Petition — Magnuson v. Burlington Northern, Inc.

| SEP 12 1978

te

MICHA '

tau CHABL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM 1977

No. 78-415

HAROLD R. MAGNUSON,

Petitioner,

vs.

BURLINGTON NORTHERN, INC.,

D.S. NELSON, J.H. WOOLFORD

and G.J. O’;CONNELL,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

es

piaenemeeteeiiebinn ania

JOHN C. HOYT

Attorney for Petitioner

501 Second Avenue North

P.O. Box 2807

Great Falls, Montana 59403

Tel. (406) 761-1960

INDEX

PAGE

Citation to Opinions Below ...........ccccccccccces 1

ny ana hn addins «> 089.0 buns SES 2

os aa 6 etm 6m osn-4 06 60 bo oe eas 2

on oh we Lin nie eenin ee eda oe aka 3

i 6h nnd hls haw aad 3

Reasons for Granting the Writ..................... 5

Argument:

The Railway Labor Act Does Not Preempt The

Exercise Of Jurisdiction By A State Court

Of This Action For Intentional Infliction

eid wnauatcrneneces 6

ee ee eee ed akewns 10

2. The Courts Below Sanctioned Extrinsic Fraud

On The Part Of The Defendants Resulting In

Denial Of Due Process And A Total

Departure From The Accepted And

Usual Course Of Judicial Or Administrative

a eee wen dé wa ence de 12

ee CE ee Be eee eee 18

Appendix A: Opinion, Ninth Circuit Court

re A-1

Appendix B: Opinion and Order,

United States District Court

Dated May 21, 1976

Appendix C: Order, United States District Court

UE, BOO chk cca vcccccessns C-1

Appendix C=

Appendix D: Complaint, dated May 8, 1975......... D-1

Appendix E: Affidavit, C.R. Pfenning,

dated October 25, 1975............... E-1

ii

TABLE OF CASES

PAGE

Andrews v. Louisville and N.R. Co.,

406 U.S. 320, 32 L.Ed.2d 95,

ee ee ee WE oo 50s es 0-5 40.63 0 or edan bas 8,9, 11

Automobile Workers v. Russell,

356 U.S. 634, 2 L.Ed.2d 1030,

es ED oo heen oie oe eke Cece eek 7,10

Barrett v. Manufacturers Railway Co.,

326 F. Supp. 639 (DC Mo., 1971),

OT GOES FBG Tie Ck ©, FOF E) coc cece ccccccccses 14

Chicago, R.I. & P.R. Co. v. Wells,

Rg Fe Se | A ne 14

Community of Woodston v. State Corp. Commission,

186 Ka. 747, 363 F.2d 206 (1960)... cw cccccccces 16

Dullam v. Willson, |

53 Mich. 392, 19 N.W. 112 (1884) ................. 16

Earnshaw v. United States,

£4615. GO, 36 Led: GBT (IGOR) own ccc cc cteccces 14

Farmer v. United Broth. of Carp. & Joiners, Local 25,

430 U.S. 290, 51 L.Ed.2d 338, 97,

ee BR UEE bh cbc bce eeeenr se a RE 6, 7

International Association of Machinists v. Gonzales,

356 U.S. 617, 2 L.Ed.2d 1018,

pg oe Re TP ee a eee ae 7,9, 10

Jaffe v. State Department of Health,

135 Conn. 339, 64 A.2d 330,

CAR Saee SE vg ce bik cdewsctcwevncdcsvens 16

Linn v. Plant Guard Workers,

383 U.S. 53, 15 L.4%Ed.2d. 582,

Ce re Ns ek he a bs eo We keke 7,10

—

Saat 7

ES Seep ra

McDonald v. Penn Central Transportation Co.,

$37 F. Supp. 803 (DC Mass., 1972).......cccccceee 14

Morgan v. United States,

308 U.S. 1 at 14-15, 18, 82 L.Ed. 1129,

PS PUNE ios es cc cer retesandenbedness 17

Re. Murchison

349 U.S. 133, 99 L.Ed. 942,

a a ula a vg wae aie 17

San Diego Building Trades Council v. Garmen

359 U.S. 236, at 243-344, 3 L.Ed.2d 775,

Ce CORE ea aba xspelcavah eae aes 7

Southern Pacific Co. v. Wilson,

BTS FBR GOO GAG, FOG occ ccc ccetsversene 14

State ex rel Hart v. Duluth,

53, Minn. 235, 66 N.W. 116 (1888) .. 0... cc ccsecens 16

State ex rel Kirby v. Henderson,

145, lowa 657, 124 N.W. 767 (1910) ............... 16

State ex rel Sbordy v. Rowlett,

138 Fla. 230, 190 So. 59, 123 A.L.R. 769 (1939)...... 16

Switchmen’s Union of North America v. Clinchfield R. Co.

310 F. Supp. 606 (DC Tenn. 1969)................. 14

System Federation, No. 30, Railway Employees

Department v. Braidwood,

264 F. Bape. Gili (IPC TE. 1968)... 6c ccc ccccccces 14

United States v. Throckmorton,

2 8 ee FS Te fo Re ereer arr ere 17

United Transportation Union v. Clinchfield R. Co.,

427 F.2d 161 (CA 6, 1970), Cert. den. 400,

U.S. 824, 27 L.Ed.2d 53, 91 S.Ct. 48 (1970) ......... 14

iv

Vaca v. Sipes,

386 U.S. 171 at 180, 17 L.Ed.2d 842,

COCA, GE Te os ons on one becncnnes ehde ene eben 8

Vitarelli v. Seaton,

359 U.S. 535, 3 L.Ed.2d 1012,

Te. SR See oo we wb ctotnecads éueneeanaeeees 16

Yoshizawa v. Hewitt,

Pe me Eg of S| | pm rm 16

STATUTES CITED

PAGE

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BB US GAGE gon csv cvaneddnteecnansaaeeaeeee 3, 6-7

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46 USC $168 Fivat (8)... cc cccsnccevessujsseneawnens 9

en,

IN THE

Supreme Court of the United States

OCTOBER TERM 1977

No.

HAROLD R. MAGNUSON,

Petitioner,

vs.

BURLINGTON NORTHERN, INC.,

D.S. NELSON, J.H. WOOLFORD

and G.J. O’;CONNELL,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

Petitioner, Harold R. Magnuson, prays that a writ of

certiorari issue to review the Opinion of the United States

Court of Appeals for the Ninth Circuit filed in the above

entitled case on June 12, 1978.

CITATION TO OPINIONS BELOW

The Opinion of the United States Court of Appeals for

the Ninth Circuit is printed in Appendix ‘‘A’’ attached

hereto. The Opinion and Order of the United States Dist-

rict Court for the District of Montana, Billings Division,

dated May 21, 1976, granting removal from state court to

federal court, is printed in Appendix ‘‘B” attached hereto.

The Order of the United States District Court granting

the defendants’ motion to dismiss dated July 12, 1976,

from which Magnuson appealed to the United States

Court of Appeals for the Ninth Circuit is printed in

Appendix ‘‘C’”’ attached hereto.

JURISDICTION

The Opinion of the United States Court of Appeals for

the Ninth Circuit which is sought to be reviewed was en-

tered on June 12, 1978. The jurisdiction of this Court is

invoked under 28 USC §1254(1).

QUESTIONS PRESENTED

1. Where railroad employee is fraudulently denied im-

partial hearing at on-property investigation from which

sole record is created which thereafter may be reviewed

under administrative procedures of Railroad Labor Act,

must such employee pursue empty and useless adminis-

trative procedures before asking judicial intervention for

fraud in state court?

2. Where a railroad employee complains in state court

of outrageous, tortious conduct committed by railroad

management during purported on-property disciplinary

proceedings, and there is no administrative device or pro-

cedure under the Railroad Labor Act to expose or rectify

such tortious conduct, would not federal labor policy then

favor concurrent state court jurisdiction to insure fair

dealings, thus complementing the results intended by the

Railroad Labor Act?

3. Where facts are alleged in state court action giving

rise to claim of intentional infliction of emotional distress

against railroad employee by management at on-property

proceeding and employee seeks trial by jury on this issue,

is he not entitled thereto by the Seventh Amendment?

STATEMENT OF THE CASE

On May 8, 1975, Magnuson filed his complaint in the

District Court of the Thirteenth Judicial District of the

State of Montana, attached hereto as Appendix “‘D”. On

May 27, 1975, the defendants named in the Complaint

filed a Petition for Removal in the United States District

Court for the State of Montana, Billings Division, under

28 USC §1441(b) alleging that the federal court had orig-

inal jurisdiction by virtue of 28 USC §1337 and the

R.L.A., 45 §151 et. seg. On May 30, 1975, Magnuson filed

Objections to the Petition for Removal, and on June 3,

1975, filed a formal request for jury trial.

Thereafter the United States District Court issued its

Opinion and Order granting removal dated May 21, 1976,

(Appendix B). Based on the reasons set forth in this

Opinion and Order the District Court then granted the

defendants’ motion to dismiss on July 12, 1976,

(Appendix C).

Magnuson then appealed to the United States Court of

Appeals for the Ninth Circuit on July 22, 1976. Said Court

filed its Opinion affirming the United States District

Court on June 12, 1978, (Appendix A). It is this Opinion

that Magnuson seeks to have reviewed by this Petition

for Certiorari.

STATEMENT OF FACTS

The essential facts of this case are contained in Mag-

nuson’s Complaint (Appendix D). The complaint states

that Magnuson was a train dispatcher and had been em-

ployed by the Burlington Northern, Inc., for nearly

twenty years as an operator and train dispatcher before

May 11, 1971. On that date a head-on collision occurred

between two extra freight trains at a point where defend-

ant, Burlington Northern, Inc., hereinafter called Burling-

ton Northern, maintained a one track railroad in nonblock

territory. As a result of this head-on collision, four fellow

employees of Magnuson were killed and six others were

injured.

At the time of this collision defendant, D.S. Nelson, was

the Superintendent of the Burlington Northern’s Montana

Division, which includes the territory where the accident

occurred and where the plaintiff was employed as a dis-

patcher. Defendant, J.H. Woolford, was the Assistant

Superintendent of the Montana Division. The remaining

defendant, Jeoffrey J. O’Connell, was the Division Claims

Manager.

The complaint alleges that the defendants purported to

conduct an investigation ostensibly for the purpose of

determining the cause of this tragic accident. At this pur-

ported formal investigation the defendants called as wit-

nesses only those persons who they desired to question in

order to suppress or prevent the true facts from being

made public. The defendants conspired to and did cover-

up and conceal the true causes of the accident and wrong-

fully placed all of the blame for the accident on Magnu-

son.

The complaint contains numerous allegations of serious

and longstanding managemental and supervisory errors

and omissions amounting to wanton, willful and deliberate

misconduct on the part of the defendants, evidence of

which was carefully and intentionally withheld and con-

cealed during the on-property investigation. The com-

plaint in considerable detail sets out the numerous rea-

sons for and causes of the collision, none of which were at-

tributable to Magnuson, including the failure of super-

visory or managemental personnel to institute appropri-

ate safety rules, allowing and condoning violations of com-

pany safety rules, permitting, authorizing and even parti-

cipating in acts of gross negligence, the result of which in-

evitably led to the entirely unnecessary tragedy.

All of this was known to the defendants, but they

nevertheless conspired to keep these facts secret from the

public and from Magnuson, and to publicly blame Magnu-

son as the sole party responsible for the deaths of and in-

juries to his fellow employees. This was designed to and

did inflict severe emotional distress on Magnuson and in

order for the Burlington Northern defendant officials to

be consistent and to cover-up the longstanding negligent

conduct of high railroad employees, it became necessary

to find a scapegoat to bé blamed and, of course, for a trag-

edy of this magnitude someone had to be fired. Instead of

conducting an impartial investigation to reveal the true

reasons for the head-on collision, the defendants chose to

place the sole blame on Magnuson and, therefore, dis-

charged him and whitewashed the officials of the Burling-

ton Northern who were truly responsible for this accident,

thus making Magnuson appear in the eyes of his former

fellow workers and their families and friends as the sole -

villain responsible for this terrible tragedy.

The complaint further alleges that as the result of this

conspiracy between the defendants, through the abusive

and fraudulent use of the Burlington Northern’s on-prop-

erty internal disciplining processes, the deferdants malici-

ously, fraudulently, oppressively, deliberately and know-

ingly destroyed Magnuson both emotionally and economi-

cally.

REASONS FOR GRANTING THE WRIT

1. The decision of the United States Court of Appeals

for the Ninth Circuit sanctions and approves proceedings

during the initial investigative hearing stages of the

R.L.A. which so far depart from the accepted and usual

course of judicial or administrative proceedings, as to call

for an exercise of this court’s inherent power of super-

vision. The effect of the Court of Appeals decision is to

grant managemental personnel, who control the initial in-

vestigative hearing, known as the “‘on-property investiga-

tion,’ license to commit fraud extrinsic to the proceeding

which denies due process to parties under investigation

and to prohibit any subsequent inquiry into such conduct

before any tribunal with authority to examine into and

apply a proper remedy for such conduct.

2. The decision of the United States Court of Appeals

for the Ninth Circuit (Appendix A) has decided a federal

question so as to be in conflict with a recent decision of

this court. See Farmer v. United Brotherhood of Carpen-

ters and Joiners, Local 25, 430 U.S. 290, 51 L.Ed.2d 338,

97 S.Ct. 1056 (1977).

3. The decision of the United States Court of Appeals

for the Ninth Circuit deprives the petitioner of his consti-

tutional right to trial by jury and, therefore, effectively

decides an important question of federal law which has

not been settled by this court, to-wit: whether holding

that the subject matter of this action is within the exclu-

sive jurisdiction of the Railway Labor Act, 45 USC §151

et. seq., has the effect of denying the petitioner his consti-

tutional right to trial by jury secured by the Seventh

Amendment to the United States Constitution.

ARGUMENT

The Railway Labor Act Does Not Preempt The

Exercise Of Jurisdiction By A State Court Of This

Action For Intentional Infliction

Of Emotional Distress

Magnuson’s complaint states a claim at common law

for intentional infliction of emotional distress. Under the

rule of Farmer v. United Brotherhood of Carpenters &

Joiners, Local 25, supra, 430 U.S. 290, where a defendant

has intentionally engaged in outrageous conduct arising

—

in connection with employment covered by the National

Labor Relations Act (N.L.R.A.;, 29 USC §151, et. seq.) a

plaintiff who therefore suffers grievous emotional distress

is not limited to the exclusive jurisdiction of the dispute

resolving mechanisms of the N.L.R.A. This rule of law is

equally applicable to emp!oyment relationships within the

purview of the R.L.A., 45 USC §151, et. seq.

The preemption doctrine should not be applied to deny

Magnuson his state court remedy because his complaint

touches ‘interests so deeply rooted in local feeling and

responsibility”’ that this court should not infer that

Congress has deprived the states of the power to act

under circumstances such as these. See San Diego Build-

ing Trades Council v. Garmen, 359 U.S. 236, at 243-344, 3

L.Ed.2d 775, 79 S.Ct. 773 (1959). See also Linn v. Plant

Guard Workers, 383 U.S. 53, 15 L.Ed.2d 582, 86 S.Ct. 657

(1966) (malicious liable); Automobile Workers v. Russell,

356 U.S. 634, 2 L.Ed.2d 1030, 78 S.Ct. 932 (1958) (mass

picketing and threats of violence); International Associa-

tion of Machinists v. Gonzales, 356 U.S. 617, 2 L.Ed.2d

1018, 78 S.Ct. 923 (1958) (wrongful expulsion of union

membership).

Permitting the exercise of state jurisdiction on the facts

of this case does not result in state regulation of federally

protected conduct in view of the absence of any provision

of the R.L.A. preventing or even exposing the conduct

complained of here, which included intentional infliction of

emotional distress, conspiracy to deprive Magnuson of a

fair hearing and conspiracy to fraudulently misrepresent

the facts of the subject accident and Magnuson’s inno-

cence relative thereto. The rule of Farmer clearly stands

for the proposition that the State of Montana has a sub-

stantial interest in protecting its citizens from outrageous

conduct such as that alleged in Magnuson’s complaint.

This interest is no less worthy of recognition merely be-

cause it concerns protection from emotional distress

caused by outrageous conduct rather than protection from

physical injury or damage to Magnuson’s reputation

(also alleged in Magnuson’s complaint).

Magnuson’s complaint alleges that the defendants con-

spired to deceive the public into believing that he was res-

ponsible for the death of four of his fellow employees and

injury to six other fellow employees. The complaint fur-

ther alleges that all of this was done with full knowledge

of the fact that Magnuson was innocent, that the manage-

mental personnel in supervisory positions were clearly res-

ponsible, and that the purpose was to cover-up manage-

ment’s responsibility for the tragic accident, while at the

same time providing a scapegoat therefor. Such intention-

al conduct is not protected under the R.L.A. The State of

Montana has an overriding state interest in protecting its

residents from this kind of intentional misconduct. In

short ‘‘no reasonable man in a civilized society should be

expected to endure’ the conduct complained of here.

Farmer, supra, 430 U.S. at 294,302.

There is no realistic risk that state damage actions such

as this will fetter the exercise of rights protected under

the R.L.A. Remanding this action to state trial court will

“in no way undermine the vitality of the preemption

rule.”” Vaca v. Sipes, 386 U.S. 171 at 180, 17 L.Ed.2d 842,

87 S.Ct. 903 (1967). There is no risk that permitting the

state cause of action to proceed will result in state regula-

tion of conduct that Congress intended to protect or in

interference with the federal scheme of things.

Magnuson’s complaint does not allege wrongful dis-

charge within the meaning of Andrews v. Louisville &

N.R. Co., 406 U.S. 320, 32 L.Ed.2d 95, 92 S.Ct. 1562

(1972), wherein this court held that mere wrongful dis-

charge of a railroad employee in violation of a collective

bargaining agreement was a “minor dispute’’ within the

meaning of 45 USC §153 First (i) and therefore the dis-

charged employee’s exclusive remedy came under the

R.L.A. The gravamen of Magnuson’s complaint is inten-

tional infliction of emotional distress. The only connection

between the R.L.A. and the tort in question is that the ini-

tial investigative hearing stage of the R.L.A., which is to-

tally within the control of the management of the railroad,

was the vehicle or conduit for the intentional wrongful

acts against Magnuson and the fraud committed by the

defendants against him. There is no realistic potential for

interference with the federal scheme of regulation under

the facts of this case as there was in Andrews.

Magnuson’s complaint alleges specifically and in con-

siderable detail conduct on the part of the railroad

management designed to circumvent the R.L.A. The abu-

sive conduct of the defendants converted the R.L.A. into

the instrument of harm to Magnuson, and now, under the

decisions of the court below, the R.L.A. is utilized by the

defendants to shield them from liability for their willful

wrongdoing. The state tort alleged by Magnuson is a

function of the particularly abusive manner in which he

was treated by the defendants. Under such circumstances

concurrent state jurisdiction should be both permissible

and desirable as the state court action will greatly comple-

ment the intent and purpose of the proceedings under the

Railroad Labor Act by providing a forum for the exposure

of fraud, either extrinsic or intrinsic, with the result that

those who have the responsibility (railroad management)

for conducting a fair and impartial on-property hearing

will hereafter realize that there is civil! remedy for those

employees deliberately deprived thereof. Surely both due

process and public policy are compatible with concurrent

state jurisdiction under these circumstances.

In Gonzales, supra, this court specifically recognized

that an argumentative coincidence in the facts of a tort

10

action and a possible proceeding before the N.L.R.B. will

not necessarily result in preemption:

“Tf, as we held in the Laburnum case, certain state

causes of action sounding in tort are not displaced

simply because there may be an argumentative coin-

cidence in the facts adducible in the tort action and a

plausible proceeding before the National Labor Rela-

tions Board, a state remedy for breach of contract

also ought not to be displaced by such evidentiary

coincidence when the possibility of conflict with fed-

eral policy is similarly remote. The possibility of con-

flict from the court’s award of damages in the present

case is no greater than from its order that respondent

be restored to membership. In either case the poten-

tial conflict is too contingent, too remotely related to

the public interest expressed in the Taft-Hartley Act,

to justify depriving state courts of jurisdiction to

vindicate the personal rights of a ousted union

member.” Gonzales, supra, 356 U.S. at 621.

The connection between the tort alleged in Magnuson’s

complaint and the collective bargaining agreement is ex-

tremely tenuous and obviously insubstantial. The holding

in Farmer, supra, indicates a return to the principles an-

nounced in Linn, supra; Russell, supra; and Gonzales,

supra, all of which refuse to apply the preemption doctrine

to cases which are arguably connected to the collective

bargaining processes of the federal scheme of labor rela-

tions law. The decision of the Court of Appeals has been

decided in direct conflict with the decision in Farmer and

should, therefore, be reviewed by this court and reversed.

Right to Trial By Jury

The decision of the United States Court of Appeals for

the Ninth Circuit deprives Magnuson of his constitutional

right to trial by jury: .

11

“In Suits at common law, where the value in contro-

versy shall exceed $20 the right of trial by jury shall

be preserved ...’’ Seventh Amendment, Constitution

of the United States.

The Ninth Circuit declined to rule on this constitutional

issue “‘because it was neither raised nor decided below.”

(Appendix A). This is clearly incorrect because the jury

trial argument was, in fact, raised at the onset of this ac-

tion as indicated by the following quotation from the Dist-

rict Court’s Opinion and Order:

“This court also rejects the jury trial argument. The

plaintiff’s claim is properly part of an administrative

scheme and therefore a jury trial is inappropriate and

not required.” (Appendix B)

This fundamental issue has never been decided by this

court. In Andrews, supra, the majority of this court de-

clined to rule on this constitutional issue because it was

not set forth as a “‘question presented for review’’ in the

petition for certiorari and therefore Rule 23 (1) (c) of the

Supreme Court Rules precluded review. The dissenting

opinion in Andrews did, however, address the issue and in

strong language, almost prophetic of Magnuson, pointed

out the mischief which could arise if the right to trial by

jury under circumstances such as here are presented is

denied a citizen, even an employee of the railroad.

Magnuson has continually demanded trial by jury dur-

ing the proceedings at each level of review. He has repeat-

edly raised the constitutional question sought to be re-

viewed. His complaint does not find its genesis in the col-

lective bargaining agreement between the Burlington

Northern and his former union. The complaint is a com-

mon law suit by which he seeks redress of grievances in

the traditional manner of suitors at common law.

This is not a constitutional attack on the R.L.A. per se,

12

but rather a constitutional attack on the manner in which

the courts below have applied the R.L.A. to the facts of

this case. The application of the R.L.A. to the facts of this

case by the federal district court and the court of appeals

necessitates a constitutional confrontation which can be

avoided by construing the complaint as a claim for inten-

tional infliction of emotional distress. Magnuson has not

invoked the limitations of the R.L.A., nor has he sought

reinstatement of his employment. He is no longer a mem-

ber of the union that formerly represented him during

minor disputes with railroad management. He has no

place to turn to other than a court of law and a jury of his

peers. His right of access to a jury is clearly secured by

the Seventh Amendment. This issue is ripe for determina-

tion and should be heard by this court.

The Courts Below Sanctioned Extrinsic Fraud

On The Part Of The Defendants Resulting

In Denial Of Due Process And A Total Departure

From The Accepted And Usual Course Of Judicial

Or Administrative Proceedings

The decision of the United States Court of Appeals for

the Ninth Circuit has the effect of granting respectability

to fraudulent proceedings during the critical initial on-

property investigation conducted by the railroad which

was specifically designed to prevent Magnuson from

having a fair hearing, and prohibiting any subsequent

inquiry into this fraudulent conduct by any tribunal with

jurisdiction of the controversy. °

In order to appreciate the point being made here, one

must fully understand the procedures of the R.L.A. At-

tached hereto as Appendix ‘“‘E” is the Affidavit of Mr.

C.R. Pfenning, President of the American Train Dispatch-

ers Association, who has been a train dispatcher and

union representative for twenty-five years who states

13

under oath:

“That a dispatcher desiring to avail himself of any

remedies under the Railway Labor Act and before the

Railway Adjustment Board is confined entirely and

solely to the record made by the railroad at the time

of the investigation, which record is reduced to writ-

ing and thereafter a railroad em, loyee may not add

to, subtract from or provide facts different than the

testimony and record made by the railroad at the

time of the investigation.”

This evidence of the finality of the initial on-property in-

vestigation as the sole fact finding proceeding under the

R.L.A. was presented to the courts below and was totally

uncontradicted. It points out that the sole fact finding

hearing or investigation under the procedures available

through the R.L.A. is the initial on-property investiga-

tion, which the complaint alleges was fraudulently con-

ducted to paint Magnuson as a scapegoat. There are no

procedures available within the R.L.A. to attack the facts

adduced during this initial investigation. The complaint

shows that Magnuson attempted the only administrative-

ly conceivable avenue to correct this deficiency by re-

questing a rehearing or new investigation, but the defend-

ants refused to provide him with one in furtherance of

their scheme to save themselves at the expense of his des-

truction. Thus, there was nothing that could have been ac-

complished under the R.L.A. in seeking review by a Rail-

road Adjustment Board, because any such board would

have been limited to the fraudulently obtained and untrue

facts contained in the written transcript of the initial on-

property investigation.

The complaint alleges a conspiracy to whitewash the

defendants at the expense of Magnuson. On May 13, 1971,

Magnuson received notice of the hearing to be held on

May 17, 1971. There was a weekend between the date he

14

received notice and the date of the hearing and he had no

opportunity to obtain proper representation during this

investigation. Fifth Amendment due process require-

ments are applicable to the proceedings within the R.L.A.

Southern Pacific Co. v. Wilson, 378 F.2d 533 (CA 5, 1967);

System Federation, No. 30, Railway Employees Depart-

ment v. Braidwood, 284 F. Supp. 611 (DC Ill. 1968);

Switchmen’s Union of North America v. Clinchfield R.

Co., 310 F. Supp. 606 (DC Tenn. 1969), aff'd in United

Transportation Union v. Clinchfield R. Co., 427 F.2d 161

(CA 6, 1970), cert. den. 400 U.S. 824, 27 L.Ed.2d 53, 91

S.Ct. 48 (1970); McDonald v. Penn Central Transporta-

tion Co. 337 F. Supp. 803 (DC Mass., 1972); Chicago, R.1I.

& P.R. Co. v. Wells, 498 F.2d 913 (CA 7, 1974); Barrett v.

Manufacturers Railway Co., 326 F. Supp. 639 (DC Mo.,

1971), aff'd 453 F.2d 1305 (CA 8, 1972).

The notice to which a person may be entitled under the

due process clause is that which may be described as rea-

sonable or adequate as to the time and place of the hear-

ing. Recognizing that administrative agencies, especially

those engaged in the business of government, are not ob-

liged to proceed with the technical accuracy necessary to

charge a defendant with liability in a court of law, Earn-

shaw v. United States, 146 U.S. 60, 36 L.Ed. 887, (1892), a

party is nevertheless entitled to notice sufficient in time

as well as content to enable him to prepare his defense or

to meet the issues involved. United States ex rel Turner v.

Fischer, 222 U.S. 204, 56 L.Ed. 165, (1911). The length of

notice for an administrative hearing must depend in great

measure upon the circumstances of each case. When you

consider the circumstances of this case, wherein Magnu-

son’s emotional well-being, life work, and reputation

among his friends and acquaintances were placed in

jeopardy, nothing less than notice of sufficient time to

allow him to marshall his thoughts, obtain competent

15

representation, interview witnesses and prepare for their

appearance would be constitutionally adequate.

Magnuson was not apprised of any charges pending

against him prior to the time set forth in the hearing or

during the hearing for that matter. The telegram which

was sent to Magnuson four days prior to the hearing

stated:

“GREAT FALLS MAY 13-1971

HAROLD MAGNUSON - - DSPR HAVRE

HARLEM

ATTEND INVESTIGATION IN SUPT OFFICE

AT HAVRE MONT AT 1 PM MONDAY MAY

17TH 1971 FOR PURPOSE OF ASCERTAINING

THE FACTS AND DETERMINE YOUR RESPON-

SIBILITY IN CONNECTION WITH THE COLLI-

SION BETWEEN EXTRA 2013 WEST AND

EXTRA 2025 EAST, WHICH OCCURRED ABOUT

64 CAR LENGTHS WEST OF WEST SWITCH AT

SHEFFELS MONT., AT ABOUT 11:45 PM ON

MAY 11TH 1971 ARRANGE FOR REPRESEN-

TATIVE AND OR WITNESS IF DESIRED, IN

ACCORDANCE WITH GOVERNING PROVISION

OF PREVAILING SCHEDULE RULES. PLEASE

ACKNOWLEDGE RECEIPT BY AFFIXING

YOUR SIGNATURE IN SPACE PROVIDED ON

COPY OF THIS LETTER FILE Q-169.

D S NELSON, SUPT 212PM

ACKNOWLEDGING RECEIPT OF RECEIVING

FILE Q-169 MAY 13TH 1971.

/s/ H. R. Magnuson” (Emphasis Supplied)

The sufficiency of an application, claim, petition, notice,

or charge before an administrative agency or tribunal

need not be a formal pleading such as required in a judi-

16

cial complaint or pleading in a court proceeding. Technical

rules of pleading are not necessary or perhaps even appli-

cable. But a statement of facts made with substantial cer-

tainty and sufficient detail so as to advise the person of

the matters charged is definitely required. Community of

Woodston v. State Corp. Commission, 186 Ka. 747, 353

P.2d 206 (1960).

The question of what constitutes sufficient specifics of

the issues raised or charges made depends upon the viola-

tion alleged and the type of investigation being conduct-

ed. Vitarelli v. Seaton, 359 U.S. 535, 3 L.Ed.2d 1012, 79

S.Ct. 968 (1959) (statement of charges furnished, govern-

ment employee suspended on security grounds); Yoshi-

zawa v. Hewitt, 52 F.2d 411 (CA 9, 1931) (charge in pro-

ceeding for revocation of physician’s license); State ex rel

Kirby v. Henderson, 145 Iowa 657, 124 N.W. 767 (1910)

(petition for removal of mayor on grounds of intoxica-

tion).

Particularly in a situation where the defense of private

rights are involved a statement with reasonable and sub-

stantial certainty is required. Jaffe v. State Department of

Health, 135 Conn. 339, 64 A.2d 330, 6 A.L.R.2d 664

(1949); State ex rel Sbordy v. Rowlett, 138 Fla. 330, 190

So. 59, 123 A.L.R. 769 (1939); Dullam v. Willson, 53 Mich.

392, 19 N.W. 112 (1884).

General charges without any specifications of facts are

insufficient. State ex rel Hart v. Duluth, 53 Minn. 238, 55

N.W. 118 (1893). The subject telegram to Magnuson did

not provide any statement of charges nor does it allege

any facts upon which any charges could have been based.

The complaint in this case alleges that contrary to any-

thing contained in the telegram, the investigation was

held for the sole purpose of covering up and concealing

facts, not for the purpose of disclosing the truth.

Due process also requires a full, fair and impartial hear-

17

ing, which was denied Magnuson, Under the administra-

tive proceedings of the R.L.A. the evidentiary hearing or

investigation is the very heart of the administrative pro-

cess because all parties concerned and appeals therefrom

before the Railroad Adjustment Board merely involve

arguments based only upon the evidence adduced at these

hearings.

The most rudimentary and elementary requirements of

fair play were denied Magnuson here. These requirements

demand at the very least ‘‘a fair and open hearing”’ which

“embraces not only a right to present evidence, but also a

reasonable opportunity to note the claims of the opposing

party and to meet them.’’ Morgan v. United States, 304

U.S. 1 at 14-15, 18, 82 L.Ed. 1129, 58 S.Ct. 773 (1937).

A key element of due process requires that the tribunal

be a fair and impartial one. Re Murchison, 349 U.S. 133,

99 L.Ed. 942, 75 S.Ct. 623 (1954). The Murchison decision

involved a tribunal which had an interest in the outcome

of the proceeding and held that due process was therefore

denied. The defendants here likewise had a keen interest

in the outcome of the proceedings as evidenced by their

conduct with regard to Magnuson. This alone leads to the

unavoidable conclusion that Magnuson was denied a fair

hearing.

Collusion between the defendants resulted in extrinsic

fraud which has thus far effectively prevented Magnuson

from ever having his day in court. Where an unsuccessful

party like Magnuson has been prevented from exhibiting

fully his case because of fraud or deception practiced on

him by his opponent, there has never been a real contest

in the hearing of the case and this amounts to extrinsic

fraud as defined in United States v. Throckmorton, 98

U.S. 61, 25 L.Ed. 93 (1878), which held that a decision of a

court or tribunal which has been procured through extrin-

sic fraud is not binding on the aggrieved party and he

18

may seek relief in a separate proceeding.

Extrinsic fraud by its very nature is not remediable by

appeal or review. Consequently, a separate proceeding is

absolutely essential to bring out the true facts. The com-

plaint alleges conduct that was unknown to and concealed

from Magnuson at the time of the purported hearing and

which were only incidentally uncovered as the result of

formal discovery proceedings in a separate FELA action

arising out of the subject accident. The manner in which

the defendants obtained the result that they desired by

private illicit agreement and collusion separate and apart

from the proceedings of the R.L.A. is totally inconsistent

with the rull and fair hearing requirements of the due

process clause.

CONCLUSION

Petitioner most earnestly urges that the on-property in-

vestigations are the cornerstones and foundations for all

subsequent proceedings under the Railroad Labor Act. If

there is to be fairness to railroad employees, it must come

at this stage in the proceedings. If fraud is practiced upon

an employee, or if duress or infliction of intentional emo-

tional distress is practiced upon an employee at the on-

property investigations, there is no redress under the

R.L.A.

Petitioner conceives that it is of utmost importance

that railroad management not be permitted to commit

wrongful acts of any kind against employees at this stage

in the proceedings and that the only remedy under the

law, as it now exists, is in the nature of an action such as

was brought here by petitioner who respectfully requests

19

this court to speak on this subject and to send this action

back to state court for trial by jury as originally sought

by this petitioner.

The petition for certiorari should be granted.

Respectfully submitted,

JOHN C. HOYT

Attorney for Petitioner

501 Second Avenue North

P.O. Box 2807

Great Falls, Montana 59403

APPENDIX “‘A”’

OPINION

NINTH CIRCUIT COURT

DATED — JUNE 12, 1978

No. 76-2949

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HAROLD R. MAGNUSON,

Appellant,

v.

BURLINGTON NORTHERN, INC.,

D.S. NELSON, J.H. WOOLFORD,

and G.J. O’;CONNELL,

Appellees.

OPINION

Appeal from the United States District Court

for the District of Montana

Before:

BROWNING and HUFSTEDLER, Circuit Judges, and

BONSAL,* District Judge

HUFSTEDLER, Circuit Judge:

Magnuson appeals from a judgment dismissing his

complaint based on common law intentional infliction of

emotional distress on the ground that the gravamen of the

action was a “‘minor’’ dispute growing out of his employ-

ment relationship with the defendant railroad and thus

subject to the exclusive jurisdiction of the dispute resolv-

ing mechanisms under the Railway Labor Act (‘‘R.L.A.’’),

46 U.S.C. §§151, et seg. 1/He contends that the district

court erred in removing the action from the state court to

the federal court and in dismissing it because (1) the gist

of his action is in tort, rather than being based upon his

wrongful discharge from his employment as a railroad

worker and is thus within the exception created by

Farmer v. United Brotherhood of Carpenters & Joiners,

A-2

Local 25 (1977) 430 U.S. 290, and (2) alternatively, his

complaint should be construed as an action to set aside

the grievance procedure decision on the ground of extrin-

sic fraud. We agree with the district court that Magnu-

son’s claim was within the ambit of the R.L.A. and that

his failure to pursue the statutory grievance procedure

was fatal to his claim.

On May 11, 1971, Magnuson was on duty as a train dis-

patcher for Burlington Northern, Inc. when a head-on col-

lision occurred between two freight trains, resulting in the

deaths of four railroad employees and injuries to others.

Burlington’s Montana division, acting through superin-

tendent Nelson, conducted an investigation into the

causes of the accident, and after a hearing, decided that

Magnuson was responsible for the accident. Magnuson

was thereupon discharged. He brought this action in Mon-

tana state court against the railroad, Nelson, and other

supervisory officials of the railroad, alleging that he was

the victim of a conspiracy among the defendants to cover

up their own negligence which caused the accident. He

disclaimed any responsibility for the accident. Magnu-

son’s theory was that the alleged conspiracy which led to

his dismissal was an intentional infliction of emotional dis-

tress for which he sought damages.

Pursuant to defendants’ motion, the cause was removed

to the federal district court, after defendants successfully

argued that Magnuson’s complaint was governed by the

provisions of the R.L.A.

Magnuson necessarily concedes that if his claim is prop-

erly characterized as a ‘‘minor dispute,’’ state law is pre-

empted and his exclusive remedy lies under the R.L.A., as

interpreted by the Supreme Court in Andrews v. Louis-

ville & N.R. Co. (1972) 406 U.S. 320. He contends that he

has avoided Andrews by confining his complaint to a tort

action for intentional infliction of emotional distress, thus

RE Se POR er ee

A-3

bringing himself within the exception to Andrews created

by Farmer v. United Brotherhood of Carpenters & Joiners,

Locai 25, supra, 430 U.S. 290.

The first question is whether Magnuson’s claim is a

“minor’’ dispute within the meaning of 45 U.S.C. § 153

First (i), as in Andrews, or a common law tort exempted

by Farmer. If the basic injury was his wrongful discharge,

the complaint involves a minor dispute which must be

arbitrated following the procedures of the R.L.A. All of

the damages which he claims to have suffered flowed from

his wrongful dismissal from his employment. The alleged

evil motivation of the defendants would have caused him

no legal injury if he had either not been discharged or if

his discharge was not wrongful. The injuries for which he

sought compensation included not only his emotional dis-

tress, but also his loss of income from his job from the

time of his discharge until retirement age, together with

loss of his retirement benefits. His emotional distress was

an incident of the wrongful discharge, rather than a result

of an alleged conspiracy. Every employee who believes he

has a legitimate grievance will doubtless have some emo-

tional anguish occasioned by his belief that he has been

wronged. Artful pleading cannot conceal the reality that

the gravamen of the complaint is wrongful discharge. If

the pleading of emotional injury permitted aggrieved em-

ployees to avoid the impact of the R.L.A., the congres-

sional purpose of providing a comprehensive federal

scheme for the settlement of employer-employee disputes

in the railroad industry, without resort to the courts,

would be thwarted.

Magnuson’s complaint will not fit within the narrow ex-

ception to federal preemption explained in Farmer uv.

United Brotherhood of Carpenters & Joiners, Local 25,

supra, 430 U.S. 290. In Farmer, the petitioner’s decedent,

who had been a member and officer of the union, brought

A-4

the action for infliction of emotional distress based upon

‘outrageous’ conduct by union officials, with whom he

had quarreled, in subjecting him to a campaign of

personal abuse and harassment. The alleged wrong by the

union officials was not a grievance that was expressly

covered by any provision of the N.L.R.A., and was only

related tangentially to unfair labor practices which could

have been made the subject of proceedings under the Act.

The wrongful conduct was ‘‘a merely peripheral concern’”’

of federal law (San Diego Building Trades Council v.

Garmon (1959) 359 U.S. 236, 243) and both the wrongful

conduct and the impact of that conduct upon the decedent

affected interests which were ‘‘deeply rooted in local feel-

ings and responsibility” (id. at 244). The Court empha-

sized that its non-preemption holding was not a signal

that these causes of action for infliction of emotional

distress were generally exampted from preemption. The

federal law remained exclusive if the action touched on an

area of primary concern. Unlike Farmer, this action is

based on a matrix of facts which are inextricably inter-

twined with the grievance machinery of the collective bar-

gaining agreement and of the R.L.A.

Apart from the wrongful discharge aspect of the case,

the alleged actions of the defendants of which Magnuson

complains involve abuse of the investigatory process and

the alleged presentation of false or misleading evidence at

the hearing that led to his discharge. Both the investiga-

tion requirement and the fair hearing right are products of

a collective bargaining agreement. Under Article 24 of the

labor contract between Burlington and the American

Train Dispatchers’ Association, a train dispatcher cannot

be disciplined ‘‘without proper investigation.”’ The Article

also spells out the components of a proper investigation

and a hearing, including prior notice to the employee, the

right of the employee to representation and to the

_—

A-5

presence of witnesses at the hearing, and the right of in-

ternal appeals, following decision, through the railroad

hierarchy to the Adjustment Board. All of the alleged

misfeasance of the railroad employees is thus ‘‘arguably”’

governed by the collective bargaining agreement or has a

‘not obviously insubstantial’ relationship to the labor

contract. Under these circumstances, the controversy is a

minor dispute within the exclusive province of the griev-

ance mechanisms established by the R.L.A. (See, e.g.,

United Transp. Union v. Penn Central Transp. Co. (3d Cir.

1974) 505 F.2d 542, 544-45 (‘not obviously insubstan-

tial’); Local 1477, United Transp. Union v. Baker (6th

Cir. 1973) 482 F.2d 228, 230 (both tests used); Railway

Express Agency v. Brotherhood of Railway, Airline &

Steamship Clerks (5th Cir. 1971) 459 F.2d 226, 231 (‘‘argu-

ably’’); Airline Stewards Ass’n v. Caribbean Atlantic Air-

lines, Inc. (1st Cir. 1969) 412 F.2d 289, 291 (‘‘not obvious-

ly insubstantial’); Southern R. Co. v. Brotherhood of

Locomotive Firemen & Enginemen (D.C. Cir. 1967) 384

F.2d 323, 327 (same).)

Magnuson makes two subsidiary arguments in support

of his primary contention that his action falls outside the

purview of the R.L.A. The first is that the exhaustion doc-

trine should not be appliec. to him because it would deny

his right to a jury trial. The Act does not provide for trial

by jury, but that fact supplies no basis for excluding his

grievance from the scope of the Act. The argument is an

oblique attack on the constitutionality of the Act. We

decline to address any constitutional issue because it was

neither raised nor decided below.

His second contention is that the defendants’ abuse of

the investigation and hearing procedures was a denial of

due process and that he is entitled to present his constitu-

tional claim in a judicial forum without being required to

exhaust his administrative remedies. Like the jury trial

A-6

contention, this argument is little more than a restate-

ment of his basic thesis that his complaint does not pre-

sent a minor dispute. Because all of the claimed due pro-

cess violations are also violations of the terms of the col-

lective bargaining agreement, it is unnecessary to reach

any constitutional question. These arguments not only

can, but they must be addressed in the first instance to

the forums provided by the Act. (Cf. Andrews v. Louis-

ville & N.R. Co., supra, 406 U.S. at 324; Hornsby v.

Dobard (5th Cir. 1961) 291 F.2d 483, 487).

Finally, Magnuson contends that we should construe

his complaint as an action to set aside the determination

by the railroad hearing panel on the ground of extrinsic

fraud. He argues that the Act provides no procedure for

attacking before the Adjustment Board a final discharge

determination on the ground of extrinsic fraud, and, there-

fore, he had no administrative remedies to exhaust. We

reject the argument. Even giving a very liberal construc-

tion to the complaint, we are unable to read it as a claim

for relief on the ground of extrinsic fraud. The allegations

of misconduct are not collateral to the proceedings that he

challenges in any respect. Moreover, nothing in the struc-

ture of the R.L.A. supports a contention that Congress in-

tended to permit any judicial intervention in the grievance

procedures until a claimant had exhausted his remedies

within the statutory structure. Although the Act does not

expressly provide that the Adjustment Board can enter-

tain an attack upon a decision by a hearing officer on the

ground that the decision was obtained either by extrinsic

or intrinsic fraud, that power is implicit in the reviewing

procedure established by the *.ct. We have no occasion on

this record to reach the question whether the Adjustment

Board could or would entertain a collateral attack on a

discharge determination with respect to a claimant who

had earlier failed to pursue his remedies before the

A-7

Adjustment Board, nor do we have any reason to concern

ourselves with the availability of collateral attack through

the judicial process in respect of a claimant who has fully

exhausted his administrative remedies.

AFFIRMED.

1/See 413 F. Supp 870 (D. Mont. 1976)

*Honorable Dudley B. Bonsal, Senior United States District Judge,

Southern District of New York, sitting by designation.

APPENDIX “B”

OPINION AND ORDER

UNITED STATES DISTRICT COURT

DATED — MAY 21, 1976

B-1

CV-75-52-BLG

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

HAROLD R. MAGNUSON,

Plaintiff,

BURLINGTON NORTHERN, INC., a corporation,

D.S. NELSON, J.H. WOOLFORD and

GEOFFREY J. O’CONNELL,

Defendants.

OPINION AND ORDER

Presently pending is the defendants’ effort to remove

this action from state court; the plaintiff resists.

BACKGROUND FACTS

The plaintiff, a train dispatcher, was on duty at the

time of a collision between two trains near Havre. An in-

vestigative hearing was held shortly after the accident

and resulted in the discharge of the plaintiff. The plaintiff

alleges that he in no way caused the accident but con-

tends that the management personnel fired him in an ef-

fort to whitewash their own negligence. The plaintiff

argues that his discharge amounted to tortious conduct

on the part of the defendants.

The plaintiff does not seek reinstatement as a Burling-

ton Northern employee but seeks monetary damages for

past and future wages, retirement benefits, malicious and

intentional infliction of emotional distress, and punitive

damages.

The defendants contend that the plaintiff was a railroad

employee; as such, his relationship with his former em-

ployer, Burlington Northern, came under the jurisdiction

of the Railway Labor Act; and the agreement between

B-2

Burlington Northern and the American Train Dispatchers

Association was entered into pursuant to the duty

imposed by 45 U.S.C. § 152, First (Railway Labor Act).

The defendant agrues that federal law is controlling, and,

thus, the action should be removed to Federal Court.

The plaintiff, who has not exhausted his administrative

remedies under the agreement between the Burlington

Northern and the American Train Dispatchers Associa-

tion, argues that there is no point in appealing to the Rail-

way Adjustment Board, since the Board is composed of

representatives from carriers, which would certainly not

support him, and representatives of the Union, which re-

fused to offer him support during the initial hearing. Fur-

thermore, the plaintiff would have no judicial review of

the Board’s determination except in the case of fraud or

lack of jurisdiction of the Board. 45 U.S.C. § 153 (p).

DISCUSSION

The key case to this issue is Andrews v. Louisville &

Nashville Railroad Co., 406 U.S. 320 (1971). In that case,

the plaintiff, prior to an automobile accident, had been a

railroad employee in good standing. He alleged that fol-

lowing the accident he had fully recovered and was physi-

cally able to resume his work for the company, but that

the company had refused to allow him to return to work,

and that the company’s actions amounted to a wrongful

discharge. He asked for past and future earnings and at-

torney’s fees. In that opinion, the Supreme Court review-

ed the history of cases of this kind. Originally, Moore v.

Illinois Central Railroad Company, 312 U.S. 630 (1941),

held that ‘‘the railroad employee who elected to treat his

employer’s breach of the employment contract as a dis-

charge was not required to resort to the remedies afforded

under the Railway Labor Act for adjustment and arbitra-

tion of grievances, but was free to commence in state

B-3

court an action based on state law for breach of contract.”

Andrews, supra, at 321. That decision was based on the

conclusion that the Congress had intended the procedure

for adjustment of disputes to be optional and not compul-

sory.

But, the Andrews decision specifically overruled Moore.

In Andrews, the Court noted that provision for arbitra-

tion of a discharge grievance is not a matter of voluntary

agreement under the Railway Labor Act; the Act compels

parties to arbitrate minor disputes before the National

Railroad Adjustment Board established under the Act.

Walker v. Southern Railroad Co., 385 U.S. 196, 198 (1966).

In Andrews, the plaintiff argued that ‘‘his election to

sever his connection with the employer and treat the lat-

ter’s alleged breach of the employment contract as a dis-

charge renders his claim sufficiently different from the

normal disputes over the interpretation of a collective bar-

gaining agreement to warrant carving out an exception to

the otherwise mandatory rule for the submission of dis-

putes to the Board.” But, the Court stated:

“But the very concept of ‘wrongful discharge’ implies

some sort of statutory or contractual standard that

modifies the traditional common-law rule that a con-

tract of employment is terminable by either party at

will. 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 ‘wongful’ one that

entitles him to damages, is the collective-bargaining

agreement between the employer and the union. Res-

pondent in this case vigorously disputes any intent

on its part to discharge petitioner, and the pleadings

indicate that the disagreement turns on the extent of

respondent’s obligation to restore petitioner to his

regular duties following injury in an automobile acci-

dent. The existence and extent of such an obligation

B-4

in a case such as this will depend on the interpreta-

tion of the collective-bargaining agreement. Thus

petitioner’s claim, and respondent’s disallowance of

it, stem from differing interpretations of the collect-

ive-bargaining agreement. The fact that petitioner in-

tends to hereafter seek employment elsewhere does

not make his present claim against his employer any

the less a dispute as to the interpretation of a collect-

ive-bargaining agreement. His claim is therefore sub-

ject to the Act’s requirement that it be submitted to

the Board for adjustment.’ Andrews, supra, at p.

324.

The plaintiff's entire position was most adequately and

forcefully argued by Mr. Justice Douglas in his dissent in

Andrews, and his arguments were not convincing to the

Court. There has been a clear, manifested Congressional

intent that disputes be settled in accordance with the con-

tractually agreed-upon arbitration procedures set forth in

the Railway Labor Act. The plaintiff’s employment rights

were created by and are subject to the Railway Labor Act

and therefore are governed by federal labor law, which is

paramount to the state law. To deny removal would

jeopardize federal labor policies. See Macy v. Trans World

Airlines, Inc., 381 F. Supp. 142 (D. Md. 1972).

This Court also rejects the jury trial argument. The

plaintiff's claim is properly part of an administrative

scheme and therefore a jury trial is inappropriate and not

required. Relying upon United Steelworkers of America v.

Enterprise Wheel & Car Corp., 363 U.S. 593 (1960), the

Tenth Circuit in Brotherhood of Railroad Trainmen, et al.

v. Denver & R.G.W.R. Co., 370 F.2d 833, 836 (1966),

stated:

“Finally, the railroad contends that Public Law 89-

456, by making the findings of the Board conciusive

B-5

and by refusing review of an order requiring the pay-

ment of money damages, is violative of the Seventh

Amendment right to trial by jury. We can place no

constitutional significance in the statutory amend-

ments as such. The right to a jury in the district

court existed before the 1966 amendments and it

exists now. The significance of the amendments lies

in bounding the already limited scope of judicial re-

view so that the merits of the controversy are in real-

ity a closed question after determination by the

Board. Such power in Congress is recognized by the

Supreme Court as proper in the field of railway labor

law in Gunther and reflects the theory that compul-

sory arbitration of labor disputes must be final, for

the ‘federal policy of settling labor disputes by arbi-

tration would be undermined if courts had the final

say on the merits of the awards.’ United Steelworkers

of America v. Enterprise Wheel & Car Corp., 363 U.S.

593, 596, 80 S.Ct. 1358, 4 L.Ed.2d 1424.”

Therefore, IT IS ORDERED that the defendants’ peti-

tion for removal is granted.

Done and dated this 21st day of May, 1976.

/s/ James F. Battin

United States District Judge

APPENDIX “‘C”

ORDER

UNITED STATES DISTRICT COURT

DATED-—JULY 12, 1976

C-1

CV-75-52-BLG

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

HAROLD R. MAGNUSON,

Plaintiff,

BURLINGTON NORTHERN, INC., a corporation,

D.S. NELSON, J.H. WOOLFORD and

GEOFFREY J. O'CONNELL,

Defendants.

ORDER

For reasons presented in the Court’s order of May 21,

1976, the defendants’ motion to dismiss is GRANTED.

IT IS FURTHER ORDERED that the hearing set for

August 4, 1976 is vacated.

Done and dated this 12th day of July, 1976.

/s/ James F. Battin

United States District Judge

APPENDIX “D”

COMPLAINT

DATED — MAY 8, 1975

D-1

NO. 66816

IN THE DISTRICT COURT OF THE

THIRTEENTH JUDICIAL DISTRICT OF

THE STATE OF MONTANA, IN AND FOR

THE COUNTY OF YELLOWSTONE

HAROLD R. MAGNUSON,

Plaintiff,

vs.

BURLINGTON NORTHERN, INC., a corporation,

D.S. NELSON, J.H. WOOLFORD and

GEOFFREY J. O'CONNELL,

Defendants.

COMPLAINT

For his claim against the defendants, plaintiff states:

I

That the defendant Burlington Northern, Inc. is a cor-

poration conducting among other things, a business

known as the Burlington Northern Railroad with railroad

lines running across the State of Montana and to many

communities within the State of Montana.

II

That in May of 1971 and for nearly twenty years prior

thereto plaintiff was employed by the defendant as an

operator and as a train dispatcher in Harlem and Havre,

Montana.

III

That on May 11, 1971 a head-on collision occurred be-

tween two extra freight trains at a point a few miles

northeast of Great Falls, Montana where the defendant

D-2

Burlington Northern, Inc. maintained a one track railroad

in non-block territory.

IV

That on May 11, 1971 the defendant D.S. Nelson was

Superintendent of the Montana Division which included

the territory where said accident occurred and the terri-

tory which was dispatched by plaintiff for Burlington

Northern, Inc. at which time defendant Nelson main-

tained his principal office and residence in Great Falls,

Montana.

V

That on May 11, 1971 the defendant J.H. Woolford was

the assistant superintendent of the Montana Division

having his main office and residence at Havre, Montana.

VI

That on May 11, 1971 defendant Geoffrey J. O’Connell

now of Billings, Montana, was the Division Claims Mana-

ger for the Montana Division of the Burlington Northern,

Inc. having his principal office and residence in Great

Falls, Montana.

Vil

That immediately after the said head-on collision which

occurred on May 11, 1971, and in which four employees of

the Burlington Northern, Inc. were killed and six others

injured, the defendants and each of them purported to

conduct an investigation for the ostensible purpose of

determining the cause of said tragic accident.

D-3

Vill

That on May 17, 1971, the defendants purported to hold

a formal investigation where the Burlington Northern,

Inc. supposedly called all persons who could be respon-

sible for the accident to be questioned to determine the

cause or causes of the said head-on train collision. At this

purported formal investigation, defendant Nelson on

behalf of defendant Burlington Northern, Inc., questioned

each of the witnesses and principals previously deter-

mined by all of the defendants herein to be the only per-

sons they desired to question and the only persons who

could in any way be responsible for the subject accident,

however, the defendants worked and conspired together

not to determine the cause or causes of the subject acci-

dent, but on the contrary, to find someone working for the

Burlington Northern, Inc. in a non-supervisory or mana-

gerial capacity on whom the defendants could blame the

said accident and thus relieve the executives, manage-

mental personnel and supervisory personnel of the

Burlington Northern, Inc. of any responsibility therefor

except that responsibility which legally attaches because

of negligence of an ordinary employee.

IX

That plaintiff herein was called as a principal and wit-

ness to the purported formal investigation of the Burling-

ton Northern, Inc. and was not allowed anywhere near

adequate time to prepare a defense for charges not pre-

sented to him and where he assumed that the defendants

would call all of the railroad personnel who might be in-

volved in the cause or causes of said accident even if this

included personnel of Burlington Northern, Inc. who were

in a supervisory or managerial capacity if said persons

were in any way responsible for the cause of any causes of

D-4

said accident although the defendants instead did not

have any of the railroad personnel who were really respon-

sible for the accident there for questioning.

X

That following the so-called formal investigation and on

May 21, 1971, defendant D.S. Nelson wrote a letter of dis-

charge at Great Falls, Montana which was delivered to

plaintiff at Harlem, Montana by defendant J.H. Woolford

and thereafter the defendant consistently refused to grant

to plaintiff a new investigation, call the appropriate wit-

nesses, reconsider the decision to discharge him, but

instead and on the contrary at that time and ever since

have maintained that the cause of the deaths of the four

Burlington Northern employees and the injuries to the

other six involved in the head-on collision on May 11, 1971

was caused solely by the negligence of plaintiff herein.

XI

That on May 11, 1971, the trains involved in the said

head-on collision were dispatched from Havre, Montana

as were all of the trains of the Burlington Northern in its

Montana Division which is comprised of three Districts

being the west, east and south districts. That at that time

there were three shifts known on the railroad as tricks for

dispatchers at Havre with the first trick or daytime shift

being comprised of three dispatchers or one for each of

said districts but that for some years prior thereto the

first shift dispatchers came to work at different hours

under an arrangement where the dispatcher who had the

south district which included the line from Havre to Great

Falls came to work an hour before the dispatcher having

the easi district and as a result of these procedures set up

by the Burlington Northern the first trick dispatcher

having the south district transferred his district for the

ene

D-5

last hour to the dispatcher who had the east district so

that the first trick dispatcher for the east district then for

less than an hour had the combined east and south dist-

ricts of the Montana Division of the Burlington Northern

and then made the transfer of the east and south districts

to the second trick dispatcher, in this case plaintiff.

The first trick operator at the Havre relay office went

off shift at 4:00 p.m. on May 11, 1971 and was relieved by

the second trick operator to whom the first trick operator

made a transfer according to the rules and procedures of

the Burlington Northern at Havre, Montana.

That because of the fact that the line from a point just

west of Havre, Montana to Great Falls was one track non-

block territory the movements of the trains between

Havre and Great Falls which were all freight trains or

extra trains were controlled entirely by train orders and

clearances prepared and authorized by the dispatchers

and operators at Havre.

That on May 11, 1971 the first trick dispatcher having

the south district issued train orders to extra train 2013

west to run from Havre to Great Falls and authorized a

clearance to said train at 3:08 p.m. The train orders and

clearance were actually prepared by the first trick opera-

tor under the direction and orders of the first trick dis-

patcher but the crew for this train was not even called on

duty until 8:30 p.m. and in the meantime the first trick

dispatcher who issued the train orders and authorized the

clearance for said train went off duty and transferred the

south end to the first trick dispatcher who had been dis-

patching the east district all day and who less than an

hour later transferred both districts to plaintiff herein in

the manner of long standing condoned by the Burlington

Northern but in violation of its own rules and which dis-

patcher did not inform plaintiff herein that said train had

been cleared but the crew not called on duty which was

D-6

not a violation of any rules of the Burlington Northern

but was a highly unusual circumstance.

That at the Havre relay office for many many years the

method of delivering the train orders and clearance to the

conductor who was in charge of the trains leaving Havre

was to place the orders and clearance on or near the regis-

ter on the counter in the relay office where the conductor

could pick up his orders and clearance without anyone

knowing when he did so and then take the train and leave.

The train orders were the orders by which the train moved

and which governed the movements but the clearance

which must be in writing as must the train orders is the

authority for the conductor to take his train and leave and

on May 11, 1971 the first trick operator on instructions

from the first trick dispatcher, as aforesaid, cleared the

train at 3:08 p.m. and delivered the orders to the conduc-

tor of said train by placing them on the register as afore-

said at that time and thereafter no employee of defendant

Burlington Northern saw the conductor pick up the orders

and clearance issued by the first trick dispatcher and

operator and with which orders and clearance the conduc-

tor of extra 2013 west did in fact leave Havre at 9:10 p.m.

after having been called on duty at 8:30 p.m.

That at the time the first trick dispatcher issued the

train orders for extra 2013 west and authorized the opera-

tor to clear it at 3:08 p.m. he did not know that an extra

freight train would be ready to leave Great Falls and go to

Havre before extra 2013 west reached Great Falls but

after plaintiff went on shift as the second trick dispatcher

at 4:00 p.m. on said day, he was informed that the train

from Great Falls to Havre would be ready to make its run

and he therefore issued train orders and authorized the

clearance for the extra train from Great Falls to Havre

and issued a new clearance and train order authorizing

extra 2013 west to leave Havre and arrange for a meet at

D-7

the Portage siding so that one freight train could pass the

other safely not knowing that the first trick dispatcher

had previously cleared the same train running from Havre

to Great Falls without a meet order or that the conductor

had picked up the first clearance and order. Plaintiff here-

in dictated his orders to the second trick operator who

wrote them out, prepared a written clearance and placed

them on the register for delivery to the conductor of extra

2013 west not knowing the train had previously been

cleared or that the conductor had actually taken the first

set of orders and clearance and as a result the conductor

of extra 2013 west did not know that there would be a

train leaving Great Falls for Havre and that there was

supposed to be a meet at the Portage siding so that his

train passed the Portage siding at night and in a cut col-

lided head-on with the train running from Great Falls to

Havre causing the deaths and injuries aforesaid.

That the Burlington Northern, Inc. is a railroad result-

ing from a consolidation of several railroads including the

Great Northern Railroad and by which latter railroad

nearly all of the personnel who worked out of Havre and

Great Falls, Montana had been employed, most of them

for many years which includes plaintiff herein.

As of January 1, 1971 the Burlington Northern, Inc. is-

sued a new dispatchers manual which changed the dis-

patching procedures insofar as it pertained to keeping

track of clearances and which clearances are the danger-

ous items to get into the hands of the conductor as he can

then take his train and leave. The Burlington Northern

scheduled a class for the dispatchers to attend if they

were interested in attending the class to explain the new

rule changes but did so by a bulletin which merely

suggested that the dispatchers might attend the class but

did not make the class on the rule changes mandatory as

this would have compelled the Burlington Northern to

D-8

pay its dispatchers for the hour or so that the class took

whereas by not making the class mandatory the railroad

saved the money it would have to pay the dispatchers to

learn the rule changes.

That the railroad conducts periodic rules examinations

for its various personnel including dispatchers and opera-

tors but no rule examinations for dispatchers at Havre,

Montana were conducted prior to the accident and after

the rule changes which became effective on January 1,

1971 during all of which time plaintiff herein was entering

his clearances in the appropriate places and books main-

tained by the Burlington Northern, Inc. in the manner

that he had done for 19 years thereto under the old Great

Northern system but in a manner which was very plain

and obvious to any supervisory personnel who would take

the time to glance at the train order books maintained and

supposedly audited and checked by the Burlington North-

ern supervisory personnel who would instantly have

known that plaintiff herein was operating according to the

old Great Northern rules rather than the rule changes in-

stituted but not promulgated by Burlington Northern,

Inc.

That the Burlington Northern, Inc. has physical and

health standards for its employees in responsible posi-

tions and in violation of its own standards in this regard

engaged a first trick dispatcher who had the staggered

shift and responsibilities of the east district of the Mon-

tana Division for seven hours and then was given the com-

bined east and south districts for less than one hour which

dispatcher had a serious heart condition and was taking

various prescription medications including approximately

six 5 millegram tranquilizing tablets of Valium a day and

had done so for years and suffered for years from hyper-

tension even though by a special notice of defendant D.S.

Nelson on January 1, 1971, all responsible personnel of

aie et

Sa MD i LT SS CREE EIGN LE RAS

Se ee Pe ee Eel ee

D-9

Burlington Northern were forbidden to take drugs of this

kind while on duty or for 12 hours prior thereto but which

rule was waived by Burlington Northern and its super-

visory personnel such as D.S. Nelson and J.H. Woolford

as well as the main office personnel in St. Paul, Minnesota

in this case even though the manufacturer of the drug

Valium warns that it may cause such things as forgetful-

ness and fatigue.

XII

That the real reasons and proximate causes of the head-

on collision between the two trains of the Burlington

Northern on May 11, 1971 and which at all times herein

were in fact known to each of the defendants herein who

conspired to keep them secret and instead to blame plain-

tiff herein for said accident and wrongfully discharged

him from his employment with Burlington Northern, Inc.

are as follows:

1. The clearing of extra train 2013 west 5% hours

before the crew was even called on duty.

2. Delivering train orders and clearances to the con-

ductors by having the operator place the same on or near

the train register on the counter in the relay office.

3. Allowing the conductors of trains leaving Havre to

take train orders and clearances without the operator

knowing that the conductor had done so.

4. Failing to require the operator to keep the time of

the train departures.

5. Failing to have any provision for the transfer be-

tween operators of the written clearances with which the

conductor could take his train and leave if said clearance

had in fact not been delivered to the conductor.

6. Having staggered shifts for the first trick dispatcher

so that one of the first trick dispatchers had the south

D-10

district of the Montana Division for less than an hour be-

fore making a transfer to his relieving dispatcher.

7. Placing a dispatcher with a bad heart condition who

was On many prescription medications including tranquil-

izers in a dispatching job as difficult as the one of the first

trick dispatcher at Havre, Montana on May 11, 1971 held

by the dispatcher who made the transfer to plaintiff here-

in.

8. Allowing the first trick dispatcher who had the com-

bined east and south districts for less than an hour to

make a transfer to his relieving dispatcher in violation of

Rule 17 of the Dispatchers Manual which requires him to

make his own written transfer but instead merely to pass

on to his relieving dispatcher the transfer made to him by

the dispatcher he relieved of the south district.

9. Failing to make it mandatory for the dispatchers at

Havre, Montana to learn the new rules instituted by

Burlington Northern, Inc. effective January 1, 1971 which |

changed the method of recording clearances for the trains

dispatched from Havre.

10. The failure of the supervisory personnel of Burling-

ton Northern, Inc. to check the records of transfers of

clearances and other appropriate records to determine

whether or not the new rules pertaining to recording clear-

ances were in fact being followed by the dispatchers at

Havre, Montana, or whether they were still dispatching

under the cld Great Northern procedures.

11. Having a rule which required a written transfer of

undelivered train orders on a prescribed form between

operators but providing no prescribed form and having a

system where no one knew when an order was delivered,

undelivered or half delivered at the Havre relay office so

as to make it impossible for the operators to comply with

the railroad’s operating rules.

OEE A NORD NR Scent GY OEM ea tn

D-11

XIII

That as a result of the negligence of the supervisory

personnel employed by Burlington Northern, Inc. in fail-

ing to institute appropriate safety rules, allowing viola-

tions of their own safety rules, permitting and authorizing

and condoning each of the things set forth in Paragraph

XII above, plaintiff committed a human and foreseeable

error which would never have occurred if the supervisory

personnel of Burlington Northern, Inc. had not negligent-

ly done or permitted any one of the things set forth in the

preceding paragraph.

XIV

That the so-called formal investigations conducted by

the railroad following accidents involving its men and

equipment are held ostensibly to determine the reasons

and causes for said accident but in truth and in fact are

held for the purpose of placing blame on a working person

and to whitewash the errors, omissions and negligence of

the railroad’s supervisory and managemental personnel

and as set forth hereinabove the defendants and each of

them prior to and at the time of the so-called formal inves-

tigation determined to cover up and conceal the real

causes of the tragic accident occurring on May 11, 1971

and to wrongfully place the blame therefor and all of the

blame therefor on plaintiff herein.

XV

As a result of being wrongfully discharged by the de-

fendant Burlington Northern, Inc. plaintiff has lost in-

come to date in the amount of $48,000.00 and will lose

income to age 60 in the amount of $120,000.00 and retire-

ment benefits which would thereafter have accrued to him

as a result of his employment on the railroad in the

amount of $125,000.00.

D-12

XVI

That the plaintiff was the only one discharged by the

Burlington Northern, Inc. and blamed for the death of the

four men and injuries to the six others in the head-on col-

lision aforesaid and as a result of being so blamed by the

railroad and discharged by it when all of the defendants

herein knew that this was not the truth but nevertheless

maliciously treated plaintiff in the manner aforesaid, the

defendants inflicted terrible emotional distress on plain-

tiff, made him the villain of this terrible tragedy in the

eyes of his former fellow workers and their families and

friends as well as the other victims of this tragedy all to

his damage in the sum of $250,000.00.

XVII

That the defendants together with other supervisory

and managemental personnel of the defendant Burlington

Northern Inc. conspired to lay the blame for this tragedy

on plaintiff through its internal disciplining processes and

fraudulently, maliciously, oppressively, deliberately and

_ knowingly attempted to and partly succeeded in destroy-

ing plaintiff herein economically and emotionally all the

time knowing that the true and real reasons for the tragic

accident were as set forth in paragraph XII above.

WHEREFORE, Plaintiff prays judgment against the

defendants as follows:

1. For the sum of $48,000.00 for income loss to date.

2. For the sum of $120,000.00 for income loss to age 60.

3. For the sum of $125,000.00 for retirement benefits he

would have been entitled to after age 60.

4. For the sum of $250,000.00 for the malicious and in-

D-13

tentional infliction of emotional distress upon him.

5. For the sum of $15,000,000.00 for punitive or exemp-

lary damages.

DATED this 8th day of May, 1975.

HOYT & BOTTOMLY

/s/ JOHN C. HOYT

Attorneys for Plaintiff

320 First Avenue North

Great Falls, Montana 59401

SRSA cee

APPENDIX ‘“‘E”’

AFFIDAVIT

C.R. PFENNING

DATED — October 25, 1975

E-1

CV-75-52-BLG

IN THE DISTRICT COURT

OF THE UNITED STATES

DISTRICT OF MONTANA

BILLINGS DIVISION

HAROLD R. MAGNUSON,

Plaintiff,

BURLINGTON NORTHERN, INC., a corporation,

D.S. NELSON, J.H. WOOLFORD and

GEOFFREY J. O'CONNELL,

Defendants.

AFFIDAVIT

STATE OF ILLINOIS )

) ss.

County of Cook )

C.R. PFENNING, being first duly sworn on oath, de-

poses and says:

That he is the President of the American Train Dis-

patchers Association, with offices at the International

Headquarters thereof located at 1401 South Harlem

Avenue, Berwin, Illinois.

That your affiant has been a train dispatcher for the

past twenty-five years and a railroad employee since 1937;

that he was the Office Chairman for the American Train

Dispatchers Association from 1957 to 1960 and General

Chairman thereof from 1960 to 1964, Trustee of the

American Train Dispatchers Association from 1964 to

1969, and has been President of said organization since

that time.

That since 1957, your affiant has had extensive expo-

sure to disciplining procedures, railroad investigations

and Board hearings held pursuant to the mechanisms set

forth in the Railway Labor Act.

E-2

That your affiant of his own knowledge and from his re-

search and the research done by the American Train Dis-

patchers Association, makes the following statements:

1. That the contract between the American Train Dis-

patchers Association and the railroads, including Burling-

ton Northern, Inc., provides that a dispatcher who is

sought to be disciplined by the carrier shall be provided a

fair and impartial hearing.

2. That a dispatcher desiring to avail himself of any

remedies under the Railway Labor Act and before the

Railway Adjustment Board is confined entirely and solely

to the record made by the railroad at the time of the inves-

tigation, which record is reduced to writing and thereafter

a railroad employee may not add to, subtract from or pro-

vide facts different than the testimony and record made

by the railrom at the time of the investigation.

3. That the personnel of the American Train Dispatch-

ers Association do not have available in order to represent

a dispatcher who might have a grievance or is wrongfully

charged or discharged by a railroad to discovery proceed-

ings such as may be utilized in a trial in the courts of this

land. ,

4. That your affiant has never heard of an investigation

by a railroad of an officer or a representative of manage-

ment who was ever made a principal, that is a defendant,

or charged at an investigation.

DATED this 25th day of October, 1975.

/s/ C.R. PRFENNING

SUBSCRIBED and SWORN to before me this 25th day

of October, 1975. ;

/s/ ROSEMARY H. BREHM

Notary Public for State of Illinois

Residing at:

My Commission expires:

September 13, 1977