agreement between Local 1262 and the Pathmark defendants.
The Third Circuit has held that "where parties to a labor dispute are charged with tortious interference with a collective bargaining agreement, at least in the absence of outrageous or violent conduct, state law causes of action are preempted." Wilkes-Barre Publishing Co. v. Newspaper Guild of Wilkes-Barre, 647 F.2d 372, 381-82 (3d Cir. 1981), cert. denied, 454 U.S. 1143, 71 L. Ed. 2d 295, 102 S. Ct. 1003 (1982). Unlike causes of action seeking protection against possession of real property, Sears, Roebuck & Co., 436 U.S. 180, 56 L. Ed. 2d 209, 98 S. Ct. 1745, or freedom from outrageous conduct causing mental distress, Farmer, 430 U.S. 290, 51 L. Ed. 2d 338, 97 S. Ct. 1056, or protection of reputation, Linn, 383 U.S. 53, 15 L. Ed. 2d 582, 86 S. Ct. 657, or protection against violence, Russell, 356 U.S. 634, 2 L. Ed. 2d 1030, 78 S. Ct. 932, protection against tortious interference does not involve conduct touching interests deeply rooted in local feeling and responsibility and thus traditionally relegated to the states. Wilkes-Barre Publishing Co. 647 F.2d at 381. Rather, the property interest being protected, a labor contract, has its being and draws its validity from the federal common law of labor contracts. Id. Accordingly, the Fourth Count of plaintiff's Complaint as stated against the Pathmark defendants is preempted by § 301.
It is far less clear whether Cole's claims against her employer for the torts of false arrest and malicious prosecution are preempted by § 301. While precedent is sparse, this Court finds its analysis must begin with the Supreme Court's decision in Linn v. United Plant Guard Workers. There, the Court found plaintiff's claim for libel based on a defamatory statement published during the course of a union organizing campaign was not preempted by the National Labor Relations Act ("NLRA"), as amended, 29 U.S.C. § 141 et seq., 383 U.S. at 61. The Court limited the scope of its decision by finding that the exercise of state jurisdiction in those circumstances would be of peripheral concern to the NLRA only where it was redressing libel committed with actual malice. Id. Moreover, in reaching this conclusion, the Court was persuaded by the fact that the NLRA is unconcerned with "personal" injury caused by such malicious behavior which can be assessed without regard to the merits of the labor controversy. Id. at 64.
This Court also finds the Tenth Circuit's decision in Viestenz v. Fleming Companies, Inc., 681 F.2d 699 (10th Cir.), cert. denied, 459 U.S. 972, 74 L. Ed. 2d 284, 103 S. Ct. 303 (1982), instructive. Viestenz, an employee at a supermarket, was suspected of stealing merchandise from the store on a regular basis. The store's management and security personnel confronted him during an interview about the theft charges. At the conclusion of the interview, Viestenz gave a handwritten statement voluntarily admitting his theft from the store. He was discharged the following day. Viestenz chose not to pursue the mandatory grievance procedure set forth in the collective bargaining agreement under which he worked. Instead, he filed a civil action alleging claims for wrongful discharge and intentional infliction of emotional distress. On appeal, Flemming urged the Court to find the tort of outrage claim preempted by § 301. In finding this claim preempted, the Tenth Circuit held that the harm about which Viestenz complained in his tort of outrage claim - emotional suffering occurring after his firing and related to his concern over providing for his family - resulted from his discharge and not from any improper conduct by the parties who investigated and interviewed him about the theft charges. Id. at 704. Since the harm for which he sought recovery resulted from his discharge, the claim was preempted because his discharge was within the exclusive jurisdiction of the federal regulatory scheme. Id.
Like Linn, Cole's claims for false arrest and malicious prosecution allege that she suffered personal injury as a result of the defendants' malicious behavior. Unlike Viestenz, however, the injury about which Cole complains - humiliation, injury to her good name, psychological damages and expenses, and deprivation of her liberty - did not result from her discharge but from the investigation and her subsequent arrest on theft charges. Since plaintiff's claim does not flow from her discharge, it is only peripherally concerned with the merits of her labor dispute and thus is not preempted by § 301.
Accordingly, this Court concludes that plaintiff's state law tort claims for false arrest (First Count) and malicious prosecution (Second Count) are not preempted by § 301. However, the Court holds that Cole's state law tort claim for intentional interference with contractual and business relations (Fourth Count) is preempted and must be dismissed.
B. Exhaustion of Grievance Procedures and the Statute of Limitations
Now that it has been determined that the Third Count of plaintiff's complaint states a claim under § 301, the Court turns its attention to the arguments raised by the Pathmark defendants as grounds for dismissal of Cole's § 301 claim. The Court will first address the issue of plaintiff's failure to exhaust the grievance procedures set forth in the collective bargaining agreement and then the statute of limitations question.
Pursuant to the collective bargaining agreement between Local 1262 and Supermarkets General, once these parties have been unable to resolve a difference between them by a fact-to-face meeting,
then such dispute, difference or grievance shall be referred to arbitration by either party by notice in writing.