Petition for Writ of Certiorari — Harris v. Hirsh

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No.

IN THE

Suprene Court of the United States

OCTOBER TERM, 1994

JOAN V. HARRIS,

Petitioner,

Vv.

PAUL HIRSH,

Respondent.

Petition for a Writ of Certiorari to the

New York Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

DANIEL F. MCCARTHY

DANIEL A. MCCARTHY

36 West 44th Street

New York, NY 10036

MITCHELL M. KRAUS

3 Research Piace

Rockville, MD 20850

MARK D. SCHNEIDER

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

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WILSON - Eres Painting Co.. Inc. - 739-0096 - WASHINGTON. O C. 20001

2 . «

QUESTION PRESENTED

1. Whether the “labor contract” preemption doctrine

derived from the Railway Labor Act is separate and dis-

tinct from the “labor contract” preemption doctrine de-

rived from § 301 of the Labor Management Relations

Act?

2. Whether a state law cause of action brought by an

employee covered by a collective bargaining agreement

is preempted by the Railway Labor Act where the claim

as pleaded, and in substance, does not seek to vindicate

rights created by that agreement, or require the interpre-

tation or application of the agreement, but the defendant-

employer alleges that the agreement’s construction is at

issue as part of a negating or affirmative defense?

(i)

TABLE OF CONTENTS

QUESTION PRESENTED .0W000000....0...c0ccccceccccseseeeseeseees

TABLE OF AUTHORITIES ............................ Jnalslaiieniaes

I IIE inscictahnssapianovnsovesaaneseinieenivatnvhensmamansiin

JURISDICTION ................ eecinsinntetiadiidhnibadintedapsincabaimsinanains

TE sceccericaciisiccctssconvtnvvelstveteedenmtecetnnte

STAT Eee © OF Bitlis CASED. ........20.0002.0c0ccccceceecesccesscevseee

aa a sesanentinieiiies

TD

REASONS FOR GRANTING THE WRIT .......00..........

A. The New York Decision Conflicts With This

Court’s Decision in Hawaiian Airlines, Inc. v.

GERI a Sirens eed

B. The State Courts and Federal Courts of Appeals

Are Split on the Question Whether Labor Con-

tract Preemption Analysis Is Claim Centered....

CONCLUSION ................... Chleleshihilactshadlntepiipbaubincnabdabeanantids

(iii)

10

16

iv

TABLE OF AUTHORITIES

CASES Page

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

8 | RACE IS Aare NCS A ares RICE REAP OE 10, 15-16

Capraro v. United Parcel Service, 993 F.2d 328

es 12

Elgin, Joliet & Eastern Railway Co. v. Burley, 325

U.S. 711 (1945) ........... sop lecieneliedaie alae tpaa a a ac ee 5,9

Fox v. Parker Hannifin Corp., 914 F.2d 795 (6th

SND I~ ected ies Ginter ae ee 11

Galvez v. Kuhn, 933 F.2d 773 (9th Cir. 1991). AEees 10

Hanks v. General Motors Corp., 859 F.2d 67 (8th

IRE SINE CSG Se OS POE 12

Hawaiian Airlines, Inc. v. Norris, 114 8S. Ct. 2239

eR AEE SEUCER Rae Me ht kl See Sonnet ne 7-9 !

Hirras v. National Railroad Passenger Corp., 1994 q

U.S. App. Lexis 33082 (5th Cir., No. 92-5753, ?

Si 11 ‘

Jackson v. Kimel, 992 F.2d 1318 (4th Cir. 1993)... !

Jackson v. Liquid Carbonic Corp., 863 F.2d 111 :

7 e Rexieeraaeete. bie Sat 12 ;

Johnson v. Anheuser Busch, Inc., 876 F.2d 620 :

(8th Cir. 1989) ............. Ficincaalidiuidetiadiadadadatialassaibies toms 12 i

Laws v. Calmat, 852 F.2d 430 (9th Cir. 1988) ........ 12

Lingle v. Norge Division of Magic Chef Inc., 486

U.S. 399 (1989) | a stanley ae :

Linn v. United Plant Guard Workers, 383 US. 53 i

OD Scien Earths Sawa ae eee Bee lp ds See, 6 :

Livadas v. Bradshaw, 114 8. Ct. 2068 (1994) passim

Local No. 57 v. Bechtel Power Corp., 834 F.2d 884 4

(10th Cir. 1987) - 11

Lorenz v. CSX Transport Inc., 980 F.2d 263 (4th

I a 9

Loughry v. Lincoln Bank, 67 N.Y.2d 369 (N, ¥. Ct.

a ia 13

Magerer v. John Sexton & Co., 912 F.2d 525 (1st

as ac Es es 12 Ff

Melanson v. United Airlines, Inc., 931 F.2d 558

(9th Cir.), cert. denied, 112 S. Ct. 189 (1991)... 5

Metropolitan Life Insurance Co. v. Massachusetts,

PS Ae Ee IEE Ravebicirieciirmiscsiincnctetaniens 15

Vv

TABLE OF AUTHORITIES—Continued

Page

O’Shea v. Detroit News, 887 F.2d 683 (6th Cir.

I sincelniteinioinhestueniicleictietacn ieee ace cena 11

Utility Workers v. Southern California Edison,

SES P.2d 1068 (Oth Cir. 1968) .........cccccccccnscocssacees 12

STATUTES

RE TR GRR err eRe eee ne 2

Labor Management Relations Act

I ae Be EE scciheckvtincuininicditntnabonabisbiieuiibebactapdadcimze’ 6, 8-9

National Labor Relations Act

Be erie Oe ha Oe Ie ciisicsccnssencctendeticiceriemaniocions 6

Railway Labor Act

OD ee 0 es BG cccrvititinihtiihncsscitebianbitbentsbideesinal passim

MISCELLANEOUS

Note, The Need for a New Approach to Federal

Preemption of Union Members’ State Law

Claims, 99 Yale L.J. 209 (1989) 2.000000 10

IN THE

Sipwrenve Cant of the Wuited States

OcTOBER TERM, 1994

No. ——

JOAN V. HARRIS,

. Petitioner,

PAUL HIRsH,

Respondent.

Petition for a Writ of Certiorari to the

New York Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

Petitioner Joan V. Harris hereby petitions this Court

to issue a writ of certiorari to review the judgment of the

New York State Court of Appeals in Harris v. Hirsh, 83

N.Y.2d 734 (1994).

OPINIONS BELOW

The opinion of the New York Court of Appeals is

reported at 83 N.Y.2d 734, and is reprinted in the ap-

pendix to this certiorari petition (“Pet. App.”) at la.

The Order of the Supreme Court of New York, Appellate

Division, dismissing the complaint, is reported at 196

A.D.2d 425, 601 N.Y.S. 2d 275, and is reprinted at Pet.

App. lla. The judgment of the Supreme Court of New

York, Bronx County, after jury trial, in favor of plain-

tiff, is unreported and is reprinted at Pet. App. 14a.

The decision of the Supreme Court of New York, Appel-

late Division, reinstating plaintiff's case for trial is re-

2

ported at 161 A.2d 452, and is reprinted at Pet. App.

16a. The judgment of the Supreme Court of New York,

Bronx County, granting defendant’s motion for summary

judgment is unreported and is reprinted at Pet. App.

19a. The order of the New York Court of Appeals deny-

ing the motion for rehearing is unreported and is re-

printed at Pet. App. 20a.

JURISDICTION

The New York Court of Appeals issued its opinion on

June 9, 1994, and its order denying a timely motion for

rehearing on September 29, 1994. This Court has juris-

diction under 28 U.S.C. § 1257(a).

STATUTES INVOLVED

Section la of the Railway Labor Act, 45 U.S.C.

§ 15la, provides:

The purposes of this chapter are: ... (5) to pro-

vide for the prompt and orderly settlement of all dis-

putes growing out of grievances or out of the inter-

pretation of application of agreements covering rates

of pay, rules, or working conditions.

Section 3, First (i), of the Railway Labor Act, 45

U.S.C. § 153 First (i), provides:

The disputes between an employee or group of em-

ployees and a carrier or carriers growing out of griev-

ances or out of the interpretation or application of

agreements concerning rates of pay, rules, or working

conditions . . . may be referred by petition of the

parties or by either party to the appropriate division

of the Adjustment Board. .. .

STATEMENT OF THE CASE

A. The Facts

Petitioner Joan V. Harris was an employee of Metro-

North Commuter Railroad (“Metro North”) from 1977

throughout the period in question in this case. During

ee ee eee

3

that time, Harris was represented for purposes of collec-

tive bargaining by the Brotherhood of Railway, Airline

and Steamship Clerks (“BRAC”), and was covered by

a collective bargaining agreement between Metro-North

and BRAC.

In July of 1986, the director of Harris’ department at

Metro North, respondent Paul Hirsh, called Harris into

his office and in the presence of two other supervisory

personnel, said: “You have a problem. You take drugs.

. . . | know a person who is on drugs and you look like

one.” ‘These remarks were later widely circulated among

Harris’ co-workers.

The undisputed evidence at the subsequent trial showed

that Hirsh’s statement was untrue. That evidence showed,

too, that at the time he made this statement, Hirsh had

been told by Harris’ two immediate supervisors that she

was not taking drugs, and that in summoning Harris to

his office and in making his statements, Hirsh had not

followed, and, indeed, had not consulted Metro-North’s

written operating procedures regarding suspected drug

abuse.

B. The Proceedings Below

(a) Lower Court Proceedings: In 1987 Harris brought

a siander action in New York State Supreme Court

against Hirsh. Prior to trial, Hirsh moved for summary

judgment, on the ground that the statement in question

was made in the context of an employer-employee rela-

tionship, and so is entitled to a qualified privilege under

state law. The trial court granted the motion, but the

intermediate state appellate court reversed.

That appellate court reasoned that, assuming arguendo

that the statements were entitled to a qualified privilege

under New York law, the privilege claim could be de-

feated if the plaintiff could establish that the statements

were known to be false at the time they were made, and

were motivated by malice. Reviewing the evidence, the

court determined that there was evidence a jury could

4

find persuasive sufficient to establish each of these points,

“li]ndeed, the evidence before us makes it abundantly

clear that the statements may well have exceeded the

scope of the privilege.” Pet. App. !8a. The matter was

then remanded to the trial court.

After a trial by jury, the jury returned a verdict in

favor of Harris, awarding her $1.2 million in compensa-

tory and punitive damages. The jury found specifically

that defendant:

(1) committed the intentional tort of slander per se;

(2) was entitled to a qualified privilege as [Harris’]

supervisor; (3) abused the qualified privilege he en-

joyed; and (4) acted with malice when he defamed

her [Pet. App. 3a].

The evidence presented to the jury in the trial leading

to that verdict contained only incidental references to the

governing labor agreement between Metro North and

Harris’ collective bargaining representative, BRAC. That

evidence bore no relation to any factual or legal predicate

to Harris’ cause of action. Nor did Hirsh or his counsel

rely on any interpretation of that agreement to support

any of his defenses to that cause of action.’ And, no men-

tion was made of the labor agreement in the charge to

the jury.

Hirsh moved to set aside the verdict, arguing, inter alia,

that the slander claim is preempted by the Railway Labor

Act. That motion was denied.

1 Specifically, the labor agreement was the subject of the follow-

ing trial testimony: Both Harris and Hirsh testified to the fact

that subsequent to their meeting, Harris filed a grievance under

the labor agreement challenging Hirsh’s conduct at the meeting.

Harris testified further that, subsequent to their meeting, her posi-

tion was eliminated, that pursuant to the labor agreement she bid

into another position at Metro North, and that she could have

filed a grievance under that agreement challenging the elimination

of her position, but chose not to. Finally, Hirsh testified that at

the time of his meeting with Harris, he had not read Metro North’s

written substance abuse policy then in effect, and that he did not

rely on that policy as a justification for the meeting.

5

On appeal from the resulting judgment, the state inter-

mediate appellate court reversed the order denying the

motion to set aside the verdict, and dismissed the com-

plaint. Pet. App. lla. That court ruled that the state

courts lacked subject matter jurisdiction over the dispute

because it “is one growing out of a grievance and ‘indis-

putably arises out of the employment relation between the

plaintiff and . . . Metro-North.’” Pet. App. 12a (citation

omitted). That being so, the allegations “must be con-

sidered a ‘minor dispute’ within the meaning of the RLA

and cannot be asserted as a basis for a common law

claim.” /d.

(b) The New York Court of Appeals’ Decision: On

appeal, the New York Court of Appeals affirmed the state

intermediate appellate court’s preemption ruling. The

New York Court reasoned that “[a]ll claims that may

properly be characterized as ‘minor disputes’ are subject

exclusively to the arbitration procedures established by

the RLA.” Pet. App. 4a.

The court below defined minor disputes “expansively”

as covering both claims “governed by the precise terms

of a collective bargaining agreement, . . . but also

those ‘founded upon some incident of the employment

relation.’” Pet. App. Sa, citing Elgin, Joliet & Eastern

Railway Co. v. Burley, 325 U.S. 711, 723 (1945). This

broad understanding of “minor dispute” was required, in

the New York Court’s view, to further “the congressional

purpose of providing a comprehensive federal scheme for

the settlement of employer-employee disputes in the rail-

road industry, without resort to the courts.’” Pet. App.

5a, quoting Melanson v. United Airlines, Inc., 931 F.2d

558, 561, n.1 (9th Cir.), cert. denied, 112 S. Ct. 189

(1991).

From these principles the New York Court derived the

following rule:

[A] state defamation action—which typically will not

be expressly governed by a specific labor contract

term—will be preempted if the disputed statements

were made in connection with conduct authorized by

6

the governing collective bargaining agreement and

concerned matters related to the employment rela-

tionship. ... In other words, where the dispute turns

on whether a provision of the collective bargaining

agreement created a qualified privilege to discuss cer-

tain employment-related matters, and that privilege

would serve as the employer’s defense to the suit, the

terms of the labor agreement are necessarily impli-

cated. In such circumstances, the congressional goal

that labor contracts negotiated under federal law re-

ceive uniform interpretation will only be furthered

where the arbitration board acts as the final arbiter,

and not the courts [Pet. App. 6a]

Applying that rule to the facts of this case, that court

ruled that the claim here is preempted because

at the time of the alleged slander, plaintiff was being

interviewed regarding her work performance and her

possible violation of the substance abuse policy.

Thus, the alleged tortious conduct was ‘inextricably

intertwined’ with a work related investigation that de-

fendant Hirsh was authorized to undertake by the

terms of the CBA. [Pet. App. 8a]

The New York Court concluded in this regard:

Along with a number of courts that have addressed

the issue, we conclude that the preemptive effect of

the RLA is more pervasive than the preemptive effect

of the Labor Management Relations Act, 29 U.S.C.

§ 185 (LMRA or Taft-Hartley Act), or the National

Labor Relations Act, 29 U.S.C. § 151 (NLRA or

Wagner Act) . . . two federal regulatory schemes

with a purpose distinct from that of the RLA. Ac-

cordingly, we reject plaintiff's claim that the test for

preemption under section 301 of the LMRA estab-

lished in Lingle v. Norge Div. of Magic Chef Inc.

(486 U.S. 399 [1988]—whether “resolution of a

state law claim depends upon the meaning of a col-

lective bargaining agreement” (emphasis added)—

governs this case, and decline to apply the holding of

Linn v. United Plant Guard Workers (383 U.S. 53

[1966])—that a malicious libel suit is not preempted

by the NLRA—to this case. [Pet. App. 6a-7a]

.

At the same time, the court below observed that

Adjudication of plaintiff's state tort claim would have

been imposible without reference to conduct governed

by the collective bargaining agreement since, in ren-

dering its verdict, the jury here was required to spec-

ifically determine whether defendant’s conduct was

qualifiedly privileged under the labor contract and

whether he exceeded the scope of that privilege. . . .

In so doing, the jury necessarily trespassed upon the

exclusive authority of the adjustment board to deter-

mine the manner in which an employer may enforce

company policies. [Pet. App. 8a]

Shortly after the New York Court issued its decision,

this Court decided Livadas v. Bradshaw, 114 S. Ct. 2068

(1994), and Hawaiian Airlines, Inc. v. Norris, 114 §. Ct.

2239 (1994). Harris then moved the New York Court to

rehear this matter in light of these two decisions. That

motion wa* summarily denied without opinion. Pet. App.

20a.

REASONS FOR GRANTING THE WRIT

The New York Court of Appeals’ decision here issued

on June 9, 1994. This Court’s Hawaiian Airlines v.

Norris, supra, decision issued on June 20, 1994. The

New York Court’s decision, on its face, rests on the ex-

pansive Railway Labor Act “labor contract” preemption

doctrine rejected in this Court’s Hawaiian Airlines deci-

sion. Nonetheless, the New York Court summarily de-

nied without opinion a timely rehearing petition calling

Hawaiian Airlines to its attention. In this situation, a

grant of certiorari, a vacation of the judgment below and

a remand for reconsideration in light of Hawaiian Air-

lines is, we submit, the proper—and, indeed, the re-

quired—course.

In responding to our rehearing petition, the respondent

argued that the New York Court’s decision could be read

as resting on alternative holdings, with the second holding

incorporating a particular understanding of the “labor con-

8

tract” preemption doctrine as stated in Lingle v. Norge Div.

of Magic Chef, Inc., 486 U.S. 399 (1988). According to

respondent, the New York Court ruled that “plaintiff's

defamation action clearly ‘depends upon’ an interpretation

of the collective bargaining agreement and must be pre-

empted.”

On that reading of the decision below, this case raises

the “labor contract” preemption question that has been

answered in three conflicting ways by seven federal courts

of appeals. In Livadas v. Bradshaw, supra, this Court

acknowledged this division in the lower court law but did

not resolve the conflict, since doing so was not necessary

to the proper disposition of that case. And, on that read-

ing, this case calls for this Court’s review to resolve this

deep-seated conflict over the correct answer to this fre-

quently recurring “labor-contract” preemption question.

A. The New York Pecision Conflicts With This Court’s

Decision in Hawaiian Airlines, Inc. v. Norris

In Hawaiian Airlines, the Court resolved a split in the

state and lower federal courts on the question whether

the “labor contract” preemption standard differs in cases

governed by the Railway Labor Act and in cases gov-

erned by the Labor Management Relations Act. The

Court held that the proper preemption standard under

the RLA and LMRA is “virtually identical,” 114 S. Ct.

at 2247, and “adopt[ed] the . . . standard to resolve

claims of RLA pre-emption” delineated in an LMRA

case, Lingle v. Norge Div. of Magic Chef Inc., supra, 114

S. Ct. at 2249.

In so ruling, this Court recognized that prior to

Hawaiian Airlines some state and lower federal courts

held that, while there is no LMRA “labor contract” pre-

emption when the state law claim at issue relies upon

“state rules that proscribe conduct, or establish rights and

obligations, independent of a labor contract,” 114 S. Ct.

at 2248, RLA preemption is far broader, preempting “all

employment-related disputes,” id. at 2244. In Hawaiian

Airlines, this Court rejected the proposition that the RLA

so “broadly pre-empts substantive protections extended by

- 5 ee eee pneme me yey ee

9

the States;” instead, said the Court, the RLA, like the

LMRA, preempts only disputes “grounded in the collec-

tive-bargaining agreement.” Jd. at 2245. In making

that judgment, the Court “expressly disavowed any lan-

guage in Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711

(1945), suggesting” this overly broad view of RLA

preemption. 114 S. Ct. at 2245.

The New York Court of Appeals in the instant case

adopted and relied upon the precise understanding of

RLA “labor contract” preemption that this Court rejected

in Hawaiian Airlines. Indeed, that court invoked the same

language in Burley that this Court “expressly disavowed,”

see Pet. App. 5a, as well as a federal court of appeals

decision expressly overruled by this Court.” The New York

Court then determined that all claims “founded upon some

incident of the employment relation,” whether or not they

are contract claims, must be deemed preempted. Pet. App.

Sa.

In so ruling, the New York Court specifically “re-

ject[ed] plaintiff's claim that the test for preemption under

section 301 of the LMRA established in Lingle . . . gov-

erns this case.” Pet. App. 7a. Of course, Hawaiian

Airline’s precise holding is that “Lingle provides the ap-

propriate framework for addressing pre-emption under

the RLA, and we adopt the Lingle standard to resolve

claims of RLA pre-emption.” 114 S. Ct. at 2249.

All this being so—and the New York Court of Appeals

having denied a timely motion for rehearing calling

its attention to this Court’s Hawaiian Airlines decision—

we submit that this case calls for the granting of cer-

tiorari, and for vacation of the judgment below with a

remand to the New York Court for further consideration

of this case consistent with Hawaiian Airlines.

2Compare Pet. App. 6a (relying upon Lorenz v. CSX Transp.

Inc., 980 F.2d 263 (4th Cir. 1992)), with Hawaiian Airlines, 114

S.Ct. at 2249, n.9 (identifying Lorenz as one of the casse taking

the view contrary to that adopted by the Court).

10

Bb. The State Courts and Federal Courts of Appeals Are

Split on the Question Whether Labor Contract Pre-

emption Analysis Is Claim Centered

In response to our petition for rehearing to the New

York Court of Appeals, respondent argued that the New

York Court “took full account of” and adopted respond-

ent’s alternate argument that “plaintiff's claim was pre-

empted even if the Lueck, Lingle standard applied,” be-

cause “plaintiff's defamation action clearly ‘depends upon’

an interpretation of the collective bargaining agreement.”

On that understanding of the New York Court's deci-

sion, that decision is in conflict with the decisions of

three federal courts of appeals, and in accord with the de-

cision of four other federal courts of appeals, on a re-

peatedly recurring federal question that is of major prac-

tical significance to the federal labor relations system.

1. In Livadas v. Bradshaw, 114 S.Ct. at 2078, n.18,

this Court recognized that “disagreements . . . have arisen

over the proper scope of [the Court’s] earlier decisions”

concerning “labor contract” preemption. Neither Livadas

nor Hawaiian Airlines provided a proper litigation occa-

sion for resolution of those disagreements, with the result

that the disagreements still obtain. Subject to the point

made in Part A above, pp. 8-9, this case provides the

appropriate vehicle finally to resolve the most important

of those disagreements. And, there can be no doubt that

now that the Court has made it plain that there is a

single general “labor contract” preemption standard, the

time has come to harmonize what has become a “series

of often contradictory [post-Lingle] decisions, so much so

that ‘federal preemption of state labor law has been one

of the most confused areas of federal court litigation.’ ”

Galvez v. Kuhn, 933 F.2d 773 (9th Cir. 1991), quoting

Note, The Need for a New Approach to Federal Preemp-

tion of Union Members’ State Law Claims, 99 Yale L. J.

209 (1989).

The principal disagreement identified by the Livadas

Court is this: Some of the lower courts have understood

11

the “labor contract” preemption doctrine to be one di-

rected at assuring that when “a plaintiff's cause of action

itself derives from the collective-bargaining agreement

(and, by that agreement, belongs before an arbitrator ),”

that cause of action is one governed by federal labor

contract law that preempts state law. Livadas, 114 S. Ct.

2078, n.18. On this view, claims that are in substance

breach of labor contract claims, no matter how pled,

must be treated as federal contract claims.

In contrast, as the Livadas Court noted, “in other in-

stances, the argument is different in that [preemption is

required if] a plaintiff's claim cannot be ‘resolved’ absent

collective-bargaining agreement interpretation, i.c., that a

term of the agreement may or does confer a defense on

the employer (perhaps because the employee or his union

has negotiated away the state law right).” 114 S. Ct.

at 2078, n.18.

(i) The Sixth Circuit has perhaps been most emphatic

in embracing the first, “claim-centered,” analysis, several

times reiterating that “[i]t is irrelevant to the preemption

question whether or not the employer can defend by

showing it had the rights under the collective bargaining

agreement to do what it did.” O’Shea v. Detroit News,

887 F.2d 683, 687 (6th Cir. 1989) (emphasis added);

see also Fox v. Parker Hannifin Corp., 914 F.2d 795, 800

(6th Cir. 1990) (“a defendant’s reliance on a [collective

bargaining agreement] term purely as a defense does not

result in section 301 preemption.”). The Tenth Circuit

has also embraced this “claim centered” analysis of “labor

contract” preemption.”

(ii) In contrast, the Ninth Circuit, in two cases, has

held that an employee’s state law privacy claim is pre

8 Local No. 57 v. Bechtel Power Corp., 834 F.2d 884, 889 (10th

Cir. 1987). Cf. Hirras v. National Railroad Passenger Corp.,

1994 U.S. App. Lexis 33082, at 11 (5th Cir., No. 92-5753, Nov. 22,

1994) (“if the claim is brought under state law without any refer-

ence to the CBA, then it is not preempted”).

12

empted whenever the defendant employer contends that

the privacy right is waived by the management rights—or

some cognate—clause of the applicable collective bargain-

ing agreement, whatever the merits of that defense. Util-

ity Workers v. Southern California Edison, 852 F.2d

1083, 1086-87 (9th Cir. 1988); Laws v. Calmat, 852

F.2d 430, 433 (9th Cir. 1988). The First, Third and

Eighth Circuits have reached the same conclusion regard-

ing employer defenses raising questions of contract inter-

pretation.*

(iii) Still another court has adopted a position in be-

tween these two polar positions. Thus, the Fourth Circuit

has held that the mere invocation by an employer of a

contractually-related affirmative defense is not enough to

warrant preemption. Instead, a court faced with such a

defense must determine if the defense does in truth re-

quire the court to engage in some quantum of contract

interpretation, in which case the claim should be pre-

empted. If, however, the defense is pretextual, or merely

invokes the contract collaterally to establish that the de-

fendant was not improperly motivated, the claim should

not be preempted.*

In this aspect of the New York Court of Appeals deci-

sion, as noted, that court alligned itself with the First,

Third, Eighth and Ninth Circuits and relied on the

strongest form of the “employer defense” preemption ra-

tionale. For, it is beyond argument that the elements

making out a slander claim under New York law may be

—and were—established without making any reference

to Harris’ labor agreement whatsoever. Thus, under the

4 Capraro v. United Parcel Service, 993 F.2d 328, 332 (3rd Cir.

1993); Magerer v. John Sexton & Co., 912 F.2d 525, 530-531 (1st

Cir. 1990); Jackson v. Liquid Carbonic Corp., 863 F.2d 111, 118

(1st Cir. 1988); Hanks v. General Motors Corp., 859 F.2d 67, 70

(8th Cir. 1988); Johnson v. Anheuser Busch, Inc., 876 F.2d 620,

623 (8th Cir. 1989).

5 See Jackson v. Kimel, 992 F.2d 1318, 1826 (4th Cir. 1993).

13

“claim centered” approach to labor contract preemption

this slander claim would not have been preempted.

But, on this aspect of the New York Court’s deci-

sion, Harris’ claim is preempted because under New York

law defendants in a slander action may assert a qualified

defense if the defamatory statements are made in the

context of an employee-employer relationship. And, that

preemption result follows even though under New York

law, that qualified defense is defeated if the defendant

is found to have acted out of actual common law malice,

a determination that does not turn on any contract inter-

pretation question.°

On this view, a defendant’s assertion that its actions

were motivated solely by a desire to follow the labor

agreement—even when that proper motive assertion is

rejected by the jury as untrue—is sufficient to generate

preemption. For it is only with regard to that motive

issue that “reference to conduct governed by the collec-

tive bargaining agreement” is in any way relevant to

this case. Pet. App. 8a. Thus, it is on that attenuated

basis that employees working under a collective bargain-

ing agreement that does not-——and could not—grant the

employer a right to publish malicious slanders for con-

duct occurring in the workplace, lose their state legal

protection against malicious slanders.

This aspect of the decision below, then, is in accord

with the decisions of the federal courts of appeals that

hold that “labor contract” preemption is required even of

otherwise independent state law claims, whenever the em-

ployer asserts a defense that arguably requires the finder

of fact to “mak[e] reference to” a collective bargaining

agreement. By the same token, it is wholly at odds

with the decisions of the other federal courts of appeals

that hold that the “labor contract” preemption doctrine

is limited to cases in which plaintiffs attempt to vindicate

6 See Loughry v. Lincoln Bank, 67 N.Y. 2d 369, 376 (N.Y. Ct.

App. 1986).

x

14

what are in truth labor contract rights. And, it is equally

at odds with the remaining federal court of appeals that

holds that labor contract preemption, at the least, requires

an employer defense that rests on an interpretation of the

labor agreement that, if accepted, would defeat the plain-

tiff’s claim.

In sum, as Livadas recognizes, the federal courts of

appeals and the state courts are hopelessly split on whether

the “labor contract” preemption doctrine applies when-

ever the labor agreement is invoked as part of a defense

to an employee’s independent state law claim. If the

Court does not vacate the judgment for the reasons set

forth in point A, supra, pp. 8-9, it should grant this cer-

tiorari petition and set this case down for plenary con-

sideration to resolve this conflict.

2. We would be derelict if we did not close with two

additional points.

(a) First, the varying understandings of “labor con-

tract” preemption just discussed go to the very essence

of the doctrine. The “claim centered” understanding of

the doctrine rests on the understanding that the doctrine

is, in its essence, a forum selection rule that assures that

disputes that are in substance contract disputes, no matter

how pled, are resolved through arbitration, when that is

what the parties intended. Its major consequence is to

assure a decision on the merits in the forum chosen by

the contracting parties by mutual agreement (or, in the

case of the RLA, by operation of law).

In contrast, in its broadest formulation, as in this case,

the “labor contract” preemption doctrine is a powerful

substantive doctrine that wholly eliminates state law pro-

tections for unionized workers for harms suffered in the

workplace whenever the employer asserts a contractual

justification for its conduct, regardless of the legal valid-

ity of that justification.

15

As we have previously shown, the New York Court

ruled Harris’ slander claim to be preempted solely because

the employer asserted as an affirmative defense a proper

motive claim that allegedly requires “reference” to the

labor agreement. This is so, moreover, even though it is

clear that the defense entirely lacks merit, and in any

event, does not require the jury to engage in any con-

tract interpretation whatsoever.

That is a potent draught indeed. In a case challenging

the legality of conduct that occurred in a unionized work-

place, it is nearly always possible for the employer to

come up with an affirmative defense that creates a “need”

to consult the labor agreement. If that is all that is re-

quired to preempt state tort and employee protective laws

in the unionized workplace, then in practical terms, union-

ized workers will be denied all such legal protections.

Such a “labor contract” preemption doctrine is a quali-

tatively different doctrine than the one recognized by

those courts that preempt only contractually-based claims,

saving for unionized employees the full protections of the

state minimum standard and tort laws that apply in the

workplace setting generally.

A single federal preemption doctrine should not, we

submit, generate this kind of gross disparity.

(b) Finally, the New York Court’s decision, and the

preemption doctrine it invokes, surely is wrong. Metro-

politan Life Ins. Co. v. Massachusetts, 471 U.S. 724

(1985), makes it clear that it has never been part of

Congress’ purpose in enacting the federal collective bar-

gaining laws to deprive unionized workers of the protec-

tions of state laws that apply across the board to other

workers. Instead, the federal labor law was intended to

rest on, and to complement, state laws that also govern

the workplace. Id. at 751, 756. And, the New York

Court’s statement to the contrary notwithstanding, the

federal collective bargaining laws do “not grant the par-

ties to a collective bargaining agreement the ability to

contract for what is illegal under state law.” Allis-

16

Chalmers Corp. v. Lueck, 471 U.S. 202, 212 (1985).

As a general matter, the bare assertion that the labor

agreement countenances certain conduct simply is no de-

fense to a claim that the conduct violates a state tort or

employee protective law.

The New York Court’s overly broad view of labor con-

tract preemption goes well beyond anything suggested or

fairly encompassed in this Court’s decisions in this area.

As the Livadas Court recently reiterated,

the preemption rule has been applied only to assure

that the purposes animating § 301 will be frustrated

neither by state laws purporting to determine ‘ques-

tions relating to what the parties to a labor agreement

agreed, and what legal consequences were intended

to flow breaches of that agreement,’ nor by the par-

ties’ efforts to renege on their arbitration promises by

‘relabeling’ as tort suits actions simply alleging

breaches of duties assumed in collective-bargaining

agreements. [114 §. Ct. at 2078 (emphasis sup-

plied ).]

The New York Court's decision, preempting a state law

that poses absolutely no risk of so frustrating the federal

scheme of collective bargaining, cannot be squared with

Livadas.

17

CONCLUSION

For the foregoing reasons, this Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

DANIEL F. MCCARTHY

DANIEL A. MCCARTHY

386 West 44th Street

New York, NY 10036

MITCHELL M. KRAUS

3 Research Place

Rockville, MD 20850

MARK D. SCHNEIDER

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

ape =

eee at

la

APPENDIX A

STATE OF NEW YORK

COURT OF APPEALS

JOAN V. HARRIS,

Appellant,

v.

PAUL HIRsH,

Respondent.

OPINION OF THE COURT

TITONE, J.

On this appeal, we are called upon to determine

whether the trial court lacked subject matter jurisdiction

over plaintiff's common-law defamation action because it

constituted a “minor dispute” within the exclusive pur-

view of the mandatory grievance-to-adjustment board pro-

cedures established by the Federal Railway Labor Act

(RLA) (45 USC $151 et seqg.). For the reasons that

follow, we conclude that plaintiff's State law claim is

preempted, and her exclusive remedy lies with the arbitra-

tion procedures established under the RLA.

Plaintiff Joan Harris was employed by Metro-North

Commuter Railroad (Metro-North) as a crew dispatcher

and was a member of the Brotherhood of Railway, Air-

line and Steamship Clerks (BRAC) collective bargaining

unit. The terms of plaintiff's employment were governed

by a collective bargaining agreement (CBA) entered into

between Metru-North and BRAC. On July 16, 1986,

defendant Hirsh, plaintiff's former supervisor, called plain-

tiff into his office to discuss her work performance. Plain-

tiff alleges that during that encounter, and in the presence

2a

of plaintiff's two immediate supervisors who were invited

to attend the meeting, defendant Hirsh asked plaintiff

whether she had a problem, and then stated to her: “You

take drugs. I’ve worked in the Towers, and I know a

person who is on drugs and you look like one. I’ve been

thinking about sending you for a drug test.” During the

meeting, defendant Hirsh also indicated that he was suspi-

cious that plaintiff used drugs because on a prior occasion

he had observed her give an “incoherent” answer to a

co-worker who had posed a question. Defendant's re-

marks were eventually circulated among plaintiff's co-

workers.

By letter dated August 7, 1986, plaintiff requested that

the BRAC district chair institute an investigation and

grant her an “unjust treatment” hearing pursuant to rule

52 of the CBA’ to determine whether defendant's con-

duct during the July 16 meeting violated company policy

and procedure.” Plaintiff thereafter commenced this slan-

der action in State court, alleging that defendant's false

and defamatory words damaged her reputation and caused

her to suffer mental anguish and physical injuries. De-

fendant Hirsh asserted as affirmative defenses that the

court lacked subject matter jurisdiction over the defama-

tion claim because it was preempted by the mandatory

arbitration provisions set forth in the RLA, and that

defendant’s commenis were made in the context of a

supervisor-employee interview and were thus subject to a

qualified privilege.

At the commencement of trial, defendant moved to

dismiss the complaint on the jurisdictional ground. Su-

1 Rule 52, entitled “Unjust Treatment,” provides: “An employee

who considers himself{[ herself] unjustly treated except for dis-

cipline matters shall have the * * * right of investigation, hearing

on appeal and representation * * * if written request which sets

forth the employee’s complaint is made to his! /her| supervising

officer within thirty (30) calendar days of cause of complaint.”

2 Although plaintiff was granted that hearing on administrative

appeal, it has been postponed pending the conclusion of this action.

|

3a

preme Court denied the motion. To support plaintiff's

claim at trial that defendant knowingly uttered false

Statements about plaintiff's purported drug use, plaintiff

introduced uncontradicted testimony that her two imme-

diate supervisors had previously told defendant, in re-

sponse to his inquiry, that plaintiff was not on drugs.

Plaintiff also introduced three documents as exhibits: the

Metro-North substance abuse policy, her August 7, 1986

letter requesting a rule 52 unjust treatment hearing, and

a letter written by defendant on February !2, 1987 in-

forming her that her position had been abolished. There-

after, the jury returned a verdict in favor of plaintiff,

finding specifically that defendant (1) committed the in-

tentional tort of slander per se, (2) was entitled to a

qualified privilege as her supervisor, (3) abused the

qualified privilege he enjoyed, and (4) acted with malice

when he defamed her. The jury awarded plaintiff $1.2

million in compensatory and punitive damages. Defend-

ant moved to set aside the verdict, again arguing Federal

preemption. The motion was denied.

The Appellate Division reversed the order denying the

motion to set aside the verdict and dismissed the com-

plaint. The Court concluded that the trial court lacked

subject matter jurisdiction by virtue of Federal preemp-

tion. In so holding, the Court determined that the allega-

tions raised in plaintiff's State law complaint must be

considered “a ‘minor dispute’ within the meaning of the

RLA” because the claim “is one growing out of a griev-

ance and ‘indisputably arises out of the employment rela-

tion between the plaintiff and * * * Metro-North’” (196

AD2d 425, 426, quoting Angelo v Metro-N. Commuter

R. R., 193 AD2d 525). We now affirm.

Congress enacted the RLA (45 USC §§ 151-163) to

stabilize labor-management relations in the rail and air

carrier industries and to ensure uniform application of

Federal law in the interpretation of labor agreements

(Atchison, Topeka & Santa Fe Ry. Co. v Buell, 480

US 557, 562 [1987]). The act establishes a comprehen-

4a

sive scheme for the orderly and prompt resolution of

disputes between covered carriers and their employees

that could potentially interrupt service and affect the

Nation’s commerce (Union Pac. R. R. Co. v Sheehan,

439 US 89, 94 [1978]). To achieve the congressional

goal of “keeping railroad labor disputes simple and out

of the reach of the often lengthy court process” (Grote

v Trans World Airlines, 905 F2d 1307, 1309 [9th Cir],

cert denied 498 US 958 [1990]), the RLA gives the

National Railroad Adjustment Board, or an adjustment

board jointly established by the employer and the repre-

sentative unions (see, 45 USC § 153 [First] [i]; [Second])

primary and exclusive jurisdiction to resolve what have

been termed “minor disputes” between covered carriers

and their employees (Elgin, Joliet & E. Ry. Co. vy.

Burley, 325 US 711, 723 [1945]). “Minor disputes,”

statutorily defined as all “disputes between an employee

* * * and a carrier * * * growing out of grievances or

out of the interpretation or application of agreements

concerning rates of pay, rules, or working conditions”

(45 USC § 153 [First] [i], are subject to binding and

compulsory arbitration under the RLA (45 USC § 153).°

All claims that may properly be characterized as “minor

disputes” are subject exclusively to the arbitration pro-

cedures established by the RLA, even if the disputes

could otherwise provide the basis for State tort remedies

(Magnuson v Burlington N., 576 F2d 1367 [9th Cir],

cert denied 439 US 930 [1978]). Thus, a plaintiff can-

not circumvent the RLA’s mandatory dispute resolution

provisions by recharacterizing or disguising a minor dis-

pute as one grounded on State common law (Lorenz v

CSX Transp., 980 F2d 263, 268 [4th Cir 1993]; Magnu-

son, 576 F2d 1367, 1369, supra).

* By contrast, “major disputes” involve claims arising from the

negotiation or formation of the collective bargaining agreement

itself, and are not subject to the grievance-to-arbitration dispute

resolution procedures (see, Burley, 325 US 711, 723, supra).

Sa

To prevent an aggrieved employee from avoiding the

mandatory RLA arbitration provisions, the courts have

defined preempted “minor disputes” expansively (Con-

solidated Rail Corp. v Railway Labor Executives, 491

US 299, 307 [1989]). A dispute will clearly be deemed

“minor” within the meaning of the RLA when “the terms

of an existing agreement either establish or refute the

presence of a right to take the disputed action” (id., at

305). However, the fact that a claim is not expressly

governed by precise terms of a collective bargaining

agreement is not fatal for purposes of RLA preemption.

Minor disputes will include not only claims concerning

“the meaning or proper application of a particular [CBA]

provision,” but also those “founded upon some incident

of the employment relation,” although not expressly cov-

ered by a contract term (Burley, 325 US 711, 723,

supra). A commonly followed restatement of the govern-

ing inquiry is that the RLA grievance provisions will

preempt State tort actions when the underlying claims are

“based on a matrix of facts which are inextricably inter-

twined with the grievance machinery of the collective bar-

gaining agreement and of the R.L.A.” (Magnuson, 576

F2d 1367, 1369, supra.)

The purpose of defining “minor disputes” broadly is

clear: “[iJf the pleading of emotional injury permitted

aggrieved employees to avoid the impact of the R.L.A.,

the congressional purpose of providing a comprehensive

federal scheme for the settlement of employer-employee

disputes in the railroad industry, without resort to the

courts, would be thwarted” (Magnuson, 576 F2d 1367,

1369, supra, cited in Melanson v United Air Lines, 931

F2d 558, 561, n. 1, cert denied US , 1128S Ct

189 [1991]). In other words, an employee should not

be permitted to disguise or restate a genuine contract

claim in terms of tort or to extract parasitic tort claims

from an employment-related grievance to obtain remedies

outside of those contemplated by the RLA.

6a

It follows from those principles that a State defamation

action—which typically will not be expressiy governed by

a specific labor contract term—will be preempted if the

disputed statements were made in connection with conduct

authorized by the governing collective bargaining agree-

ment and concerned matters related to the employment

relationship (see, Gay v Affourtit, 1993 WL 438923, 2

{US Dist Ct, SD NY 1993 [libel action preempted where

collective bargaining agreement between airline and air-

craft crew members must be consulted to determine

whether crew had qualified privilege to report misconduct

of pilot, even if reports turn out to be false and defama-

tory]). In other words, where the dispute turns on

whether a provision of the collective bargaining agree-

ment created a qualified privilege to discuss certain em-

ployment-related matters, and that privilege would serve

as the employer’s defense to the suit, the terms of the

labor contract are necessarily implicated. In such circum-

stances, the congressional goal that labor contracts nego-

tiated under Federal law receive uniform interpretation

will only be furthered where the arbitration board acts as

the final arbiter, and not the courts. The State law claim

may survive, however, if “the alleged defamation becomes

distanced from the work-place and is only ‘peripherally’

concerned with federal labor law” (Lorenz v CSX Transp.,

980 F2d 263, 267 [4th Cir 1992], supra; see also Rose-

mond v National R. R. Passenger Corp., 1986 WL 10711

[US Dist Ct, SD NY 1986]).

Along with a number of courts that have addressed the

issue, we conclude that the preemptive effect of the RLA

is more pervasive than the preemptive effect of the Labor

Management Relations Act, 29 USC §185 ef seg.

(LMRA or Taft-Harley Act), or the National Labor Re-

lations Act, 29 USC § 151 et seq. (NLRA or Wagner

Act) (see, Lorenz v CSX Transp., 980 F2d 26), 268,

supra; Melanson v United Air Lines, 931 F2d 558, 562,

supra; Grote v Trans World Airlines, 905 F2d 1307.

1309-1310 [9th Cir 1990]; DeTomaso v Pan Am. World

7a

Airways, 43 Cal 3d 517, 528, 733 P2d 614 (1987]), two

Federal regulatory schemes with a purpose distinct from

that of the RLA (see generally, Andrews v Louisville &

Nashville R. R. Co., 406 US 320, 323 [1972]). Accord-

| ingly, we reject plaintiff's claim that the test for preemp-

: tion under section 301 of the LMRA (29 USC § 185)

‘ established in Lingle v Norge Div. of Magic Chef (486

; US 399 [1988])—whether “resolution of a state-law claim

deperds upon the meaning of a collective bargaining

agreement” (supra, at 405-406 [emphasis added])—gov-

erns this case, and decline to apply the holding of Linn v

Plant Guard Workers (383 US 53 [1966])—that a mali-

cious libel suit is not preempted by the NLRA—to this

case.

2h tena Rare,

ot Fae et oe

se 6

We also reject, as a creative attempt “‘to evade the

mandatory arbitration provisions of the [RLA]’” any

suggestion that the preemptive effect of the RLA does not

apply to suits, such as this one, brought by an employee

against a co-worker in an individual capacity (Henegar v

Banta, 817 F Supp 668, 672 [ND Ohio 1993], quoting

Gray v Chessie Sys., 588 F Supp 1334, 1337 [D Md

1984]; see also, Gay v Affourtit, 1993 WL 438923, 3

[US Dist Ct, SD NY 1993], supra; Gonzalez v Northwest

i Airlines, 201 NJ Super 422, 427-428, 493 A2d 547).

The claimed distinction between suits brought against the

carrier and those brought against an employee individually

ignores the explicit language of the RLA which provides

that “any disputes” (45 USC § 153 [First] [j]) “concern-

ing rates of pay, rules, or working conditions” are to be

promptly settled by the established arbitration procedures

(45 USC § 153 [First] [i] [emphasis added]). It also

ignores the RLA’s legislative history, which indicates that

Congress “intended to protect the public from the injuries

and losses consequent upon any impairment or interrup-

tion of interstate commerce through failure of managers

and employees to settle peaceably their controversies”

(HR Rep No. 328, 69th Cong., Ist Sess 1 [emphasis

added]).

|

sr AlMibs aN Beneath

8a

Applying the aforementioned principles, we conclude

that plaintiff's slander action is preempted and the trial

court lacked subject matter jurisdiction to entertain it.

The substance of plaintiff's claim is that defendant falsely

accused her of drug use during the July 16 meeting and

failed to comply with the negotiated policies and proce-

dures governing such inquires. At the time of the alleged

slander, plaintiff was being interviewed regarding her work

performance and her possible violation of the substance

abuse policy. Thus, the alleged tortious conduct was “in-

ricably intertwined” with a work-related investigation

that defendant Hirsh was authorized to undertake by the

terms of the CBA (see, Magnuson, 576 F2d 1367, 1369,

supra). Accordingly, the defamation action is a_pre-

empted “minor dispute” (see, Lorenz, 980 F2d, at 268,

supra; Magnuson, 576 F2d 1367, supra; cf., Rosemond

v National R. R. Passenger Corp., 1986 WL 10711 [SD

NY 1986], supra).

The State action against defendant “in essence and sub-

stance” concerned the application or interpretation of

company rules embodied in Metro-North’s CBA (see,

Carson v Southern Ry. Co., 494 F Supp 1104, 1110

[D SC 1979]). Adjudication of plaintiffs State tort

claim would have been impossible without reference to

conduct governed by the collective bargaining agreement

since, in rendering its verdict, the jury here was required

to specifically determine whether defendant’s conduct was

qualifiedly privileged under the labor contract and whether

he exceeded the scope of that privilege (see, Choate v

Louisville & Nashville R. R. Co., 715 F2d 369, 372

[7th Cir 1983]). In finding that defendant did not have

the authority under the collective bargaining agreement

to engage in the exchange with plaintiff in the manner

that he did, the jury had to second-guess whether defend-

ant Hirsh conducted the investigation of plaintiff within

the dictates of the labor agreement. In so doing, the jury

necessarily trespassed upon the exclusive authority of the

adjustment board to determine the manner in which an

employer may enforce company policies.

on ork oer ets

|

)

9a

The risk to be avoided by the provisions for the board’s

exclusive jurisdiction—that a State court ruling may be

inconsistent with a Federal adjustment board determina-

tion on the same employment issue—is present here.

Notably, plaintiff claimed at trial that defendant Hirsh

knew that his statements were false—and thus were mali-

ciously uttered—because plaintiff's two immediate super-

visors previously told defendant that plaintiff did not use

drugs. However, the terms of the Metro-North substance

abuse policy authorize a supervisor to proceed with an

employee substance abuse investigation by relying “solely

on evidence of behavior, personal observations, or other

evidence customarily relied upon in investigations or hear-

ings.” Thus, plaintiffs theory that defendant’s reliance

upon his own observations here constituted malice could

well be seen as unsustainable in light of the terms of the

agreement which permit such conduct.

The trial record also supports defendant’s contention

that plaintiff's tort action constituted a preempted “dis-

guised” contract claim. As additional proof of defendant’s

malice, plaintiff introduced, over objection, a letter written

to her by defendant some six months after the July 16

meeting notifying her that her position had been abolished.

Plaintiff's reliance upon this document at trial suggests

that through the “disguised” State tort defamation action,

plaintiff interjected into the litigation the claim that she

was “unjustly treated” and ultimately “forced out” of her

position—matters entrusted to the sole jurisdiction of the

adjustment board under the RLA (see, Carson v Southern

Ry. Co., 494 F Supp 1104, 1112, supra).

Finally, the contention that preemption of State tort

claims by the RLA penalizes railway workers for being

governed by a collective bargaining agreement lacks merit.

The grievance-to-arbitration procedures made available to

employees governed by the RLA provide a valuable bene-

fit, albeit different from the relief that may be obtained

through judicial intervention: a ready forum to promptly

resolve employment-related disputes and redress griev-

10a

ances without any cost of litigation to the employee (see,

Union Pac. R. R. Co. v Sheehan, 439 US 89, 94, supra).

In any event, the determinative inquiry is not whether an

employee could obtain more favorable relief in State court,

but whether the dispute is “minor” within the meaning of

the RLA and the grievance procedure established by the

RLA is intended by Congress to be the plaintiff's exclu-

sive remedy, as it is here (see, Magnuson, 576 F2d, at

1369-1370, supra; United Airlines v Superior Ct., 234

Cal App 3d 1085, 1091, 286 Cal Rptr 159 [1991)}).

Accordingly, the order of the Appellate Division should

be affirmed, with costs.

Judges Simons, BELLACOSA, SMITH, LEVINE and

CiPpARICK concur; Chief Judge KAYE taking no part.

Order affirmed, with costs.

ee

AAR EON nS

lla

APPENDIX B

SUPREME COURT OF NEW YORK

APPELLATE DIVISION

FIRST DEPARTMENT

JOAN V. HARRIS,

Respondent,

Vv.

PAUL HIRsH,

Appellant.

Judgment, Supreme Court, Bronx County (Hansel

McGee, J.), entered May 7, 1992, which, after jury trial,

awarded plaintiff $1,205,420, and order, same court and

Justice, entered February 22, 1993, which denied defend-

ant’s motion to set aside the verdict, unanimously reversed,

on the law, without costs, and the complaint dismissed.

The Clerk is directed to enter judgment in favor of de-

fendant dismissing the complaint.

The parties were employees of Metro-North Commuter

Railroad (“Metro-North”), defendant a supervisor and

plaintiff a crew dispatcher. The complaint alleges that on

July 16, 1986, in the presence of two intermediate super-

visors, defendant asked if plaintiff had a problem and sug-

gested that she might be taking drugs. Plaintiff then

brought this action for slander. Defendant in his answer

pleaded, among his defenses, lack of subject matter juris-

diction, arguing that the slander claim was preempted by

the Railway Labor Act (RLA; 45 USC § 151 et seq.).

Justice Anita Florio dismissed that defense on November

23, 1987. Defendant, however, denied having been served

with the order and, on April 1, 1992, after jury selection,

12a

moved for dismissal on the same grounds. Justice McGee

found no preemption and denied the motion.

An objection to subject matter jurisdiction may be

taken at any stage of an action, including on appeal

(Marine Midland Bank v Bowker, 89 AD2d 194, 195-

196, affd 59 NY2d 739; Matter of Anthony J., 143 AD2d

668, 669). Whether or not Justice McGee was bound by

Justice Florio’s order as the law of the case, this Court

may reverse his order if it is substantively incorrect (Post

v Post, 141 AD2d 518, 519). It is substantively in-

correct.

In Angelo v. Metro N. Commuter R. R. (193 AD2d

525), this Court held that pursuant to the RLA the State

common-law remedies \ hich might otherwise be invoked

were preempted. There, a Metro-North policeman had

been accused of stealing and, after a disciplinary hearing,

was found guilty and dismissed from the force. On ap-

peal to the Railroad Adjustment Board, however, the

Board Referee held that the misconduct had not been

proved. The policeman was ordered reinstated. He then

brought an action in the State court for malicious prose-

cution; but this Court dismissed his complaint, holding

that the dispute between the parties was a “ ‘minor dis-

pute’” within the meaning of the statute, and was “to be

resolved exclusively by means of the procedures set forth

in the Act” and that State common-law remedies which

might otherwise be invoked were preempted (193 AD2d,

supra, at 527-528).

As in Angelo, the dispute here is one growing out of a

grievance and “indisputably arises out of the employment

relation between the plaintiff and * * * Metro-North”

(supra, at 527); despite the allegation of irregularities in

the disciplinary process, any misfeasance is no less related

to the collective bargaining agreement, and the allegations

thereof must be considered a “minor dispute” within the

meaning of the RLA and cannot be asserted as a basis

for a common-law claim. Nor is the discharge of the em-

l3a

ployee or the filing of formal charges a prerequisite for

preemption.

Since the State courts lack subject matter jurisdiction,

the remaining questions raised by defendant need not be

considered. Concur—Milonas, J. P., Rosenberger, Rubin

and Nardelli, JJ.

l4a

APPENDIX C

SUPREME COURT

STATE OF NEW YORK

COUNTY OF BRONX

Index No. 8065/87

JOAN V. HARRIS,

Plaintiff,

-against-

PAUL HIRSH,

Defendant.

The issues in this action having been duly tried before

the Honorable Hansel L. McGee, and a jury, at an IAS

Term, Part 5 of this Court, held at the Bronx County

Courthouse from March 24, 1992, to April 23, 1992, and

the plaintiff, JOAN V. HARRIS, having duly appeared

by her attorneys, Graham, Campaign & McCarthy, P.C.,

and the defendant, PAUL HIRSH, having duly appeared

by his attorney, Jose Rios, Esq., and the jury having

rendered a verdict on the 23rd day of April, 1992 in

favor of the plaintiff, and against defendant, for

damages in the sum of FIVE HUNDRED THOUSAND

($500,000.00) DOLLARS in compensatory damages and

SEVEN HUNDRED THOUSAND ($700,000.00) DOL-

LARS in punitive damages, and the plaintiff's costs and

disbursements having been duly taxed by the Clerk in

the sum of One Thousand Two Hundred Twenty

($1,220.00) DOLLARS.

Now on motion of Graham, Campaign & McCarthy,

P.C., attorneys for plaintiff, it is

Adjudged that plaintiff, JOAN V. HARRIS, residing

at 434 Poplar Street, Bridgeport, Connecticut 06605, re-

iSa

cover of the defendant, PAUL HIRSH, residing at 46

Thompson Avenue, Croton-on-Hudson, New York 10520,

the sum of ONE MILLION-TWO HUNDRED THOU-

SAND ($1,200,000.00) DOLLARS, together with inter-

est thereon from April 23, 1992 in the sum of Forty-Two

Hundred ($4,200.00) DOLLARS, and with costs and

disbursements as taxed in the sum of One Thousand Two

Hundred Twenty ($1220.00) DOLLARS, making in all

the sum of One Million Two Hundred and Five Thou-

sand, Four Hundred Twenty ($1,205,420.00) DOL-

LARS, and that the plaintiff, JOAN V. HARRIS have

execution therefor.

Judgment signed May 7, 1992.

/s/ [Iegible}

Clerk

16a

APPENDIX D

SUPREME COURT OF NEW YORK

APPELLATE DIVISION

FIRST DEPARTMENT

JOAN V. HARRIS,

Appellant,

Vv.

PAUL HIRSH,

Respondent.

Order, Supreme Court, Bronx County (Anita Florio,

J.), entered November 9, 1988, which granted defendant-

respondent’s motion for summary judgment dismissing the

complaint, unanimously reversed, on the law, and sum-

mary judgment denied, without costs.

Plaintiff, an employee of Metro-North Commuter Rail-

road (Metro-North) from 1977 to 1986, brought this

action alleging slander against defendant, the head of her

department. The gravamen of the complaint is that, on

July 16, 1986, without cause, defendant called her into

his office and, in the presence of two supervisors, stated

“fyjou have a problem. You take drugs. * * * I know

a person who is on drugs and you look like one.” Plain-

tiff further asserted that no precautions were taken to

ensure that these statements were not repeated.

Defendant subsequently moved, pursuant to CPLR

3212, for summary judgment, claiming qualified privilege,

in that the statements were made in the context of an

employer-employee relationship. Plaintiff duly and vigor-

ously opposed the motion. Included with plaintiff's op-

6 etna tia

)

|

i7a

position papers were excerpts of defendant’s and plaintiff's

deposition testimony, the negative results of plaintiff's

drug tests, and affidavits of fellow employees to the effect

that defendant’s accusations had spread to the other em-

ployees of her department. A copy of Metro-North’s

Operating Procedures and Directives was also submitted,

in order to demonstrate that defendant did not follow

proper procedures and policy regarding suspected drug

abuse. Plaintiff also contends that the two supervisors

had advised defendant that she did not use drugs. As

additional proof of malice, plaintiff submitted a copy of a

letter dated February 12, 1987, from defendant to plain-

tiff, which was subsequent to the date plaintiff com-

menced the within action, by which he abolished her job.

The TAS court granted summary judgment dismissing

the complaint, stating, inter alia, that the statements were

made under circumstances which entitled defendant to

the defense of qualified privilege and, further, that plain-

tiff failed to raise an issue of fact as to whether the

Statements were made maliciously, thereby vitiating the

defense. Plaintiff now appeals.

Summary judgment dismissing a complaint, while a

drastic remedy, is properly granted where there are no

material issues of fact. (See, CPLR 3212.) Thus, the

focus is upon issue finding, rather than issue determination.

(Marshall, Bratter, Greene, Allison & Tucker v. Mechner,

53 AD2d 537 [ist Dept 1976].) Plaintiff asserts that

there are hotly contested issues of fact which should be

determined by a jury.

In analyzing whether there are triable issues of fact,

we are aware that the law confers a qualified privilege

on a statement where it “‘is fairly made by a person in

the discharge of some public or private duty, legal or

moral, or in the conduct of his own affairs, in a matter

where the interest is concerned.’” (Toker v Pollak, 44

NY2d 211, 219 [1978]. quoting Lovell Co. v. Houghton,

116 NY 520, 526.) The defense of qualified privilege

18a

may be invoked when a defendant’s acts were for a proper

purpose and exercised in a reasonable manner; however,

it “is forfeited if the defendant steps outside of the scope

of the privilege, or abuses the occasion.” (Prosser and

Keeton, Torts, at 832 [Sth ed].)

Assuming, arguendo, that defendant's statements are

qualifiedly privileged, the burden of proof falls upon

plaintiff to set forth evidence that defendant was moti-

vated by malice. (Garson v Hendlin, 141 AD2d 55, 63

[2d Dept 1988], lv denied 74 NY2d 603; Shulman v

Anderson Russell Kill & Olick, 117 Mise 2d 162, 169

[Sup Ct, NY County 1982].) Accordingly, plaintiff must

demonstrate that the allegedly defamatory statements were

known to be false at the time they were made to suffi-

ciently raise a triable question of fact for the jury.

(O’Rorke v Carpenter, 55 NY2d 798 [1981].)

Upon our review of the instant record, we conclude

that plaintiff has submitted evidentiary proof that defend-

ant knew in advance of the subject incident that plaintiff

was not “on drugs”. Moreover, we believe that plaintiff

may succeed in convincing a jury that defendant's state-

ments were made in furtherance of an improper purpose.

Indeed, the evidence before us makes it abundantly clear

that the statements may well have exceeded the scope of

the privilege. Plaintiff is entitled to have a jury resolve

these questions. In reversing the IAS court, we now give

her that opportunity. Concur—Murphy, P. J., Carro,

Milonas, Asch and Wallach, JJ.

19a

APPENDIX E

[Filed Nov. 3, 1988]

SUPREME COURT

STATE OF NEW YORK

COUNTY OF BRONX

Index No. 8065/87

Justice Florio

JOAN V. HARRIS,

Plaintiff,

-against-

PAUL HIRsH,

Defendant.

ORDER

Upon defendant’s motion for summary judgment to dis-

miss the complaint, and plaintiff having appeared in op-

position, upon all the pleadings and papers filed herein.

and after due consideration of all arguments in support

or opposition thereto, it is hereby ordered that:

Defendant’s motion is granted in its entirety and the

complaint is dismissed.

Oct. 31, 1988

/s/ AF

ANITA FLORIO

Justice, Supreme Court

Bronx County

20a

APPENDIX F

STATE OF NEW YORK

COURT OF APPEALS

At a session of the Court, held at Court of Appeals

Hall in the City of Albany on the twenty-ninth day of

September 1994

Present, Hon. RICHARD D. Simons,

Senior Associate Judge, presiding

Mo. No. 940

JOAN V. HARRIS,

Appellant,

v.

PAUL Hirsu,

Respondent.

A motion for reargument to the Court of Appeals in

the above cause having been heretofore made upon the

part of the appellant herein and papers having been sub-

mitted thereon and due deliberation thereupon had, it is

ORDERED, that the said motion be and the same

hereby is denied with one hundred dollars costs and nec-

essary reproduction disbursements.

Chief Judge Kaye took no part.

/s/ Donald M. Sheraw

DONALD M. SHERAW

Clerk of the Court