Opposition Brief — Koehler v. Illinois Central Gulf Railroad

a rose 4

y JUN 2 1906

No. 85-1848 JOSEPH F. SPANIOL, JR,

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

FRED A. KOEHLER,

Petitioner,

VS.

ILLINOIS CENTRAL GULF RAILROAD COMPANY, a corporation,

Respondent.

On Petition for Writ of Certiorari

to the Supreme Court of Illinois

BRIEF OF RESPONDENT

IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

RICHARD F. NASH

JAMES E. DEFRANCO

GUNDLACH, LEE, EGGMANN, BoyLe &

ROESSLER

5000 West Main Street, Box 692

Belleville, Illinois 62222

(618) 277-9000

Attorneys for Respondent

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

TABLE OF CONTENTS

Page

SP IRIEL CODES FOP Ee i

EP ee ee ii

as koa awe weees esos H

Summary Of Reasons For Denying Petition For Writ

TERT gh ER er oP 3

Reasons For Denying Petition For Writ Of Certiorari .. 3

I. This Court Has Settied The Issue Presented In

Ea eee rn eee ee 3

II. The Decision Of The Supreme Court Of Il-

linois Does Not Conflict With Any Other

GE Sh Ms BY he oe eee wes 6

ED CON ee a eee eu aee ean eoeeeestes )

il

TABLE OF AUTHORITIES

Page

Cases:

Allis-Chalmers Corp. v. Lueck, ___._ U.S. ___., 105

S.Ct. 1904, 85 L.Ed.2d 206 (1985)... ce nsnsenss 5,8

Andrews v. Louisville & Nashville Railroad Co., 406

U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972) .... passim

Belknap, Inc. v. Hale, 463 U.S. 491, 103 S.Ct. 3172,

TT LE A Fe ees 0 0's 6 oka nee 6

Brotherhood of Railroad Trainmen v. Chicago River &

Indiana Railroad Co., 353 U.S. 30, 77 S.Ct. 635, 1

Lee ae Gin CREED vo xc vk eenaeesae nee 3,4

Farmer v. United Brotherhood of Carpenters and

Joiners of America, Local 25, 430 U.S. 290, 97

SCX. 1056, 51 Lb. OB SOR UIST vx ccvtcnesncns 6, 7

Jackson v. Consolidated Rail Corp., 717 F.2d 1045 (7th

Cir. 1983), cert. denied, 465 U.S. 1007, 104 S.Ct.

1G00, 79 L..BG.26 25S CHRO® ogo vkccescavanes SiMe Be Tae

Landfried v. Terminal Railroad Association of St.

Louis, 721 F.2d 254 (8th Cir. 1983), cert. denied,

466 U.S. 928, 104 S.Ct. 1712, 80 L.Ed.2d 185

COTE oo vcceveschatecukenua neue 4

Midgett v. Sackett-Chicago, Inc., 105 Ill.2d 143, 473

N.E.2d 1280 (1984), cert. denied, ____ U.S. __,

106 S.Ct. 278, 88 L.Ed.2d 243 (1985) ............ 8

Minehart v. Louisville & Nashville Railroad Co., 731

a DGS GG GH oo oo keenest, 4

Raybourn v. Burlington Northern Railroad Co., 602

F. Supp. 385 (W.D. Mo. 1985) ..............06. 6

iil

Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89,

99 S.Ct. 399, 58 L.Ed.2d 354 (1978), reh’g denied,

439 U.S. 1135, 99 S.Ct. 1060, 59 L.Ed.2d 98 (1979)

Walker v. Southern Railway Co., 385 U.S. 196, 87 §.Ct.

. Reem RG |) er

Wheeler v. Caterpillar Tractor Co., 108 Ill. 2d 502, 485

N.E.2d 372 (1985), cert. denied, __. U.S. ___.,

6 S.Ce. 1661, W.... LB. 2d... (1906) ........;

Statutes:

Energy Reorganization Act, § 210, 42 U.S.C. § 5851 ...

Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60 ..

Labor Management Relations Act, § 301, 29 U.S.C.

a eS is khan deh 6054-0008 Ceenne se

National Labor Relations Act, §§ 7 and 8, 29

SS ea 6 ee

Railway Labor Act, § 153 First(i), 45 U.S.C. § 153

Se er rr Peer ree eee ee eee

3,4

5, 6

No. 85-1848

IN THE

Supreme Court of the United States

OcTOBER TERM, 1985

Frep A. KOEHLER,

Petitioner,

vs.

ILLINOIS CENTRAL GULF RAILROAD COMPANY, a corporation,

Respondent.

On Petition for Writ of Certiorari

to the Supreme Court of Illinois

BRIEF OF RESPONDENT

IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

Petitioner is a railroad employee covered by the Railway

Labor Act (45 U.S.C. §§ 151-162) (‘‘RLA’’). On December 12,

1979, respondent’s chief medical officer disqualified petitioner

from employment based on petitioner’s medical condition. Peti-

tioner filed a grievance for wrongful discharge. After his

grievance was denied at the first and second levels of the

grievance procedures, petitioner presented his grievance to the

National Railroad Adjustment Board (‘‘NRAB?’’) pursuant to

ot to

§ 153First(i) of the RLA and the terms of the collective bargain-

ing agreement between his union and respondent. The NRAB

ruled in favor of petitioner based on an opinion by a panel of

three physicians that petitioner was able to return to work, and

ordered respondent to reinstate petitioner with full retroactive

seniority.

This action for wrongful discharge was filed in the Twentieth

Judicial Circuit, St. Clair County, Illinois, prior to the NRAB’s

reinstatement of petitioner. Petitioner alleged in his complaint

that he was discharged in retaliation for filing a claim under the

Federal Employers’ Liability Act (45 U.S.C. §§ 51-60). The trial

court denied respondent’s motion to dismiss based on RLA

preemption but certified its interlocutory order for review. The

appellate court reversed the trial court on the basis that an

employee covered by a collective bargaining agreement could

not maintain an action for wrongful discharge. After a com-

plicated procedural course, the Supreme Court of Illinois

reviewed the issue certified by the trial court and determined

that petitioner’s retaliatory discharge claim was nothing more

than a reformulation of his grievance. The Supreme Court of

Illinois followed this Court’s decision in Andrews v. Louisville

& Nashville Railroad Co., 406 U.S. 320, 323-25, 92 S.Ct. 1562,

1565-66, 32 L.Ed.2d 95 (1972) and the Seventh Circuit’s deci-

sion in Jackson v. Consolidated Rail Corp., 717 F.2d 1045, 1049

(7th Cir. 1983), cert. denied, 465 U.S. 1007, 104 S.Ct. 1000, 79

L.Ed.2d 233 (1984) and held that petitioner’s wrongful

discharge claim was preempted by the RLA and that his ex-

clusive remedy was provided by that Act. Koehler v. Illinois

Central Gulf Railroad Co., ____ Ill.2d ___,____, 488 N.E.2d

542, 546 (1985).

SUMMARY OF REASONS FOR DENYING

PETITION FOR WRIT OF CERTIORARI

This Court held in Andrews that actions for wrongful

discharge by railroad employees are preempted by § 153First(i)

of the RLA. Every federal circuit that has considered this issue

has held that an action in tort for retaliatory discharge by a

railroad employee is preempted by that section, and no state or

federal court has held otherwise.

REASONS FOR DENYING PETITION

FOR WRIT OF CERTIORARI

I. This Court Has Settled The Issue Presented In This Case.

Congress enacted the Railway Labor Act to promote stability

in labor-management relations in the national railroad industry.

Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 94, 99

S.Ct. 399, 402, 58 L.Ed. 2d 354 (1978), reh’g denied, 439 U.S.

1135, 99 S.Ct. 1060, 59 L.Ed. 2d 98 (1979). Among the provi-

sions of the RLA designed to provide remedies for the resolu-

tion of disputes between railroads and their employees is 45

U.S.C. § 153First(i). Under § 153First(i), disputes between an

employee and a railroad concerning the interpretation of the

terms of a collective bargaining agreement are within the ex-

clusive jurisdiction of the NRAB. Andrews, 406 U.S. at 325, 92

S.Ct. at 1565. The predecessor to the current § 153First() pro-

vided voluntary machinery to resolve these minor disputes. The

failure of the voluntary machinery to resolve a large number of

these minor disputes threatened to disrupt transportation ‘‘in

this most important national industry.’’ Brotherhood of

Railroad Trainmen v. Chicago River & Indiana Railroad Co.,

353 U.S. 30, 40, 77 S.Ct. 635, 640, 1 L.Ed. 2d 622 (1957). To

avoid interruption of interstate transportation by tail, Congress

mandated that the parties submit their minor disputes to the

NRAB for resolution. Andrews, 406 U.S. at 322, 92 S.Ct. at

1564; Walker v. Southern Railway Co., 385 U.S. 196, 198, 87

—_

S.Ct. 365, 366, 17 L.Ed. 2d 294 (1966). Congress considered it

essential that these minor disputes be kept within the NRAB and

out of the courts. Sheehan, 439 U.S. at 94, 99 S.Ct. at 402;

Trainmen, 353 U.S. at 40, 77 S.Ct. at 640.

In Andrews, a railroad worker alleged that the defendant

railroad had wrongfully discharged him when it refused to allow

him to return to work following an automobile accident. This

Court carefully considered the nature of wrongful discharge

claims and their relationship to the clear Congressional! intent

embodied in the Railway Labor Act. This Court held:

The fact that petitioner characterizes his claim as one for

*‘wrongful discharge”’ does not save it from the Act’s man-

datory provisions for the processing of grievances. ...

[T]he only source of petitioner’s right not to be discharged,

and therefore to treat an alleged discharge as a

‘“‘wrongful’’ one that entitles him to damages, is the

collective-bargaining agreement between the employer and

the union. ... Thus petitioner’s claim, and respondent’s

disallowance of it, stem from differing interpretations of

the collective-bargaining agreement. ... His claim is

therefore subject to the Act’s requirement that it be sub-

mitted to the Board for adjustment.

Andrews, 406 U.S. at 323-24, 92 S.Ct. at 1565.

Every federal circuit court that has considered this issue has

held that § 153First(i) of the RLA preempts all retaliatory

discharge actions by railroad employees against their employers.

Jackson, 717 F.2d at 1054; Landfried v. Terminal Railroad

Association of St. Louis, 721 F.2d 254, 255 (8th Cir. 1983), cert.

denied, 466 U.S. 928, 104 S.Ct. 1712, 80 L.Ed.2d 185 (1984);

Minehart v. Louisville & Nashville Railroad Co., 731 F.2d 342,

344-45 (6th Cir. 1984). In Jackson, the Seventh Circuit reason-

ed that ‘retaliatory discharge’’ is one variety of ‘‘wrongful

discharge’ and rejected the argument petitioner asserts here

that a railroad employee may avoid the exclusive administrative

=r

remedy provided by the RLA because his retaliatory discharge

cla'm implicates certain rights allegedly not arising from the

collective-bargaining agreement. 717 F.2d at 1049-51. Respon-

dent’s determination that petitioner was medically disqualified

from performing railroad work and petitioner’s belief that he

was unjustly dismissed ‘‘stem from differing interpretations of

the collective-bargaining agreement.’’ See Andrews, 406 U.S.

at 324, 92 S.Ct. at 1565. Thus, irrespective of the label peti-

tioner places on his wrongful discharge claim, the Congressional

mandate that minor disputes be settled by the NRAB will be

defeated if petitioner is permitted to relitigate this dispute in the

state courts after it was properly settled by the NRAB.

This Court recently reiterated the principle that a party may

not avoid exclusive federal administrative remedies for labor

disputes by characterizing a grievance as a tort action. Allis-

Chaimers Corp. v. Lueck, __. U.S. ____, 105 S.Ct. 1904, 85

L.Ed. 2d 206 (1985). In Lueck, this Court held that the scope of

the preemptive effect of § 301 of the Labor Management Rela-

tions Act (29 U.S.C. § 185(a)) (“SLMRA’’) extended to tort suits

which could have been brought as grievances. 105 S.Ct. at

1916.

The rationale of Lueck mandates the conclusion that

§ 153First(i) of the RLA preempts plaintiff’s action for wrongful

discharge. Section 301 of the LMRA provides voluntary

machinery for the resolution of disputes arising out of the inter-

pretation of collective-bargaining agreements similar to the

voluntary dispute resolution machinery provided in the

predecessor to § 153First(i) of the RLA. Congress amended

§ 153First(i) by replacing the vol/untary administrative remedy

with a compulsory administrative remedy. Thus, the impor-

tance of preempting state claims which interfere with federal ad-

ministrative dispute resolution machinery is even stronger under

the RLA than under the LMRA:

Indeed, since the compulsory character of the ad-

ministrative remedy provided by the Railway Labor Act

a

a en

for [wrongful discharge] disputes such as that between

petitioner and respondent 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 that Act than it is |

in cases arising under § 301 of the LMRA. |

Andrews, 406 U.S. at 323, 92 S.Ct. at 1565. Since § 301 of the

LMRA preempts tort suits which could have been brought as

grievances, § 153First(i) of the RLA must preempt a tort action

for wrongful discharge which was originally submitted to the

NRAB as a minor dispute.

me

Petitioner cites only one case, Raybourn v. Burlington North-

ern Railroad Co., 602 F. Supp. 385 (W.D. Mo. 1985), in which

a tort action by a railroad employee was not preempted by the

RLA. Raybourn has no application here. In that case plaintiff

alleged false arrest and false imprisonment. Raybourn did not

involve wrongful discharge. In fact, the Raybourn court agreed

in dicta ‘‘that wrongful discharge cases are within the exclusive

jurisdiction of the [Railway] Adjustment Board.” 602 F. Supp.

at 387 n.3.

Il. The Decision Of The Supreme Court Of Illinois Does Not

Conflict With Any Other Decision.

Petitioner argues that the decision of the Supreme Court of

Illinois conflicts with decisions of this Court and other decisions

of the Supreme Court of Illinois. None of the decisions discuss-

ed by petitioner concern the preemption of wrongful discharge

claims of railroad workers under the RLA, and all of those deci-

sions are consistent with the decision of the Supreme Court of

Illinois in this case.

Petitioner suggests that the decision of the Supreme Court of

Illinois in this case conflicts with Belknap, Inc. v. Hale, 463

U.S. 491, 103 S.Ct. 3172, 77 L.Ed. 2d 798 (1983) and Farmer v.

United Brotherhood of Carpenters and Joiners of America,

Local 25, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed. 2d 338 (1977).

Neither case is applicable to this case because both cases decided

issues concerning preemption based on the primary jurisdiction

of the National Labor Relations Board (‘‘NLRB’’) to hear un-

fair labor practice charges under §§ 7 and 8 of the NLRA and

not preemption based on the exclusive jurisdiction of the NRAB

to resolve minor disputes between railroads and their

employees.

The Supreme Court of Illinois properly recognized that the

issue here is controlled by Andrews and other cases construing

the preemptive effect of § 153First(i) of the RLA and not cases

deciding the preemptive effect of §§ 7 and 8 of the NLRA. In

Jackson, the Seventh Circuit distinguished the bases for

preemption under the two statutes:

[T]he difference between the impact of the NLRA and the

RLA has significance. The focus of the NLRA is on

specific conduct that Congress has deemed subject to

either prohibition or protection, 29 U.S.C. §§ 157-158.

Often, as illustrated by Sears, [Roebuck & Co. v. San

Diego County District Council of Carpenters, 436 U.S.

180, 98 S.Ct. 1745, 56 L.Ed. 2d 209 (1978)], it is the objec-

tive of certain conduct, rather than the mere existence

thereof, that is relevant to determining whether actions are

protected or prohibited by the NLRA. In contrast, the

RLA has made any grievance arising out of the collective-

bargaining agreement subject to the exclusive arbitral

remedies contained in that Act, 45 U.S.C. § 153First(i). It

follows from this difference that a state claim is more likely

to impinge on an area of exclusive administrative jurisdic-

tion under the RLA than under the NLRA.

717 F.2d at 1052. | :

Moreover, the Seventh Circuit and the Supreme Court of II-

linois reasoned that even if Farmer were to apply to cases arising

under the RLA, permitting petitioner to reformulate his

= om

grievance as a tort action would ‘‘unduly interfere with the

dispute-resolution machinery of the RLA.’’ Koehler, 488

N.E.2d at 546, Petitioner’s Appendix at 12; see Jackson, 717

F.2d at 1054.

Finally, petitioner suggests that the decision of the Supreme

Court of Illinois in this case conflicts with Wheeler v. Cater-

pillar Tractor Co., 108 1.2d 502, 485 N.E.2d 372 (1985), cert.

denied, ___ U.S. ___, 106 S.Ct. 1641, ___—~ L.Ed.2d ___

(1986) and Midgett v. Sackett-Chicago, Inc., 104 Ill.2d 143, 473

N.E.2d 1280 (1984), cert. denied, ___. U.S. ___., 106 S.Ct.

278, 88 L.Ed.2d 243 (1985) (Petition at 26). It is clear that no

conflict exists. Wheeler addressed the issue of preemption based

on § 210 of the Energy Reorganization Act (42 U.S.C. § 5851)

and not preemption under the RLA. Midgett did not discuss the

issue of preemption. Thus, neither decision could conflict with

the court’s decision here that § 153First(i) preempts a tort action

by a railroad employee for retaliatory discharge.

Furthermore, this Court should not review this case based on

petitioner’s argument that the decision of the Supreme Court of

Illinois conflicts with that court’s decisions in Wheeler and

Midgett. This argument is more properly addressed to the

Supreme Court of Illinois, which rejected it when it denied peti-

tioner’s petition for rehearing. The writ of certiorari should not

be used to review the Supreme Court of Illinois’ determination

that its decisions are consistent with one another. See Supreme

Court Rule 17.1(b).

The decision of the Supreme Court of Illinois follows this

Court’s decision in Andrews and the uniform decisions of the

circuit courts and is also in harmony with this Court’s decision

in Lueck. No reasons exist for this Court to review this case.

=e

CONCLUSION

For the foregoing reasons, respondent respectfully requests

this Court to deny the Petition for Writ of Certiorari.

Respectfully Submitted,

Richard F. Nash

James E. DeFranco

Gundlach, Lee, Eggmann, Boyle &

Roessler

5000 West Main Street

Box 692

Belleville, Illino's 62222

(618) 277-9000

Attorneys for Respondent

lilinois Central Gulf Railroad

Company