Petition for Writ of Certiorari — McCall v. Chesapeake & Ohio Railway Co.

1)

8 Rg ~ 5 Supreme Court, USL

FinLeBD

JUN 30 1988

No. 87-

stitches “NOL, JR

TTERK

IN THE

Supreme Court of the United States

October Term, 1987

GERARD W. McCALL,

Petitioner,

V.

CHESAPEAKE & OHIO RAILWAY COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Charles W. Palmer

Robb Messing & Palmer P.C

20600 Eureka Road

Suite 315

Taylor, MI 48180

(313) 284-5550

George R. Thompson

309 East Front Street

Traverse City, MI 49684

(616) 929-9700

Co-Counsel for Petitioner

June 30, 1988

(i)

QUESTION PRESENTED

Does arbitration pursuant to § 153 Second of the

Railway Labor Act preempt state handicap discrim-

ination claims which do not involve interpretation

of the collective bargaining agreement?

(iii)

TABLE OF CONTENTS

Page

ce Pope e PL. 2 0 ra (i)

bp a ey — . (iv)

ask ase s ene baw ees 9000 sepas 2

aS SE eee ee 2

ec ines lk bee eb eens Ha 2

ne SEE re 2

Ey POCO OIOW. 0 ww ccc ence 4

REASONS FOR GRANTING THE WRIT............... 5

The Sixth Circuit Opinion Severely

Restricts The Rights Of States To

Enforce Handicap Discrimination

Laws On Behalf Of All Of Its Citizens

ee |. er 5

B. The Important State

Interests Involved...................... 9

C. The Opinion of the Sixth

Circuit Directly Conflicts

with Several Decisions of

gl SR rr 12

re cnet Cakuewss0eeseenevsens 19

(iv)

TABLE OF AUTHORITIES

Cases:

Alexander v. Gardner-Denver Co.,

415 U.S. SB (1974)... cc cece ence

Allis-Chalmers v. Lueck,

471 U.S. 202 (1985)........2.0..000e.

Atchison, Topeka & S.F. Ry. v. Buell,

480 U.S. ___ (1967)................:.

Barrentine v. Arkansas-Best Freight

System, Inc., 450 U.S. 728 (1981)......

Carr v. General Motors Corp.,

425 Mich. 313, 389 N.W.2d 686 (1986). . .

Colorado Anti-Discrimination

Comm'n v. Continental Airlines,

372 U.S. 714 (1963)..........000 22.

Commonwealth Edison Co. v. Montana,

453 U.S. 609, 634 (1981)..............

Fort Halifax Packing Co.,

Inc. v. Coyn, 482 U.S. (1987). ..........

a ee eS a

(v)

Cases: (Coritinued)

Lingle v. Norge Div. of Magic Chef, Inc.,

POs Pe CTOs 6 os hoe eee bau 14, 15, 16, 19

McDonald v. West Branch,

Sr Se ee I, i aie Sac ada 8, 14, 15, 16

Metropolitan Life Ins. Co.

v. Massachusetts,

GFt Ge PC, 63k 2 0 0 hace eb Ss eee ee 14

Orzel v. Wauwatosa Fire Dept.,

Gr Fase Pe ere es So os a kk ee 13

Rosenfeld v. Southern Pacific Co.,

G66 FS TR Ge Gs Fe ke kee ee 13

Terminal Railroad Ass'n v. Trainmen,

Bier Ghee P CUES bs oo bach eb aise phase ee 6

Weeks v. South Bell Telephone

and Telegraph Co.,

408 F.2d 288 (5th Cir., 1969)................. 13

Western Air Lines v. Criswell,

472 U.S. 400 (1985)

(vi)

Statutes: Page

SUA: b TRIM. .. o.oo cccecivdcnscuaauneeusan 2

29 U.S.C. § 185(a).. 0... ccc eee eee cece uees 11

45 U.S.C. $6 151 OF O0G.. . 0 cc ccc cccccccsecs passim

Mich. Comp. Laws Ann. § 37.1102, ef seq......... 16

Mich. Comp. Laws Ann. § 37.1103(b)............ 17

Mich. Comp. Laws Ann. § 37.1202(1)(b)(c)(e). . . . . 17

Employment Retirement Income

Security Act of 1974

(ERISA) 29 U.S.C. § 1144... 0.00 eee 14

Labor-Management Relations

Act (LMRA) § 301,

BP CRAB. B TG oc cc cceécccescesscecsesews 11

Michigan Handicappers’ Civil Rights

Act (MHCRA), Mich. Comp. Laws

Ann. § 37.1101 ef seq. (1985)............. passim

National Labor Relations Act (NLRA),

29 U.S.C. §§ 151 ef seq... .. 2... oe ee ee ee 11

Railway Labor Act,

45 U.S.C. § 153 Second................... 4,5,6

ee

(vii)

Statutes: (Continued)

Rehabilitation Act of 1973

29 U.S.C. 794 (1973) 1(

U.S. Census Bureau & Bureau of

Labor Statistics

Current Population Survey 1987

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

No.

GERARD W. McCALL,

Petitioner,

Vv.

CHESAPEAKE & OHIO RAILWAY COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner Gerard W. McCall respectfully prays

that a writ of certiorari issue to review the judg-

ment opinion of the United States Court of Appeals

for the Sixth Circuit entered in this proceeding on

April 4, 1988.

OPINIONS BELOW

The opinion of the District Court for the Eastern

District of Michigan, Southern Division, denying Re

spondent’s Motion to Dismiss was not reported, but

is reproduced in the Appendix. The opinion of the

Court of Appeals, not yet reported, appears in the

Appendix hereto

JURISDICTION

The judgment and opinion of the Court of Appeals

for the Sixth Circuit was issued on April 4, 1988

This Petition for Certiorari was filed within 90

Gays of that date This Court's jurisdiction is in

voked under 28 U.S.C. §1254(1

STATEMENT

A. Facts.

Petitioner Gerard W. McCall wasehired by Chesa

peake & Ohio Railway Company (hereinafter re

as C&O) as a locomotive fireman in 1956

until June 13, 1983, Mr. McCall worked

for C&O as a locomotive engineer

Trial tran

script, hereinafter referred to as Tran., Vol. Ill, pp

59-6, 18.) Petitioner was first diagnosed as a dia

petic in 1969. From 1969 until January, 1982, Pe

titioners adult-onset diabetes was treated with

the use of oral hypoglycemic agents. In 1982, be

cause he was experiencing leg cramps, Petitioner

was hospitalized to convert to the use of insulin to

control his diabetes After conversion to insulin,

Mr. McCall returned to work with a slip indicating

he had undergone conversion to insulin and could

return to work as of February 8, 1982 (Hailer Dep.

Tran. - 5, Plaintiff's trial exhibit No. 3).

After conversion to insulin, Mr. McCall continued

to work as an engineer for almost 18 months. On

May 27, 1983, Petitioner underwent his required

semi-annual physical examination for the railroad.

At that time, the railroad medical office noted that

Mr. McCall was taking insulin for the control of his

diabetes. On June 13, 1983, Mr. McCall was re-

moved from service ostensibly because his dia-

betes was controlled by the use of insulin (Tran.

Vol. Ill, p. 18). Respondent claimed that Petitioner

was removed from his job as an engineer because

company policy prohibited employees who took in-

sulin from working in locomotive engine service.

The railroad's policy was a blanket exclusion of all

insulin-taking diabetics and did not allow for indi-

vidual consideration. (Plaintiff's trial exhibit No.

7.) However, at the time the policy was instituted,

the Respondent “grandfathered" employees who

were already working and using insulin to control

their diabetes.

On September 1, 1983, Petitioner's union repre-

sentative requested that Petitioner be permitted to

exercise his seniority and to return to work as a

fireman on the railroad. This request was pursuant

to a provision in the collective bargaining agree-

ment which aliowed an employee who was medical-

ly disqualifies us an engineer to return to work as

a fireman. Aso on September 1, 1983, Petitioner's

TF

union representative requested the appointment of

a three doctor panel to consider Petitioner's re-

moval from service pursuant to the collective bar-

gaining agreement. This panel was provided for un-

der the minor dispute resolution provisions of the

Railway Labor Act, 45 U.S.C. § 153 Second. The

three doctor panel upheld the C&O policy and ruled

2-1 that Petitioner was disqualified from continu-

ing work as an engineer or a fireman. (Plaintiff's

trial exhibits No. 2, Defendant's exhibit No. 7.)

B. Proceedings Below.

Petitioner then brought an action in the local

State court, alleging that C&O's blanket rule dis-

qualifying him from working as a result of taking

insulin to control his diabetes violated the protec-

tions of the Michigan Handicappers’ Civil Rights Act

(MHCRA), Mich. Comp. Laws Ann. § 37.1101 et seg.

(1985). The state court action was removed to the

Federal District Court for the Eastern District of

Michigan, Southern Division, on the grounds of di-

versity.

While the action was pending before the District

Court, C&O filed a motion contending that Petition-

er's state court action pursuant to the Michigan

Handicappers’ Civil Rights Act was preempted by

the Railway Labor Act. The district court denied

the motion. (See reproduced transcript of the Dis-

trict Court's Opinion, Appendix pp. 1a-3a.)

The case proceeded to a jury trial which found in

favor of Petitioner and awarded him damages in the

LTTE eT

amount of $328,000.00. The judgment in favor of

Petitioner was vacated by the Sixth Circuit Court

of Appeals with instructions to dismiss. The Sixth

Circuit held that Michigan's Handicappers’ Civil

Rights Act required the jury to make the identical

decision made by the three doctor panel esta-

blished pursuant to § 153 of the Railway Labor Act

and, therefore, was preempted by that Act. (See

copy of the Sixth Circuit Opinion attached in the

Appendix, pp. 4a-23a.)

REASONS FOR GRANTING THE WRIT

THE SIXTH CIRCUIT OPINION SEVERELY

RESTRICTS THE RIGHTS OF STATES TO

ENFORCE HANDICAP DISCRIMINATION LAWS

ON BEHALF OF ALL OF ITS CITIZENS

The Sixth Circuit opinion improperly restricts the

States’ ability to protect all of its citizens from

handicap discrimination. If allowed to stand, the

opinion below could affect millions of workers who

have arbitration remedies available through a col-

lective bargaining agreement. The Sixth Circuit

opinion violates established precedent of this

Sourt which allows independent statutory rights to

be vindicated in the courts, despite the availability

of arbitration procedures pursuant to collective

bargaining agreements.

A. The Railway Labor Act

The Railway Labor Act (RLA), 45 U.S.C. 151 ef seq.,

was originally passed by Congress in 1926 to pre-

vent interruption in interstate commerce by

Strikes and other labor-management disputes. It

provides a mechanism for the resolution of "minor"

disputes between railroads and their employees.

Section 151 of the Act indicates that it was enact-

ed to". . . Provide for the prompt and orderly settle-

ment of all disputes concerning rates of pay, rules,

or working conditions." With regard to such "mi

nor" disputes, the Act establishes an exclusive

mechanism for the arbitration of disputes regard

ing interpretation or application of the collective

bargaining agreement. Terminal Railroad Ass'n v

Trainmen, 318 U.S. 1, (1943),

Several decisions of this Court have clearly indi

cated that the RLA does not preempt all state law

which may affect railroad employees. In Terminal

Railroad Ass'n v. Trainmen, supra, this Court was

asked to decide whether the State of Illinais could

enforce a law requiring failraads ta previde 6a

booses on all trains operated within iilineis state

boundaries. The state claimed the eabooses were

necessary to protect the health and safety of the

workers at the end of the train In analyzing

whether the Illinois regulation was preempted,

this Court stated at 318 US, 7

But it cannot be that the MInIMUM Fe

quirements laid dow by state autharity

are all set aside. W2 hald thal the enact

ment by Congress cl the Hallway Labor

Act was not a preeiption af the field af

regulating working conditions themselves

and did not preclude tli@ Siale af iilinois

from making the ordef If question

Furthermore, it is equally clear that

Congress did not intend to preempt dis-

crimination law by enacting the RLA in

1926. Discrimination is not mentioned

anywhere in the Act, and there is no ex-

plicit provision providing for the pre-

emption of state law in the field on rail-

way working conditions. Given that

preemption is not explicit in the Act, our

analysis must proceed to whether pre

emption may be implied under the cir

cumstances,

in cases of preemption, "the ultimate touchstone"

is Congressional intent. Allis-Chalmers v_ Lueck,

471 U.S, 202 (1985), Given the respect due to the

states in our federal system, there is a strong pre-

sumption against finding Congressional intent to

preempt state laws. Cammeonwealih Edisan Coa. v.

Mentana, 453 U.S, 609, 694 (1981)

in Colorade Anti-Diserimination Comm'n v. Genti

nental Airlines, 3972 U.S, 714 (1963), the petitioner

sued Continental Airlines, alleging that it had vio

lated the state diserimination law against racial

bias iA Hiring, AS IA the instant @ase, the airline

alleged that the Gelerada AA Diseriminatian Aet

was preempted By the ALA

fhe Court rejected this argument, halding inal he

Railway Laber Aet did net preempt Colerade's Anti

Miserimination Aet. This Gourt stated at 972 U.S

724:

There is aven jess f@asen ta say that

Cangrass, in passing the Railway -Lakal

Act and Making eBrAalA Bt ile BFAVIsIaNS

applicable to air carriers, intended to bar

States from protecting employees from

racial discrimination. No provision in the

act even mentions discrimination in hir-

ing. . . . Nothing in the Railway Labor Act

or in our cases suggest that the Act plac-

@S upon an air carrier a duty to engage

only in fair nondiseriminatory hiring

practices. The Act has never been used

for that purpese, and we eannot hold that

it bars Colorado's Anti-Diserimination

Act,

In Atchison, Topeka & S. F. Ry. v. Buell, 480 U.S.

(1987), this Court held that conduct subject

to arbitration under the RLA did not deprive a rail-

road employee of his right to bring a separate Fed-

eral Employers’ Liability Aet (FELA) aetion for

damages. In rejeeting the railraad’s argument, this

Court stated, at 480 U8

The fact that an injury otherwise com

pensable under the FELA was caused by

bonduet that May have been subjeet to

arbitration under the ALA dees nat de

privée ah erpléyee ef his appartunity te

Bring @ FELA aetian tar damages

This Caurt has, an numeraus aeeasians,

declined ta held that individual emplay

868 afe, because of the availability af ar

bitration, barred tram bringing elaims

under federal statutes, See @.g., MeDanald

vy. West Branch, 466 U.S. 284 (1984);

nee eer

Barrentine v. Arkansas-Best Freight Sys-

tem, Inc., 450 US. 728 (1981); Alexander

v. Gardner-Deiver Co., 415 U.S. 36

(1974). Although the analysis of the

question under each statute is quite dis-

tinct, the theory running through these

cases is that notwithstanding the strong

policies enéouraging arbitration, ‘differ-

ent considerations apply where the em

ployee's claim is based on fights arising

out of a statute designed to provide min-

imum substantive guarantees to individu-

al workers,’ Barrentine, supra, at 737,

Therefore, the legislative history, the statute it

self, and the eases interpreting the RLA all point to

a eonelusion that the Aet sannet preempt state

statutes whieh previde independent substantive

state law fights to employees

6. The important State Interests involved

Hy holding that Miehigan's handieap diserimina

tia law i8 preenpted By the Railway Laber Aet

ihe Sixth Gireuit sets a dangeraus preeedent whie”

eauld jeapardize impartant states’ fights in iPe

area al entareing state handicap diseriminatier

laws on behall af all emplayees, whether ar nat ire

eniplayee has a patential arbitration remedy,

Michigan's Handicappers’ Civil Rights Aet (MHCRAY.

Mich. Camp, Laws Ann. § 97.1101 ef seq. was passee

by the Michigan legislature and signed inte law '"

10

1976. \h Catt Vv. General Meters Corp., 425 Mieh, 413,

389 N.W.2d 686 (1986), the Michigan Supreme Court

described the legislative intent; at 425 Mich. 319,

389 N.W.2d 688, as follows:

‘Although Michigan law offers protec-

tion in most situations from discrimi-

nation based on race, color, religion,

national origin, and sex, and in some

situations from discrimination based

on age and marital status, existing law

offers Handicappers (sic, lesa?) than

for others, Traditional attitudes often

work against handicappers even though

the are perfectly capable of performing

the jobs for which they apply’, .

The bill essentially spella out the

above areas of civil righta, now guar

anteed to all, and applies the with

equal force under the law te thia new

category, Handicap persona wish to be,

and, when the legislation is enacted

into law, must be judged and accepted

based on their ability.

MHCRA, as is the case with the handicap civil

rights legislation of many other states, was pat-

terned after the Rehabilitation Act of 1973, 29 U.S.C

794 (1973). Section 504 of the Rehabilitation Act

prohibits handicap discrimination under any program

or activity receiving financial assistance, or under

any program or activity conducted by any executive

agency or by the U.S. Postal Service.

a_i ies i

11

By Hakind the pravisiohs GF the Aet applicable

only te Freeipients Gt federal contracts and other

agencies, Congress clearly left to the states the

freedom to adopt handicap discrimination laws

which suited local public policy. Recognizing the

limited application of the Rehabilitation Act of

1973, and concerned with protecting the rights of

handicap persons, 49 states and the District of Co-

lumbia have passed laws which protect employees

from various forms of handicap discrimination. '

The application of these state handicap diserim)

nation laws to all workers in each state is in jeo

pardy, lt the preemptive effect of the RLA on state

handicap discrimination law is tollowed under

statutes such as the National Labor Relations Act

(NLRA) 29 U.S.C, §151 et seg, and § 301 of the La

bor Management Relations Act, (LMRA) 29 U.S.C. §

188(a), any employee subject to a collective bar

gaining agreement which has a grievance procecure

mechaniam could be prevented from vingivating his

or her separate and independent state-aponsored

right to be free of handicap discrimination.

According to recent statistics published by the

U.S. Department of Labor, over 19% of all U.S. work-

ers are represented by unions, representing poten-

tially 19,051,000 workers who could be deprived of

their state court remedies under the reasoning of

the decision below. (Current Population Survey

1987, US. Census Bureau and Bureau of Labor Sta-

tistics. Therefore, by granting the writ of certio-

rari in the instant case, this Court will decide

whether state handicap discrimination laws apply

to 19 million individual workers.

1 See Vol. 45A, American Jurisprudence Second § 124, pp. 176-

177 for a list of state statutes protecting handicapped workers

from discrimination,

12

C. The Opinion of the Sixth Cireuit

Directly Conflicts With Several

Decisions of This Court

In holding that Petitioner's state law remedy

frustrated the purpose of the RLA, the Court below

held:

We simply hold that when an arbitration

board established pursuant to § 153 See

ond is required by the collective bargain

ing agreement to make the same factual

inquiry regarding physical ability to per

form a job as would be made under the

state act, the federal dispute resolution

process is the sole remedy, (Sixth Cir

cult Opinion, Appendix p. 21a.)

In other words, the opinion below held that be

cause Petitioner had pursued his righta under the

collective bargaining agreement for the violation

of the union contract, he was precluded from pur-

suing whatever remedy he had pursuant to an inde-

pendent state right.In Colorado Anti-Discrimination

Comm'n, supra, this Court held that the RLA did

not preempt the Colorado statute prohibiting dis-

crimination in hiring on account of race.

In the opinion below, Colorado Anti-Discrimination

was distinguished by the bald assertion that handi-

cap discrimination involves different considera-

tions than the issues of race:

13

Preempting the state claim in this case

does not conflict with Colorado Anti-

Discrimination because the statute at

issue in that case regulated racial dis-

crimination, conduct that is not by any

construction a subject for collective bar-

gaining and arbitration. (Appendix p.

19a.)

There is simply no basis in fact or law for distin-

guishing handicap discrimination from race dis-

crimination. In both race and handicap discrimina-

tion an individual is deprived of an employment

opportunity because of membership in a particular

group or class, without regard to individual quali-

fications.

The fact that the state statute requires scrutiny

of Petitioner's medical qualification for work does

not support any distinction between other forms of

discrimination. For example, courts routinely

scrutinize job qualification provisions asserted by

employers to be bona fide occupational qualifica-

tions in age and sex discrimination cases. See

Western Air Lines, Inc. v. Criswell, 472 U.S. 400

(1985); Orzel v. Wauwatosa Fire Dept., 697 F.2d 745

(7th Cir., 1983); cert. denied 464 U.S. 992 (1983);

Weeks v. South Bell Telephone and Telegraph Co.,

408 F.2d 228 (Sth Cir., 1969); Rosenfeld v. South-

ern Pacific Co., 444 F.2d 1219 (9th Cir., 1971).

This Court has held in a number of cases that in-

dependent statutory rights may be litigated despite

the existence of a grievance resolution procedure.

eT ao

14

Nothing in this line of cases supports the distinc-

tion asserted by the Sixth Circuit. Lingle v. Norge

Div. of Magic Chef, Inc., No. 87-259 (1988):

McDonald v. West Branch, supra; Barrentine v. Ar-

kansas Best Freight System, Inc., supra; Alexander

v. Gardner-Denver, supra; Atchison, Topeka & S.F.

Ry. v. Buell, supra.

The mere fact that the state statute in question

pertains to matters which may be the subject of

collective bargaining cannot, by itself, support a

claim of preemption under the federal labor laws.

In Fort Halifax Packing Co., Inc. v. Coyn, 482 U.S.

___, (1987) this Court heid that a Maine statute

requiring employers to provide one time severance

payments to employees was not preempted by the

Employment Retirement Income Security Act

(ERISA) of 1974, nor the National Labor Relations

Act (NLRA). In so holding, this Court rejected the

argument that minimum substantive labor stan-

dards which affect all workers in the state under-

cuts collective bargaining, quoting Metropolitan

Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985),

at48s2 US. ___::

Such regulation provides protection to

individual union and non-union workers

alike, and thus ‘neither encourage(s) nor

discourage(s) the collective bargaining

processes that are the subject of the

NLRA.' /d. at 755. Furthermore, preemption

should not be lightly inferred in this

area, since the establishment of labor;

standards fall within the traditional

15

police power of the state. As a result,

held the Court, ‘(w)hen a state law estab-

lishes a minimal employment standard

not inconsistent with the general legis-

lative goals of the NLRA, it conflicts

with none of the purposes of the Act.’ Id.

at 757.

Furthermore, if handicap discrimination claims

can be preempted by submitting a claim to arbitra-

tion, the union could, without breaching its duty of

fair representation, waive the employee's indepen-

dent statutory rights by failing or refusing to arbi-

trate the dispute. This factor, and several other

important differences between arbitration and ju-

dicial fact-finding, led this Court to hold that in-

dependent statutory rights arising outside of the

collective bargaining agreement may be asserted

despite the availability of arbitration. See A/lexan-

der v. Gardner-Denver, supra, at 51-53, 57-59; Bar-

rentine v. Arkansas; supra, at 742; McDonald v. West

Branch, supra, at 291.

The court below also distinguished Atchison, To-

peka & S.F. Ry. v. Buell on the grounds that the cas-

es cited in Buel! dealt only with federal statutory

rights, not state statutory rights. (See Appendix p.

11a.) This distinction was obliterated by this

Court's recent holding in Lingle v. Norge Div. of

Magic Chef, Inc., supra, when this Court held that a

federal-state distinction was irrelevant to the

question of premption. /d. at

eo

16

The Sixth Circuit opinion held that the District

Court action was preempted because it involved the

same factual questions considered by the railroad

special board of adjustment. The fact that Peti-

tioner had an independent state law remedy which

involved the same factual inquiry as the railway

grievance machinery does not preempt or invalidate

his state law remedy. As this Court held recently

in the case of Lingle v. Norge Div. of Magic Chef,

Inc., supra, a parallel factual inquiry is not enough

to preempt the state cause of action.

lf the principles enunciated by this Court in Lingle

are applicable to RLA preemption, the independent

state action can proceed as iong as resolution of

the state claim does not involve interpretation of

the collective bargaining agreement.

The special adjustment board in this case was

charged with deciding whether Petitioner was

medically qualified to operate a locomotive. The

railroad had a policy of excluding any insulin-

controlled engineer or fireman from train and en-

gine service. Although this rule was touted as a

Safety rule, many insulin-requiring workers were

exempted from the operation of this rule by the op-

eration of grandfathering provision. As applied to

Petitioner, however, this bianket rule precluded

any individual consideration of his ability to safely

perform his work.

Petitioner's state right to be free from handicap

discrimination, pursuant to Mich. Comp. Laws Ann.

§ 37.1102 et seq. is an independent statutory cause

17

of action which does not necessitate an interpreta-

tion of the collective bargaining agreement. In his

claim, pursuant to the MHCRA, the Petitioner had

the burden of proving: (1) that he suffered from a

medical condition which constituted a handicap,

and (2) that his handicap was not related to his

ability to perform his job. (Jury instructions,

Joint Appendix, pp. 40-43.) Mich. Comp. Laws Ann.

§§ 37.1103(b); 37.1202(1)(b)(c)(e).

Although both the jury in the state cause of ac-

tion and the three doctor panel were analyzing the

same facts, they involved distinct, different, and

independent sources of Petitioner's rights, that is,

his collective bargaining agreement and the Michi-

gan Handicappers' Civil Rights Act. As this Court

made clear in Lingle, a similarity of factual in-

quiry is not enough to justify preemption.

The jury found, on the basis of the evidence pre-

sented to it, that the C&O Railroad had deprived

Petitioner of an employment opportunity by classi-

fying him as an insulin-requiring diabetic and

thereby refusing to allow him to continue in his job

as a railroad engineer or fireman.

The jury was not instructed nor required to inter-

pret any provision of the collective bargaining

agreement in reaching its decision. In fact, the

jury was instructed of the result of the three doc-

tor panel and was told they could consider that

fact in making its decision. The jury obviously

gave no evidentiary value to the decision of the

panel and found that Petitioner was entitled to

damages based on Respondent's violation of the

State anti-discrimination law.

18

To hold that Petitioner's state cause of action

was preempted ignores the Congressional purpose

evident in the Rehabilitation Act of 1973 and the

clear precedents of this Court allowing the states

to protect workers from discrimination in the

workplace.

Handicap discrimination is a relatively new area

of law. This Court should grant review in this case

to better define the limits which federal law can

impose on state exercise of the police power with

respect to handicap discrimination. State handicap

discrimination laws should be given the same re-

spect accorded state laws prohibiting other forms

of invidious discrimination.

19

CONCLUSION

For these reasons the petition for writ of certio-

rari should be granted, or in the alternative, the

Sixth Circuit opinion should be summarily reversed

and remanded for consideration of this Court's de-

cision in Lingle v. Norge Div. of Magic Chef, Inc.

June 30, 1988

Respectfully submitted,

Charles W. Palmer

20600 Eureka Road

Suite 315

Taylor, MI 48180

(313) 284-5550

George R. Thompson

309 East Front Street

Traverse City, MI 49684

(616) 929-9700

Attorneys for Petitioner

UNITED STATES OF AMBRIDNA

UNITED STATES DiSTHIET GON

POR THE BASTRAN DITRIOT OF MIRMIGAN

BOUTHERN DIVIBION

HARMAN W. Me OALL,

AU LULLLAE

Va Civil Aetian

# 44-OV-28399DT

CHESAPEAKE & OHIO RAILWAY

COMPANY, a Virginia corporation

qualified in Michigan,

Defendant,

Pee Fin a /

Excerpt of proceedings held before the HONORABLE AVERN

L, COHN, Distriet Judge, United States Distriet Court, on

Monday, Oetober 10, 1984, at 255 United States Courthouse

and Federal Building, Detroit, Miehigan.

APPEARANCES:

ROBB, DETTMER, MESSING & THOMPSON, P. C.

20600 Eureka, Suite 315

Taylor, Michigan 48180

(By Charlies W. Palmer, Esq.)

Appearing on behalf of the Plaintiff.

SMITH & BOOKER, P. C.

2100 North Woodward Avenue

Suite 159

Bloomfield Hills, Michigan 48013

(By A. T. Lippert, Jr., Esq.)

Appearing on behalf of the Defendant.

|

va Halal, Minhiqal

Malay, Hnlaber 1) 1 athe

HROOQUAT: Tile a @ Qaae bravall wieder We Miahige

raneeenners Oivil Alana Ae, Miehiaal Slaluiea Annalaled

Aaah) et aAq

Pliaintitt la a laeamative engineer PBetendant haa as-

charged Nim because af hie neulin dependent diabetes and a

ruling by a Special Adjusiment Beard and the Hallway Labor

Act 45 U.S.C, 181 ef seqg., that he “should net be permitted to

be an engineer/fireman while taking insulin,"

Defendant has moved to dismiss, arguing the Federal Pre-

emption, particularly the dispute resolution mechanism of

the Labor Act and 29 U.S.C, 701 eft seq, relating to rehabili-

tation services,

Defendant is wrong,

Judge Stewart Newblatt, in a Mermorandur Opinion and Or

der of July 18, 1084, in Hopson versus Chesapeake & Ohi,

83 GCV8230, has explained why there is ho pre-emption,

There is simply hothing in the Railway Labor Act dealing ias

it does with dispute resolution of individual grievances of

carriers, employees and bargaining agents’ complaints ™®

suggest pre-emption of a public law created right.

The lack of pre-emption of the State Anti-Discriminatiqayp,

Laws aptly support this conclusion.

Likewise, there is nothing in the Statute relating to retna

bilitation services. Suggesting thal it pre-empts the proayj.

sion of the Michigan Handicappers Civil Rights Act.

On the contrary, the Michigan Handicappers Civil Rigynts

Aci coniers righis much the same way as the State Ainti-

Discrimination Laws eanler rights. And, while ii is nal

A

S%

Osa at the principals of Alexander versus Gardner Den

ver Company. 445 US. 3 would apply to the State Law, on

der the Michigan Haridicappers Civil Rights Act, under State

Law, until if is shown fo the contrary, | will assume that the

Law of Michigan is as laid out in Alexander versus Gardner

Denver Company.

Accordingly, the Motion to Dismiss is denied.

The Court does observe that the report of the Special Ad-

justment Board may be admitted as evidence and accorded

such weight as the Court deems appropriate. Gardner Den-

ver, super, [sic] U.S. at 60.

Thank you.

No. 86-1462

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GerarD W. McCait,

Plaintiff-Appellee, Ow Apreat from the

v. Unsted States District

, | Court for the Eastern

CuesaPeske & Ono Ramway .

Conan Diustmect of Michigan.

Derendam-Appetlant.

Ree MERRITT, MARTIN aa WELLPORD, Orcwer

BRN

MERRITT, Cirvown Judge. The Cheaapeake & Obi Rav

way Company appeals a jury verdict awarding $328,000 to

plaintiff Gerard W. MeCall as damages for a violation of the

Michigah Handicappers’ Civil Rights Act, Mich. Comp.

Laws Ann. § 37.1101 ef seg. (1985)." We hold that the Michi-

"The Handicappers’ Act, in relevant part, provides:

(1) An employee shall not:

—

I

made by an arbitration board established pursuant to the

Railway Labor Act, 45 U.S.C. § 153 Second (1982), and that

therefore the Michigan statute is preempted in this case by

the Railway Labor Act. We therefore vacate the decision of

the District Court, and remand with instructions to dismiss

the case.

(b) Discharge or otherwise discriminate against an individual

with respect to compensaticn or the terms, conditions, or priv-

ileges of employment, because of a handicap that is unrelated

to the individual's abslity to perform the duties of 2 particular

job or position.

Mich. Comp. Laws Ann. § 37.1202.

*Secnon [53 Second of the Ba:lway Laber Act provides that carmers.

ssSiems, or groups of carmers may. acting through ther representatives.

cNadiis® “system, group, ar regonai Deards af adjustment for the gur-

juse of adjusung and deoding disputes of ite laracter specie

ims sexuee.~ Trese “cqiunianiy csaiiisted Qwards Tray, 2) agreement,

“eeake Disguies Whed? squid gifterwse Je efensihe We Ne Natoma

Rairead Adena Reed) Whe? a ctaltated Qn 4 LAC FS

SN, Rese Ae Rae Neared he BPI TUD, HSH GIAQUIRR Pah-

Ah HAIR BID SPEARS TVA TT ta SAMA LUND EN

SOD FY BO QOPI) Dy VORP SUDINRY! RaW) Shel)

SATAN FAO BPROMORL COA A”

The ACL PROVES FRR A VOHUR ERE) GXERDH ARR Dowed shall comvit

OF OME Perron designated Dy Che carrier ahd OMe Peron cevignated by

the representatives of the employees. Tf the two members of the board

are “whable to agree upon an award disposing of the dispute or group

of disputes they shall by mutual agreement select a neutral person to

be a member of the board. .. . [A]wards shall be final and binding upon

both parties to the dispute... . Compliance with such awards shall be

enforcible by proceedings in the United States district courts in the

same manner and subject to the same provisions that apply to proceed-

ings for enforcement of compliance with awards of the Adjustment

Board.”

———————

lia ia i ;

6a

Plaintiff-appellee Gerard W. McCall was hired in 1956 by

the Chesapeake & Ohio Railway Company (C&O) as a loco-

motive fireman. In 1961, he was qualified as an engineer.

Although he did not begin working as an engineer immedi-

ately upon qualification due to lack of seniority, McCall

worked regularly as an engineer from 1967 until June 13,

1983.

In 1969, when McCall was approximately 36 years old, he

was diagnosed as suffering from adult onset diabetes mellitus.

From 1969 until 1982, the diabetes was controlled with the

use of oral hypoglycemic agents. By 1982 the effectiveness

of the oral medication had lessened. McCall was hospitalized

in January 1982 for conversion to treatment by insulin injec-

tions. McCall's doctor, Dr. William Hailer, provided him

with a return to work slip which specified that McCall had

been under his care for diabetes mellitus, conversion to insu-

un, and hypertension. McCall returned to work on February

3, 1982.

In June 1983, McCall was removed from service because

re controlled his diabetes with insulin. (The record does not

ndicate why C&O was either unaware of or did not act on

McCall's status as an insulin-requiring diabetic prior to that

jate.) McCall was told that C&O policy required that insu-

in-requiring diabetics not be permitted to drive mobile

*quipment, work in proximity to dangerous or moving equip-

nent, work at unprotected elevations, or work alone. Because

‘ailroad engineers obviously work in close proximity to mov-

ng equipment, McCall was removed from service. At the

‘equest of the local, the chairman of the Brotherhood of Loco-

notive Engineers wrote a letter to the railroad requesting that

McCall be returned to service. This letter was accompanied

»y a letter from Dr. Hailer stating his opinion that McCall's

liabetes was under control and that McCall could return to

vork.

a

7a

Under the collective bargaining agreement, an engineer

who was medically disqualified could exercise his seniority

to work as a fireman if he was physically qualified to do so.

However, the railroad refused to allow McCall to work as

a fireman because the same safety considerations were appli-

cable.

Addendum 27 of the collective bargaining agreement pro-

vides for the appointment of a three member board to review

findings of physical disqualification.? The company and the

disqualified engineer each select one physician; the third phy-

sician is selected by the two other physicians. The agreement

provides that the findings of the medical board are final and

binding. This dispute resolution structure is the type of vol-

untary adjustment board provided for by the Railway Labor

Act, 45 U.S.C. § 153 Second (1982). A review board was

established to review McCall's case; the board ruled 2-1 that

McCall could not continue work as an engineer or fireman.

McCall then brought an action in state court alleging that

C&O had violated the Michigan Handicappers’ Civil Rights

Act, Mich. Comp. Laws Ann. § 37.1101 ef seg. (1985). The

action was removed to federal court on diversity grounds.

C&O moved to dismiss, asserting that the exclusive remedy

available to McCall is the review board provided for in the

3addendum 27 applies specifically to locomotive engineers. It pro-

vides that when a carrier's chief medical examiner finds an engineer

to be physically disqualified and the union does not agree that the eng)-

neer’s condition justifies removal from service, an appeal may be made

within 60 days. On appeal, a three member medical board examines

the engineer. The board consists of the carrier's chief medical exam-

iner, a physician selected by the union, and a third member agreed

upon by the other two physicians. Finally, “[t}he findings and decisions

of the majority of this medical board as to the physical fitness of the

engineer to continue in service of the carrer shall be final and binding

upon the carrier, the engineer, and the Brotherhood of Locomotive

Engineers, but this does not mean that a change in physical condition

will preclude a re-cxamination at a later time.”

8a

Railway Labor Act. The motion was denied, and the suit went

to trial. On March 14, 1986, a jury verdict was returned for

McCall. He was awarded $328,000 in damages. After the Dis-

trict Court denied motions for judgment notwithstanding the

verdict and for a new trial, C&O appealed.

On appeal, C&O argues that the federal act preempts the

state cause of action. In the alternative, C&O argues that the

jury verdict on McCall’s Handicappers’ Act claim should be

reversed. Because we hold that the federal act preempts the

State claim in this case, we do not reach the jury verdict issue.

C&O argues that this case is controlled by Stephens v.

lorfolk & W. Ry., 792 F.2d 576, amended, 811 F.2d 286 (6th

Cir. 1986). In Stephens, a railroad switchman was disquali-

fied from further service with the railroad after two doctors

diagnosed him as having degenerative disc disease, a defect

which was considered disqualifying by the railroad. The col-

lective bargaining agreement in Stephens was similar but not

identical to the one in this case. The railroad refused to

appoint a full three doctor panel because Stephens’ doctor

and the railroad’s doctor both agreed on the diagnosis,

although Stephens’ doctor did state that Stephens was fit for

work despite his disease. Stephens’ union filed a complaint

with a board of adjustment, which concluded that the rail-

road had acted reasonably and within the terms of the collec-

tive bargaining agreement in establishing physical standards

for its employees. Stephens then filed a complaint in federal

court alleging that the railroad had violated the Michigan

Handicappers’ Act. The district court dismissed his com-

plaint, relying on the exclusive jurisdiction of the National

Railroad Adjustment Board and the failure of Stephens to

State a claim under the Handicappers’ Act.

This Court held that the dispute was minor and thus within

the exclusive jurisdiction of the federal administrative board.

bettiaiemetenciaaiiintenineeel

9a

792 F.2d at 579-81. See Local 1477 Transp. Union v. Baker,

482 F.2d 228, 230 (6th Cir. 1973)(labor dispute is classified

as minor “if the disputed action of one of the parties can ‘ar-

guably’ be justified by the existing agreement or, in [a] some-

what different statement, if the contention that the labor con-

tract sanctions the disputed action is not ‘obviously

insubstantial’... .”). We declined to hold in Stephens that

Stephens was discharged because of a handicap and we there-

fore did not address the question of preemption of the state

handicap act by the federal act. In footnote 9 of the Stephens

opinion, added after publication of the original opinion, we

Stated:

This case does not involve discharge or discrimina-

tion against Stephens because of a handicap, and it

does not in any way conflict with Colorado

Anti-Discrimination Commission v. Continental Air-

lines, 372 U.S. 714 [83 S.Ct. 1022, 10 L.Ed.2d

84}(1963). There are three issues to be decided in

this case. First, whether the physical examination

was legitimate. Second, whether Stephens could pass

the examination. Third, if, as the trial court held,

Stephens’ complaint failed to state a claim on which

relief could be granted under the Handicapper’s Act,

whether Stephens’ unsuccessful attempt to rely on

that Act could take his claim outside the exclusive

jurisdiction of the NRAB.

811 F.2d at 286.

This case is not controlled by Stephens because the two

acts did not come into direct conflict in Stephens, as they

do here. In this case, a jury found that the railroad violated

the state act, and a judgment was entered against the railroad.

In Stephens, however, the issue was whether Stephens’ com-

plaint alleged a misinterpretation of the collective bargaining

agreement. Stephens thus holds only that the federal board

has exclusive jurisdiction over claims alleging breaches of col-

lective bargaining agreements.

cain aa aaa etalk teen

10a

Although the difference in the issues presented in Stephens

and this case may appear to be minor, they are not insubstan-

tial. In Colorado Anti-Discrimination, supra, the Supreme

Court held that a state statute prohibiting racial discrimina-

tion in employment was not preempted by the Railway Labor

Act. The Court stated:

Nothing in the Railway Labor Act or in our cases

Suggests that the Act places upon an air carrier a

duty to engage only in fair nondiscriminatory hiring

practices. The Act has never been used for that pur-

pose, and we cannot hold it bars Colorado’s

Anti-Discrimination Act.

372 US. at 724. In Stephens, the Colorado

Anti-Discrimination issue was not before us, because

Stephens was controlled by the narrow principle that a claim

involving interpretation of the collective bargaining agree-

ment is governed exclusively by the Railway Labor Act. in

this case, we are squarely presented with the issue of whether

a State antidiscrimination statute can be preempted by the

federal act. While Stephens may provide guidance in this

Case, it is therefore not controlling.

Atchison, T. & S. F. Ry. v. Buell, 107 S. Ct. 1410 (1987)

is also pertinent. In Buell, the Court held that a railroad

employee is entitled to bring suit under the Federal Employ-

er’s Liability Act (FELA), 45 U.S.C. § 51 et seqg., even if the

employee had the opportunity to pursue a labor grievance

under the Railway Labor Act. The Court stated:

This Court has, on numerous occasions, declined

to hold that individual employees are, because of

the availability of arbitration, barred from bringing

claims under federal statutes. See e.g., McDonald v.

West Branch, 466 U.S. 284, 104S.Ct. 1799, 80 L.Ed.

2d 302 (1984); Barrentine v. Arkansas-Best Freight

System, Inc., 450 U.S. 728, 101 S.Ct. 1437, 67

L.Ed.2d 641 (1981); Alexander v. Gardner-Denver

lla

Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147

(1974). Although the analysis of the question under

each statute is quite distinct, the theory running

through these cases is that notwithstanding the

strong policies encouraging arbitration, “different

considerations apply where the employee’s claim is

based on rights arising out of a statute designed to

provide minimum substantive guarantees to indi-

vidual workers.” Barrentine, supra, 450 U.S. at 737,

101 S.Ct. at 1443.

107 S. Ct. at 1415.

Although Buell stands for the proposition that claims under

substantive statutory rights may be decided outside of the

labor arbitration machinery, it should not be read to overrule

our decision in Stephens or to dictate a holding in this case

that the state act is preempted. FELA, the statute involved

in Buell, is a federal statute. Likewise, the statutes in the cases

cited by the Court were all federal statutes. McDonald, 466

U.S. 284, involved a Fair Labor Standards Act claim.

Barrentine, 450 U.S. 728, was an action brought under 42

U.S.C. § 1983. Gardner-Denver, 415 U.S. 36, was a Title VII

case. In the instant case, we are concerned with a Stave statute.

The issue is not the relationship between two federal statutes

passed by Congress; it is the relationship between a federal

Statute and a state statute.

In Stephens we anticipated the result in Buel/. Footnote

8 of the Stephens opinion pointed out that the case involved

a conflict between a state statute and a federal statute, rather

than a conflict between two federal statutes. We noted that

precedent in other circuits supported the proposition that the

interaction of two federal statutory schemes rebuts the exclu-

sive jurisdiction presumption of the railway act. It is that

proposition that the Supreme Court later adopted in Buell.

However, we noted in Stephens that there was no authority

for holding that a claim grounded on a state cause of action

i

12a

Cali ICUUL LIE CAUIUSIVE yurisaicuon picsullipiuon Ul Lie Kdli-

way Labor Act. 792 F.2d at 581 n.8. The reasoning expressed

in Stephens is applicable here. Buell’s holding that FELA

claims are not precluded by the railway act necessarily turned

on an examination of congressional intent in enacting both

the FELA and the Railway Labor Act. Here, McCall’s claim

is grounded in a state statutory cause of action, but the hold-

ing in Buell was that Congress did not intend for the railway

act to repeal any part of the FELA. Our task in this case is

to determine whether the state act conflicts with a federal

law. Thus, although in Buel/ the intent of Congress in enact-

ing both statutes was examined, the only congressional intent

to be examined in this case is that underlying the federal rail-

way act.

Iil.

Because neither Stephens nor Buell controls this case, we

must look to the policies underlying railway labor preemption

in order to determine whether the state claim is preempted

here.

Preemption decisions are decisions interpreting the

Supremacy Clause and must therefore be guided by respect

for the separation and allocation of power among the various

tribunals of the state and federal governments in our federal

system. Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504,

522 (1981). In preemption analysis,

“‘(t}he purpose of Congress is the ultimate

touchstone.’ ” Where the pre-emptive effect of fed-

eral enactments is not explicit, “courts sustain a

local regulation ‘unless it conflicts with federal law

or would frustrate the federal scheme, or unless the

courts discern from the totality of the circumstances

that Congress sought to occupy the field to the exclu-

sion of the States.’ ”

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

747-48 (1985)(citations omitted).

In determining the DreeMDtIV wih ' ’

look not only to other railway —-\ LUNG HANA acts NE

decisions premised on other federal labor statutes. Although

the preemptive effect of statutes such as the National Labor

Relations Act (NLRA), 29 U.S.C. § 151 et seq., and the Labor

Management Relations Act (LMRA), 29 U.S.C. § 141 ef seq.,

cannot be “imported wholesale into the railway labor arena,”

Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co.,

394 U.S. 369 (1969), courts may look to the construction of

other federal labor statutes for assistance in construing this

act. Jd. Of the four judicially developed preemption doc-

trines, see Jones v. Truck Drivers Local Union No. 299, slip

op. at 27-40 (6th Cir. Feb. 3, 1988)(Merritt, J., concurring

in part and dissenting in part), two are involved in this case.‘

“The two types of preemption not involved in this case are Brown

preemption and Machinists preemption.

Brown preemption, see Brown v. Hotel and Restaurant Employees

Local 54, 468 U.S. 491, 503 (1984) provides that the states may not

regulate conduct that is actually protected by federal law. As there is

no federal right to discriminate on the basis of a handicap, there can

be no argument that the state act is preempted by a conflict with a

federally guaranteed substantive right.

Machinists preemption, see Machinists v. Wisconsin Employment

Relations Comm'n, 427 U.S. 132 (1976), operates when a state seeks

to alter the economic power of labor or management. Although the

Machinists case was an NLRA Case, its rationale that Congress estab-

lished a balance of competing powers between labor and management

with which states may not interfere seems applicable in some ways

in the railway labor field. One might argue that the Handicappers’ Act

has altered the balance of power between labor and management

because, prior to the passage of the Handicappers’ Act, labor and man-

agement were free to negotiate the issue of physical qualifications for

employment, and the Michigan stajute has imposed a reasonableness

test on those negotiations. However, Machinists preemption has been

described as proscribing state regulation of “conduct that was to

remain a part of the self-help remedies left to the combatants in labor

disputes.” Belknap v. Hale, 463 U.S. 491, 499 (1983)(citations omitted).

a od were te Sy eS sees eee =— ew oer re GB -*-O° Se rere

Under the Railway Labor Act, disputes involving the inter-

pretation of collective bargaining agreements are character-

ized as “minor.” See Baker, 482 F.2d at 230. In Andrews v.

Louisville & N. R.R., 406 U.S. 320 (1972), the Supreme Court

held that because the act provided a mechanism for the reso-

lution of minor grievances, an employee could not bring a

state wrongful discharge action alleging that he was fired in

violation of a collective bargaining agreement. The act’s dis-

pute resolution procedure was held to be mandatory; the situ-

ation was one in which “the Act makes the federal adminis-

trative remedy exclusive....” Jd. at 325.

This type of preemption is in some ways analagous to pre-

emption by § 301 of the LMRA, 29 U.S.C. § 185(a). Section

301 authorizes direct suit in the district courts for violations

of collective bargaining agreements. Whenever a state rule

“purports to define the meaning or scope of a term” in a col-

lective bargaining agreement, the state rule is preempted by

the federal common law promulgated pursuant to § 301.

Allis-Chalmers v. Lueck, 471 U.S. 202, 210 (1985). See also

Teamsters v. Lucas Flour Co., 369 U.S. 95, 103-04 (1962);

Field, Sources of Law: The Scope of Federal Common Law,

99 Harv. L. Rev. 883 (1986).

If McCall alleged in this case that his removal from service

violated the terms of the collective bargaining agreement and

Thus Machinists preemption might be construed to be applicable only

to the type of conduct which gives rise to “major” disputes. (See Baker,

482 F.2d at 230, for distinction between major and minor disputes.)

However, we need not decide the scope of Machinists preemption. The

question whether Michigan has altered the balance of power between

labor and management by imposing a reasonableness requirement on

collectively bargained physical job qualifications collapses in this case

into the question whether the arbitration board has the power to decide

if an employee is physically qualified to perform the duties of his or

her job. This question is discussed in part III. B., infra.

b 4

AS RRS ERE SES Hy BAA WHER EEE VV UEELS VAL EELY UN PILL LIpICU

as “substantially dependent upon analysis of the terms of an

agreement made between the parties in a labor contract.”

Lueck, 471 U.S. at 220. McCall asserts his claim as one which

is independent of the collective bargaining agreement. He

claims that regardless of the terms of the agreement, C&O

cannot under Michigan law discriminate against him because

he is an insulin-requiring diabetic.

Statutes that purport to establish rights that are indepen-

dent of rights under a collective bargaining agreement are

not necessarily preempted even if they relate to the agreement

in some way. See Lueck, 471 U.S. at 212-13. In this manner

the policies of Colorado Anti-Discrimination, supra, are vin-

dicated. An employer cannot simply hide behind the arbitra-

tion provisions of a collective bargaining agreement to bypass

his or her employees’ statutory right not to be discriminated

against. Michigan clearly has an interest in regulating

employment discrimination. Cf. San Diego Building Trades

Council v. Garmon, 359 U.S. 236, 243-44 (1959)(if activity

state seeks to regulate is “merely peripheral concern” of fed-

eral statute or touches “interests ... deeply rooted in local

feeling and responsibility,” statute will not be held preempted

absent “compelling congressional direction.”). We cannot

hold that Michigan’s interest in eradicating employment dis-

crimination must give way to the federal interest in regulating

labor-management relations in the railway context merely

because the rights protected under the state act relate to the

collective bargaining agreement in some way. A stronger

nexus must exist for the state act to be preempted.

8. Frustration of the Federal Railway Dispute

Resolution Scheme

Although the existence of a relationship between rights reg-

ulated by the state and the collective bargaining agreement

is not in itself enough to mandate preemption, the strong sim-

ilarity between the inquiry made by the arbitration board and

is |

the inquiry made by the jury in the state cause of action

requires that the Michigan statute be preempted in this case.

Section 153 Second of the railway act allows railroads and

labor unions to voluntarily establish boards of adjustment

to resolve disputes. The collective bargaining agreement in

this case established just such a board, and thus its decision

was binding on the railroad and McCall. The board was

empowered to make findings and reach a decision as to

McCall’s physical ability to continue in service. The jury in

McCall’s state action had to decide whether McCall’s diabe-

tes is a handicap that is unrelated to his ability to perform

the duties of his job. Thus, the arbitration board and the jury

had to make essentially the same decision — whether McCall

is physically able to perform the duties of his job. The state

cause of action is therefore preempted since it is “based on

a matrix of facts which are inextricably intertwined with the

grievance machinery of the collective bargaining agreement

and of the R.L.A.,” Stephens, 791 F.2d at 580, quoting

Magnuson y. Burlington Northern, Inc., 576 F.2d 1367, 1369

(9th Cir.), cert. denied, 439 U.S. 930 (1978). If McCall can

litigate an issue on the merits before an arbitration board cre-

ated pursuant to § 153 Second and a collective bargaining

agreement and then relitigate the identical issue in an inde-

pendent judicial proceeding, the purposes of railway labor

arbitration would be frustrated. See Andrews, 406 U.S. at 325.

The NLRA doctrine that has come to be known as Garmon

preemption, while not completely transferable to the railway

labor context, provides the reason why the state claim is pre-

empted in this case. The federal act was intended to serve

the interests of railroad employees by creating a statutery

scheme providing for the final settlement of grievances by

a tribunal composed of people experienced in the railroad

industry. Union Pacific R.R. Co. v. Price, 360 U.S. 601, 614

(1959). Although the structure of the arbitration process

under the federal act is somewhat different than the grievarce

process under the NLRA, both statutes envision binding

12a

administrative proceedings into which virtually all individual

labor-management disputes are directed. In the NLRA con-

text, Garmon preemption takes this concern into account.

“When an activity is arguably subject to § 7 or § 8 of the Act,

the States as well as the federal courts must defer to the exclu-

sive competance of the National Labor Relations Board if

the danger of state interference with national policy is to be

averted.” San Diego Building Trades Council v. Garmon, 359

U.S. at 245. If McCall’s dispute with the railroad had been

governed by the arbitration provisions of § 153 First,

Garmon-type preemption would Clearly apply, since § 153

First provides for arbitration before the National Railroad

Adjustment Board. Entrusting interpretation of the statute

to a centralized administrative agency serves to promote uni-

formity in national labor policy. Cf. Garmon, 359 US. at

242-43.

The national uniformity argument is not as compelling

when, as in this case, the arbitration is conducted under the

authority of § 153 Second, which allows labor and manage-

ment to bypass the national board by establishing system,

group, or regional boards. Garmon-type preemption’s pur-

pose of preventing conflicting interpretations of a labor stat-

ute is less likely to be achieved in a system in which a number

of arbitration boards are empowered to make final binding

decisions. However, the possibility of varying substantive

interpretations of the federal act by different arbitration

boards is not that great; unlike the NLRA, which defines

employee rights and unfair labor practices, the railway act

contains few substantive provisions to be interpreted.

Instead, the railway act leaves the establishment of most sub-

stantive rights to the collective bargaining process and merely

provides mechanisms for enforcing those rights. However,

the policy of the railway act is to channel dispute resolution

to either the national board or the various voluntarily estab-

lished boards. The exercise of state power over an area of

activity specifically relegated to the railway act dispute reso-

|

1Ba

lution process therefore causes a danger of conflict with

national labor policy great enough to mandate preemption.

Cf. Garmon, 359 U.S. at 246. The potential for conflict is

realized in this case: the decision of the arbitration board and

the decision of the jury on the issue of McCall's ability to

continue working as an engineer are in direct conflict. If the

federal dispute resolution mechanism is to have any force,

juries cannot be allowed to second-guess the decisions of arbi-

tration boards.

This reasoning is reinforced by the principle established

almost 30 years ago in the “Steelworkers Trilogy.” See United

Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960):

United Steelworkers v. Warrior & Gulf Navigation Co, 363

U.S. 574 (1960); and United Steelworkers v. Enterprise Whee!

& Car Corp., 363 U.S. 593 (1960). In these cases, the Court

gave great deference to the arbitration process. “The refusal

of courts to review the merits of an arbitration award 1s the

proper approach to arbitration under collective bargaining

agreements. The federal policy of settling labor disputes by

arbitration would be undermined if courts had the fina! say

on the merits of the awards.” Steelworkers v. Enterprise Corp

363 U.S. at 596. See also United Paperworkers Int'l Union

v. Misco, Inc., 108 S.Ct. 364 (1987)(holding that courts can-

not reconsider the merits of an arbitrator's award).

C. The Relationship Between Preemption and Colorado

Anti-Discrimination

The federal act preempts the state claim in this case, how-

ever, only if such a result does not conflict with Colorado

Anti-Discrimination, supra. Just as nothing in the federal act

Suggests that a carrier has a duty not to discriminate on the

basis of race, see Colorado Anti-Discrimination, 372 U.S. at

724, nothing in the act suggests that a carrier cannot discrimi-

nate on the basis of handicap. Thus, under the reasoning of

Colorado Anti-Discrimination, Michigan may be able to regu-

late the railroad in this manner.

19a

Additionally, Garmon-type preemption does not necessar-

ily apply to all exercises of state power that may interfere

with national labor policy:

{[D]jue regard for the presuppositions of our

embracing federal system, including the principle of

diffusion of power not as a matter of doctrinaire

localism but as a promoter of democracy, has

required us not to find withdrawal from the States

of power to regulate where the activity regulated was

merely a peripheral concern of the Labor Manage-

ment Relations Act. Or where the regulated conduct

touched interests so deeply rooted in local feeling

and responsibility that, in the absence of compelling

congressional direction, we could not infer that Con-

gress had deprived the States of the power to act.

Garmon, 359 U.S. at 243-44 (citations and footnotes omit-

ted).

This case does not fall within the ambit of either Colorado

Anti-Discrimination or the exceptions to Garmon-type pre-

emption, but those considerations do dictate that our result

be a narrow one. Preempting the state claim in this case does

not conflict with Colorado Anti-Discrimination because the

Statute at issue in that case regulated racial discrimination,

conduct that is not by any construction a subject for collective

bargaining and arbitration. The Handicappers’ Act, however,

is a different type of statute. Although the purpose of the stat-

ute — eliminating discrimination on the basis of handicap

—miay be for some as laudable as the purpose of the Colorado

statute, the methodology employed in determining statutory

violations is necessarily different from the methodology

employed in ascertaining whether an employer has discrimi-

nated on the basis of race. In the case of a statute barring

racial discrimination, the only inquiry made is whether the

motivation for the challenged action was the employee’s race.

In the case of the Handicappers’ Act, the inquiry must go

20a

further: once it is established that the challenged action was

laken on account of the employee's physical condition, it

must also be determined that the employee's physical condi-

tion is unrelated to job performance. It is the necessity of

the second level of inquiry which leads to our conclusion that

the state claim is preempted in this case. The parties in this

case committed the determination of whether a particular

physical condition affects an individual's ability to perform

the duties of an engineer or fireman to the arbitration process.

See n. 1, supra. The inquiry made by the arbitration board

—whether McCall’s insulin-requiring diabetic condition

allows him to perform the duties of an engineer or freman

—js the same factual inquiry made by the jury in McCall's

Handicappers’ Act suit. The arbitration board did not decide

that McCall could not keep his job regardless of whether his

physical condition affected his job performance, it decided

that he could not keep his job because his physical condition

would not allow him to perform his duties. Only if the board

had made the former decision would a conflict with the prin-

ciples of Colorado Anti-Discrimination present itself

We give deference judicially to the arbitration process The

state legislation in this case relates directly to the employee's

ability to perform and contravenes the process set out by

Congress and agreed to by the parties through collective bar-

gaining (Addendum 27) to decide the “physical fitness of the

engineer to continue in service of the carrier,” which is itself

a matter subject to extensive federal regulation.

The principle of federalism would seem to support the ou!

come reached in this case. Michigan Cannot superimpose a

state remedy upon a regulated interstate carrer engaged in

commerce whose employment relationships with its employ-

ees, including disputes about ability to perform an important

job function concerning public safety, are governed by federal

legislation providing for fair and binding arbitration.

Antidiscrimination legislation that does not relate to medical

2la

ability to perform a job (such as the engineer's job here

involved) may call for a different result:

... [(CJourts must examine closely the facts of each

case to determine whether the dangers and hard-

ships of diverse regulation justify foreclosing a State

from the exercise of its traditional powers.

Colorado Anti-Discrimination, 372 U.S. at 719. It should

also be noted that in Colorado Anti-Discrimination it was not

contended by the air carrier that the Colorado statute was

“in direct conflict with federal law” or “that it stands as an

obstacle to the full effectiveness of a federal statute.” Jd at

722. The Supreme Court in that case was not called upon

to conclude “that the purpose of the federal statute would

to some extent be frustrated by the state statute.” /d

The exceptions to Garmon-type preemption are inapplica-

ble for similar reasons. Although it may well be that the eradi-

cation of discrimination against handicapped persons is an

interest “deeply rooted in local feeling and responsibility,”

we do not hold that the state act is preempted by the federal

act in all cases; and we do not address the issue of what effect,

if any, the state act would have on an arbitration that did

not consider whether the employee was physically able to per-

form the duties of his or her job. We simply hold that when

an arbitration board established pursuant to § 153 Second

is required by the collective bargaining agreement to make

the same factual inquiry regarding physical ability to perform

a job as would be made under the state act, the federal dispute

resolution process is the sole remedy. The activity being regu-

lated by Michigan in this case is factfinding by the arbitration

board; this is not a “peripheral concern” of the federal act

but is central to the dispute resolution process. There is not

merely a risk of infringement on an area of primary federal

concern in this case, there is a direct conflict. Therefore. the

State claim is preempted.

22a

IV.

In his brief, McCall implies that the process by which the

third member of the arbitration board that decided his case

was selected was tainted, and that the third member was not

neutral. He also argues that the arbitration board applied a

blanket rule which disqualified all insulin-requiring diabetics

from train and engine service.

Although McCall's arguments on these points may have

merit, he is foreclosed from raising them here. The collective

bargaining agreement provides that the arbitration board

shall make a decision as to the physical fitness of an individ-

ual engineer. McCall's only avenue of review for the decision

of the arbitration board is set out in § 153 First (q), which

also applies to boards established under the authority of § 153

Second:

If any employee ... is aggrieved by the failure of

any division of the Adjustment Board to make an

award in a dispute referred to it, or is aggrieved by

any of the terms of an award, . . . then such employee

may file in any United States district court [with per-

sonal jurisdiction] a petition for review of the divi-

sion’s order. .. . The court shall have jurisdiction to

affirm the order of the division, or to set it aside,

in whole or in part, or it may remand the proceed-

ings to the division for such further action as it may

direct. On such review, the findings and order of the

division shall be conclusive on the parties, except that

the order of the division may be set aside, in whole

or in part, or remanded to the division, for failure

of the division to comply with the requirements of this

chapter, for failure of the order to conform, or confine

itself, to matters within the scope of the division's

jurisdiction, or for fraud or corruption by a member

of the division making the order. The judgment of

the court shall be subject to review as provided in

sections 1291 and 1254 of title 28.

23a

45 U.S.C. § 153 First (qemphasis added). Thus, if McCall

felt he received unfair treatment from the arbitration board,

or if he felt the arbitration board violated the collective bar-

gaining agreement by not considering the particulars of his

case, he could have sought judicial review of the board’s deci-

sion. He could not, however, circumvent the finality of the

board’s decision by attempting to bring the same claim under

a state cause of action. See Stephens, supra.

The judgment of the District Court is vacated, and the case

is remanded with instructions to dismiss the plaintiff's claim.