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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 879

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1967%3A1. Public record. Not legal advice.