Opposition Brief — McCall v. Chesapeake & Ohio Railway Co.

IN THE

CLERK

Supreme Court of the Anited a

OCTOBER TEkm, 1988

GERARD W. McCaLt,

Petitioner,

Vv.

CHESAPEAKE & OHIO Raypway CoMPANY,

Respondent.

ON PETITION FOR A WE]T OF CERTIORARI

TO THE UNITED STATES couRT OF APPEALS

FOR THE SIXT] CIRCUIT

BRIEF FOR RESPONDE)|T IN OPPOSITION

STEPHEN A. TRIMBLE*

“AMES B. SARSFIELD

Kevin J. O'CONNELL

HAMILTON AND HAMILTON

734 15th Street, N.W.

11th Floor

Washington, D.C. 20005

(202) 347-2882

OF COUNSEL:

NICHOLAS S. YOVANOVIC ‘ T. LIPPERT, JR.

Senior Counsel — SmiTH & BROOKER, P.C.

CSX Transportation, Inc. 3057 Davenport Avenue

500 Water Street Saginaw, MI 48602

Jacksonville, FL 32202 (517) 799-1891

(904) 359-1244

Attorneys for Respondent

Chesapeake & Ohio Railway

Company

July 29, 1988 “Counsel of Record

eee

PRESS OF BYRON S. ADAMS, WASH NGTON, D.C. (202) 347-8203

QUESTION PRESENTED

Whether a railroad locomotive engineer who was med-

ically disqualified from work and processed his claim that

he is physically able to safely perform his job under the

exclusive procedures mandated by the Railway Labor Act,

45 U.S.C. § 158, and having said claim adjudicated against

him by a three-doctor panel convened to consider his claim,

may nevertheless recover a verdict for damages predicated

upon precisely the same claim under a state handicap law,

which claim of necessity involves the interpretation of the

express and implied terms and conditions of his railroad

collective bargaining agreement which encompass the phys-

ical requirements and medical qualifications involved in the

scope and details of his railroad work.

PARTIES TO THE PROCEEDINGS

Petitioner Gerard W. McCall was the appellee in the

proceeding before the United States Court of Appeals for

the Sixth Circuit, whose judgment is sought to be re-

viewed.

Respondent Chesapeake & Ohio Railway Company (here-

inafter ‘‘C&O’’) was the appellant in the proceeding below.

On August 31, 1987, C&O was merged into CSX Trans-

portation, Inc. (hereinafter ‘‘CSXT’’). CSXT is a wholly-

owned subsidiary of CSX Corporation (hereinafter ““CSX’’).

The subsidiaries and affiliates of CSX and CSXT, other

than those wholly owned by them, are as follows:

1. CSX Realty, Inc., a wholly owned subsidiary of CSX,

has a partial interest in Mid-Allegheny Corporation.

2. CSXT has a partial interest in the following:

a. Allegheny and Western Railway Company;

b. The Baltimore and Philadelphia Railroad Com-

pany,

ce. Clearfield and Mahoning Railway Company;

d. Dayton and Michigan Railroad Company;

e. Dayton and Union Railroad Company;

f. The Home Avenue Railroad Company;

g. The Cleveland Terminal & Valley Railroad Com-

pany,

h. Augusta and Summerville Railroad Company;

i. Beaver Street Tower Company;

j. Central Transfer Railway and Storage Company;

k. Chatham Terminal Company;

|. North Charleston Terminal Company;

m. Paducah & Illinois Railroad Company;

n. Winston-Salem Southbound Railway Company;

0. Woodstock & Blockton Railway Company,

8. Western Maryland Railway Company, a wholly

owned subsidiary of CSXT, has a partial interest in

ill

the Baltimore and Cumberland Valley Railroad Ex-

tension Company.

4. CSXT has a partial interest in Richmond Wash-

ington Company, which in turn has a partial interest

in the Richmond, Fredericksburg and Potomac Rail-

road Company.

As a matter of convenience, the Respondent will

be referred to as the C&O throughout the brief.

TABLE OF CONTENTS

Page

QUESTION PRESENTED .c1ccccocscccscosccssscescesescosssscsecesene i

PARTIES TO THE PROCEEDINGS. .........ccsssscssscssssseeeees il

TABLE OF AUTHORITIES ncccccccoccccsscccccccsscesccscsssescssese Vv

COPEREIONGD TRTEW scccccccscencsccccescccnccccessosescscscnccsconssees l

STATUTE INVOLVED cccccccccccssecccccscsccscccssescccsssesesccceese 2

STATEMENT OF THE CASE cissscccsssecccceseecseesseneeeeeeeees 2

SUMMARY OF ARGUMENT crcccccccccscscccscccccsscccccccceceeses 4

ATIIIIIEE cecccsetinsnisrwnteessanetnenrendannsaninssionentanasssenisess 5

§ SL og OF PHYSICAL ABILITY TO

ERFORM RAILROAD WORK ARE ‘MI-

NOR DISPUTES’ SUBJECT TO THE

MANDATORY AND EXCLUSIVE PRO-

CEDURES MANDATED BY THE RAIL-

WAY LAB, BE ccciccsconcsccnssesensnesscrenesosees 5

Il. THE COURT BELOW WAS CORRECT IN

HOLDING PETITIONER’S STATE CLAIM

PREEMPTED BY THE RAILWAY LABOR

FE eadispakclimecescisnesserestanenseneninnianectnmaiaiataians 10

I Ee i i aes 16

eee eas ci ecasavcunebuaseansaie la

TABLE OF AUTHORITIES

CASES: Page

Andrews v. Louisville & Nashville R. Co., 406 U.S.

GD MPU. snesccbacicnécissoisnddsticcnilineadsiamntaniel 10,11,12,13,15

Elgin, Joliet & Eastern Ry. Co. v. Burley, 325 U.S.

TR CEMPID Kehsnnhcnsdectissusinscksnhuiesdeaksandimenpenninaniledes

Erie R. Co. v. New York, 233 U.S. 671 (1914) .... 13

Fort Halifax Packing Co. v. Coyne, 482 U.S. —,

BGT Die BALE CHOOT) cicénemetmncasdaaiiene 13

Gunther v. - Diego & Arizona Eastern Ry. Co.

ee Sg: re ,7,8,10,12,15

Lingle v, Moves etn 0 & 3 Chef, Ine.,

—_—_ U.S, __., 108 S.Ct. 1877 3988) saconsiaind 3,4,5,11

Teamsters v, Ppa Flour Co,, 369 U.S, 95

CRIED, secscccecssscogcusouserdguiuboonnnnabuistdce isch sies 12

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

UPI sci eadcecnsusepuieusadadcsdcasiaasnieetacnale tae sceenaset) 14,15

STATUTES:

United States Code:

Labor Management Relations Act of 1947:

aD Ses OP -iciesemnaticstactiomnssce 4,5,11,12,13,15

Federal Employers’ Liability Act:

Wan S Bes OO. cateteecteene 13

Hours of Service Act:

Pt ee ee Fs een 13

Railway Labor Act:

yea ie Oe BOM, criterion passim

a Taine ae ND adtiniiindincicsnnieciesaaesaneennadnnins passim

Ge Teas FE saicchecscceisnicntusetndaceambanseeeaeeonan 14

Railroad Retirement Act:

Ce Ts © tts 00 OOD caccccccommin 13

vi

Table of Authorities Continued

Railread Unemployment Insurance Act:

SRE oe ee Free

Federal Railroad Safety Act of 1970:

BD UB. § GEL, 6 G06, ccscrcescccesctccczecccccsescosses

BD Uae Re & GG csccccscccecccscescsccnccccccsticccncscocseons

MICHIGAN CODE:

Michigan Handicapper’s Civil Rights Act,

Mich. Comp. Laws § 37.1101, et seg. (1985) ..

Page

13

13

14

13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 68-5

GERARD W. McCALL.

Petitioner.

. #

CHESAPEAKE & Ou!o RarLway COMPANY,

Respon dent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

OPINIONS BELOW

The decisions below of the United States District

Court for the Eastern District of Michigan, Southern

Division, and of the United States Court of Appeals

for the Sixth Circuit are contained in the Appendix

to the Petition. Subsequent to the filing of the Petition

herein, the Sixth Circuit issued its order denying

petitioner's “‘Motion for Late Reconsideration’”’ on

July 11, 1988, which is contained in the Supplemental

Appendix attached hereto. (Opp. App., infra, 1a.)

STATUTE INVOLVED

The Railway Labor Act (hereinafter ‘““RLA’’), 45

U.S.C. § 151, et seg., the pertinent parts of which

are set forth in the Appendix hereto. (Opp. App.,

infra, 3a-5a.)

STATEMENT OF THE CASE

On June 15, 1983, petitioner McCall was removed

from his position as a locomotive engineer by the

Medical Officer of his employer, the C&O, because of

an uncontrolled diabetic condition which did not allow

him to safely perform his job. His own treating phy-

sician disagreed, being of the opinion that Mr. McCall

was physically and mentally able to perform the reg-

ular duties of his position.

On September 1, 1983, the General Committee of

Adjustment of the Brotherhood of Locomotive En-

gineers, on behalf of Mr. McCall, requested that a

three-doctor panel be convened under Addendum No.

27 to the collective bargaining agreement (Opp. App..

infra, 6a-7a), as provided for in 45 U.S.C. § 153 Sec-

ond. Thereafter, the two doctors agreed upon a third

physician meeting the criteria specified in Addendum

No. 27, who was furnished with a fifty-nine (59) page

analysis of the job requirements of a railroad loco-

motive engineer, together with the medical require-

ments of the job. After obtaining a detailed history

from Mr. McCall and performing a medical exami-

nation upon him, the third physician submitted a re-

port which agreed that Mr. McCall should not be

permitted to be an engineer/fireman while taking in-

sulin which did not control his diabetes, and the

Brotherhood was duly notified of the majority decision

against Mr. McCall. (Opp. App., infra, 10a-lla.) Con-

dn ee

trary to the assertions in the Petition, Mr. McCall’s

disqualification was not pursuant to any blanket policy

of the railroad disqualifying all diabetics, or even those

who required insulin. Rather, it was a medical finding,

predicated upon the scope and physical requirements

of his job as established under the applicable collective

bargaining agreements, together with Mr. McCall's

medical history and physical examinations, that he

was not physically qualified to safely perform his rail-

road work, which caused his disqualification.

Thereafter, petitioner made no further submissions

or appeals under the RLA, either to the Board or to

the federal district court as required under the Act.

Instead, petitioner filed a claim for damages under

the Michigan Handicapper’s Civil Rights Act, Mich.

Comp. Laws § 37.1101, et seg. (1985), alleging that

his disability was unrelated to his ability to perform

his railroad job. The case, filed in the United States

District Court for the Eastern District of Michigan,

Southern Division, resulted in a jury verdict in favor

of Mr. McCall in the amount of $328,000.00.

The C&O appealed to the United States Court of

Appeals for the Sixth Circuit, which reversed, holding

that Mr. McCall’s claim under the state handicap stat-

ute was preempted by the provisions of the RLA.'

Subsequent thereto, and pursuant to this Court’s de-

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

__._ U.S. ___ , 108 S.Ct. 1877 (1988), petitioner moved

for rehearing, which motion was denied on July 11,

' Because its preemption holding was dispositive of the case,

the Sixth Circuit did not rule on the other grounds asserted in

the C&O’s appeal.

1988 (Opp. App., infra, 1a), subsequent to the filing

of the Petition herein.

SUMMARY OF ARGUMENT

The Petition herein is premised upon the claim that

the Sixth Circuit’s decision below is contrary to es-

tablished precedent of this Court which allows inde-

pendent state statutory rights to be vindicated in the

courts, despite the availability of arbitration proce-

dures pursuant to collective barva'ning agreements.

(Petition, at p.5.) Indeed, as fram.d in the Petition’s

“Question Presented’, petitioner asserts that his claim

does not involve the interpretation of his railroad col-

lective bargaining agreement. From that point, the

Petition seeks to avail itself of this Court’s decision

in Lingle v. Norge Division of Magic Chef, Inc., supra,

and other decisions involving § 301 of the Labor Man-

agement Relations Act of 1947, 29 U.S.C. § 185.

As will be demonstrated below, the assertions in

the Petition are entirely misplaced and overlook the

apy.icable body of settled law contained in the deci-

sions of this Court pertaining to so-called ‘“‘minor dis-

putes” under Section Three of the RLA. Those

decisions clearly establish that a dispute arising out

of a railroad worker’s claim that he is physically ca-

pable of performing his duties is a “‘minor dispute”’

under that Act and that the decision of a three-doctor

panel convened under 45 U.S.C. § 153 Second is final

and binding upon the parties, absent the limited sta-

tutory review provided for in 45 U.S.C. § 153 First

(q). Those decisions also provide that neither party

may collaterally attack the panel’s decision, as was

5 «akin ay 62h > SA Nite on ont

done by Petitioner in his subsequent claim below for

damages under Michigan’s handicap discrimination

law.

Moreover, the Petition’s reliance on Lingle, supra,

and related cases predicated upon the Labor Man-

agement Relations Act is misplaced, as this Court has

carefully distinguished between the arbitration there-

under which is agreed to by the parties, and the

arbitration which is mandatory and binding upon the

parties under the RLA.

ARGUMENT

The Petition herein is curiously silent as to the

many pronouncements by this Court holding that so-

called ‘‘minor disputes” under the RLA are subject

to resolution under the mandatory and exclusive pro-

cedures established by that Act. As will be developed

below, petitioner’s claim that he is physically qualified

to perform his railroad work is such a “minor dis-

pute’’, and the resolution of his claim under the RLA,

as here, precludes his attempt to relitigate such claim

under the guise of state law. The Act provides the

sole means by which an aggrieved party may obtain

judicial review of his claim, so as to preempt any

collateral attack under state law.

I

QUESTIONS OF PHYSICAL ABILITY TO PERFORM

RAILROAD WORK ARE “MINOR DISPUTES”

SUBJECT TO THE MANDATORY AND EXCLUSIVE

PROCEDURES MANDATED BY THE RLA

Although the railroads maintained for many years that

the setting of physical standards for the various cat-

egories of railroad workers (as well as the related

question as to whether an employee was medically

qualified thereunder) was purely a prerogative of

management, this Court’s decision in Gunther v. San

Diego & Arizona Eastern Ry. Co., 382 U.S. 257

(1965), held the same to constitute a ‘‘minor dispute”’

subject to the exclusive arbitration procedures man-

dated under Section Three of the RLA.?

In Gunther, as here, a three-doctor panel was con-

vened to evaluate a locomotive engineer’s grievance

that he was physically qualified to safely perform the

requirements of his job, and rendered its judgment

by a divided vote. This Court not only held that an

employee’s claim of physical qualification was a ‘‘mi-

nor dispute’’ under the Act, but also spoke to the

wisdom of creating three-doctor panels to adjudicate

the claim:

In § 3 Congress has established an expert

body to settle ‘‘minor’ grievances like

petitioner’s which arise from day to day in

the railroad industry.

ses ee eee

As hereafter pointed out Congress, in the

Railway Labor Act, invested the Adjustment

Board with the broad power to arbitrate

2 Under the ‘“‘major/minor’’ dispute dichotomy which has arisen

under RLA, the so-called “‘minor disputes’’ are “‘all disputes’’

growing out of either “grievantes’”’ or the “interpretation or

application of agreements covering rates of pay, rules or working

conditions,” 45 U.S.C. § 15la; thus the plain language of the

Act encompasses not only claims, based upon an express term

of the collective bargaining agreement, but also those “founded

upon some incident of the employment relation . . . independent

of those covered by the collective agreement... .’’ Elgin, Joliet

& Eastern Ry. v. Burley, 325 U.S. 711, 723 (1945)

7

grievances and plainly intended that inter:

pretation of these coMtroversial provisions

should be submitted fol’ the decision of rail:

road men, both workers and management,

serving on the Adjustrient Board with their

long experience and accépted expertise in this

field.

The courts below weré also of the opinion

that the Board went beyond its jurisdiction

in appointing a medical board of three phy-

sicians to decide for it the question of fact

relating to petitioner’s physical qualifications

to act as an engineer. We do not agree. The

Adjustment Board, of course, is not limited

to common-law rules of evidence in obtaining

information.

-_*xeeeK KH KH H

On a question like the one before us here,

involving the health of petitioner, and his

physical ability to operate an engine, arbi-

trators would probably find it difficult to find

a better method for arriving at the truth than

by the use of doctors selected as these doc-

tors were.

382 U.S. at 261-62. The Gunther decision then pro-

ceeded to discuss this Court’s prior holdings as to the

‘“‘mandatory’’, ‘‘exclusive’”’ and ‘complete and final

2In Gunther, the Court noted that the current agreement

contained a provision for the appointment of a three-doctor panel

to adjudicate such questions (386 U.S, at 262), In the case at

bar, Addendum No. 27 of the C&O Agreement covering

petitioner contains a similar provision, (Opp, App., t/ra, 8a-9a,)

8

means for settling minor disputes’ under the RLA,

and went on to hold;

The basic grievance here-=that is, the com

plaint that petitioner has been wrongfully re

moved from active service as an engineer

because of health—has been finally, com.

pletely, and irrevocably settled by the Ad:

justment Board's decision, Consequently, the

merits of the wrongful removal issue as de-

cided by the Adjustment Board must be ac-

cepted by the District Court.

382 U.S. at 264. While the Petition asserts that Mr.

McCall’s claims ‘‘... do not involve interpretation of

the collective bargaining agreement’ (See, Petition,

“Question Presented’’), it is mistaken, for his claim

is inextricably interwoven in the fabric of the express

and implied agreements embodied therein.

One need only look to Addendum No. 27 to dem-

onstrate these express and implied agreements, as

well as the custom and practice of the industry, which

are involved in such a claim. Of course, Addendum

No. 27 itself is the express agreement which estab-

lishes the procedure for selection of the three-doctor

panel, as well as the specific qualifications required

of the so-called ‘‘neutral doctor’’.’ It specifies that the

medical board shall determine “... the physical fit-

ness of the engineer to continue in service of the

‘The agreement specifies that he shall be (1) a practitioner,

(2) of recognized standing in the medical profession, and (4) a

specialist in the disease allegedly suffered by the engineer, (Opp,

App,, tra, 8a, 4 5,)

ee ee:

eS ee ee

9

carrier ,,,’, and that the findings of the majority of

the board "',,, shall be final and binding upon the

carrier, the engineer and the Brotherhood ,,."', yet

provides for the future circumstances where there

may be a change in the engineer's physical condition,

(Opp. App., infra, Ba § 4,)

Subsumed within these express provisions are im:

plied agreements, such as the ‘triggering’ device for

Addendum No, 27—a finding of physical disqualifi-

cation by the carrier's Chief Medical Examiner--which

provision recognizes the carrier’s custom and practice

that the carrier initially sets the physical qualifications

and then conducts physical examinations to assure

that the employee is fit to safely perform his job.

Also subsumed within the agreement are the terms

and conditions of the employee’s job, 7.e., what his

job consists of and the necessary physical/medical

qualifications therefor.6 Even the physical require-

ments of the job are not static, as they in turn depend

upon the work of a given craft, which may change

from time to time as collective bargaining agreements

are amended, due either to changing technology or

to changes in the carrier’s agreements with yet other

Brotherhoods.°®

‘In this case, the Medical Panel was supplied with a ‘Job

Analysis Summary” authored by a consultant, which was de-

veloped jointly by nie railroads and approved by the Steering

Committee of the Railroad Personnel Association, The Summary

is 59 pages in length, and encompasses the specifies of loco

motive work, the physical requirements utilized in eonneetion

therewith, and the medical standards therefor,

‘The job requirements of locomotive work have undergone

substantial change over the years, earlier with the advent of the

diese! locomotive which largely eliminated the requirement of a

It is clear beyond peradventure that a claim ine

volving the physical qualification of a railroad em:

ployee for his job involves the interpretation and

application of the express and implied conditions of.

his collective bargaining agreement, and is thus a

‘minor dispute’, As such, it is subject to the man:

datory, exclusive and final adjudication procedures re-

quired by the RLA,

THE COURT BELOW WAS CORRECT IN

HOLDING PETITIONER'S STATE CLAIM

PREEMPTED BY THE RLA

The decision of the court below holding petitioner’s

claim under the Michigan statute preempted by the

RLA was correct. It is in accord with the two cases

decided by this Court since Gunther, supra, wherein

railroad workers sought to bypass the:RLA’s man-

datory and exclusive procedures in cases involving

“minor disputes’ by resorting to state remedies.

In Andrews v. Louisville & Nashville R. Co., 406

U.S. 320 (1972), the plaintiff attempted to return to

work following an automobile accident, but was found

to be physically disqualified by the carrier. Based upon

his assertion that he was fully recovered and physi-

cally able to resume his work on the railroad, he sued

under Georgia law for “wrongful discharge’, “his

Court discussed the fact that Andrews’ claim of en-

titlement to return to duty was of necessity predi-

cated upon the collective bargaining agreement, and

was therefore subject to the RLA’s requirement that

it be submitted to the Board for adjustment, In af:

fireman and, more recently, with the discontinuation of the ‘ca

boose’’, the latter change increasing the monitoring of a train

which must be done from the locomotive,

11

firming the judgment dismissing the employee’s com-

plaint, this Court said:

It is clear, however, that in at least some

situations the Act makes the federal admin-

istrative remedy exclusive, rather than

merely requiring exhaustion of remedies in

one forum before resorting to another. A

party who has litigated an issue before the

Adjustment Board on the merits may not re-

litigate that issue in an independent judicial

proceeding. [Citation omitted.] He is limited

to the judicial review of the Board’s pro-

ceedings that the Act itself provides. [Cita- _

tion omitted.] In such a case the proceedings

afforded by 45 U.S.C. § 153 First (i), will be

the only remedy available to the aggrieved

party.

406 U.S. at 325.’

The Petition places great reliance upon the Court’s

recent decision in Lingle v. Norge Division of Magic

Chef, Inc., supra, (together with related cases decided

under the Labor Management Relations Act of 1947),

for the proposition that state remedies are not pre-

empted by the RLA’s system for adjudicating ‘minor

disputes’. Such reliance, however, is totally mis-

7 As noted in the Petition herein, Mr. McCall admits that the

three-doctor panel “‘... was provided under the minor dispute

resolution provisions of the Railway Labor Act’’ which ruled 2-

1 that “Petitioner was disqualified from continuing work... .”’

(Petition, at p.4.)

® Lingle involved a claim under state law for “retaliatory dis-

charge’”’ for filing a claim under the state’s workmens’ compen-

sation law. This Court, after analyzing the elements of recovery,

12

placed by reason of a fundamental difference between

the two Acts—under the LMRA arbitration is pur-

suant to the agreement of the parties, whereas under

the RLA, the remedy is statutorily compelled.® More-

over, there is nothing in the LMRA which approaches

the conclusive nature of the RLA’s provision for the

final and binding nature of the administrative deci-

sion: ‘‘Such awards shall be final and binding upon

both parties to the dispute....” 45 U.S.C. § 153

Second.’ Significantly, this Court commented upon

these differences and their legal effect in Andrews,

supra:

Indeed, since the compulsory character of the

administrative remedy provided by the Rail-

way Labor Act for disputes such as that be-

tween petitioner and respondert stems not

from any contractual undertaking between

the parties but from the Act itself, the case

for insisting on resort to those remedies is

and determining that the only issues were “... the conduct of

the employee and the conduct and motivation of the employer

.”’, neither of which required resort to the collective bargain-

ing agreement, held the claim not preempted under the analysis

in Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962).

%In Andrews, supra, this Court made it clear that “... the

notion that the grievance and arbitration procedures provided

for minor disputes in the Railway Labor Act are optional, to be

availed of as the employee or the carrier chooses, was never

good history and is no longer good law.” 406 U.S. at 322.

0 Quite apart from preemption considerations, this statutory

provision provides a basis for total issue preclusion as to matters

contested, such as those here. As held in Gunther, ‘‘a party who

has litigated an issue before the Adjustment Board on the merits

may not relitigate that issue in an independent judicial pro-

ceeding.” 406 U.S. at 235.

ee ne

13

if anything stronger in cases arising under

[the Railway Labor Act] than it is in cases

arising under § 301 of the LMRA.

406 U.S. at 323.

Another principle totally distinguishes the Labor

Management Relations Act cases from those under

the RLA for preemption purposes. In Fort Halifax

Packing Co. v. Coyne, 482 U.S. —, 107 S.Ct. 2211

(1987), this Court emphasized that preemption should

not be lightly inferred under the LMRA, since the

establishment of labor standards falls within the tra-

ditional police power of the states. The situation as

to railroads operating in interstate commerce, how-

ever, is quite the opposite. The Congress has created

federal legislation covering virtually every aspect of

labor standards for the rail industry far beyond the

RLA. For instance, railroad workers injured on the

job are not subject to workers’ compensation laws but

to the remedy provided under the Federal Employers’

Liability Act, 45 U.S.C. § 51, et seg. Their claims for

disability, unemployment and retirement are subject

not to state law but to the Railroad Retirement Act

(45 U.S.C. § 231, et seg.) and the Railroad Unem-

ployment Insurance Act (45 U.S.C. § 351, et seq.).

Even the number of hours railroad employees are

allowed to work are specified in the Hours of Service

Act (45 U.S.C. § 61, et seqg.), which this Court held

preempted any state regulations on the subject. See,

e.g., Erie R. Co. v. New York, 233 U.S. 671 (1914).!

11 In addition, the Rail Safety Act (45 U.S.C. § 421, et seq.)

and the regulations therewnder relate to virtually all aspects of

railroad working conditions. The provisions of that Act provide

an interesting contrast to the Lingle rationale, inasmuch as that

14

Moreover, the employee herein, having initiated his

RLA remedy by requesting the three-doctor panel un-

der the collective bargaining agreement, and having

been aggrieved by the decision of the panel, totally

failed to avail himself of the court review provided

for in the statute.’* In Union Pacific R. Co. v. Shee-

han, 439 U.S. 89 (1978), this Court spoke to the ne-

cessity of adhering to the compulsory procedures of

the RLA and the importance of the finality of deci-

sions thereunder:

In enacting [the Railway Labor Act], Con-

gress endeavored to promote stability in la-

bor-management relations in this important

national industry by providing effective and

efficient remedies for the resolution of rail-

road-employee disputes arising out of the

interpretation of collective bargaining agree-

ments. [Citations omitted.]

Congress considered it essential to keep these

so-called “minor’’ disputes within the Ad-

justment Board and out of the courts. [Ci-

tation omitted.] The effectiveness of the

Adjustment Board in fulfilling its task de-

pends on the finality of its determinations.

Act prohibits “retaliatory discharge”, but specifies that such

claim is subject to the “‘minor dispute’’ resolution procedures of

the RLA. 45 U.S.C. §§ 441(a), 441(c\(1).

245 U.S.C. § 153 Second provides that the findings of the

pane! shall be final and binding upon both parties, and enforce-

able in the same manner as decisions of the Adjustment Board.

45 U.S.C. § 153 First(q) provides for review of Board decisions

in the federal courts on limited grounds.

15

Normally finality will work to the benefit of

the worker: He will receive a final adminis-

trative answer to his dispute; and if he wins,

he will be spared the expense and effort of

time-consuming appeals which he may be less

able to bear than the railroad. [Citation omit-

ted.] Here, the principle of finality happens

to cut the other way. But evenhanded ap-

plication of this principle is surely what the

Act requires.

439 U.S. at 94. Here, Mr. McCall, dissatisfied with

the result of his RLA remedy, failed to seek any court

review under the RLA—instead, he sought to recover

under Michigan’s law applicable to handicapped per-

sons. And, as noted by the court below, his allegations

were precisely the same as those involved in his RLA

claim—that notwithstanding his medical condition, he

was physically capable of performing his railroad job,

the terms and conditions of his work being embodied

within his collective bargaining agreement.

In reversing the verdict against the railroad on the

grounds of the preemptive effect of the RLA, the

court below was in full accord with this Court’s de-

cisions in Gunther, Andrews and Sheehan. Any other

result would frustrate the very intent of the RLA in

providing for expert and final adjudication of ‘‘minor

disputes” under the compulsory statutory frame-

work."* Instead of promoting the Congressional intent

‘8 The $328,000 verdict in petitioner’s favor, if allowed to stand,

demonstrates the vast differences and inconsistencies in the han-

dling of his claim under the Michigan statute, as contrasted with

his rights under the collective bargaining agreement. Although

he would pocket the $328,000 district court verdict representing

16

of providing stability in railroad labor matters by a

uniform system of handling such claims, it would sub-

ject the same to varying notions as to what consti-

tutes a “handicap” as adopted by the several states

in their particular statutes, so that a jury can produce

an entirely different result (such as that obtained in

the trial court below) on the identical issue adjudi-

cated pursuant te the exclusive statutory remedy pre-

scribed by the Congress.

It is submitted that the decision below was entirely

in accord with this Court’s pronouncements vitiating

state remedies for claims which constitute ‘‘minor dis-

putes” under the RLA by reason of that Act’s man-

datory, exclusive and final means of settling such

disputes which arise in the railroad industry. Accord-

ingly, the Petition presents no special or important

reasons for this Court to invoke its discretionary

certiorari jurisdiction to review the decision below.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

his railroad wages in the future, he nevertheless still has the

right under his agreement to re-qualify for his railroad job at

any time when his diabetes comes ‘under control. In this regard,

Addendum No. 27, in speaking to the “‘final and binding”’ char-

acter of the decision of the medical panel, specifically provides

that “*... this does not mean that a change in physical condition

will preclude a re-examination at a later time.” (Opp. App..,

infra, 8a, 4.)

17

Respectfully submitted,

STEPHEN A. TRIMBLE*

JAMES B. SARSFIELD

KEVIN J. O'CONNELL

HAMILTON AND HAMILTON

734 15th Street, N.W.

llth Floor

Washington, D.C. 20005

(202) 347-2882

A.T. LIPPERT, JR.

SMITH & BROOKER, P.C.

3057 Davenport Avenue

Saginaw, MI 48602

(517) 799-1891

Attorneys for Respondent

Chesapeake & Ohio Railway

Company

*Counsel of Record

OF COUNSEL:

NICHOLAS S. YOVANOVIC

Senior Counsel

CSX Transportation, Inc.

500 Water Street

Jacksonville, FL 32202

(904) 359-1244

July 29, 1988

SUPPLEMENTAL APPENDIX

la

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 86-1462

GERARD W. MCCALL,

Plaintiff-A ppellee,

ORDER DENYING

MOTION FOR

RECONSIDERATION”

)

)

)

)

)

v. ) “LATE

)

CHESAPEAKE & OHIO RAILWAY )

COMPANY, a Virginia corpor- )

ation qualified in Michigan, )

)

Defendant-A ppellant. )

)

Before: MERRITT, MARTIN and WELLFORD, Circuit Judges.

The Court declines to order rehearing or reconsideration

in this case based upon plaintiff-appellee’s submission of

Linge[sic] v. Norge Division of Magic Chef, Inc., a case

decided June 6, 1988, by the Supreme Court, No. 87-259.

The Court has reviewed the slip opinion submitted and

concludes that the Linge[sic] case does not dictate a con-

trary result. In the instant case the state handicap action

can only succeed under the Supremacy Clause of the Con-

stitution if the collective bargaining agreement adopted

under the Railway Labor Act is interpreted to mean that

the employee’s handicap is unrelated to job performance.

If the handicap is job related, management has authority

under the collective bargaining agreement to terminate.

Thus, the state law handicap action necessarily requires

an interpretation of the collective bargaining agreement

concerning the job relatedness of the employee’s handicap.

Linge[sic] holds that in such cases requiring contract inter-

pretation the state law action must be preempted.

Accordingly, rehearing is DENIED.

2a

ENTERED BY ORDER OF THE COURT

LAWRENCE GREEN

Clerk

3a

STATUTORY PROVISIONS

The Railway Labor Act

45 U.S.C. § 153. National Railroad Adjustment Board

First. Establishment; composition; powers and du-

ties; divisions; hearings and awards; judicial re-

view. There is hereby established a Board, to be

known as the ‘‘National Railroad Adjustment Board’’,

the members of which shall be selected within thirty

days after approval of this Act [enacted June 21,

1934], and it is hereby provided—

**e eee KK

(i) The disputes between an employee or group of

employees and a carrier or carriers growing out of

grievances or out of the interpretation or application

of agreements concerning rates of pay, rules, or work-

ing conditions, including cases pending and unadjusted

on the date of approval of this Act [enacted June 21,

1934], shall be handled in the usual manner up to and

including the chief operating officer of the carrier

designated to handle such disputes; but, failing to

reach an adjustment in this manner, the disputes may

be referred by petition of the parties or by either

party to the appropriate division of the Adjustment

Board with a full statement of the facts and all sup-

porting data bearing upon the disputes.

ses tee eee &

(q) If any employee or group of employees, or any

carrier, 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

4a

of an award or by the failure of the division to include

certain terms in such award, then such employee or

group of employees or carrier may file in any United

States district court in which a petition under para-

graph (p) could be filed, a petition for review of the

division’s order. A copy of the petition shall be forth-

with transmitted by the clerk of the court to the

Adjustment Board. The Adjustment Board shall file

in the court the record of the proceedings on which

it based its action. 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 proceeding

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 set aside, in whole or in

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

division to comply with the requirements of this Act,

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

to matters within the scope of the division’s jurisdic-

tion, 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, United States Code [28 USCS

§§ 1254, 1291).

(r) All actions at law based upon the provisions of

this section shall be begun within two years from the

time the cause of action accrues under the award of

the division of the Adjustment Board, and not after.

se eB eRe

Second. System, group, or regional boards: estab-

lishment by voluntary agreement; special adjust-

ment boards: establishment, composition,

designation of representatives by Mediation Board,

5a

neutral member, compensation, quorum, finality and

enforcement of awards. Nothing in this section shall

be construed to prevent any individual carrier, system,

or group of carriers and any class or classes of its

or their employees, all acting through their represen-

tatives, selected in accordance with the provisions of

this Act, from mutually agreeing to the establishment

of system, group, or regional boards of adjustment

for the purpose of adjusting and deciding disputes of

the character specified in this section. In the event

that either party to such a system, group, or regional

board of adjustment is dissatisfied with such arrange-

ment, it may upon ninety days’ notice to the other

party elect to come under the jurisdiction of the Ad-

justment Board.

“este ee eH

Any two members of the board shall be competent

to render an award. Such awards shall be final and

binding upon both parties to the dispute and if in

favor of the petitioner, shall direct the other party to

comply therewith on or before the day, named. Com-

pliance with such awards shall be enforcible by pro-

ceedings in the United States district courts in the

same manner and subject to the same provisions that

apply to proceedings for enforcement of compliance

with awards of the Adjustment Board.

6a

GENERAL COMMITTEE OF ADJUSTMENT

BROTHERHOOD OF LOMOMOTIVE ENGINEERS

CHESSIE SYSTEM (PM-HV DISTRICTS)

4005 West River Drive, N.E. - P.O. Box 278

Comstock Park, Michigan 49321

A.W. Gall, General Chairman

Telephone (616) 784-2620

C.L. McAnalley, Vice General Chairman

W.E. Corne, Secretary-Treasurer

[Chessie System Labor

Relations Department

Baltimore, MD

Sep 07 1983]

September 1, 1983

Mr. D.T. Kelly

Director Labor Relations

Chessie System

100 North Charles Street

Baltimore, MD 21201

RE: Engineer G.W. McCall-

Employee No. 2406759

Dear Sir:

This refers to my letter of July 26, 1983, and to your

response of August 29, 1983.

Engineer G.W. McCall was disqualified to work as an

engineer by letter dated June 15, 1983. I wrote to you on

July 26, 1983; furnishing copy of letter of Dr. W.L. Hailer,

Engineer McCall’s family physician, which deemed Engi-

neer McCall fit for duty, and asking that you restore En-

gineer McCall to duty as an engineer.

I refer you to Paragraph (1) of Addendum No. 27, of

the Pere Marquette District Engineer’s Agreement, and

especially to that part which reads;

7a

“If appeal is presented with this time limit, ar-

rangements will be made for the engineer to be

examined by a special medical board compromised

of one selection by the General Chairman, the Chief

Medical Examiner of the Carrier, and the two thus

selected will select a third member to agreed upon

by them.”

Your letter of August 29, 1983 only reiterated the po-

sition of the Carrier’s Medical Department.

I would request that you make arrangements to have

Engineer G.W. McCall examined in accordance with the

provisions of Addendum No. 27. My selection for this spe-

cial medical board is:

Dr. W.L. Hailer, D.O.

Trenton Clinic, P.C.

3231 West Road

Trenton, Michigan 48183

Telephone: 1-313-676-7500

Very truly yours,

Arlow W. Gall

General Chairman

[DEFENDANT’S EXHIBIT

8

3-13-86 pjc ]

8a

ADDENDUM NO. 27

AGREEMENT BETWEEN THE CHESAPEAKE AND

OHIO RAILWAY COMPANY (PERE MARQUETTE

DISTRICT) AND ITS EMPLOYEES REPRESENTED BY

THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS

(1) When a locomotive engineer is found to be physically

disqualified by the Carrier’s Chief Medical Examiner, and

the Brotherhood of Locomotive Engineers is of the opinion

that such engineer’s condition does not justify removal

from the service, or restriction of his rights to service,

appeal must be made in writing to the Assistant Vice

President Labor Relations by the General Chairman of the

Brotherhood of Locomotive Engineers within sixty calen-

dar days of the date the engineer is notified of his dis-

qualification or restriction. If appeal is presented within

this time limit, arrangements will be made for the engineer

to be examined by a special medical board comprised of

one physician selected by the General Chairman, the Chief

Medical Examiner of the Carrier, and the two thus se-

— will select a third member to be agreed upon hy

them.

(2) The Engineer shall submit himself to this board for

physical examination.

(3) The medical board so appointed will render a joint

report of their findings and decision within fifteen days

aiter examination of the engineer. One copy of the report

will be transmitted to the Assistant Vice President Labor

Relations, one copy to the General Chairman and one copy

to the engineer.

(4) The findings and decision of the majority of this

medical board as to the physical fitness of the engineer

to Gontinue in service of the carrier shall be final and

binding upon the carrier, the engineer and the Brotherhood

of Locomotive Engineers, but this does not mean that a

chahge in physical condition will preclude a re-examination

at 4 later time.

9a

(5) The third physician selected as outlined above shall

be a practitioner of recognized standing in the medical

profession and a specialist in the disease or diseases from

which the engineer is alleged to be suffering.

(6) Where a claim is made for reimbursement of engineer

for time lost, the special medical board will, in cases where

the contention of the engineer is sustained, indicate date

as of which in its opinion the engineer has recovered suf-

ficiently to resume work in his regular occupation and the

engineer will be paid for time lost from that date.

(7) The carrier and the Brotherhood of Locomotive En-

gineers will each pay the fee and personal expenses of

their respective representatives on the medical board, and

will each pay one-half of the fee and personal expenses of

the third member as well as one-half of all additional ex-

pense incurred by the board in connection with the ex-

amination.

Signed at Detroit, Michigan, this 24th day of March,

1965.

Accepted for the Brotherhood of Accepted for The Chesapeake

Locomotive Engineers: and Ohio Railway Company:

(Sgd.) G.E. CARPENTER (Sgd.) G.M. SEATON, JR.

General Chairman Asst. Vice President-Labor

Relations

Approved:

(Sgd.) B.C. CORNELL

Assistant Grand Chief Engineer

10a

ACL/ber

[DEFENDANT’S EXHIBIT

7

3-13-86 pic ]

February 3, 1984

File: 5-169-2-McCall

Mr. A.W. Gall, General Chairman

Brotherhood of Locomotive Engineers

4005 West River Drive, N.E., Box 278

Comstock Park, Michigan 49321

Dear Sir:

Reference is made to previous correspondence concern-

vag Engineer G.W. McCall who was removed from service

by the Carrier’s Medical Department due to his physical

condition.

As requested, a medical panel was established under the

conditions set forth in Addendum 27 of the Engineers’

Agreement, consisting of Dr. J.A. Thomasino, Chief Med-

ical Officer of the Carrier, Dr. W.i. Hailer, the employee’s

representative, and Dr. D.C. Leacii.

Dr. Leach, having examined Mr. McCall, has concluded

that Mr. McCall should not be permitted to be an En-

gineer/Fireman while taking insulin. Dr. Leach’s conclu-

sions, therefore, are in agreement with those of Dr. Tho-

masino. Enclosed are two copies of Dr. Leach’s report,

one for your file and the other to be furnished to Mr.

McCall. Dr. Leach has furnished a copy of his report to

Dr. Hailer.

As the findings and decision of the majority of the Med-

ical Board is that Mr. McCall is not physically qualified

to continue in the service of the Carrier as Engineer/

Fireman, the purpose of the Three Doctor Panel has been

lla

satisfied and the procedures outlined in Addendum 27 of

the Engineers’ Agreement concluded.

Very truly yours,

D.T. Kelly

Director Labor Relations

Attachments - 2

be: Mr. W.B. Vander Veer - Southfield)

Mr. G.S. Athanas - Rougemere _)

G.W. McCall should not be permitted to return to service

and should continue to be shown as physically unqualified.

J.A. Thomasino, M.D.

Mr. J.D. Crimmins—Copy of Dr. Leach’s report is