite
violated its own testing policies is a separate question from whether it satisfied the
requirements set forth in DATWA, and requires interpretation of the CBA.
Thompson argues that this claim is nonetheless not preempted, because the testing
policies he is referring to are the ones that Hibbing Taconite unilaterally implemented in
April 2005. Thompson characterizes that policy as separate and distinct from the CBA,
and therefore outside of the scope of the LMRA. However, as set forth above, an
- 10 -
arbitrator concluded that any rights and responsibilities undertaken in those policies are
ultimately grounded in the terms of the CBA. While Hibbing Taconite was free to
articulate its view of those terms, questions concerning the permissible parameters of its
drug testing policy and, in particular, the question of what constitutes reasonable
suspicion remain dependent on the parameters set by the CBA. Consequently,
Thompsons allegation that Hibbing Taconite failed to follow its own drug testing
policies is inextricably interwoven with the terms of the CBA and is completely
preempted by the LMRA.2
B. Count II
While the Courts conclusion as to Count I is sufficient for this Court to exercise
jurisdiction over this action, see Gaming Corp., 88 F.3d at 543, the Court notes that
Thompsons additional claims would provide a basis for jurisdiction as well. In Count II,
Thompson alleges common law invasion of privacy. This claim arises under Minnesota
state law. However, as with Count I, Thompson bases this claim in part on Hibbing
Taconites violation of its own testing policies. For the reasons set forth above, any
analysis of Hibbing Taconites conformity with those policies would require
interpretation of the CBA. See also Gore v. Trans World Airlines, 210 F.3d 944, 951 (8th
Cir. 2000) (finding an invasion of privacy claim preempted under the analogous RLA
2 Moreover, any argument that Hibbing Taconite made an agreement that was separate
from the CBA may itself implicate the CBA, because the CBA limits Hibbing Taconites ability
to set conditions of employment without bargaining with the Union. (See Kern Aff. Ex. A, at
- 11 -
where the applicable rights and duties were created by the CBA). Accordingly,
Thompsons invasion of privacy claim is completely preempted as well.
C. Count III
In Count III, Thompson brings a claim for breach of contract. As with Counts I
and II, this claim is ultimately based on Hibbing Taconites alleged failure to follow its
testing policies. For the reasons set forth above, the Court concludes that such a claim is
interwoven with the CBA, and is also a sufficient basis for this Courts jurisdiction.
D. Count IV
Finally, in Count IV, Thompson brings a claim for defamation. In short, he argues
that Hibbing Taconite informed him he was being fired because of positive drug tests and
that he was forced to re-publish this defamatory information when prospective
employers asked him why he was fired. See Lewis v. Equitable Life Assurance Socy of
the U.S., 389 N.W.2d 876, 886-88 (Minn. 1986) (recognizing this type of compelled
defamation claim). Hibbing Taconite, however, has asserted that its statements were
shielded by a qualified privilege. (See Joint Answer at 10.) Hibbing Taconite bases this
defense on the language of the CBA, which it believes required it to inform Thompson of
the reason for his termination. (See, e.g., Kern Aff. Ex. A, at XII (setting forth CBA
procedures for adjudicating grievances, which require some communication as to the
details of the dispute).) Because resolving this dispute would require interpretation of the
relevant CBA provisions governing employer disclosures, it is also preempted, and is a
further basis for this Courts jurisdiction. See Lavela v. S.B. Foot Tanning Co., No. 03-
- 12 -
4115, 2005 WL 1430302, at *9 (D. Minn. Mar. 7, 2005) (finding a defamation claim
preempted where the disclosure of a reason for termination was an integral part of the
grievance process); cf. Luecke v. Schnucks Markets, Inc., 85 F.3d 356, 360 (8th Cir.
1996) (concluding that a defamation claim was not preempted where the communications
at issue were directly to third parties and were not allegedly required under the CBA).
In sum, while it is conceivable that an employee in Thompsons position could
have drafted a complaint based entirely on state law, he has not done so here. Each of the
four claims addressed above contain allegations that are interwoven with the CBA, and
are thus preempted under the LMRA. Accordingly, the Court has federal subject matter
jurisdiction over this action, and Thompsons motion for remand is denied.
Based on the foregoing, all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Thompsons Motion for Remand [Docket No. 5] is
DATED: October 24, 2008 ____s/ ____
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge


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