The full case caption appears at the
end of this opinion. Posner, Chief Judge. Lonnie Kimbro sued hisformer employer, Frito-Lay, for having violatedthe federal age discrimination law by firing him,allegedly on account of his being over 40. Hejoined with this claim a supplemental claim understate law against two of his supervisors atFrito-Lay, plus Super Valu, Inc., doing businessunder the name of Shop ‘N Save, and a Shop ‘NSave store manager named Ansell, for tortiousinterference with his employment contract withFrito-Lay. (Other defendants have fallen by thewayside.) The district court granted summaryjudgment for the defendants. With regard to the age discrimination claim, thejudgment is unexceptionable; far from havingpresented evidence of age discrimination, Kimbroclaims that his discharge was brought about bythe hostility of the store manager to him ongrounds unrelated to age, and this is virtuallyan admission that his age was not a factor inFrito-Lay’s decision to fire him. Moreinteresting is the tort claim. The district judgeheld it preempted by section 301 of the Taft-Hartley Act, 29 U.S.C. sec. 185, which has beenconstrued to make federal law the exclusiveremedy not only for claims based on collectivebargaining contracts but also for claims thatcannot be adjudicated without interpreting such acontract. E.g., United Steelworkers of America v.Rawson, 495 U.S. 362, 368-69 (1990); Lingle v.Norge Division of Magic Chef, Inc., 486 U.S. 399,407, 410 n. 10 (1988); Int’l Brotherhood ofElectrical Workers v. Hechler, 481 U.S. 851, 857-89 (1987); Allis-Chalmers Corp. v. Lueck, 471U.S. 202, 220 (1985). The judge thought this sucha case. It may seem that an alternative mode ofdisposition, ordinarily preferable when as herethe federal claim (the claim of agediscrimination) drops out before trial, wouldhave been to dismiss the tort claim withoutprejudice. 28 U.S.C. sec. 1367(c)(3); Groce v.Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir.1999); Hedges v. Musco, 204 F.3d 109, 123 (3dCir. 2000). But a peculiarity of section 301, asit has been interpreted by the courts, is thatany claim within its scope, even if denominatedas a state law claim, is deemed to arise under,and only under, section 301, that is, underfederal law. E.g., United Steelworkers of Americav. Rawson, supra, 495 U.S. at 368-69; CaterpillarInc. v. Williams, 482 U.S. 386, 392-94 (1987);Franchise Tax Board v. Construction LaborersVacation Trust for Southern California, 463 U.S.1, 22-24 (1983); In re Amoco Petroleum AdditivesCo., 964 F.2d 706, 709 (7th Cir. 1992). So if thedistrict judge was correct that section 301occupies the field sought to be traversed byKimbro’s tort claim, the claim arose underfederal law and federal jurisdiction wastherefore secure even though the only explicitfederal claim dropped out before trial. Here are the facts, construed as favorably tothe plaintiff as the record permits: Kimbro was aroute sales merchandiser for Frito-Lay whoseduties included servicing several retail storesincluding the Shop ‘N Save store managed byAnsell. Ansell was furious at Frito-Lay for delayin shipping goods that he had ordered and tookhis fury out on Kimbro. For when he noticedKimbro eating a cookie taken from a package inthe store’s receiving room, and discovered thatKimbro had not paid for the cookie, he reportedto Frito-Lay that Kimbro had violated SuperValu’s “no grazing” rule, even though the cookiewas stale. Ansell told Kimbro’s supervisors (theother defendants in the tortious-interferenceclaim along with Super Valu and Ansell) not tolet Kimbro service any Shop ‘N Save stores.Frito-Lay then discharged him. Kimbro allegesthat his supervisors effected his discharge inorder to conceal their own incompetence infailing to keep Ansell’s store supplied withFrito-Lay products, which had infuriated Ansell. Kimbro’s employment had been governed by acollective bargaining contract between Frito-Layand a teamsters local, but the union did notpress his grievance that he had been firedwithout cause. He claims that Frito-Lay’semployee handbook gave him a contractual right toprogressive discipline that Frito-Lay violated byfiring him for a first offense of being excludedfrom a customer’s stores because of violating thecustomer’s rule. Interference with thatcontractual entitlement is the tort that he saysAnsell (and Ansell’s employer, by virtue of thedoctrine of respondeat superior) and Kimbro’s twosupervisors at Frito-Lay committed. Assuming without having to decide that Kimbrohas presented a prima facie case of tortiousinterference with contract under Illinois law, onwhich see Poulos v. Lutheran Social Services ofIllinois, Inc., No. 1-98-3057, 2000 WL 306857, at*7 (Ill. App. Mar. 24, 2000); Strosberg v.Brauvin Realty Services, Inc., 691 N.E.2d 834,845 (Ill. App. 1998); Reuben H. Donnelley Corp.v. Brauer, 655 N.E.2d 1162, 1172 (Ill. App.1995), we consider whether such a claim issuperseded by the exclusive federal jurisdictioncreated by section 301. The defendants argue thatno claim of tortious interference may bemaintained by an employee who is covered by acollective bargaining contract. But the onlyappellate cases they cite in support of thisargument are ones in which the employee wastrying to sue his employer, not a third party.When a worker is covered by a collectivebargaining contract, he must (with immaterialexceptions, such as the discrimination claim thatKimbro also but fruitlessly presses here, e.g.,Lingle v. Norge Division of Magic Chef, Inc.,supra, 486 U.S. at 412-13; McKnight v. GeneralMotors Corp., 908 F.2d 104, 112 (7th Cir. 1990);Tisdale v. United Ass’n of Journeymen &Apprentices, 25 F.3d 1308, 1311-12 (6th Cir.1994)) litigate any legal dispute with hisemployer as a breach of that contract. He cannotsue for breach of contract under state law; normay he recharacterize his claim as one of tortlaw in order to circumvent the exclusivejurisdiction of federal law over claims forbreach of a collective bargaining contract. E.g.,United Steelworkers of America v. Rawson, supra,495 U.S. at 369, 371-72; Int’l Brotherhood ofElectrical Workers v. Hechler, supra, 481 U.S. at857-89; Smith v. Colgate-Palmolive Co., 943 F.2d764, 768 (7th Cir. 1991). One of the forbidden recharacterizations isrecasting a breach of contract suit as a suit fortortious interference with contract. E.g., Linglev. Norge Division of Magic Chef, Inc., 823 F.2d1031, 1047, 1049 (7th Cir. 1987) (en banc), rev’don other grounds, 486 U.S. 399 (1988); Beidlemanv. Stroh Brewery Co., 182 F.3d 225, 234-35 (3dCir. 1999); Oberkramer v. IBEW-NECA ServiceCenter, Inc., 151 F.3d 752, 756 (8th Cir. 1998);Turner v. American Federation of Teachers Local1565, 138 F.3d 878, 884 (11th Cir. 1998); Int’lAss’n of Machinists & Aerospace Workers v.Tennessee Valley Authority, 108 F.3d 658, 667(6th Cir. 1997); Magerer v. John Sexton & Co.,912 F.2d 525, 530-31 (1st Cir. 1990); Scott v.Machinists Automotive Trades Dist. Lodge No. 190,827 F.2d 589, 591-92 (9th Cir. 1987) (percuriam). There is some contrary authority in theSixth and Eighth Circuits, see Meyer v. SchnucksMarkets, Inc., 163 F.3d 1048, 1051 (8th Cir.1998); Fox v. Parker Hannifin Corp., 914 F.2d795, 800-01 (6th Cir. 1990); Dougherty v. Parsec,Inc., 872 F.2d 766 (6th Cir. 1989), though not acircuit split, since both circuits are on bothsides of the issue. Only in the last-cited case,moreover, was the defendant not the plaintiff’semployer; and it is not a tort for one party to acontract to interfere with the other party’scontractual rights, as distinct from interferenceby a stranger to the contract. Knickman v.Midland Risk Services-Illinois, Inc., 700 N.E.2d458, 461-62 (Ill. App. 1998); Douglas TheaterCorp. v. Chicago Title & Trust Co., 681 N.E.2d564, 567 (Ill. App. 1997); Fox v. Parker HannifinCorp., supra, 914 F.2d at 800. But here we do have interference by a thirdparty, and this can, one might think, make a bigdifference. Suppose that Kimbro hadn’t stolen thecookie and that Ansell, acting from entirelyprivate motives (such as a romantic interest inKimbro’s wife), had framed Kimbro for the theft,fooling the union and Frito-Lay and thus (in anup-to-date version of the story of David, Uriah,and Bathsheba) dooming Kimbro. It seems odd tothink that a suit against Ansell would be barredby the Taft-Hartley Act. The employer would notbe involved in the suit, and the terms of thecollective bargaining contract–even the factthat there was such a contract–would beirrelevant. Successful invocation of section 301in such a case would thus leave the plaintiffremediless, Brazinski v. Amoco PetroleumAdditives Co., 6 F.3d 1176, 1179-80 (7th Cir.1993); Int’l Union, United Mine Workers ofAmerica v. Covenant Coal Corp., 977 F.2d 895,897-900 (4th Cir. 1992); Jackson v. Kimel, 992F.2d 1318, 1328 n. 1 (4th Cir. 1993) (concurringopinion); see also Loss v. Blankenship, 673 F.2d942, 946 (7th Cir. 1982); United Food &Commercial Workers Union v. Quality Plus Stores,Inc., 961 F.2d 904 (10th Cir. 1992), withoutadvancing any federal labor policy that we canthink of. It is true that a number of decisionsbar on section 301 grounds tortious interferencesuits against third parties, DeCoe v. GeneralMotors Corp., 32 F.3d 212 (6th Cir. 1994); Int’lUnion, United Mine Workers of America v. CovenantCoal Corp., supra, 977 F.2d at 899-900; MilneEmployees Ass’n v. Sun Carriers, Inc., 960 F.2d1401, 1411-12 (9th Cir. 1991); Johnson v.Anheuser Busch, Inc., 876 F.2d 620, 624 (8th Cir.1989), see also Baylis v. Marriott Corp., 906F.2d 874, 877 (2d Cir. 1990) (Railway Labor Act),but they are cases in which the suit, even thoughagainst a third party, might have required thecourt to interpret the collective bargainingagreement (the contract allegedly interferedwith), in derogation of the arbitrationprocedures that most such agreements establishfor interpreting the agreement. That concern, wehave suggested without deciding, might beaccommodated by referring any interpretive issuesto arbitration, with the suit to abide thearbitration, see Brazinski v. Amoco PetroleumAdditives Co., supra, 6 F.3d at 1179-81; theanalogy is to the doctrine of primaryjurisdiction in administrative law. A few cases fill the remedial gap by holdingthat section 301 creates a tort right againstinterference with a collective bargainingcontract, e.g., Antol v. Esposto, 100 F.3d 1111,1117 (3d Cir. 1996); Xaros v. U.S. Fidelity &Guaranty Co., 820 F.2d 1176 (11th Cir. 1987);Painting & Decorating Contractors Ass’n ofSacramento, Inc. v. Painters & Decorators JointComm. of East Bay Counties, Inc., 707 F.2d 1067,1070-72 (9th Cir. 1983), but that can’t be right,as section 301 creates a right of action only forbreach of a collective bargaining agreement; itis not a tort statute. The suggestion inBrazinski, in contrast, places no strain on thestatutory language, although it leaves unresolvedhow the interpretation of the agreement by thearbitrators is to be evoked, and with whatbinding effect, in a case such as this in whichnone of the defendants is a party to theagreement. It will not be necessary to pursue thesequestions further in order to decide this case.Consider first the joinder as defendants ofKimbro’s two supervisors at Frito-Lay. It is atransparent effort to get around the exclusivefederal-law jurisdiction created by section 301.The difference between suing your employer forbreach of contract and calling it tortiousinterference, and suing your supervisors fortortious interference, is one of form rather thanof substance. For if supervisors are exposed tosuch liability the employer will have either topay them higher wages to compensate them for therisk of being sued, or to agree to indemnify themfor the costs of such a suit. In either case theburden of the liability will come to rest on theemployer, making it the de facto defendant in ade facto suit under state law for breach of acollective bargaining contract. And this section301 does not permit. E.g., Baker v. FarmersElectric Co-Op., Inc., 34 F.3d 274, 283-84 (5thCir. 1994); Hillard v. Dobelman, 774 F.2d 886,887 (8th Cir. 1985) (per curiam). The question whether the suit can be maintainedagainst Ansell and his employer is moredifficult, but the answer is ultimately the same.It was inevitable that the collective bargainingcontract between Frito-Lay and Kimbro’s unionwould be brought into this suit had it beenallowed to proceed to trial. The reason is thatthe trier of fact would have had to decidewhether Kimbro had a contractual right not to befired for “grazing” (more precisely, for beingbanished permanently from a customer’s premisesbecause of grazing), an issue that depends onwhether grazing is good cause for termination,within the meaning of the contract. Thejurisdiction conferred by section 301 is, as wehave said, exclusive not only against state-lawsuits based on such contracts but also againststate-law suits to which the interpretation ofsuch a contract is germane. It is true that in acase in which the defendant is not a party to thecontract, the extinction of state causes ofaction is questionable because it could leave theplaintiff remediless. We have suggested that apossible way to preserve those causes of actionin such a case might be somehow to refer anyissues of contract interpretation to thearbitrators, the suit to abide their decision.But the plaintiff has not picked up on thissuggestion in our Brazinski decision, and it istherefore waived. Affirmed.
Kimbro v. Pepsico, Inc. In theUnited States Court of AppealsFor the Seventh Circuit No. 99-2823 Lonnie Kimbro, Plaintiff-Appellant, v. Pepsico, Inc., et al., Defendants-Appellees. Appeal from the United States District Courtfor the Southern District of Illinois. No. 97 C 935–Paul E. Riley, Judge. Argued February 15, 2000–Decided June 2, 2000 Before Posner, Chief Judge, and Easterbrook and DianeP. Wood, Circuit Judges.
