Joseph T. Lorenz, Jr. v. Csx Transportation, Incorporated

SPROUSE, Senior Circuit Judge,

dissenting:

I respectfully dissent.

I, of course, agree with the majority that the RLA was created in part “to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.” 45 U.S.C. § 151a(5). I also agree that the preemptive effect of the RLA is usually cast in terms of whether the claim is a major or minor dispute, that both are subject to separate mandatory grievance procedures of the Act, and that this case does not involve a major dispute. I disagree, however, with the majority’s conclusion that this is a minor dispute and, therefore, preempted. The majority bases its holding that Lorenz’s defamation action against CSX is a minor dispute on the rationale that it is a dispute arising from his discharge, because it is “inextricably intertwined” with the collective bargaining agreement governing the relations between CSX and its employees. I disagree with this conclusion.

First, examining Lorenz’s action without use of the “inextricably intertwined” language, it is clear that the claim does not arise from his discharge. The majority le *270 ans strongly on Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320 , 92 S.Ct. 1562 , 32 L.Ed.2d 95 (1972), which is correctly cited for the proposition that the RLA preempts a state tort claim for wrongful discharge. Andrews , however, is inapposite to this dispute.

The principal issue in Andrews related to a straightforward discharge and the controversy was unquestionably a minor dispute. In that case a railroad employee was injured in an accident and was discharged when he attempted to return to work. There resulted a prototypical discharge case: the employee sued for breach of the employment contract, which was clearly a minor dispute required' to be resolved under RLA-mandated procedures. As the Supreme Court said in its opinion:

Here it is conceded by all that the only source of petitioner’s right not to be discharged, and therefore to treat an alleged discharge as a “wrongful” one that entitles him to damages, is the collective-bargaining agreement between the employer and the union_ Thus petitioner’s claim, and respondent’s disallowance of it, stem from differing interpretations of the collective-bargaining agreement.

Id. at 324 , 92 S.Ct. at 1565 . Our court echoed Andrews in Peterson v. Air Line Pilots Association, International, 759 F.2d 1161 (4th Cir.), cert. denied, 474 U.S. 946 , 106 S.Ct. 312 , 88 L.Ed.2d 289 (1985), where we stated that an employee’s wrongful discharge claim is necessarily a minor dispute. Id. at 1169. Here, in contrast to Andrews , Lorenz is not suing for breach of the employment contract or wrongful discharge. His suit is for defamation, a tort entirely independent of the collective bargaining agreement. In Peterson we said, as the majority notes, that “where the conduct sought to be regulated by state law is only a 'peripheral concern’ of federal labor law,” it is not preempted. Id. at 1168 . We also pointed out in Peterson that malicious libel is a common-law tort which “can truly be said to be but of peripheral concern to labor law.” Id. at 1171 n. 20. Thus-, it is clear that Lorenz’s defamation action does not “arise from his discharge” in the sense intended by Andrews .

The majority finds that the claim arises from Lorenz’s discharge nonetheless, because it is “inextricably intertwined” with an interpretation of the collective bargaining agreement. The majority adopts this language from Magnuson v. Burlington Northern, Inc., 576 F.2d 1367 (9th Cir.), cert. denied, 439 U.S. 930 , 99 S.Ct. 318 , 58 L.Ed.2d 323 (1978), in which the Ninth Circuit held that the RLA preempted an employee’s action for intentional infliction of emotional distress. The court stated that the claim was a minor dispute because it was “based on a matrix of facts which are inextricably intertwined with the grievance machinery of the collective bargaining agreement and of the R.L.A.” Id. at 1369. The Supreme Court has neither adopted nor rejected the “inextricably intertwined” analysis for RLA-preemption cases. Notably, however, its approach to that analysis in NLRA-preemption cases would require rejection of the Magnuson reasoning. In Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 , 108 S.Ct. 1877 , 100 L.Ed.2d 410 (1988), the Court held that a state-law suit for retaliatory discharge was preempted under section 301 of the Labor Management Relations Act “only if such application [of state law] requires the interpretation of a collective-bargaining agreement.” Id. at 413 , 108 S.Ct. at 1885 . It recited the Seventh Circuit’s reasoning that “ ‘the state tort of retaliatory discharge is inextricably .intertwined with the collective-bargaining agreements here, because it implicates the same analysis of the facts as would an inquiry under the just cause provisions of the agreements.’ ” Id. at 408 , 108 S.Ct. at 1883 (quoting Lingle v. Norge Div. of Magic Chef, Inc., 823 F.2d 1031, 1046 (7th Cir.1987)). However, while agreeing that “the state-law analysis might well involve attention to the same factual considerations as the contractual determination of whether [the employee] was fired for just cause,” id., the Supreme Court held that this was not enough to preempt the employee’s claim:

[E]ven if dispute resolution pursuant to a ■ collective-bargaining agreement, on the one hand, and state law, on the other, *271 would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is “independent” of the agreement for § 301 pre-emption purposes.

Id. at 409-10, 108 S.Ct. at 1883 . Thus, in the NLRA-preemption context, the Supreme Court has stated that “inextricably intertwined” can be a misleading phrase; the real test is whether the state-law claim requires an interpretation of the collective bargaining agreement. Accord United Steelworkers of Am. v. Rawson, 495 U.S. 362, 370 , 110 S.Ct. 1904, 1910 , 109 L.Ed.2d 362 (1990); McCormick v. AT & T Technologies, Inc., 934 F.2d 531, 535 (4th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 912 , 116 L.Ed.2d 813 (1992).

Even assuming it is appropriate to apply the “inextricably intertwined” analysis in RLA-preemption cases, Lorenz’s defamation action simply is not inextricably intertwined with the CSX collective bargaining agreement. I must agree that, adhering to the rationale developed in DeTomaso, Majors, and similar cases, one might arguably reach the result announced by our majority opinion. DeTomaso and Majors in effect hold that a claim for tortious conduct occurring during proceedings or investigations governed by a collective bargaining agreement is inextricably intertwined with the agreement, or that a tort action is inextricably intertwined with a collective bargaining agreement if the employer pleads the agreement as a defense. Majors v. U.S. Air, Inc., 525 F.Supp. 853, 857 (D.Md.1981); DeTomaso v. Pan Am. World Airways, Inc., 43 Cal.3d 517 , 235 Cal.Rptr. 292, 300 , 733 P.2d 614, 622 , cert. denied, 484 U.S. 829 , 108 S.Ct. 100 , 98 L.Ed.2d 60 (1987); accord Magnuson, 576 F.2d at 1369-70 ; Carson v. Southern Ry., 494 F.Supp. 1104, 1112 (D.S.C.1979); Louisville & N. R.R. v. Marshall, 586 S.W.2d 274, 281 (Ky.App.1979). Holding to the contrary in the RLA-preemption context, see Jackson v. Consolidated Rail Corp., 717 F.2d 1045, 1059 (7th Cir.1983) (Posner, J., dissenting), cert. denied, 465 U.S. 1007 , 104 S.Ct. 1000 , 79 L.Ed.2d 233 (1984); McCann v. Alaska Airlines, Inc., 758 F.Supp. 559, 564 (N.D.Cal.1991); Merola v. National R.R. Passenger Corp., 683 F.Supp. 935, 938 (S.D.N.Y.1988); Raybourn v. Burlington N. R.R., 602 F.Supp. 385, 388 (W.D.Mo.1985); Balzeit v. Southern Pac. Transy. Co., 569 F.Supp. 986, 990 (N.D.Cal.1983). Holding to the contrary in the NLRA-preemption- context, see for example Cat erpillar Inc. v. Williams, 482 U.S. 386, 398 , 107 S.Ct. 2425, 2432-33 , 96 L.Ed.2d 318 (1987) (rejecting employer’s argument that “§ '301 pre-empts a state-law claim even when the employer raises only a defense that requires a court to interpret or apply a collective-bargaining agreement”).

‘ Cases in the DeTomaso-Majors line are misleading because they distort the congressional purpose of the . RLA. Both the majority and the district court relied on language in' Majors that entertaining Lorenz’s action in the' district court “would thwart the congressional purpose of providing a comprehensive federal scheme for the settlement of employer-employee' disputes in the railroad industry without resort to the courts.” Majors, 525 F.Supp. at 856 . In my view, the majority’s reliance on Elgin, J. & E. R.R. v. Burley, 325 U.S. 711 , 65 S.Ct. 1282 , 89 L.Ed. 1886 (1945), is misplaced. It would seem to imply that Congress intended.the RLA to preempt any railroad-industry dispute “founded upon some incident of the employment relation.” Id. at 723 , 65 S.Ct. at 1290 . The holding of Elgin primarily distinguishes minor disputes from major disputes, and the quoted language simply is out of context with the issue presented here. Several courts have noted that such an expansive view of RLA preemption is a misstatement of - congressional intent. See, e.g., McCann, 758 F.Supp. at 566 (“some incident of the employment relation” test is an “erroneous legal principle”); Raybourn, 602 F.Supp. at 388 (same).

The congressional purpose underlying the RLA is not to require arbitration for all employee-employer ■ disputes, but only (those that are -classified as major and) those “growing out of grievances or out of the interpretation or application of agree *272 ments covering rates of pay, rules, or working conditions.” 45 U.S.C. § 151a(5). As. Judge' Posner stated in his dissent in Jackson v. Consolidated Rail Corp., 717 F.2d 1045 (7th Cir.1983), cert. denied, 465 U.S. 1007 , 104 S.Ct. 1000 , 79 L.Ed.2d 233 (1984), “[i]t might be different if Congress had established an administrative agency to police tort or tort-like conduct in railroad employment, but it has not; it has contented itself with requiring arbitration of contract disputes.” Id. at 1060 (Posner, J., dissenting). As Judge Posner would have held in Jackson , the dispute here

is not a grievance because it would exist even if there were no collective bargaining agreement, unlike the situation in Andrews ....

... The present dispute does not arise from the, collective bargaining agreement. It has an independent basis in tort law and is therefore outside the arbitrators’ exclusive jurisdiction.

Id. at 1059-60 (Posner, J., dissenting).

Clearly Congress did not intend for the RLA to “wipe out the employee’s common law rights other than his right to enforce the very contracts that are subject to the scheme of compulsory arbitration.” Id. at 1060 (Posner, J., dissenting).

In my view, the facts of this case simply do not constitute a minor dispute. Assuming the allegations in the complaint are true, as we must, the posting of the defamatory notice was not authorized by the collective bargaining agreement. CSX contends that the agreement permitted it to post the notice as a way to notify witnesses of Lorenz’s upcoming disciplinary hearing. In fact, the only mention of notice in the agreement is that “the employee shall be notified in writing of the precise charge against him and he shall have reasonable opportunity to secure the presence of necessary witnesses.” The agreement contains no provision allowing CSX to publish the notice to other employees, much less the world at large. Because Lorenz’s defamation claim would exist with or without the collective bargaining agreement, it is ■not “inextricably intertwined” with an interpretation of the agreement. Nor does the claim arise out of Lorenz’s discharge in the sense intended by Andrews , since it is not an action for wrongful discharge artfully pled to look like a tort suit.

In view of the above, I would reverse the action of the district court dismissing Lorenz’s claim.