Petition for Writ of Certiorari — Burlington Northern Railroad v. Gulati
Supreme Court brief1987
Ask Donna
What actually matters in this document.
Text
NOV 26 1986
No.
JOSEPH E USPANIOL, JR.
CTERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1986
BURLINGTON NORTHERN RAILROAD COMPANY,
Petitioner,
V.
ROMESH GULATI,
| Respondent.
|
PETITION FOR A WRIT OF CERTIORARI
| TO THE SUPREME COURT OF MINNESOTA
RICHARD J. SCHREIBER RONALD S. FLAGG
RICHARD V. WICKA SIDLEY & AUSTIN
BURLINGTON NORTHERN 1722 Eye Street, N.W.
RAILROAD COMPANY Washington, D.C. 20006
3800 Continental Plaza (202) 429-4000
Ft. Worth, TX 76102
* Counsel of Record
EDMUND W. BURKE REX E. LEE *
WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
QUESTIONS PRESENTED
1. Whether the Minnesota Supreme Court erred in hold-
ing that a claim for intentional infliction of emo-
tional distress is actionable under state law where
the alleged source of the emotional injuries was work-
place disputes with supervisors and co-workers sub-
ject to mandatory grievance procedures under the
Railway Labor Act, 45 U.S.C. §§ 151, et seq.
2. Whether the Minnesota Supreme Court erred in hold-
ing that such a state law claim is not preempted by
the Federal Employers’ Liability Act, 45 U.S.C. §§ 51,
et seq.
(i)
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED aa , i
Neen a ines cetnsassnicsnilindminkersaies 1
JURISDICTION 2
STATUTES INVOLVED 2
Sinn chssindellsbblecionduisnandeaanmncapaneescedentessanencsanesnans e 3
REASONS FOR GRANTING THE WRIT... 9
EERE SEA RN i eT ee 19
ENERO I SD a salenes la
(iii)
iv
TABLE OF AUTHORITIES
Cases Page
Adkins v. Chesapeake and Ohio Ry., No. 85-1204
(4th Cir., Oct. 3, 1985) (unpublished order),
petition for cert. pending, No. 85-1099 —........... 11, 14
Anderson V. Burlington Northern, Inc., 469 F.2d
Be EE C-SI etercitinceincsdcasiasnticcenicipiidsibtindsminsanes 17, 18
Andrews Vv. Louisville & N. R. R., 406 U.S. 320
GAIT nixcicsesee ES Rae Or Fare me Ree 2 eee eva Ten EO 7, 12,16
Antalek v. Norfolk & W. Ry., No. 84-3057 (6th Cir.,
Aug. 30, 1984) (unpublished order) ............... 11, 14
Beers v. Southern Pacific Transp. Co., 703 F.2d
Oe a eeanilineneenetes 11,14
Brady v. Southern Ry., 320 U.S. 476 (1943) -......... 18
Brotherhood of Locomotive Eng’rs v. Louisville &
atm RE US, CUR ee 12
Buell vy. Atchison T. & S.F. Ry., 771 F.2d 1320 (9th
Cir. 1985), cert. granted, 106 S.Ct. 1946 (1986) ..passim
Carson V. Southern Ry., 494 F.Supp. 1104 (D.S.C.
BRR Re net a OR oe RE RE Svi Rr ale Na 14
Choate v. Louisville & N. R.R., 715 F.2d 369 (7th
SE IELTS NEEL ene RR Es ARORA RE: 7,11, 14
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469
gta nt STE RS OC ee kN SP NS ON RMIT 2
DeTomaso V. Pan American World Airways, Inc.,
174 Cal. App.3d 1170 (Cal. App. 1985), appeal
pending, 714 P.2d 1239 (1986) _............................. 9
Detroit and T. Shore Line R.R. v. United Transp.
oe Bk BR! 2: ) SE eoernan cane 13
Elgin, J. & E. Ry. v. Burley, 325 U.S. 711 (1945)... 7, 12,
13
Farmer v. United Brotherhood of Carpenters &
Joiners of America, cocal 25, 430 U.S. 290
i. RRS RM BR a SE SO as Nec on AAT Ce 8, 16
Fraley v. Hayes, 112 BNA LRRM 2298 (S.D. Il.
a ee es aR een emebeaehocecnmies 14
Gulati v. Burlington Northern, Inc., Civ. 3-82-679
A ae Re ea 6
Hanson vy. City of Tacoma, 719 P.2d 104 (Wash.
ASRS A COURT OO al Me ORS Orfeo Shey is 2a OO 10
Haagerson Vv. National Farmers Union Property
and Casualty Co.,277 N.W.2d 648 (Minn. 1979).. 8
Vv
TABLE OF AUTHORITIES—Continued
Heater v. Chesapeake and Ohio Ry., 497 F.2d 1243
(7th Cir.), cert. denied, 419 U.S. 1013 (1974)...
Illinois Central R.R. v. Brotherhood of Locomotive
Firemen and Enginemen, 332 F.2d 850 (7th
Cir.), cert. denied, 379 U.S. 932 (1964) _..... La ee
Jackson V. Consolidated Rail Corp., 717 F.2d 1045
(7th Cir. 1983), cert. denied, 465 U.S. 1007
Page
17
CHIE smiiicclacccrnreticatsisonateaeddnedaane 7,11, 14, 16
Janelle v. Seaboard Coast Line R.R., 524 F.2d 1259
Cte CA TINE ciscnsisivssncctid creates be
Jess V. Great Northern Railway Co., 401 F.2d 535
COE Gy Se soko eee res ae
Koehler vy. Illinois Central Gulf R.R., 109 Til. 2d
473, 488 N.E.2d 542 (Ill. 1985), cert. denied,
17
106 S.Ct. 3297 (1986) .............. skeeraes tS ee 11, 16
Landfried v. Terminal Railroad Ass’n of St. Louis,
721 F.2d 254 (8th Cir. 1983), cert. denied, 466
Waihi Se a
Louisiana and Arkansas Ry. v. Pratt, 142 F.2d 847
(5th Cir. 1944) ........ Jssittedca sate lasagne geancianel ead
Magnuson V. Burlington Northern, Inc., 576 F.2d
1367 (9th Cir.), cert. denied, 439 U.S. 930
CEN cei ciecctapiintadnaisinasectntiiniiumenann aaa mene
Minehart v. Louisville & N. R.R., 731 F.2d 342
CGE SP. SGD ce ciniccsnaaaes nee
Missouri-Kan.-Tex. R.R. v. Brotherhood of Rail-
road Trainmen, 342 F.2d 298 (5th Cir. 1965) ......
Mondou v. New York, New Haven and Hartford
Railroad Co. (Second Employers’ Liability
oS - . e e ene
New York Central & Hudson R.R. v. Tonsellito,
DOG UE GE CHESS cccctcchccetosnbidetimase ss
New York Central R.R. v. Winfield, 244 U.S. 147
| RCM pa ReMad tac er Pinks CORES SNE Sn ents
Pennsylvania R.R. v. Day, 360 U.S. 548 (1959) .......
Peterson vy. Air Line Pilots Ass’n Int'l, 759 F.2d
1161 (4th Cir.), cert. denied, 106 S.Ct. 312
CRED | sicciscinininsnitiiilniniadainuaaseaicha aida ilaiernetcad aaa aanemeaton ae
passim
14
13
18
17
17
13
16
vi
TABLE OF AUTHORITIES—Continued
Page
Puchert v. Agsalud, 677 P.2d 449 (Hawaii 1984),
appeal dismissed sub nom. Pan American World
Airways Inc. Vv. Puchert, 105 S. Ct. 2693 (1985) .. 10
Railway Labor Executives Ass'n Vv. Atchison, T. &
S.F. Ry., 430 F.2d 994 (9th Cir. 1970), cert.
Gane, GOD Gae> Te COED cintticdetacicnaciateiitstansin 13
Southland Corp. v. Keating, 465 U.S. 1 (1984) ..... 2
Transportation-Communication Employees Union
v. Union Pacific R.R., 385 U.S. 157 (1966) —...... 15
Trombetta v. Detroit, Toledo & Ironton R.R., 265
N.W.2d 385 (Mich. App. 1978) ...... [Piles se 10
Union Pacific R.R. v. Sheehan, 439 U.S. 89 (1978) .. 12
United Steelworkers of America Vv. Warrior and
Gulf Nav. Co., 363 U.S. 574 (1960) -................ 15
Statutes
Civil Rights Act, 42 U.S.C. §§ 2000e, et seq.
Federal Employers’ Liability Act, 45 U.S.C. $§ 51,
GB GIA, ciccsssiccainasecsonsediaebaetapenssenteniclesdccteenenn passim
Minn. R. Civ. App. P. 108.03 (h) ................................ 6
Railway Labor Act, 45 U.S.C. §§ 151, ¢? seq. .......... passim
BD Woeteteie Oe Se COD cetcnesnstnicsacennascetesiaeinunebceneseaies 2
Legislative Materials
H.R. Rep. No. 1386, 60th Cong., Ist Sess. (1908). 16
Miscellaneous
Restatement (Second) of Torts § 46, Comment d
CRED csscccasassunicabialbteasessiaamatieiasecs acim 8
IN THE
Supreme Court of the Wuited States
OCTOBER TERM, 1986
No.
BURLINGTON NORTHERN RAILROAD COMPANY,
Petitioner,
Vv.
ROMESH GULATI,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF MINNESOTA
Burlington Northern Railroad Company’ hereby peti-
tions for a writ of certiorari to review the decision of
the Minnesota Supreme Court in this case.
OPINIONS BELOW
The decision of the Minnesota Supreme Court (App.,
infra, la-27a) is reported at 390 N.W.2d 743 (1986).
The decision of the Minnesota Court of Appeals (App.,
infra, 29a-37a) is reported at 364 N.W.2d 446 (1985).
The decision of the Hennepin County District Court
(App., tifra, 40a-43a) is not reported.
! The corporations which require disclosure pursuant to Rule 28.1
of this Court’s Rules are listed, App., infra, 50a-52a.
2
JURISDICTION
The judgment of the Minnesota Supreme Court was
entered on August 1, 1986. The order of that court deny-
ing Burlington Northern’s petition for rehearing was
entered on August 29, 1986 (App., infra, 44a). The ju-
risdiction of this Court is invoked under 28 U.S.C.
§ 1257(3). See Southiand Corp. v. Keating, 465 U.S. 1,
6-7 (1984); Cox Broadcasting Corp. v. Cohn, 420 U.S.
469, 482-83 (1975).
STATUTES INVOLVED
Title I, Section 2 of the Railway Labor Act (“RLA”)
45 U.S.C. § 151a, provides in pertinent part:
“The purposes of the Chapter are: (1) To avoid any
inteterruption to commerce or to the operation of
any carrier engaged therein ... (5) to provide for
the prompt and orderly settlement of all disputes
growing out of grievances or out of the interpreta-
tion or application of agreements covering rates of
pay, rules or working conditions.”
Title I, Section 2 of the RLA, 45 U.S.C. § 152, pro-
vides in pertinent part:
“First. Duty of carriers and employees to settle
disputes. It shall be the duty of all carriers, their
officers, agents, and employees to exert every reason-
able effort to make and maintain agreements con-
cerning rates of pay, rules and working conditions,
and to settle all disputes, whether arising out of the
application of such agreements or otherwise, in order
to avoid any interruption to commerce or to the op-
eration of any carrier growing out of any dispute
between the carrier and the employees thereof.”
“Second. Consideration of disputes by representa-
tives. All disputes between a carrier or carriers
and its or their employees shall be considered, and,
if possible, decided, with all expedition, in conference
between representatives designated and authorized
3
so to confer, respectively, by the carrier or carriers
and by the employees thereof interested in the dis-
pute.” *
Section 1 of the Federal Employers’ Liability Act
(“FELA”), 45 U.S.C. § 51, provides in pertinent part:
“Every common carrier by railroad while engaging
in commerce between any of the several States...
shall be liable in damages to any person suffering
injury while he is employed by such carrier in such
commerce . . . resulting in whole or in part from
the negligence of any of the officers, agents, or em-
ployees of such carrier, or by reason of any defect
or insufficiency, due to its negligence, in its cars,
engines, appliances, machinery, track, roadbed,
works, boats, wharves, or other equipment.”
STATEMENT
1. Petitioner, Burlington Northern, is a common car-
rier by rail operating in the western United States. Re-
spondent, Romesh Gulati, was hired as a machinist in
1967. App., infra, 4a.
A collective bargaining agreement (the “Agreement” )
entered into pursuant to the RLA governs the relation-
ship between members of the Machinists Union, includ-
ing respondent, and Burlington Northern. Rule 34 of the
Agreement provides a detailed mechanism whereby an
aggrieved employee, with or without the assistance of his
union representatives, can initiate and prosecute a griev-
ance through successive levels of appeal, up to and in-
cluding mutually binding arbitration before a National
Raiiroad Adjustment Board (“NRAB”) (App., infra,
46a-48a).* Under Rule 35 of the Agreement, employees
2 The text of 45 U.S.C. § 153 First (i), setting forth the pro-
cedures applicable to resolution of grievances under the RLA, is
provided in App., infra, 45a.
% Under Sections 2(5) and 3 First of the RLA “all disputes . . .
growing out of grievances or out of the interpretation or applica-
4
may be disciplined, following investigation, for violation
of petitioner’s rules including those set forth in peti-
tioner’s Safety Rules, which govern the conduct of su-
pervisors and other employees. Id. at 48a-49a.
In 1975, respondent injured his hand during the course
of his employment with petitioner (App., infra, 5a). He
brought suit on September 21, 1977 under the FELA to
recover damages for lost wages and permanent disability
of his hand. Id. Petitioner settled respondent’s FELA
suit on March 10, 1980, agreeing to pay respondent
$47,250 and to allow him to continue working as a ma-
chinist for the railroad company. Jd.
Respondent’s claims in this case arise out of a series
of incidents commencing after that settlement. On July
31, 1980, petitioner sent respondent a notice that the
company was investigating him for allegedly falsifying
a time card (App., infra, 5a). Pursuant to Rule 35 of
the Agreement, respondent was requested to appear at
a hearing concerning this charge, at which he maintained
that a fellow employee had altered the time card. Id.
Following the investigation, petitioner dropped the
charge against respondent. Id.
On August 4, 1980, Burlington Northern sent another
notice to respondent, alleging that he had been involved
in an altercation during work hours (App., infra, 5a).
tion of agreements concerning rates of pay, rules or working condi-
tions” must be submitted to federally constituted arbitration panels
up to the level of the NRAB. 45 U.S.C. §§ 151a(5), 153 First. Sec-
tion 3 First’s mandatory and exclusive procedures govern a vast
number of employee grievances annually—by recent estimate over
180,000 grievances among major carriers in the railroad industry
alone. See Amicus Brief for Association of American Railroads
and National Association of Railroad Trial Counsel at 7 & n.6,
Atchison, T. & S. F. Ry. Vv. Buell, No. 85-1140 (petition granted
May 5, 1986) (more than 183,800 grievances handied annually by
‘“chief operating officer... designated to handle such disputes”
at 12 major carriers).
5
Again, following an investigatory hearing held pursuant
to Rule 35, petitioner dropped the disciplinary charge
against respondent.
On September 5, 1980, petitioner notified respondent
that the company was investigating him for leaving work
one day without proper authorization in violation of pe-
titioner’s Safety Rules (App., infra, 6a). After a hear-
ing pursuant to Rule 35, the railroad discharged re-
spondent for his unexcused absence. Id. Respondent ap-
pealed this decision to the NRAB, Public Law Board
3008, which denied respondent’s claim and upheld his
dismissal. Id.
Respondent alleges that, between the time of the settle-
ment agreement in March, 1980 and his discharge in
October, 1980, he was subject to other acts which con-
tributed to his emotional distress. Among other things,
he alleges he was under extraordinary scrutiny by his
supervisors, that he was the target of ethnic slurs and
derogatory names by his supervisors, that his private
locker was ransacked, and that epithets written about
him in the men’s room were not removed despite his
protests (App., infra, 41a) .4
2. Rather than seek relief for this alleged misconduct
through the administrative machinery created by Section
3 First of the RLA, respondent filed suit against Bur-
lington Northern in Hennepin County District Court on
April 12, 1982 (App., infra, 6a). He alleged three
causes of action: (1) that petitioner breached the 1980
settlement of his FELA claim; (2) that the company
wrongfully discharged him; and (8) that petitioner in-
flicted emotional distress on him through a pattern of
4 Six months after his discharge from Burlington Northern on
March 30, 1981, respondent suffered a heart attack (App., infra,
6a). After his discharge, respondent also began consulting a
psychiatrist. Jd.
6
harassment.’ Jd. Burlington Northern moved to dismiss
the complaint on the ground that RLA’s procedures for
resolving grievances provided the exclusive remedy for
respondent’s claims.
The district court granted the railroad’s motion on two
of respondent’s claims, concluding that the wrongful dis-
charge and breach-of-contract claims were preempted by
the RLA (App., infra, 40a-43a). The court, however,
denied the railroad’s motion to dismiss the claim of in-
tentional infliction of emotional distress. Jd. The court
held that because “the alleged tortious conduct occurred
over a long period of time and it hardly could be con-
sidered a normal incident of employment . . . state judi-
cial supervision would not interfere with a federal regu-
latory scheme [i.e., the RLA].” Jd. at 42a.
Burlington Northern petitioned the court to certify
the preemption question to the Minnesota Court of Ap-
peals under Rule 103.03(h) of the Minnesota Rules of
Civil Appellate Procedure. The district court granted
the motion and certified the question: “Does the Railway
Labor Act and/or the Federal Employer’s Liability Act
pre-empt state court jurisdiction over plaintiff’s claim
of intentional infliction of emotional distress?” (App.,
infra, 39a).
3. In a decision entered March 12, 1985, the court of
appeals held that, although the RLA preempts a claim of
infliction of emotional distress where the distress results
from a discharge by a railroad, neither the RLA nor
the FELA preempts such a claim where the emotional
distress results from a pattern of employer harassment
(App., infra, 29a-37a). In so holding the court reasoned
(id. at 36a) :
5 Respondent also filed a separate lawsuit based on the same facts
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
et seq., in federal court. Gulati v. Burlington Northern, Inc., Civ.
3-82-679 (D. Minn.).
7
“{I]n an action for intentional infliction of emo-
tional distress, there will be no need to interfere
with the jurisdiction of the RLA because the charges
did not result in discipline. Rather, the focus of the
state inquiry will be whether the unfounded charge
against Gulati and investigations that appear in a
category not envisioned by the collective bargaining
agreement were brought to intimidate him, thereby
inflicting emotional distress.”
4. The Minnesota Supreme Court granted Burlington
Northern’s petition for further review of the certified
question on May 24, 1985. In a decision entered August
1, 1986, the court answered the question in the negative
(App., infra, la-27a).
First, the court considered whether the mandatory
grievance procedures set forth by the RLA preempted
respondent’s claim for intentional infliction of emotional
distress. The court acknowledged that under decisions of
this Court, as well as several other courts, actions
brought under state law are preempted where the labor-
management disputes are minor disputes* subject to
RLA-mandated grievance procedures provided in collec-
tive bargaining agreements. Jd. at 13a, citing Andrews
v. Louisville & N.R.R., 406 U.S. 320 (1972) ; Jackson v.
Consolidated Rail Corp., 717 F.2d 1045 (7th Cir. 1983),
cert. denied, 465 U.S. 1007 (1984); Choate v. Louisville
& N.R.R., 715 F.2d 369 (7th Cir. 1983); Magnuson v.
Burlington Northern, Inc., 576 F.2d 1867 (9th Cir.),
® As this Court explained in Elgin, J. & E. Ry. v. Burley, 325 U.S.
711, 723 (1945), the RLA divides labor disputes into two categories:
the first, “major disputes,” relates to “the formation of collective
agreements or efforts to secure them,” and the second, “minor
disputes,” relates to the interpretation of a collective bargaining
agreement or “disputes founded upon some incident of the employ-
ment relation.” Under the RLA, major disputes are subject to the
exclusive jurisdiction of the National Mediation Board (45 U.S.C.
§ 154), while minor disputes are subject to the exclusive jurisdic-
tion of the National Railroad Adjustment Board (“NRAB”) (45
U.S.C. § 158). 325 U.S. at 722.
8
cert. denied, 439 U.S. 930 (1978). However, the Court
found that allegations of a “pattern of harassment” do
not constitute a minor dispute and thus distinguished
this case from the above-cited decisions (App., infra,
18a-14a) :
“Unlike a claim of wrongful discharge, a claim of
intentional infliction of emotional distress where the
distress results from a continual pattern of harass-
ment is not a minor dispute under the RLA. Such
a claim does not ‘stem from differing interpretations
of the collective-bargaining agreement,’ Andrews,
406 U.S. at 324, but rather is premised on the tort-
law principle that citizens of our state must be pro-
tected from conduct ‘so atrocious that it passes the
boundaries of decency and is utterly intolerable to
the civilized community.’ Haagenson v. National
Farmers Union Property and Casualty Co., 277 N.W.
2d 648, 652 n.3 (Minn. 1979) (citing the Restate-
ment (Second) of Torts § 46, Comment d (1965) ).
The conduct that . . . Gulati allege[s] transcends
the four corners of the collective-bargaining agree-
ment Burlington Northern entered into with its em-
ployees. The alleged behavior, if proven, will con-
stitute a continual pattern of harassment on the part
of Burlington Northern, conduct that is not merely a
wrongful-discharge claim or other grievance pre-
mised on a collective-bargaining agreement.”
In support of its conclusion, the court also cited the
decision in Farmer v. United Brotherhood of Carpenters
& Joiners of America, Local 25, 480 U.S. 290 (1977), in
which this Court held that the National Labor Relations
Act (“NLRA’’) did not preempt a union member’s state
law claim of intentional infliction of emotional distress
(App., infra, 16a-17a). The Minnesota Supreme Court
relied on Farmer in concluding that its “recognition of
a state remedy for the intentional infliction of emotional
distress in this case would not frustrate the collective-
bargaining process of the RLA.” Id. at 18a.
9
Second, the court considered whether respondent’s ac-
tion was preempted by the FELA. The court held that
“{a]n examination of federal case law . .. reveals that
recovery for intentional acts under the FELA is limited
to intentional toris that cause physical injury” (App.,
infra, 21a, emphasis in original).? By contrast, “to re-
cover for the intentional infliction of emotional distress,
a plaintiff need not establish any physical injury.” Jd.
The court recognized “that some potential for interfer-
ence may be present when a railway employee sues in
state court for intentional infliction of emotional dis-
tress” because the “enactment of a federal compensatory
scheme implies that Congress did not intend for inter-
state commerce to be hampered by different state systems
of compensation” (App., infra, 24a). Nonetheless, the
Court concluded that “such interference . . . is minimized
where emotional harm is alleged to have resulted from
a continual pattern of intentional acts. The claim of
intentional infliction of emotional distress lies outside the
scope of the federal statute, which was enacted to com-
pensate only physical injuries resulting from negligence.”
Id.
REASONS FOR GRANTING THE WRIT
The decision of the Minnesota Supreme Court permits
railroad employees with grievances concerning working
conditions to evade, by means of artful pleading under
state tort law, grievance procedures explicitly provided
by the RLA as the exclusive means of resolving such dis-
putes. The decision is only one among a wave of recent
state court decisions that have permitted such an eva-
sion.®
™The couri acknowledged (id.) that its holding on this point
conflicts with the Ninth Circuit’s decision in Buell v. Atchison, T.
& S. F. Ry., 771 F.2d 1320 (9th Cir. 1985), cert. granted, 106
S. Ct. 1946 (1986).
8 See, e.g., DeTomaso Vv. Pan American World Airways, Inc., 174
Cal. App.3d 1170 (Cal. App. 1985), appeal pending, 714 P.2d 1239
10
The Minnesota court’s opinion conflicts with the deci-
sions of this Court and those of the courts of appeals
for several circuits which have made clear that Congress
intended the grievance provisions of the RLA to be in-
terpreted broadly in order to facilitate the “prompt and
orderly settlements of all disputes growing out of griev-
ances” in the railroad industry. 45 U.S.C. § 151a(5)
(emphasis supplied). Consistent with this principle, the
recent decisions of the courts of appeals in at least four
circuits have held that a cause of action for intentional
infliction of emotional distress is preempted by the RLA,
precisely because a contrary interpretation—such as that
of the Minnesota Supreme Court—invites litigants to
avoid the grievance resolution mechanism required by
the RLA. The Minnesota Supreme Court’s decision—as
well as the other state court decisions cited supra—also
conflict with decisions of this Court and the court of ap-
peals for several circuits holding that the liability of any
interstate railway carrier for injuries to its employees
is governed exclusively by the provisions of the FELA.
The issues raised by the Minnesota Supreme Court’s
decision, which affect railroad employees throughout the
country, are arising with increasing frequency, and have
resulted in several recent inconsistent decisions—one of
which is presently pending before this Court for resolu-
tion on the merits. In The Atchison, T. and S. F. Ry. Vv.
Buell, No. 85-1140, the issues are whether an alleged pat-
tern of harassment by a railroad supervisor constitutes a
minor dispute under the RLA and whether a claim solely
for emotional distress is cognizable under the FELA.®
(1986) ; Hanson v. City of Tacoma, 719 P.2d 104 (Wash. 1986);
Puchert v. Agsalud, 677 P.2d 449 (Hawaii 1984), appeal dismissed
sub nom. Pan American World Airways, Inc. v. Puchert, 105 S. Ct.
2693 (1985); Trombetta v. Detroit, Toledo & Ironton R.R., 265
N.W.2d 385 (Mich. App. 1978).
®In Buell, the Ninth Circuit held that a claim for emotional
distress was actionable under the FELA, even where the alleged
11
We believe that the Court should either hold this case
pending a decision in Buell or review this case as well.
A decision in Buell concerning the scope of minor dis-
putes under the RLA could control the issue in this case
concerning the applicability of the RLA to claims of a
pattern of harassment. Similarly, a decision in Buell
resolving whether claims solely for emotional distress are
cognizable under the FELA would obviously apply in this
case as well. However, this case differs from Buell in
that here the railway employee has alleged intentional
infliction of emotional distress under state law, and thus
this case involves the issue of whether the RLA pre-
empts a state tort cause of action. By contrast, the
claims in Buell have been raised under the FELA and,
thus, in that case the Court must attempt to accommo-
date the policies of two federal statutes. Accordingly,
the growing conflict over whether state tort remedies
are preempted by the RLA might not be definitively re-
solved unless this case is also reviewed.
1. Railroad employee disputes are governed by the
RLA, 45 U.S.C. § 151 et seg. The Act states that one of
its general purposes is “to provide for the prompt and
source of such injuries was a workplace dispute subject to the man-
datory grievance procedures that had been initiated pursuant to the
RLA. By contrast, in numerous other cases, courts have held that
claims for emotional distress (whether brought under the FELA or
state tort law) arising from workplace disputes are directly related
to the employer-employee relationship and thus must be resolved
pursuant to the grievance procedures required by the RLA. See,
e.y., Adkins v. Chesapeake and Ohio Ry., No. 85-1204 (4th Cir.,
Oct. 3, 1985) (unpublished order), petition for cert. pending, No.
85-1099; Antalek v. Norfolk and W. Ry., No. 84-3057 (6th Cir.,
Aug. 30, 1984) (unpublished order); Beers v. Southern Pacific
Transp. Co., 703 F.2d 425, 428-29 (9th Cir. 1983); Magnuson v.
Burlington Northern, Inc., 576 F.2d at 1368-70; Jackson v. Con-
solidated Rail Corp., 717 F.2d at 1048-54; Choate v. Louisville &
N.R.R., 715 F.2d at 370-72; Koehler v. Illinois Ceneral Gulf R.R.,
109 Ill.2d 473, 488 N.E.2d 542, 545-46 (Ill. 1985), cert. denied, 106
S. Ct. 3297 (1986).
12
orderly settlement of all disputes growing out of griev-
ances or out of the interpretation or application of agree-
ments covering rates of pay, rules or working conditions.
45 U.S.C. §151a(5). So-called “minor disputes” are
those which involve either the meaning or application of
the collective bargaining agreement or an employment
dispute not covered by the agreement. Elgin, J. & E. Ry.
v. Burley, 325 U.S. 711, 723 (1945). The fact that they
are labelled “minor” disputes does not mean they are
unimportant. Rather, “minor disputes” cover the broad
range of grievances that arise daily between employees
and carriers regarding rates of pay, rules and working
conditions. Union Pacific R.R. v. Sheehan, 439 U.S. 89,
94 (1978).
This Court has made clear that, consistent with the
RLA, 45 U.S.C. $ 153 First (i), minor disputes must be
submitted to the NRAB, which has exclusive jurisdiction
to resolve them. Andrews v. Louisville & N.R.R. 406
U.S. 320, 322, 325 (1972). As this Court stated in
Brotherhood of Locomotive Eng’rs v. Louisville & N.R.R.,
373 U.S. 33, 38-39 (1963), the grievance procedures pro-
vided under the RLA constitute “a mandatory, exclusive
and comprehensive system for resolving grievance dis-
putes ... [and] were intended by Congress to be the
complete and final means ior settling minor disputes.”
See also Union Pacific R. Co. v. Sheehan, supra, 439 U.S.
at 94.
Congress has also made clear that the scope of RLA
is not to be interpreted narrowly. The purpose of the
RLA, Congress declared, is “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 con-
ditions” (emphasis supplied). 45 U.S.C. § 151a(5). Con-
sistent with Congress’ mandate, courts have broadly con-
strued the RLA’s coverage. Thus, this Court has held
that “disputes” under the RLA include claims “founded
13
upon some incident of the employment relation . . . in-
dependent of those covered by the collective agreement.”
Elgin, J. & E.R. Co. v. Burley, supra, 325 U.S. at 723.
The Minnesota Supreme Court’s decision in this case
is premised on the theory that Congress did not mean
what it said in drafting the RLA and that this Court
erred in interpreting the Act in Burley (App., infra,
13a-14a). Contrary to the plain language of the statute
and this Court’s decision, the state court held that the
scope of the grievance procedures mandated by the RLA
is strictly limited to controversies arising under “the four
corners of the collective bargaining agreement.” Jd. at
14a.”
This conclusion conflicts directly with the decisions that
have followed Burley in holding that all grievances aris-
ing out of the employment relationship—whether contrac-
tually based or not—are minor disputes under the RLA."
Similarly, other courts—faithful to the mandate to inter-
pret the scope of the RLA broadly—have held that rail-
10 This is also the key legal conclusion underlying the Ninth Cir-
cuit’s decision in Buell as well as the central argument advanced by
respondent in that case before this Court.
11 See, e.g., Pennsylvania R.R. v. Day, 360 U.S. 548, 551-52
(1959) (The NRAB “was established as a tribunal to settle dis-
putes arising out of the relationship between carrier and employee”
and “[t]he purpose of the Act is fulfilled if the claim itself arises
out of the employment relationship which Congress regulated”) ;
Detroit and T. Shore Line R.R. v. United Transp. Union, 396 U.S.
142, 159 (1969) (Harlan, J. dissenting) (Railroad collective bar-
gaining agreements include only a small portion of the rules gov-
erning day-to-day working conditions because “[w]here a condi-
tion is satisfactorily tolerable to both sides it is often omitted from
the agreement, and . . . this practice is more frequent in the rail-
road industry than most others’) ; Railway Labor Executives Ass’n
v. Atchison, T. and S.F. Ry., 430 F.2d 994, 996 (9th Cir. 1970),
cert. denied, 400 U.S. 1021 (1971); Missouri-Kan.-Tex. R.R. Vv.
Brotherhood of Railroad Trainmen, 342 F.2d 298, 300 (5th Cir.
1965) ; Illinois Central R.R. v. Brotherhood of Locomotive Firemen
and Enginemen, 332 F.2d 850, 853-54 (7th Cir.), cert. denied, 379
U.S. 932 (1964).
14
road employee claims of intentional infliction of emotional
distress,"* retaliatory discharge,"* and slander™ all con-
stitute disputes subject to RLA grievance procedures. For
example in Beers v. Southern Pacific Transp. Co., supra,
the plaintiff alleged a pattern of harassment relating to
working conditions and disciplinary procedures as part
of a complaint under state law for intentional infliction
of emotional distress. The Ninth Circuit held that plain-
tiff’s claim was preempted by the RLA, holding (703
F.2d at 428) (quoting Magnuson, 576 F.2d at 1361):
“If the pleading of emotional injury permitted ag-
grieved employees to avoid the impact of the R.L.A.,
the congressional purpose of providing a comprehen-
sive federal scheme for the settlement of employer-
employee disputes in the railroad industry, without
resort of the courts would be thwarted.”
Read collectively, these cases make clear that it is the
source of a railroad employee’s alleged injury, and not
the remedy which he might prefer to pursue, that deter-
mines whether a dispute is subject to the RLA.
Respondent’s allegations concerning his treatment by
his supervisors place this case right at the core of RLA
coverage. This is a classic employer-employee dispute
12 See, e.g., Adkins v. Chesapeake & O. Ry., No. 85-1204 (4th
Cir., Oct. 3, 1985); Antalek v. Norfolk and Western Ry., No.
84-3057 (6th Cir., Aug. 30, 1984); Choate v. Louisville & N.R.R.,
715 F.2d 369 (7th Cir. 1983) ; Beers v. Southern Pacific Transp. Co.,
703 F.2d 425 (9th Cir. 1983); Magnuson v. Burlington Northern,
Inc., 576 F.2d 1367, 1369 (9th Cir.), cert. denied, 439 U.S. 930
(1978).
18 See, e.g., Minehart v. Louisville & N.R.R., 731 F.2d 342 (6th
Cir. 1984); Landfried v. Terminal Railroad Ass'n of St. Louis, 721
F.2d 254 (8th Cir. 1983), cert. denied, 466 U.S. 928 (1984); Jack-
son V. Consolidated Rail Corp., 717 F.2d 1045 (7th Cir. 1983), cert.
denied, 465 U.S. 1007 (1984).
4 See, e.g., Fraley v. Hayes, 112 BNA LRRM 2298 (S.D. II.
1982); Carson v. Southern Ry., 494 F. Supp. 1104 (D.S.C. 1979).
15
arising out of working conditions in the shop and events
that occurred there. The heart of the pattern of harass-
ment alleged by respondent were three disciplinary hear-
ings initiated by his employer pursuant to Rule 35 of
the collective bargaining agreement, the last of which
resulted in respondent’s discharge. If respondent be-
lieved he was being unfairly or improperly treated as a
result of these hearings and related actions by his super-
visor, the mandatory grievance procedures set forth in
Rule 34 of the Agreement were plainly available to him.
The courts of appeals for several circuits have repeatedly
held that railway labor disputes which are “inextricably
intertwined with the grievance machinery of the collec-
tive bargaining agreement” or are “arguably governed”
by the collective bargaining agreement or which have a
“not obviously insubstantial” relationship to it are minor
disputes subject to RLA grievance procedures. See, e.g.,
Magnuson Vv. Burlington Northern, Inc., 576 F.2d at 1369-
70 (and cases cited therein) ."*
The overly-narrow interpretation of the RLA applied
by the Minnesota Supreme Court in this case—which
permits a plaintiff to evade the grievance procedures
mandated by that Act simply by alleging emotional dis-
% This Court has emphasized that the scope of collective bargain-
ing agreements in the railroad industry is to be very broadly con-
strued:
“A collective bargaining agreement is not an ordinary contract
for the purchase of goods and services, nor is it governed by
the same old common-law concepts which control such private
contracts .... ‘[I]t is a generalized code to govern a myriad
of cases which the draftsmen cannot wholly anticipate... .’
The collective agreement covers the whole employment rela-
tionship. It calls into being a new common law—the common
law of a particular industry or of a particular plant.”
Transportation-Communication Employees Union v. Union Pacific
R.R., 385 U.S. 157, 160-61 (1966), quoting United Steelworkers of
America V. Warrior and Gulf Nav. Co., 363 U.S. 574, 578-79 (1960).
16
tress—conflicts in principle with these decisions as well
as with congressional railway labor policy."
2. The Minnesota Supreme Court’s decision that a
claim for injury under state tort law is not preempted
by the FELA, also is in conflict with decisions of this
Court and the courts of appeals for several circuits. The
FELA is a safety statute which creates a tort remedy
for railroad workers injured on the job. The statute’s
main purpose was to provide incentives for the creation
of a safer workplace by eliminating a number of tradi-
tional defenses to tort liability, including contributory
negligence, contractual waiver of liability, the fellow-
servant rule, and assumption or risk. See 45 U.S.C.
§§$ 51, 53-55; H.R. Rep. No. 1386, 60th Cong., 1st Sess.
(1908). Under the FELA, each party receives a benefit
in exchange for a limitation of its rights. Employees are
16 The Minnesota Supreme Court’s holding that this Court’s de-
cision in Farmer, permits respondent to bypass the mandatory
grievance procedures of the RLA conflicts with the decisions of
numerous federal and state courts which have declined to apply the
Farmer rationale to claims subject to RLA grievance procedures.
See, e.g., Peterson v. Air Line Pilots Ass'n Int'l, 759 F.2d 1161,
1168-69 and n.18 (4th Cir.), cert. denied, 106 S. Ct. 312 (1985);
Jackson v. Consolidated Rail Corp., 717 F.2d 1045, 1051-54 (7th Cir.
1983), cert. denied, 465 U.S. 1007 (1984) ; Magnuson v. Burlington
Northern, Inc., 576 F.2d 1367, 1369-70 (9th Cir.), cert. denied, 439
U.S. 930 (1978); Koehler v. Illinois Central Gulf R.R., 109 Ill. 2d
473, 488 N.E.2d 542, 545 (1985), cert. denied, 106 S. Ct. 3297
(1986). The principle underlying these decisions is that “the
Farmer exemption to preemption, by its terms, applies to the pre-
emptive effect of the National Labor Relations Act, not to the
RLA.” Koehler, 488 N.E.2d at 545 (emphasis supplied). Unlike
the RLA, the NRLA does not expressly establish an exclusive re-
medial scheme. As this Court has recognized, “since the compulsory
character of the administrative remedy provided by the Railway
Labor Act... stems not from any contractual undertaking between
the parties but from the Act itself, the case for insisting on resort
to those remedies is if anything stronger in cases arising under the
Act than it is in cases arising under § 301 of the LMRA.” Andrews
v. Louisville & N.R.R., 406 U.S. 320, 323 (1972).
17
given a much lower threshold of liability, Heater v.
Chesapeake and Ohio Ry., 497 F.2d 12438, 1246 (7th
Cir.), cert. denied, 419 U.S. 1013 (1974), but they give
up non-federal causes of action. New York Central R.R.
v. Winfield, 244 U.S. 147 (1917); New York Central &
Hudson R.R. Vv. Tonsellito, 244 U.S. 360 (1917); Ander-
son V. Burlington Northern, Inc., 469 F.2d 288 (10th
Cir. 1972) (state common law loss of consortium claim
by widow of railroad employee preempted by FELA).
Employers lose various defenses, but gain an exclusive
remedy. In sum, railway employees, such as respondent,
are entitled only to relief afforded under the FELA, even
if that is different from the relief formerly available
under state law.
It has long been held that the liability of any inter-
state railway carrier for injuries to its employees is gov-
erned entirely and exclusively by the provisions of the
FELA. In New York Central R.R. v. Winfield, the em-
ployee suffered an injury when he struck a pebble which
richocheted into his eye. It was conceded that the inci-
dent occurred without fault on the part of the employer,
so FELA did not provide a remedy. When the employee
tried to collect compensation under the state workers’
compensation law, this Court held that FELA was com-
prehensive and exclusive, and precluded compensation
under state law. Likewise, in New York Central &
Hudson R.R. v. Tonsellito, this Court held that a state
common law claim was precluded by FELA because Con-
gress had fixed railroads’ liability, and “such liability can
neither be extended nor abridged by common or statu-
tory laws of the State.” 244 U.S. at 362. Consistent
with those holdings the court in Janelle v. Seaboard
Coast Line R.R., 524 F.2d 1259, 1261 (5th Cir. 1975)
made clear that the FELA supplants state tort remedies:
“It has been settled law for over sixty years that
damages for the death or injury of a railroad em-
ployee engaged in interstate commerce, allegedly
18
caused by the negligence of the railroad, are recover-
able exclusively from the railroad under FELA, and
may not be recovered under state law. Mondouw v.
New York, New Haven and Hartford Railroad Co.
(Second Employers’ Liability Cases), 1912, 223 U.S.
1, 32 S. Ct. 169, 56 L.Ed. 327; Lowisiana and Ar-
kansas Ry. Co. v. Pratt, 5 Cir. 1944, 142 F.2d 847;
Jess Vv. Great Northern Railway Co., 9 Cir. 1968,
401 F.2d 535; Anderson v. Burlington Northern, Inc.,
10 Cir. 1972, 469 F.2d 288.”
The decision of the Minnesota Supreme Court directly
conflicts wtih these decisions and with the rationale sup-
porting preemption of state tort action: the FELA ap-
plies to railroad workers throughout the United States
and only through uniform rules may litigants receive sim-
ilar treatment in all states as Congress intended in en-
acting that statute. Brady v. Southern Ry., 320 U.S.
476, 479 (1943). The Minnesota Supreme Court’s rul-
ing that state tort law is not preempted by the FELA
would destroy the uniform federal scheme and permit
litigants in one state to enjoy rights dramatically dif-
ferent from those in other states. Thus, unless that
court’s decision is reviewed, the established mechanisms
for resolving claims for injury in the railroad industry
would be circumvented by allegations of intentional in-
fliction of emotional! distress.
~ eas
19
CONCLUSION
The petition for a writ of certiorari to review the
judgment of the Minnesota Supreme Court should be
granted. Alternatively, the Court may wish to consider
retaining this case on its docket pending decision on the
merits in Buell.
Respectfully submitted,
EDMUND W. BURKE REX E. LEE *
RICHARD J. SCHREIBER RONALD S. FLAGG
RICHARD V. WICKA SIDLEY & AUSTIN
BURLINGTON NORTHERN 1722 Eye Street, N.W.
RAILROAD COMPANY Washington, D.C. 20006
3800 Continental Plaza (202) 429-4000
Ft. Worth, TX 76102
* Counsel of Record
APPENDICES
la
APPENDIX A
STATE OF MINNESOTA
IN SUPREME COURT
C7-84-1333, C4-85-1431
Hennepin County Scott, J.
Kelley, J., dissenting
C4-85-1431
VIRGINIA PIKOP,
Appellant,
vs.
BURLINGTON NORTHERN RAILROAD COMPANY,
Respondent,
CLARENCE PATTERSON, et al.,
Defendants.
and
C7-84-1333
ROMESH GULATI,
Respondent,
VS.
BURLINGTON NORTHERN RAILROAD COMPANY, PETITIONER,
Appellant.
Filed August 1, 1986
Wayne Tschimperle
Clerk of Appellate Courts
2a
SYLLABUS
The Railway Labor Act, 45 U.S.C. §§ 151-63 (1982),
and the Federal Employers’ Liability Act, 45 U.S.C.
§§ 51-60 (1982), do not preempt a railway employee’s
state-law claim of intentional infliction of emotional dis-
tress where the alleged distress results not from a wrong-
ful discharge, but from a continual pattern of harass-
ment on the part of the railroad-employer.
Judgment reversed as to C4-85-1431; certified ques-
tions answered in the negative as to C7-84-1333.
Considered and decided by the court en bane without
oral argument (C4-85-1431); heard, considered, and de-
cided by the court en bane (C7-84-1333).
OPINION
SCOTT, Justice.
Virginia Pikop and Romesh Gulati are former em-
ployees of Burlington Northern Railroad Company (Bur-
lington Northern), who individually filed suit against the
railroad in state court, claiming intentional infliction of
emotional distress. Burlington Northern contends that
both suits are preempted by the Railway Labor Act
(RLA), 45 U.S.C. §§ 151-63 (1982), and/or the Federal
Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60
(1982). We conclude that the two federal acts do not
preempt state-court jurisdiction over a former railway
employee’s claim of intentional infliction of emotional
distress where the alleged distress results from a con-
tinual pattern of harassment on the part of the railroad-
employer. We therefore remand the two cases for trial
in the respective district courts.
Pikop’s claim.
From September 24 to November 25, 1981, Virginia
Pikop was employed by Burlington Northern as a sea-
sonal section-crew worker. At various times during this
3a
period, her direct supervisor allegedly forced her into his
vehicle and coerced her, through threats and promises
relating to her employment, to perform sexual acts
against her will. Despite her complaints to Burlington
Northern officials, Pikop’s supervisor allegedly continued
to sexually assault her, a pattern that allegedly persisted
even after she was no longer employed by the railroad.
During the two months in which she was employed at
Burlington Northern, Pikop was allegedly subject to con-
tinual harassment by co-employees, who repeatedly called
her “pig,” “bitch,” and “cunt.” Several employees alleg-
edly assaulted Pikop during working hours.
As a section-crew worker, Pikop was employed in rail-
road yards, where she often had contact with employees
of the railroad’s pest control program. Pikop alleges that
these employees constantly threatened her with rat car-
casses, repeatedly forced her to watch them torture and
mutilate rats and birds, and occasionally coerced her to
participate in the mutilation and torture. She main-
tains that railroad supervisors allowed this conduct on
the part of her co-employees to take place repeatedly.
After Pikop was furloughed from her seasonal posi-
tion with Burlington Northern, she sought psychiatric
counseling. She claims that as a result of the alleged
harassment and outrageous conduct on the part of the
railroad and its employees, she has suffered serious and
permanent emotional injuries.
Pikop first brought suit against Burlington Northern
and four individual employees in Hennepin County Dis-
trict Court on November 17, 1982, alleging, inter alia,
the intentional infliction of emotional distress. In its
answer, Burlington Northern argued that the exclusive
remedy for Pikop’s claims was the FELA. As a result,
Pikop voluntarily dismissed, without prejudice, the com-
plaint she filed in state court and brought suit against
the railroad and the individual employees in federal dis-
4a
trict court on December 21, 1982. In addition to her
FELA claim, Pikop sought to recover damages under
state-law claims of assault, battery, false imprisonment,
and intentional infliction of emotional distress.
In federal court, Burlington Northern moved for sum-
mary judgment. The court granted Burlington North-
ern’s motion on Pikop’s claim of intentional infliction of
emotional distress, ruling that Pikop’s exclusive remedy
against the railroad was under the FELA and that the
FELA did not recognize an independent cause of action
for the intentional infliction of emotional distress.’ The
court allowed those claims that were actionable under the
FELA to go to trial.
On March 18, 1985, Pikop brought suit against the
railroad and three individual railway employees in Hen-
nepin County District Court, alleging, inter alia, the
intentional infliction of emotional] distress.2 Thereafter,
Burlington Northern moved to have Pikop’s claim against
it dismissed. On July 11, 1985, the district court ordered
entry of judgment in favor of the railroad, ruling that
Pikop’s claim was preempted by the FELA. Pikop ap-
pealed to the court of appeals. Burlington Northern peti-
tioned this court for an accelerated review. We granted
the petition on December 138, 1985, and now reverse the
district court.
Gulati’s claim.
In 1967, Romesh Gulati was hired as a Machinist
Federal Inspector for Burlington Northern Railroad. In
1 The federal court also ruled that it would not invoke pendent-
party jurisdiction over Pikop’s claims against the individual em-
ployees, claims that included assault, battery, false imprisonment,
negligence, and in‘entional infliction of emotional distress.
2Included in Pikop’s complaint were the state-law claims over
which the federal court refused to invoke pendent-party jurisdic-
tion.
5a
1975, Gulati injured his hand during the course of his
employment with the railroad. He brought suit on Sep-
tember 21, 1977, to recover damages under the FELA
for lost wages and permanent disability of his hand.
Burlington Northern settled Gulati’s suit on March 10,
1980, agreeing to pay Gulati $47,250 and to allow Gu-
lati to continue working as a machinist for the railroad
company.
On July 31, 1980, Burlington Northern sent Gulati a
notice that the company was investigting him for alleg-
edly falsifying a time card. He was requested to appear
at a hearing concerning this charge. Gulati maintained
that he had pencilled on his card 6:30 p.m. as the time
of his departure on July 28, 1980, and that a co-employee
had erased this time and written, in its place, 11:00 p.m.
Upon investigation, the railroad dropped the charge
against Gulati. It did not, however, further investigate
the matter, nor did it bring charges against the co-em-
ployee accused of forging Gulati’s card.
On August 4, 1980, Burlington Northern sent another
notice to Gulati, alleging that he had been involved in
an altercation during working hours. He was once
again requested to appear at an investigatory hearing.
Gulati stated that without provocation a co-employee had
sprayed him with a water hose and that he had imme-
diately reported the actions of the co-employee to a su-
pervisor. Burlington Northern dropped the rule-violation
charge against Gulati. It did not, however, pursue any
disciplinary action against the co-employee whom Gulati
had named as the one who sprayed him with water.
During the summer of 1980, an employee of Burling-
ton Northern witnessed two railway employees ransack-
ing Gulati’s personal locker. At the time Gulati’s locker
was allegedly being searched, Gulati was allegedly being
detained by a railroad supervisor. The witness noted
that the searching of lockers was not a common practice
of railroad officials.
6a
Gulati maintains ‘hat from March to September, 1980,
he was continually subjected to racial slurs from em-
ployees of Burlington Northern. Such comments in-
cluded: “Come over here, Indian,” “That stinking Arab,”
“‘Where’s your camel parked?” and “Does your camel have
one hump or two?” One employee stated that he had
heard Burlington Northern officials say, “We will get
that S.0.B.” (referring to Gulati) and, “Have you had
any luck getting that S.0.B. ‘cause I know you are try-
ing?”
On September 5, 1980, Burlington Northern notified
Gulati that the company was investigating him for al-
legedly leaving work one day without proper authoriza-
tion. Gulati was requested to appear at an investigatory
hearing. After the hearing, the railroad discharged Gu-
lati for the unexcused absence. Gulati appealed this de-
cision to the National Railroad Adjustment Board, Public
Law Board No. 3008, which voted 2-1 to uphold his per-
manent discharge from employment.
Six months after his discharge from Burlington North-
ern, on March 30, 1981, Gulati suffered a heart attack at
the age of 40. After his discharge he also began consult-
ing a psychiatrist.
Gulati filed suit against Burlington Northern in Hen-
nepin County District Court on April 12, 1982. He al-
leged that Burlington Northern breached the 1980 set-
tlement of his FELA claim; that the company wrong-
fully discharged him; and that it inflicted emotional dis-
tress on him through a pattern of harassment and sur-
veillance. Burlington Northern petitioned to have Gu-
lati’s claims removed to federal district court under 28
U.S.C. § 1441 (1982), a petition that was denied by the
federal court on September 10, 1982.* Thereafter, Bur-
3 The court recognized that federal removal jurisdiction is de-
rivative, in that only claims that are properly brought in state
courts can be removed to federal courts. The court noted that
eT |
7a
lington Northern moved for summary judgment in state
court. The district court granted the railroad’s motion
on two of Gulati’s claims, concluding that Gulati’s
wrongful-discharge and breach-of-contract claims were
preempted by the Railway Labor Act. The court, how-
ever, denied the railroad’s motion to dismiss the claim of
intentional infliction of emotional distress on similar pre-
emption grounds. Burlington Northern then petitioned
the court to certify the preemption question to the Min-
nesota Court of Appeals under Rule 103.03(h) of the
Minnesota Rules of Civil Appellate Procedure. The court
granted the motion and certified the following question,
as important and doubtful, to the appeals court: “Does
the Railway Labor Act and/or the Federal Employers’
Liability Act preempt state court jurisdiction over plain-
tiff’s claim of intentional infliction of emotional distress?”
The court of appeals answered the certified questions
in the negative, stating that the Federal Employers’ Li-
ability Act does not preempt state-court jurisdiction over
a claim of intentional infliction of emotional distress and
that, although the Railway Labor Act does preempt a
claim of intentional infliction of emotional distress where
the distress results from a discharge by a railroad, it
does not preempt such a claim where the emotional dis-
tress results from a pattern of employer harassment.
Gulati v. Burlington Northern Railroad Co., 364 N.W.2d
446 (Minn. Ct. App. 1985). We granted Burlington
Northern’s petition for further review on May 24, 1985,
and now answer the certified questions in the negative.
Burlington Northern contended the state court did not have juris-
diction over Gulati’s claims. If that were the case, the court stated,
a federal court would have no removal jurisdiction. On the other
hand, the the court stated, if Gulati were correct in contending that
his claims were independent state actions, no federal question would
exist on which federal jurisdiction could rest. The removal peti-
tion was therefore denied.
8a
The Preemption Doctrine
The preemption doctrine seeks to accommodate the in-
terest of uniform, national regulation on the one hand,
and the preservation of federalism on the other. Thus,
the fact that Congress has entered a field of regulation
does not necessarily preclude all state action in the area.
As the United States Supreme Court recently noted:
“Preemption of state law by federal statute or regula-
tion is not favored ‘in the absence of pervasive reasons—
either that the nature of the regulated subject matter
permits no other conclusion, or that the Congress has un-
mistakenly so ordained.’” Chicago & North Western
Transportation Co. v. Kalo Brick & Tile Co., 450 USS.
311, 317 (1981) (quoting Florida Lime & Avocado
Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963)).
See also, Wardair Canada, Inc. v. Florida Department of
Revenue, 54 U.S.L.W. 4687, 4688 (U.S. June 17, 1986)
(No. 86-49) (“state law is not pre-empted whenever
there is any federal regulation of an activity or industry
or area of law’). One authoritative text states:
Federal law is generally interstitial in its nature.
It rarely occupies a legal field completely, totally ex-
cluding all participation by the legal systems of the
states. This was plainly true in the beginning when
the federal legislative product (including the Con-
stitution) was extremely small. It is significantly
true today, despite the volume of Congressional en-
actments, and even within areas where Congress has
been very active. Federal legislation, on the whole,
has been conceived and drafted on an ad hoc basis
to accomplish limited objectives. It builds upon legal
relationships established by the states, altering or
supplanting them only so far as necessary for the
special purpose. Congress acts, in short, against the
background of the total corpus juris of the states in
much the way that a state legislature acts against
the background of the common law, assumed to gov-
ern unless changed by legislation.
9a
P. Bator, D. Shapiro, P. Mishkin & H. Wechsler, Hart
& Wechsler’s The Federal Courts and the Federal Sys-
tem, 470-71 (2d ed. 1973). See Richards v. United
States, 369 U.S. 1, 7 (1962); Burks v. Lasker, 441 U.S.
471, 478 (1979).
Against this theoretical backdrop, the United States
Supreme Court has recognized three distinct kinds of
cases in which the doctrine applies to preempt state law.
The first arises when Congress explicitly states that the
feceral scheme preempts any state action in the field.
See Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977).
This instance, however, is rare, for Congress seldom ex-
pressly precludes all state law in a given regulatory field.
The second case, in which Congress implicitly preempts
state law, is somewhat more common. In such a case,
preemption is inferred from either the extent of the
federal involvement or the scope of the federal interest.
See Fidelity Federal Savings & Loan Association v. De la
Cuesta, 458 U.S. 141, 153 (1982); Rice v. Santa Fe Ele-
vator Corp., 331 U.S. 218, 230 (1947). Even where
Congress has not, either explicitly or implicitly, displaced
all state action in a specified field, the preemption doc-
trine will invalidate any state law that, in fact, conflicts
with the federal law. This third case arises when com-
pliance with both the federal and state law is a physical
impossibility or when the state law is an obstacle to the
accomplishment of the purposes of the federal scheme.
See Florida Lime & Avocado Growers, 373 U.S. at 142-
43; Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
As is evident from the case law, the question of pre-
emption is primarily one of statutory construction. If no
express preemptive language is evident in the federal
statute or regulation, factors in the federal law that in-
dicate an implicit preemption must be considered. If
neither an express nor an implied preemptive effect is
present, the nature of the state law or action must be
examined to determine whether it conflicts with the fed-
10a
eral scheme. Therefore, we must consider the two fed-
eral acts that Burlington Northern contends preempt
Pikop’s and Gulati’s state-law claims.
The Railway Labor Act
In order to avoid interruptions of interstate commerce,
Congress first enacted the Railway Labor Act in 1913.
RLA, Pub. L. No. 63-6, 38 Stat. 103 (1913) (codified
as amended at 45 U.S.C. §§ 151-63 (1982)). The Act
seeks to avoid disruptions in railway transportation by
providing a process for the resolution of labor disputes.
See Elgin, Joliet & Eastern Railway Co. v. Burley, 325
U.S. 711, 722-23 (1945). As amended, the RLA recog-
nizes the right of railway employees to join a labor
organization that can act as the employees’ representative
in the formation of a collective-bargaining agreement.
The law also provides a procedure to settle grievances
that arise under an existing collective-bargaining agree-
ment.
Congress did not expressly preempt the railway labor
field in enacting the Railway Labor Act. Thus, the
question with which we are confronted is whether Con-
gress implicitly preempted all state action in the area.
The RLA is, no doubt, comprehensive in its regulation
of the process leading up to the formation of a collective-
bargaining agreement between a railroad and its em-
ployees. The designation of a labor organization to rep-
resent railway employees is detailed. 45 U.S.C. § 152
(1982). A mediation board to settle disputes concerning
the process for a new collective-bargaining agreement is
established. 45 U.S.C. § 154-56 (1982). A board of arbi-
tration is also formed to settle collective-bargaining dis-
putes not resolved by the mediation board. 45 U.S.C.
§ 157-59 (1982). Thus, the resolution of such “major
disputes” appears to be an exclusive federal concern.‘
*A major dispute under the RLA concerns the process involved
in reaching a new collective-bargaining agreement. 45 U.S ©. § 152
(1982). See Brotherhood of Railroad Trainmen v. Chicago River
lla
Congress could not have intended that the states supple-
ment this area by promulgating additional procedures
pertaining to the formation of a new collective-bargain-
ing agreement. See Slocum v. Delaware, Lackawanna &
Western Railroad Co., 339 U.S. 289 (1950).
In addition to providing a procedure whereby disputes
concerning the process for a new collective-bargaining
agreement are resolved, Congress included in the RLA a
method of resolving so-called “minor disputes”—disagree-
ments over the interpretation or application of existing
collective-bargaining agreements.° The Act establishes an
& Indiana Railroad Co., 353 U.S. 30, 33 (1957); Brotherhood of
Railway & Steamship Clerks, Freight Handlers, Express and Sta-
tion Employees v. Florida East Coast Railway Co., 384 U.S. 238
(1966). In Elgin, Joliet & Eastern Railway Co. v. Burley, 325
U.S. at 723, the United States Supreme Court discussed what ccn-
stitutes a major dispute:
The first [referring to major disputes] relates to disputes
over the formation of collective agreements or efforts to secure
them. They arise where there is no such agreement or where
it is sought to change the terms of one, and therefore the issue
is not whether an existing agreement controls the controversy.
They look to the acquisition of rights for the future, not to
assertion of rights claimed to have vested in the past.
5 The United States Supreme Court has defined minor disputes
under the RLA as “controversies over the meaning of an existing
collective bargaining agreement in a particular fact situation, gen-
erally involving only one employee.” Brotherhood of Railroad
Trainmen v. Chicago River & Indiana Railroad Co., 353 U.S. at 33.
In Elgin, Joliet & Eastern Railway Co. v. Burley, 325 U.S. at 723-
24, the Court stated:
In general the difference is between what are regarded tradi-
tionally as the major and minor disputes of the railway labor
world. The former present the large issues about which strikes
ordinarily arise with the consequent interruptions of traffic the
Act sought to avoid. Because they more often involve those
consequences and because they seek to create rather than to
enforce contractual rights, they have been left for settlement
entirely to the processes of noncompulsory adjustment.
The so-alled minor disputes, on the other hand, involving
grievances, affect the smaller differences which inevitably ap-
12a
adjustment board to resolve such disputes and allows the
railroad and its employees to form their own dispute-
resolution process. 45 U.S.C. § 153 (1982).
In Andrews v. Louisville & Nashville Raiiroad Co.,
406 U.S. 320 (1972), the United States Supreme Court
held that the procedures for the resolution of minor dis-
putes are mandatory and a railway employee cannot
ignore the remedies of the Act by commencing an action
in state court to resolve such disputes. The Court over-
ruled its decision in Moore v. Illinois Central Railroad Co.,
312 U.S. 630 (1941), in which it was held that the right
of a railway employee to sue the railroad for wrongful
discharge was not dependent on an exhaustion of the
RLA’s administrative remedies. The Andrews Court fell
short of holding that the RLA preempts all state rem-
edies for a minor dispute. It noted, however:
The term “exhaustion of administrative remedies”
in its broader sense may be an entirely appropriate
description of the obligation of both the employee
and carrier under the Railway Labor Act to resort
to dispute settlement procedures provided by that
Act. It is clear, however, that in at least some situa-
tions the Act makes the federal administrative rem-
edy exclusive, rather than merely requiring exhaus-
tion of remedies in one forum before resorting to
another. A party who has litigated an issue before
the Adjustment Board on the merits may not reliti-
gate that issue in an independent judicial proceed-
pear in the carrying out of major agreements and policies or
arise incidentally in the course of an employment. They repre-
sent specific maladjustments of a detailed or individual quality.
They seldom produce strikes, though in exaggerated instances
they may do so. Because of their comparatively minor charac-
ter and the general improbability of their causing interruption
of peaceful relations and of traffic, the 1934 Act sets them apart
from the major disputes and provides for very different treat-
ment. (Footnotes omitted.)
13a
ing. He is limited to the judicial review of the
Board’s proceedings that the Act itself provides. In
such a case the proceedings afforded by 45 U.S.C.
§ 153 First (i), will be the only remedy available
to the aggrieved party.
406 U.S. at 325 (citations omitted).
Andrews would preclude a state-law claim that is, in
essence, a minor dispute under the RLA. Thus, if Pikop
and Gulati were suing Burlington Northern for wrong-
ful discharge, their claims would be preempted by the
exclusive procedure of the Act because a discharge from
employment is a matter within the parameters of a collec-
tive-bargaining agreement and therefore a minor dispute
under the RLA. See Andrews, 406 U.S. at 324; Union
Pacific Railroad Co. v. Price, 360 U.S. 601, 617 (1959).
See also, Jackson v. Consolidated Rail Corp., 717 F.2d
1045 (7th Cir. 1983), cert. denied, 465 U.S. 1007 (1984)
(railway employee’s claim of retaliatory discharge pre-
empted by RLA); Choate v. Louisville & Nashville Rail-
road Co., 715 F.2d 369 (7th Cir. 1983) (railway em-
ployee’s claim that railroad wrongfully discharged him
and failed to reinstate him is a minor dispute under the
RLA); Magnuson v. Burlington Northern, Inc., 576 F.2d
1367 (9th Cir. 1978), cert. denied, 489 U.S. 930 (1978)
(wrongful discharge claim of railway employee pre-
empted ).
Unlike a claim of wrongful discharge, a claim of inten-
tional infliction of emotional distress where the distress
results from a continual pattern of harassment is not a
minor dispute under the RLA. Such a claim does not
“stem from differing interpretations of the collective-
bargaining agreement,” Andrews, 406 U.S. at 324, but
rather is premised on the tort-law principle that citizens
of our state must be protected from conduct “so atrocious
that it passes the boundaries of decency and is utterly
intolerable to the civilized community.” Haagenson v.
National Farmers Union Property and Casualty Co., 277
l4a
N.W.2d 648, 652 n.8 (Minn. 1979) (citing the Restate-
ment (Second) of Torts § 46, Comment d (1965)). The
conduct that Pikop and Gulati allege transcends the four
corners of the collective-bargaining agreement Burlington
Northern entered into with its employees. The alleged
behavior, if proven, will constitute a continual pattern of
harassment on the part of Burlington Northern, conduct
that is not merely a wrongful discharge claim or other
grievance premised on a collective-bargaining agreement.
Burlington Northern contends that a claim of inten-
tional infliction of emotional distress relates to a work-
ing condition and thus must be resolved by the admin-
istrative procedures of the Act. We disagree. In Termi-
nal Railroad Association of St. Louis v. Brotherhood of
Railroad Trainmen, 318 U.S. 1 (1943), the United States
Supreme Court upheld a state safety requirement that
cabooses be attached to all trains operating within the
state. The railroad had argued that the RLA precluded
the state from regulating such working conditions. The
Court disagreed, stating:
The Railway Labor Act, like the National Labor
Relations Act, does not undertake governmental reg-
ulation of wages, hours, or working conditions. In-
stead it seeks to provide a means by which agree-
ment may be reached with respect to them. The
national interest expressed by those Acts is not pri-
marily in the working conditions as such. So far as
the Act itself is concerned these conditions may be as
bad as the employees will tolerate or be made as
good as they can bargain for. The Act does not fix
and does not authorize anyone to fix generally ap-
plicable standards for working conditions. The fed-
eral interest that is fostered is to see that disagree-
ment about conditions does not reach the point of
interfering with interstate commerce. The Media-
tion Board and Adjustment Board act to compose
differences that threaten continuity of work, not to
15a
remove conditions that threaten the health or safety
of workers.
State laws have long regulated a great variety of
conditions in transportation and industry, such as —
sanitary facilities and conditions, safety devices and
protections, purity of water supply, fire protection,
and innumerable others. Any of these matters
might, we suppose, be the subject of a demand by
workmen for better protection and upon refusal
might be the subject of a labor dispute which would
have such effect on interstate commerce that federal
agencies might be invoked to deal with some phase
of it. But we would hardly be expected to hold that
the price of the federal effort to protect the peace
and continuity of commerce has been to strike down
state sanitary codes, health regulations, factory in-
spections, and safety provisions for industry and
transportation. We suppose employees might con-
sider that state or municipal requirements of fire
escapes, fire doors, and fire protection were inade-
quate and make them the subject of a dispute, at
least some phases of which would be of federal con-
cern. But it cannot be that the minimum require-
ments laid down by state authority are all set aside.
We hold that the enactment by Congress of the Rail-
way Labor Act was not a preemption of the field of
regulating working conditions themselves and did
not preclude the State of Illinois from making the
order in question.
Id. at 6-7 (footnote and citation omitted; emphasis
added). See also Brotherhood of Locomotive Engineers
v. Baltimore & Ohio Railroad Co., 372 U.S. 284, 289-90
(1963) (reiterating that the RLA does not regulate
“wages, hours, or working conditions”).
Although Pikop’s and Gulati’s claims do not constitute
either a major dispute or a minor dispute under the Act,
their claims would, nevertheless, be preempted if Con-
l6a
gress intended to preclude any claims against the rail-
road other than those that are, in essence, major or
minor disputes under the RLA. In determining such
congressional intent, we must examine the potential for
interference with the federal scheme that such a claim
presents. See Fidelity Federal Savings, 458 U.S. at 153;
Rice, 331 U.S. at 230; Hines, 312 U.S. at 67. This poten-
tial for interference is then weighed against the nature
of the state interest in regulating the conduct in ques-
tion. Thus, when the potential for interference is nil
and the state interest involved is substantial, we can
infer that Congress did not intend to preempt the state-
law claim. This balancing approach is derived from
Farmer v. United Brotherhood of Carpenters & Joiners
of America, Local 25, 480 U.S. 290 (1977).
In Farmer, the United States Supreme Court held that
the National Labor Relations Act (NLRA) did not pre-
empt a union member’s state-law claim of intentional
infliction of emotional distress. The Court in Farmer
noted that no provision of the NLRA protected the union
member from the outrageous conduct alleged in the com-
plaint. Such is the case here. The RLA affords Pikop
and Gulati no remedy for conduct that constitutes the
intentional infliction of emotional distress. An adjust-
ment board could not award money damages as compen-
sation for the injuries alleged in either Pikop’s or
Gulati’s complaint. The RLA relates only to the collective-
6 Burlington Northern contends that the preemption analysis of
Farmer is inapplicable to this case because the National Labor
Relations Act. is not as comprehensive as the Railway Labor Act.
We concur, however, in Judge Posner’s analysis of the issue in
Jackson v. Consolidated Rail Corp., 717 F.2d at 1060 (J. Posner,
concurring in part and dissenting in part). “It might be different,”
Judge Posner noted, “if Congress had established an administra-
tive agency to police tort or tort-like conduct in railroad employ-
ment, but it has not; it has contented itself with requiring arbi-
tration of contract disputes.” Requiring arbitration of railway
contract disputes is not unlike the limited scope of the NLRA’s
dispute-resolution process.
ee
17a
bargaining process in the railway industry and seeks only
to resolve major and minor disputes that arise in that
process. No such dispute is claimed here. Therefore,
“permitting the exercise of state jurisdiction over such
complaints does not result in state regulation of fed-
erally protected conduct.” Farmer, 430 U.S. at 302. See
also Brotherhood of Railroad Trainmen v. Howard, 343
U.S. 768 (1952) (Black railway employees have a judi-
cial remedy to prevent discrimination because no ade-
quate administrative remedy exists under the RLA).
Moreover, a state trial court considering such a state-
law claim by a former railway employee would not be
interpreting the railroad’s collective-bargaining agree-
ment with its employees, an inquiry that is reserved ex-
clusively to the federal boerds established in the RLA.
The focus of the state court’s investigation would be on
whether the elements of the tort alleged have been
proven. Such a determination would be made “without
resolution of the ‘merits’ of the underlying labor dis-
pute,” if any. Farmer, 430 U.S. at 304.
In Minnesota, recovery for the intentional infliction of
emotional distress is limited to those cases in which an
aggrieved party can establish conduct that was “extreme
and outrageous” and “intentional or reckless.” The con-
duct must also have caused emotional distress that is
“severe.” Hubbard v. United Press International, Inc.,
330 N.W.2d 428, 438-39 (Minn. 1983). As we noted in
Hubbard:
In explaining both the extreme nature of the conduct
necessary to invoke this tort, and the necessary de-
gree of severity of the consequent mental distress,
the Restatement’s commentary emphasizes the lim-
ited scope of this cause of action, and clearly reflects
a strong policy to prevent fictitious and speculative
claims. Because this policy has long been a central
feature of Minnesota law on the availability of dam-
ages for mental distress, our adoption of the Re-
18a
statement formulation as the standard for the inde-
pendent tort of intentional infliction of emotional
distress does not signal an appreciable expansion in
the scope of conduct actionable under this theory of
recovery. The operation of this tort is sharply lim-
ited to cases involving particularly egregious facts.
Id. at 439 (footnote omitted). The fact that the tort is
limited to such cases decreases the potential for undue
interference with the RLA. See Farmer, 430 U.S. at
305.
It is apparent that our recognition of a state remedy
for the intentional infliction of emotional distress in this
case would not frustrate the collective-bargaining process
of the RLA. In Brotherhood of Railroad Trainmen v.
Jacksonville Terminal Co., 394 U.S. 369 (1969), the
Court held that the RLA does not allow a state to pre
clude all self-help remedies to a railway carrier or union
after the parties have exhausted the administrative pro-
cedures of the Act. Such a preclusion, the Court said,
would make the Act’s entire scheme for the resolution of
major disputes meaningless. Here, such is not the case.
Unlike the state action in Jacksonville, a state remedy
for the intentional infliction of emotional distress does
not relate to the collective-bargaining process itself. The
Act only serves to regulate such a process and thus
Burlington Northern’s argument that the potential for
interference with the RLA scheme is such that preemp-
tion is mandated carries no weight.
Balanced against any interference with the federal
scheme that such a tort claim may produce is the nature
of the state’s interest in protecting its citizens from the
kind of conduct the tort action seeks to redress. Farmer,
430 U.S. at 302. The state interest in this case is sub-
stantial. In Farmer, the Court discussed the interest a
state has in affording its citizens a remedy for the inten-
tional infliction of emotional distress:
19a
The State, on the other hand, has a substantial
interest in protecting its citizens from the kind of
abuse of which Hill complained. That interest is no
less worthy of recognition because it concerns protec-
tion from emotional distress caused by outrageous
conduct, rather than protection from physical injury,
as in Russell, or damage to reputation, as in Linn.
Although recognition of the tort of intentional in-
fliction of emotional distress is a comparatively re-
cent development in state law, see W. Prosser, Law
of Torts, $12, pp. 49-50, 56 (4th ed. 1971), our
decisions permitting the exercise of state jurisdiction
in tort actions based on violence or defamation have
not rested on the history of the tort at issue, but
rather on the nature of the State’s interest in pro-
tecting the health and well-being of its citizens.
Id. at 302-03. Minnesota has a strong interest in pro-
tecting its citizens from outrageous emotional abuse be-
cause the emotional] health and well-being of its citizens
is vital, not only to a stable economy, but to a civilized
culture. The conduct Pikop and Gulati complain of
touches interests “deeply rooted in local feeling and re-
sponsibility.” San Diego Building Trades Council v.
Garmon, 359 U.S. 236, 244 (1959).
In light of the substantia! interest the state has in
such tort actions and the lack of interference such an
action places on the federal railway labor process, we
hold that the RLA does not preempt a state-law claim
of intentional infliction of emotional distress where the
alleged distress results, not from a wrongful discharge,
but from a continual pattern of harassment on the part
of the railroad-employer.
The Federal Employers’ Liability Act
Congress enacted the Federal Employers’ Liability Act,
45 U.S.C. §§ 51-60, to allow interstate railway employees
and their dependent families to recover damages for in-
20a
juries and death caused by the negligence of the rail-
road. Section 51 of the Act expressly limits liability to
injuries or death “resulting in whole or in part from
the negligence of any of the officers, agents, or employees
of such carrier * * *.” 45 U.S.C. § 51 (1982) (emphasis
added). Here, Pikop and Gulati are alleging that
Burlington Northern intentionally inflicted emotional dis-
tress, a tort not premised, of course, on principles of
negligence. In determining whether such a claim is pre-
empted by the FELA, we must first consider whether a
claim of intentional infliction of emotional distress con-
stitutes a claim under the Act or whether it is separate
and independent from the federal statute.
Although the FELA is couched in terms of negligence,
the United States Supreme Court, using two distinct
theories, has allowed FELA plaintiffs to recover for in-
tentional assaults committed by co-employees. In Jamison
v. Encarnacion, 281 U.S. 635 (1930), the Court applied
the doctrine of respondeat superior and held that the
term “negligence” in the Act was broad enough to in-
clude an assault committed by a railway employee in the
course of discharging his or her duties and in further-
ance of the railroad’s business. In Harrison v. Missouri
Pacific Railroad Co., 372 U.S. 248 (1963) (per curiam),
the Court, recognizing a direct-negligence theory of li-
ability under the Act, held that a railroad can be liable
if it hires and retains an employee disposed toward vio-
lence and that employee intentionally assaults a co-em-
ployee. Although the two theories on which the Court
premised liability in these two cases are broad enough
to encompass some other intentional acts in the railway
context, the Court has not extended the FELA to cover
intentional torts other than assault.
Using the respondeat superior and direct-negligence
theories, lower federal courts have found liability under
the Act for not only assault, but-.also battery and false
arrest. See, e.g., Slaughter v. Atlantic Coast Line Rail-
2la
road Co., 302 F.2d 912 (D.C. Cir. 1962), cert. denied,
371 U.S. 827 (1962); Besta v. Consolidated Rail Corp.,
580 F. Supp. 869 (S.D. N.Y. 1984). An examination of
federal case law, however, reveals that recovery for in-
tentional acts under the FELA is limited to intentional
torts that cause physical injury. As the United States
Court of Appeals for the Seventh Circuit recently noted:
“(T]he FELA does not reach torts which work their
harm through nonphysical means * * *.” Lancaster v.
Norfolk & Western Railway Co., 773 F.2d 807, 815 (7th
Cir. 1985). This appears to be a well-established limita-
tion of the FELA. See, e.g., Bullard v. Central Vermont
Railway, Inc., 565 F.2d 193 (1st Cir. 1977) (the Act
allows recovery for emotional distress that accompanies
physical injuries); McSorley v. Consclidated Rail Corp.,
581 F. Supp. 642 (S.D. N.Y. 1984) (the Act may cover
intentional conduct that causes physical injury); Cales
v. Chesapeake & Ohio Railway Co., 300 F. Supp. 155
(W.D. Va. 1969) (an intentional tort that inflicts bodily
injury may constitute negligence under the Act); Annot.,
8 A.L.R.3d 442 (1966 & Supp. 1985) .*
In order to recover for the intentional infliction of
emotional distress, a plaintiff need not establish any phys-
ical injury, for the action seeks to compensate purely
emotional injuries resulting from intentional acts. Nei-
ther the express language of the FELA nor its interpre-
tation by federal courts covers such a claim. Indeed, at
least two federal courts of appeals have considered the
™The Ninth Circuit Court of Appeals, however, has held that
where an employee has suffered an injury “attributable to em-
ployer negligence,” the injury, whether characterized as mental
or physical, is compensable under the FELA. Buell v. Atchison,
Topeka & Santa Fe Railway Co., 771 F.2d 1320 (9th Cir. 1985),
cert. granted 106 S.Ct. 1946 (1986). Such a holding is very much
in the minority. Moreover, the decision appears not to cover allega-
tions of intentional infliction of emotional distress, but rather
negligent acts on the part of co-employees, which inflict emotional
injuries. See, id. at 1324.
22a
action to be independent of any claim arising under the
Act. In Lewis v. Louisville & Nashville Railroad Co.,
758 F.2d 219, 221-22 (7th Cir. 1985), the court stated:
The Railroad also argues that the intimidation
count is not “separate and independent” because it
involves “substantially the same facts and transac-
tions” as the three FELA claims filed in state court.
We disagree. The plaintiff premised his FELA
counts on his injuries of April 19, 1977 and Sep-
tember 6, 1979. The wrong that he alleged was the
negligence of the railroad up to the date of his sec-
ond injury. The intimidation count, by contrast,
concerns an alleged intentional tort committed by
the Railroad after he filed the first FELA claim.
Since the intimidation claim alleged a_ different
wrong and involved a different set of facts than the
FELA claims, the intimidation claim was a “sepa-
rate and independent” claim for purposes of section
1441(c) [removal jurisdiction].
(Citation omitted.) In Tello v. Soo Line Railroad Co.,
772 F.2d 458 (8th Cir. 1985), the court noted that a
railway employee’s claim of intentiona! infliction of emo-
tional distress is a “state law claim.” Jd. at 461.
Even though Pikop’s and Gulati’s claims of intentional
infliction of emotional distress appear to fall outside the
scope of the FELA, their claims may, nevertheless, be
preempted if Congress intended to preclude all state ac-
tion in the area. In enacting the FELA, Congress did
not explicitly preempt the field. Thus, the question be-
comes whether it implicitly did so.
Congress’ first attempt to enact compensatory relief
for railway employees who were victims of railroad neg-
ligence came in 1906. The 1906 Act enacted a compensa-
tory scheme that was premised on common-law notions
of fault. Congress, however, modified the common law
in two specific areas: it abolished the fellow-servant rule
23a
(which had acted to bar employees’ recovery against their
employer for injuries resulting from the negligence of
co-employees) and relaxed the common law contributory
negligence bar (Congress allowed recovery in cases in
which the negligence of the employee was slight com-
pared to the gross negligence of the railroad or co-
employee). FELA, Pub. L. No. 59-219, 34 Stat. 232
(1906). The 1906 Act, however, had a short life. In
1908, the Supreme Court, in Howard v. Illinois Central
Railroad Co., 207 U.S. 463 (1908), struck down the
statute, holding that Congress could impose liability only
in those cases in which a railway employee was killed or
injured while the railroad was engaged in interstate
commerce. Congress enacted another version of the
FELA in late 1908. The 1908 Act established a fault-
based scheme for compensation. Congress, however, re-
jected the 1906 Act’s modified contributory negligence
bar and adopted in its place a comparative negligence
scheme. It also changed the common law in other specific
areas, abolishing the assumption-of-risk defense and the
fellow-servant rule. FELA, Pub. L. No. 60-100, 35 Stat.
65 (1908).8
Although the FELA did not establish a strict liability
workers’ compensation scheme, the United States Su-
preme Court in New York Central Railroad Co. v. Win-
field, 244 U.S. 147 (1917), held that a railway employee
cannot ignore the Act and instead rely on a state work-
ers’ compensation statute for a remedy against the rail-
road. A railway employee’s reliance on a state strict
liability compensatory scheme, the Court reasoned, would
frustrate Congress’ intent to enact a compensatory scheme
* The 1908 Act was amended in 1910 to provide for concurrent
jurisdiction of FELA claims and to preclude railroads from remov-
ing FELA actions filed in state courts. FELA, Pub. L. No. 61-117,
36 Stat. 291 (1910). In 1939, Congress amended the Act to extend
the statute of limitations from two to three years and to expand the
definition of interstate commerce in light of more recent Supreme
Court rulings. FELA, Pub. L. No. 76-382, 53 Stat. 1404 (1939).
24a
that was premised on notions of fault. Therefore, the
state workers’ compensation statute as applied to railway
employees was preempted by the FELA.
We believe that affording the railway employees in this
case the state-tort remedy of intentional infliction of emo-
tional distress will not similarly frustrate the fault-based
scheme of the FELA. The state tort action would not
impose strict liability on the railroad, but instead would
apply common law principles of fault. As Justice Gold-
berg noted in Gillespie v. United States Steel Corp., 379
U.S. 148, 164 n.38 (1964) (J. Goldberg, dissenting in
part): “New York Central R. Co. v. Winfield, supra,
could require no more than pre-emption of purely state
strict liability remedies.” (Emphasis in original.)
We recognize, however, that sume potential for inter-
ference may be present when a railway employee sues
in state court for the intentional infliction of emotional
distress. The enactment of a federal compensatory
scheme implies that Congress did not intend for inter-
state commerce to be hampered by different state systems
of compensation. This is certainly true in the context
of physical injuries and death resulting from railroad
negligence. Such interference, however, is minimized
where emotional harm is alleged to have resulted from a
continual pattern of intentional acts. The claim of in-
tentional infliction of emotional distress lies outside the
scope of this federal statute, which was enacted to com-
pensate only physical injuries resulting from negligence.
The fact that the state-law tort is sharply limited to
cases involving particularly egregious facts further re-
duces any potential for interference with the federal
scheme.
Balanced against the potential for interference with
the federal scheme is the nature of the state interest in-
volved. As we have already noted, Minnesota has a sub-
stantial interest in protecting its citizens from the type
25a
of harm that constitutes the intentional infliction of emo-
tional distress. See Farmer, 430 U.S. at 302. To deny
Pikop and Gulati the protection from this kind of con-
auct the state provides to each of its other citizens is to
diminish the very importance of the state interest in-
volved. Because the state interest is substantial and the
potential for interference is minimal, we hold that the
FELA does not preempt a railway employee’s state-law
claim of intentional infliction of emotional distress.
The judgment of the district court in Case No. C4-85-
1431, Pikop v. Burlington Northern Railroad Co., is
reversed.
The certified questions are answered in the negative
in Case No. C7-84-1333, Gulati v. Burlington Northern
Railroad Co.
26a
KELLEY, Justice (dissenting) :
Because I conclude the claims of Pikop and Gulati for
intentional infliction of emotional distress solely arose
out of their employment with the Burlington Northern
and that the Federal Employers’ Liability Act provides
those employees with their exclusive remedy, I respect-
fully dissent.
The Federal Employers’ Liability Act governs the re-
covery of damages for injuries or death by employees,
or their dependent families, from employer carriers. Al-
though the literal wording of the statute limits the car-
rier’s liability to compensation for injuries or death
caused by “negligence” of employees, 45 U.S.C. § 51
(1982), the act is demonstrative of the underlying sup-
position that safety of the physical and mental health
of railroad employees is encouraged by the economic in-
centive of placing liability upon the employer. Thus, not-
withstanding the statutory language speaks in terms of
“negligence,” the United States Supreme Court has per-
mitted injured employees to recover from employers even
though the act or acts giving rise to the injury were
“intentional.” See, e.g., Jamison v. Encarnacion, 281
U.S. 635 (1930) where the court held that assaults com-
mitted by railroad employees against fellow employees
in the course of the railroad employment were compen-
sable in suits against the carrier. See generally, Note,
Respondent Superior and the Intentional Tort: A Short
Discourse on How to Make Assault and Battery A Part
of the Job, 45 U. Cin. L. Rev. 235 (1976). See also,
Annot., 8 A.L.R.3d 442 (1966).
The Court of Appeals for the Ninth Circuit in Buell
v. Atchison, Topeka & Santa Fe Railway Co., 771 F.2d
1320 (9th Cir. 1985), held that an employee’s allegation
that he had sustained emotional injury caused by inten-
tional acts of railroad employees stated a claim under
the FELA. In Lancaster v. Norfolk & Western Railway
27a
Co., 773 F.2d 807, 818 (7th Cir. 1985), the court recog-
nized employee recovery under the FELA for intentional
tort if the evidence established either that the intentional
act (or acts) was done in furtherance of the railroad’s
objectives or that the company negligently hired, super-
vised, or failed to fire the employee who committed the
tort.
Since the claimed injuries clearly and exclusively arose
out of their employment by the Burlington Northern, the
FELA provides to these plaintiffs the exclusive remedy
for those claimed injuries. Even if that act afforded no
remedy to these claims, the act is all comprehensive. See,
e.g. New York Central Railroad Co. v. Winfield, 244
U.S. 147 (1917). The purpose of Congress in enacting
the Federal Employers’ Liability Act, and the federal
courts in construing it, is clearly to provide a uniform
and exclusive compensatory program to govern claims
made by employees against employing railroads for dam-
ages arising out of the employment relationship.
Accordingly, I would hold that the Federal Employers’
Liability Act, 45 U.S.C. § 51-60 (1982) pre-empts an
employee’s claim of damage against a railroad employer
when the claim arises from intentional infliction of emo-
tional distress if the acts giving rise to the claim are
committed solely and exclusively during the course of the
employment relationship.
Therefore, I would affirm the district court in Pikop v.
Burlington Northern Railroad, and would answer the
certified question in Gulati v. Burlington Northern Raii-
road Co. in the affirmative.
28a
APPENDIX B
STATE OF MINNESOTA
IN SUPREME COURT
C7-84-1333
ROMESH GULATI,
Respondent,
vs.
BURLINGTON NORTHERN RAILROAD COMPANY,
Appellant.
ORDER
Based upon all the files, records and proceedings
herein,
IT IS HEREBY ORDERED that the petition of Bur-
lington Northern Railroad Company for further review
of the decision of the Court of Appeals be, and the same
is, granted. Briefs shall be filed in the quantity, form
and within the time limitations contained in Minn. R.
Civ. App. P. 131 and 182. Counsel will be notified at a
later date of the time for argument before this court.
No requests for extensions of time for the filing of briefs
will be entertained.
Dated: May 24, 1985
BY THE COURT:
/s/
Associate Justice
29a
APPENDIX C
STATE OF MINNESOTA
IN COURT OF APPEALS
C7-84-1333
Hennepin County Nierengarten, Judge
ROMESH GULATI,
Respondent,
VS.
BURLINGTON NORTHERN RAILROAD COMPANY,
Appellant.
Filed March 12, 1985
Wayne Tschimperle, Clerk
Minnesota Court of Appeals
Michael D. Doshan
4644 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Michael P. McReynolds
Burlington Northern
Railroad Company
176 East Fifth Street
St. Paul, MN 55101
SYLLABUS
1. The Railway Labor Act preempts state court juris-
diction over plaintiff’s claim of intentional infliction of
30a
emotional distress resulting from his discharge. It does
not preempt a claim for the intentional infliction of emo-
tional distress when the distress results from a pattern
of harassment.
2. The Federal Employers’ Liability Act does not
preempt a claim for the intentional infliction of emo-
tional distress.
Certified Question Answered.
Considered and decided by Popovich, Chief Judge, Nie-
rengarten, Judge, and Randall, Judge, with oral argu-
ment waived.
OPINION
NIERENGARTEN, Judge
Respondent Gulati brought an action against appellant
Burlington Northern, his former employer, alleging (1)
Burlington Northern had breached an agreement settling
a Federal Employers’ Liability Act (FELA) suit pre-
viously brought by him; (2) he was wrongly discharged
from Burlington Northern’s employ in retaliation for
bringing the previous FELA law suit; and (3) inten-
tional infliction of emotional distress. Burlington moved
to dismiss for lack of subject matter jurisdiction, con-
tending common law actions were preempted by the Rail-
way Labor Act, 45 U.S.C.A. §§ 151-159a (1972 and
Supp. 1983), and the Federal Employers’ Liability Act,
45 U.S.C.A. §§ 51-60 (1972). The trial court dismissed
the contract claims but not Gulati’s claim of intentional
infliction of emotional distress, finding that claim fell
within the exception to the preemption doctrine enun-
ciated in Farmer v. United Brotherhood of Carpenters,
Local 25, 480 U.S. 290 (1977).
FACTS
Gulati was employed by Burlington Northern as a
machinist for 15 years and was a member of the machin-
ists union.
3la
In 1975, Gulati injured his hand during the course of
his employment and filed a claim against Burlington
under the Federal Employers’ Liability Act. Burlington
settled March 10, 1980, for $47,250 on an in-service basis
which did not affect Gulati’s status as an employee.
In the winter of 1979-80, Gulati became subject to
constant surveillance while at work, his arrivals and de-
partwres being closely monitored by his supervisor. The
same surveillance did not extend to his co-employees.
In the summer of 1980, Burlington launched a series
of investigations against Gulati. On one occasion, two
Burlington officials rifled his private locker. On another
occasion Gulati was charged with falsifying a time card
but a fellow employee believed the charge was dropped
because a foreman forged the card in order to get Gulati
fired.
A fellow employee heard Burlington officials say “[wle
will get that S.O.B.” and “[h]ave you had any luck
getting that S.O.B. ‘cause I know you are trying.’”
These officials referred to Gulati as “[t]hat stinking
Arab,” addressing him “[c]ome over here Indian,”
“Twlhere’s your camel parked,” and “[d]oes your camel
have one hump or two?”
His thoroughness in inspecting locomotives for defects
prompted a supervisor to vow that he was going to “get
Romesh.”
The fellow. employee testified the harassment made
Gulati so tense that he would not dare ride in a car
with him, adding “I personally do not know how Romesh
Gulati was able to withstand the enormous pressure on
him.”
Gulati was dismissed in October 1980 for a company
rule violation by absenting himself from duty without
proper authority in August 1980. The discharge was up-
held by the National Railroad Adjustment Board.
In March 1981, Gulati suffered an anterior myocardial
infarction.
32a
ISSUE
Certified Question: Does the Railway Labor Act and/
or the Federal Employers’ Liability Act preempt state
court jurisditcion over plaintiff’s claim of intentional in-
fliction of emotional distress?
ANALYSIS
I
Gulati alleges that as a result of the wrongful conduct
of Burlington, he suffered emotional distress and deterio-
ration in his physical well-being, including the onset of
the infarction. He claims the multiple investigations
he was subject to and the charges placed against him
constituted retaliation for his suing to recover for in-
juries to his hand.
Burlington’s position is that a common law action for
the intentional infliction of emotional distress is pre-
empted by the Railway Labor Act (RLA), 45 U.S.C.A.
§§ 151-159(a) (1972 and Supp. 1983), which provides for
mandatory arbitration of “minor disputes.” Guiati con-
tends that his tort claim falls within the exception cre-
ated by Farmer v. United Brotherhood of Carpenters,
Local 25, 480 U.S. 290 (1977).
Farmer brought an action in state court against his
union claiming intentional infliction of emotional distress
and unlawful discrimination in job referrals. The United
States Supreme Court, rejecting a strictly mechanical ap-
proach to questions of preemption in the field of labor
law relations, held that the state court could exercise
jurisdiction over such a claim, even though the campaign
of harassment included hiring hall referral discrimina-
tion. The Court stated that one must determine the
scope of the general preemption rule “by examining the
state interests in regulating the conduct in question and
the potential for interference with the federal regula-
tory scheme.” Farmer, 430 at 297. To avoid preemp-
33a
tron, the state’s interest must be “so deeply rooted in
local feeling and responsibility that, in the absence of
compelling congressional direction, we could not infer
that Congress had deprived the state of the power to
act.” Id. at 296-97, (quoting San Diego Bldg. Trades
Council v. Garmon, 359 U.S. 236, 248-44 (1959) ).
In applying this test, the Supreme Court in Farmer
determined that the State of California had a substantial
interest in protecting its citizens from intentional in-
fliction of emotional distress. It also determined that
neither the National Labor Relations Act nor the collec-
tive bargaining agreement protected against the alleged
“outrageous” conduct. The court recognized that, because
the abusive conduct was intertwined with allegations of
hiring hall discrimination, there was some potential that
the state claim would touch on areas generally within
the exclusive jurisdiction of the National Labor Rela-
tions Board. However, the court found this potential
interference did not overcome the state’s interest be-
cause resolution of the state tort suit turned on whether
the union’s actions had caused the plaintiff’s emotional
aistress, while the focus of an unfair labor practice in-
quiry would have been on whether the union’s conduct
discriminated against the plaintiff in terms of employ-
ment opportunities. Thus, “the tort action could be re-
solved without reference to any accommodation of the
. special interests of unions and members in the hiring
hall context.” Farmer, 430 at 305.
Similarly, in Sears, Roebuck and Co. v. San Diego
County District Council of Carpenters, 4386 U.S. 180
(1978), the Supreme Court held that Sears could rely on
state trespass laws in seeking an injunction against union
picketing on its private property.
The critical inquiry, therefore, is not whether the
State is enforcing a law relating specifically to labor
relations or one of general application but whether
the controversy presented to the state court is iden-
34a
tical to (as in Garner) or different from (as in
Farmer) that which could have been, but was not,
presented to the Labor Board.
Id. at 197.
In applying Farmer to this case, we must examine
Minnesota’s interest in regulating the conduct in ques-
tion and the potential for interference with the RLA.
The mandatory arbitration provisions of the Railway
Labor Act were designed “to provide for the prompt and
orderly settlement of all disputes growing out of griev-
ances or out of the interpretation or application of agree-
ments covering rates of pay, rules, or working condi-
tions.” 45 U.S.C.A. §15la(5) (1972). Disputes grow-
ing out of grievances or interpretation or application of
agreements are called minor disputes. Majors v. U.S.
Air, Inc., 525 F. Supp. 853, 855 (D. Md. 1981). “The
arbitration provisions for minor disputes * * * preempt
state remedies.” Jd.
Gulati claims his discharge in October 1980, was in
retaliation for his suit against Burlington to recover for
injuries to his hand. Normally, an action for wrongful
discharge by an employee against a railroad is a minor
dispute and subject to the exclusive grievance and arbi-
tration procedures of the RLA because a collective bar-
gaining agreement is necessarily the source of a claim
that a discharge is wrongful. Andrews v. Louisville &
Nashville R.h Vo., 406 U.S. 320 (1972). A claim for
intentional infliction of emotional distress based on the
process lending to discharge is also a minor dispute with-
in the exciusive province of the grievance mechanisms.
Magnuson v. Burlington Northern, Inc., 576 F.2d 1367
(9th Cir.), cert. denied, 439 U.S. 930 (1978).
A retaliatory discharge is one variety of wrongful
discharge. Jackson v. Consolidated Rail Corp., 717 F.2d
1045, 1049 (7th Cir. 1983), cert. denied, US. —,
104 S.Ct. 1000 (1984).
35a
There is no question that Gulati’s right not to be dis-
charged at the will of Burlington Northern grows out of
the collective bargaining agreement. Consequently, his
claim of intentional infliction of emotional distress re-
sulting from the discharge constitutes a minor dispute
and falls within the exclusive province of the grievance
procedures established by RLA. See id.
However, Gulati also alleges that the unfounded in-
vestigations of Burlington, part of an alleged campaign
of personal abuse and harassment, constituted retaliation
for his suit to recover for injuries to his hand, and as a
result, he suffered emotional distress.
Minneota recognizes the tort of intentional infliction
of emotional distress. Hubbard v. United Press Interna-
tional, Inc., 330 N.W.2d 428 (Minn. 1983). Four distinct
elements of proof are necessary to sustain a claim:
(1) the conduct must be extreme and outrageous;
(2) the conduct must be intentional or reckless; (3)
it must cause emotional distress; and (4) the dis-
tress must be severe.
Id. at 438-39. Outrageous conduct is judicially defined
as “so atrocious that it passes the boundaries of decency
and is utterly intolerable to the civilized community.”
Id. at 439 (quoting Haagenson v. National Farmers
Union Property and Casualty Co., 277 N.W.2d 648, 652
n.3 (Minn. 1979). Clearly Minnesota’s interest in regu-
lating such conduct is strong.
That will not stand by itself. In addition, we must
examine the potential for interference with the RLA.
First, we note that the RLA itself does not protect
against outrageous conduct. Balzeit v. Southern Pacific
Transportation Co., 569 F. Supp. 986 (N.D. Calif. 1983).
Although, as in Farmer, there is some potential that
Gulati’s claim touches on areas generally within the ex-
clusive jurisdiction of the RLA, as, for example, investi-
gations provided by the collective bargaining agreement,
86a
we conclude that the potential for interference is mini-
mal. Charges and investigations are governed by the
collective bargaining agreement. In this case, charges
made by Burlington Northern are part of the pattern of
outrageous conduct. However, in an action for inten-
tional infliction of emotional distress, there will be no
need to interfere with the jurisdiction of the RLA be-
cause the charges did not result in discipline. Rather,
the focus of the state inquiry will be whether the un-
founded charge against Gulati and investigations that
appear in a category not envisioned by the collective bar-
gaining agreement were brought to intimidate him,
thereby inflicting emotional distress.
We conclude that Gulati’s allegations of outrageous
conduct based upon the unfounded charges are separate
from the charge which led to his discharge, and, there-
fore, are not preempted by the RLA.
II
Burlington also contends that Gulati’s claim is pre-
empted by the Federal Employers’ Liability Act, 45
U.S.C.A. §§ 51-60 (1972), while at the same time, refus-
ing to concede that an action for an intentional tort
could be brought under the act.
The FELA provides that railroads engaged in inter-
state commerce shall be liable “for such injury or death
resulting in whole or in part from the negligence of any
of the officers, agents, or employees * * *.” 45 U.S.C.A.
§ 51.
In New York Central Railroad Co. v. Winfield, 244
U.S. 147 (1917), the Supreme Court broadly read “neg-
ligence” to include injuries which “arose out of one of
the ordinary risks of the work,” and, therefore, com-
pensable without the necessity of negligence.
FELA coverage has not been extended to include in-
tentional torts. Moreover, it strictly limits damages to
37a
physical injury or death. Therefore, we conclude that
it does not preempt a state action.
DECISION
Certified Question: Does the Railway Labor Act and/
or Federal Employers’ Liability Act preempt state court
jurisdiction over plaintiff’s claim of intentional infliction
of emotional distress?
We answer the question as follows: The Railway La-
bor Act preempts state court jurisdiction over plaintiff’s
claim of intentional infliction of emotional distress result-
ing from his discharge. It does not preempt the remain-
der of his claim.
The Federal Employers’ Liability Act does not preempt
a claim fer the intentional infliction of emotional distress.
Certified Question Answered.
38a
APPENDIX D
STATE OF MINNESOTA
COUNTY OF HENNEPIN
DISTRICT COURT
FOURTH JUDICIAL DISTRICT
ROMESH GULATI,
Plainti:/,
vs.
BURLINGTON NORTHERN, INC.,
Defendant.
Question Certified to Minnesota Court of Appeals
Pursuant To Minnesota Rules of
Civil Appellate Procedure, Rule 103.03 (h)
The above-entitled matter came on for hearing before
the Honorable Delila F. Pierce, one of the judges of the
above-named court on June 18, 1984, at the Government
Center, City of Minneapolis, County of Hennepin, State
of Minnesota, on Defendant’s motion to certify a ques-
tion to the Minnesota Court of Appeals as important and
doubtful.
Michael D. Doshan, Esq., 4644 IDS Center, 80 South
Eighth Street, Minneapolis, Minnesota 55402, appeared
as counsel for Plaintiff. Michael P. McReynolds, Esq.,
176 East Fifth Street, St. Paul, Minnesota 55101, ap-
peared as counsel for Defendant.
This Court hereby certifies the following question, find-
ing it important and doubtful, to the Minnesota Court of
Appeals because its resolution at this point of the litiga-
tion is in the interests of justice:
39a
DOES THE RAILWAY LABOR ACT AND/OR
THE FEDERAL EMPLOYER’S LIABILITY ACT
PRE-EMPT STATE COURT JURISDICTION
OVER PLAINTIFF’S CLAIM OF INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS?
That this Court’s Order and Memorandum dated
May 15, 1984, and the entire file of record with the
Hennepin County District Court be and hereby is in-
corporated by reference.
BY THE Court:
/s, Delila F. Pierce
DELILA F,, PIERCE
Judge of District Court
Dated: June 26, 1984.
40a
APPENDIX E
STATE OF MINNESOTA
COUNTY OF HENNEPIN
DISTRICT COURT
FOURTH JUDICIAL DISTRICT
File No. 791184
ROMESH GULATI,
Plaintiff,
—vs.—
BURLINGTON NORTHERN, INC.,
(now Burlington Northern Railroad Company),
Defendant.
ORDER AND MEMORANDUM
The above-entitled matter came on for hearing before
the Honorable Delila F. Pierce, one of the judges of the
above-named court, on the 11th day of April, 1984, upon
Defendant’s Motion to Dismiss, at the Government Cen-
ter, City of Minneapolis, County of Hennepin and State
of Minnesota.
Michael D. Doshan, Esq., and James Lord, Esq., ap-
peared as counsel for and on behalf of the Plaintiff.
Michael McReynolds, Esq., John D. Boelter, Esq., and
Barry McGrath, Esq., appeared as counsel for and on
behalf of the Defendant.
Now, therefore, upon the files, records, proceedings and
arguments of counsel,
IT IS HEREBY ORDERED:
1. That Defendant’s Motion to Dismiss as to Plain-
tiff’s cause of action for intentional infliction of emo-
tional distress, along with his claim for punitive dam-
4la
ages, is hereby denied, this Court having jurisdiction to
hear such an action. Defendant’s Motion to Dismiss
Plaintiff’s other claims is hereby granted.
2. That the following Memorandum be made a part
of this Order.
BY THE CouRT:
Dated: May 15, 1984. /s/ Delila F. Pierce
DELILA F’, PIERCE
Judge of District Court
MEMORANDUM
Plaintiff alleges that he was a victim of intentional,
malicious and abusive conduct by Defendant over a pe-
riod of months. Plaintiff’s allegations include the follow-
ing: that he was under extraordinary constant surveil-
lance and scrutiny by his supervisors; that he was denied
routine privileges by his supervisors; that he was called
derogatory names by officials of BNR; that he was a
target of ethnic slurs and comments by BNR officials;
that his private locker was ransacked by BNR officials;
that he was publicly embarrassed and humiliated by a
BNR official at a shareholder’s meeting when he ap-
proached the open microphone and was told by the offi-
cial to sit down and shut up; that he was abused and
humiliated when, for a period of several weeks, a deroga-
tory comment written about him on a company urinal
was allowed to remain there despite his complaint to a
supervisor; that BNR officials were heard to say that
they would “get Romesh” and “get that S.O.B.”
The case at bar falls within the exception to the pre-
emption doctrine under Farmer v. Carpenter, 430 U.S.
290 (1977) due to the serious nature of Plaintiff’s alle-
gations; due to the alleged conduct not being an isolated
incident, but occurring over an extended period of time;
and, due to Plaintiff’s allegation that he suffered a heart
42a
attack as a result of the emotional distress caused by
the alleged course of conduct.
Farmer requires that a case pass a two-pronged test
before it can be exempt from the pre-emption doctrine.
First, it must touch interests so deeply rooted in local
feeling and “esponsibility that, in the absence of com-
pelling congressional direction, the Court could not infer
that Congress had deprived the states of the power to
act. Jd. at 296. Second, judicial supervision will not
disservice the interests ies by federal labor stat-
utes. Jd. at 297.
The standard that is applied in determining whether
the first prong of the Farmer test is met coincides with
the standard for a cause of action in Minnesota for the
intentional infliction of emotional distress. The state law
intervenes only where the distress inflicted is so severe
that no reasonable man could be expected to endure it.
Hubbard v. United Press International, 330 N.W.2d 428
(Minn. 1983). See also Farmer at 294. Plaintiff’s alle-
gations are sufficient to satisfy the first prong of the
Farmer test.
Farmer involved the N.L.R.A. while the case herein
involves the Railway Labor Act. The latter act is more
broad in its scope than the N.L.R.A. and it governs
normal incidents of the employment relation. Majors v.
U.S. Air, Inc., 525 F. Supp. 853 (D.Md. 1981). In
Majors, the RLA was said to control an investigation of
a suspected employee theft despite allegedly tortious con-
duct committed in the course of this investigation.
In the case before this Court, the alleged tortious con-
duct occured over a long period of time and it hardly
could be considered a normal incident of employment.
Therefore, state judicial supervision would not interfere
with a federal regulatory scheme and this case satisfies
the second prong of the Farmer test.
43a
For the above reasons, Plaintiff’s cause of action for
intentional infliction of emotional distress, along with his
claim for punitive damages, is not dismissed. Plaintiff’s
action, however, must allow for adjudication without res-
olution of the merits of the underlying labor dispute.
Farmer at 304. If there is evidence to support Plaintiff’s
cause of action for intentional infliction of emotional dis-
tress, it is for the jury to decide the case. Plaintiff’s
cause of action for breach of contract is so intertwined
with the underlying labor dispute that federal law pre-
empts that claim.
mF. F.
44a
APPENDIX F
STATE OF MINNESOTA
OFFICE OF THE CLERK OF THE
APPELLATE COURTS
STATE CAPITOL, ST. PAUL
Date: 8-29-86
C4-85-1431
VIRGINIA PIKOP,
oe Appellant,
BURLINGTON NORTHERN RAILROAD COMPANY,
Respondent,
CLARENCE PATTERSON, et al.,
Defendants,
and
C7-84-1333
ROMESH GULATI,
Respondents,
VS.
BURLINGTON NORTHERN RAILROAD COMPANY,
Petitioner, Appellant.
Please take notice that on this date the following order
wes entered in the above entitled cause:
ORDERED, that the petition for reargument herein
be and the same hereby is denied and stay vacated.
IT IS FURTHER ORDERED, that no attorney’s fees
are allowed pursuant to Rule 140, Rules of Civil Appel-
late Procedure.
Respectfully,
/s/ Wayne Tschimperle
Clerk of the Appellate Courts
45a
APPENDIX G
45 U.S.C. § 153. National Railroad Adjustment Board
First. Establishment; composition; powers and duties;
divisions; hearings and awards; judicial review. There
is hereby established a Board, to be known as the “Na-
tional Railroad Adjustment Board”, the members of
which shall be selected within thirty days after approval
of this Act [enacted June 21, 1934], and it is hereby
provided—
* * * *
(i) The disputes between an employee or group of
employees and a carrier or carriers growing out of
grievances or out of the interpretation or application
of agreements concerning rates of pay, rules, or
working conditions, including cases pending and un-
adjusted on the date of approval of this Act [en-
acted June 21, 1934], shall be handled in the usual
manner up to and including the chief operating offi-
cer of the carrier designated to handle such disputes;
but, failing to reach an adjustment in this manner,
the disputes may be referred by petition of the par-
ties or by either party to the appropriate division of
the Adjustment Board with a full statement of the
facts and all supporting data bearing upon the dis-
putes.
46a
APPENDIX H
Collective Bargaining Agreement Between
Burlington Northern Inc. And Its Mechanical Employees
Rule 34. CLAIMS OR GRIEVANCES
(a) All claims or grievances must be presented in
writing by or on behalf of the employee involved, to the
officer of the Carrier authorized to receive same, within
sixty (60) days from the date of the occurrence on
which the claim or grievance is based. Should any such
claim or grievance be disallowed, the Carrier shall, within
sixty (60) days from the date same is filed, notify who-
ever filed the claim or grievance (the employee or his
representative) in writing of the reasons for such dis-
allowance. If not so notified, the claim or grievance shail
be allowed as presented, but this shall not be considered
as a precedent or waiver of the contentions of the Car-
rier as to other similar claims or grievances.
(b) If a disallowed claim or grievance is to be ap-
pealed, such appeal must be in writing and must be
taken within sixty (60) days from receipt of notice of
disallowance, and the representative of the Carrier shall
be notified in writing within that time of the rejection of
his decision. Failing to comply with this provision, the
matter shall be considered ciosed, but this shall not be
considered as a precedent or waiver of the contentions of
the employees as to other similar claims or grievances.
It is understood, however, that the parties may, by agree-
ment, at any stage of the handling of a claim or griev-
ance on the property, extend the sixty (60) day period
for either a decision or appeal, up to and including the
highest officer of the Carrier designated for that pur-
pose.
(c) The requirements outlined in paragraphs (a) and
(b), pertaining to appeal by the employee and decision
by the Carrier, shall govern in appeals taken to each
47a
succeeding officer, except in cases of appeal from the de-
cision of the highest officer designated by the Carrier to
handle such disputes. All claims or grievances involved
in a decision by the highest designated officer shall be
barred unless within nine (9) months from the date of
said officer’s decision proceedings are instituted by the
employee or his duly authorized representative before the
appropriate division of the National Railroad Adjustment
Board or a system group or regional board of adjustment
that has been agreed to by the parties hereto as pro-
vided in Section 3 Second of the Railway Labor Act. It
is understood, however, that the parties may by agree-
ment in any particular case extend the nine (9) months’
period herein referred to.
(d) A claim may be filed at any time for an alleged
continuing violation of any agreement and all rights of
the claimant or claimants involved thereby shall, under
this rule, be fully protected by the filing of one claim or
grievance based thereon as long as such alleged viola-
tion, if found to be such, continues. However, no mone-
tary claim shall be allowed retroactively for more than
60 days prior to the filing thereof. With respect to claims
and grievances involving an employee held out of service
in discipline cases, the original notice of request for re-
instatement with pay for time lost shall be sufficient.
(e) This rule recognizes the right of representatives
of the Organizations, parties hereto, to file and prosecute
claims and grievances for and on behalf of the employees
they represent.
(f) This agreement is not intended to deny the right
of the employees to use any other lawful action for the
settlement of claims or grievances provided such action
is instituted within nine (9) months of the date of the
decision of the highest designated officer of the Carrier.
(g) This rule shali not apply to requests for leniency.
I cee
48a
(h) Conferences between local officials and local com-
mittees will be held during the regular working hours of
the day shift without loss of time to committeemen, pro-
viding such conferences are held at the point where com-
mitteemen are employed. |
(i) Prior to assertion of grievances as herein pro-
vided, and while questions of grievances are pending,
there will neither be a shutdown by the employer nor a
suspension of work by the employees.
Rule 35. INVESTIGATIONS
(a) An employee in service more than sixty (60) days
will not be disciplined or dismissed until after a fair and
impartial investigation has been held. Such investigation
shall be set promptly to be held not later than thirty (30)
days from the date of the occurrence, except that per-
sonal conduct cases will be subject to the thirty (30) day
limit from the date information is obtained by an officer
of the Carrier and except as provided in (b) hereof.
(b) In the case of an employee who may be held out
of service in cases involving serious infraction of rules
pending investigation, the investigation shall be held
within ten (10) days after date withheld from service.
He will be notified at time held out of service of the
reason therefor.
(c) At least five (5) days advance written notice of
the investigation shall be given the employee and the ap-
propriate local organization representative, in order that
the employee may arrange for representation by a duly
authorized representative and for presence of necessary
witnesses he may desire. The notice must specify the
charge for which investigation is being held.
(d) A decision shall be rendered within thirty (30)
days following the investigation, and written notice of
discipline will be given the employee, with copy to local
organization’s representative.
49a
(e) The employee and the duly authorized representa-
tive shall be furnished a copy of the transcript of in-
vestigation. Employee or his representative will not be
denied the right to take a stenographic or tape recording
of the investigation.
(f) The investigation provided for herein may be
waived by the employee in writing, in the presence of a
duly authorized representative.
(g) If it is found that an employee has been unjustly
disciplined or dismissed, such discipline shall be set aside
and removed from the record. He shall be reinstated with
his seniority rights unimpaired, and be compensated for
wage loss, if any, suffered by him, resulting from such
discipline or suspension, less any amount earned during
such period the disciplinary action was in effect.
(h) The provisions of Rule 34 shall be applicable to
the filing of claims and to appeals in discipline cases.
(i) The date for holding an investigation may be post-
poned if mutually agreed to by the Carrier and the em-
ployee or his duly authorized representative.
(j) If investigation is not held or decision rendered
within the time limits herein specified, or as extended by
agreed-to postponement, the charges against the employee
shall be considered as having been dismissed.
50a
APPENDIX I
STATEMENT REQUIRED BY RULE 238.1:
Listed below are all parent companies, subsidiaries (ex-
cept wholly owned subsidiaries) and affiliates of Burling-
ton Northern Railroad Company:
Burlington Northern, Inc.
The Belt Railway Company of Chicago
Burlington Northern Dock Corporation
Burlington Northern (Manitoba) Limited
Burlington Northern {Oregon-Washington), Inc.
Burlington Northern Railroad Properties, Inc.
Camas Prairie Railroad Company
Clarklon, Inc.
Clarklon Royalty, Inc.
The Colorado & Southern Railway Company
Davenport, Rock Island & North Western Railway
Company
The Denver Union Terminal Railway Company
The Fort Worth and Denver Railway Company
Galveston Terminal Railway Company
Houston Belt & Terminal Railway Company
Iowa Transfer Railway Company
Kansas City Terminal Railway Company
Keokuk Union Depot Company
Saint Louis-San Francisco Railway Company
The Lake Superior Terminal & Transfer Railway
Company
The Longview Switching Company
The Minnesota Transfer Railway Company
The Paducah & Illinois Railroad Company
The Portland Terminal Railroad Company
The St. Paul Union Depot Company
Southland Realty
The ‘Yerminal Railroad Association of St. Louis
Company
Trailer Train Company
5la
Western Fruit Express Company
The Wichita Union Terminal Railway Company
Winnona Bridge Railway Company
Northern Radial Limited
Burlington Northern is affiliated with the El Paso Com-
pany whose affiliates include:
E] Paso Natural Gas Company
Bemm Holding Corporation
El] Paso de Peru Company
El Paso Development Company
E}x-Mission Ranches, Inc.
Lake Country
Wind Jammer, Inc.
Adams Canyon Ranch
Santa Paula Farms
E] Paso Gas Marketing Company
E] Paso Hydrocarbons Company
E] Paso Frontera Corporation
E] Paso Gas Transportation Company
El Paso Hydrocarbons NGL Company
EF] Paso Hydrocarbons Pipeline Company
EK] Paso Hydrocarbons Service Company
El Paso Hydrocarbons Transportation Company
El Paso Storage Company
Minera San Pedro Corralitos, SA.
Odessa Natural Gasoline Company
Odessa Pipeline Company
Pecos Company
Trebol Drilling Company
El] Paso Moave Pipeline Company
El Paso Natural Gas Building Company
El] Paso Natural Gas Clearinghouse Company
Maridean Petroleum Holding, Inc.
Maridean Oil Production, Inc. (formerly E] Paso
Exploration, Inc.) EPX Company
——————
52a
Maridean Oil, Inc. (formerly Milestone Petroleum
Ince. )
Butte Pipeline Company
Northern Rockies Pipeline
Maridean Oil Trading, Inc.
Portal Pipeline Company
Maridean Oil Pipeline, Inc.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.