Petition for Writ of Certiorari — Grand Trunk Western Railroad v. Roddy

I

PETITION FOR A WRIT OF CERTIORARI

Petitioners Grand Trunk Western Railroad

Incorporated, Tracey Miller, Laurence T. Wizauer,

David Cromie, Peter Brandon, Thomas Willett, and

Lawrence R. Martenis respectfully petition for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. 1la-14a)

is reported at 395 F.3d 318 (6th Cir. 2005). Both the

district court’s order denying respondent’s motion to

remand (App. 15a), and the transcript containing its

bench ruling in support of that order (App. 16a-27a), are

unreported, as is the district court’s memorandum

opinion and order granting petitioners’ motion for

summary judgment (App. 28a-41a).

JURISDICTION

The judgment of the court of appeals sought to

be reviewed was entered on January 14, 2005. The

court of appeals denied a timely petition for rehearing

on March 15, 2005. (App. 47a-48a.) Petitioners’ time for

filing a petition for certiorari was extended by Justice

Stevens as Circuit Justice until July 13, 2005. The

jurisdiction of this Court is invoked under 28 U.S.C. §

1254(1).

STATUTORY PROVISIONS INVOLVED

This case concerns 28 U.S.C. §§ 1331 and 1441,

and Sections 1, la and 3 of the Railway Labor Act, 45

2

U.S.C. §§ 151, 151a and 158, all of which are reproduced

in the Statutory Appendix (App. 49a-74a).

STATEMENT OF THE CASE

i. Statutory Background

This case concerns the Railway Labor Act of

1926 (“RLA”), as amended, 45 U.S.C. §§ 151, et seq. In

the RLA, Congress established a comprehensive ~

regime that governs employment under collective

bargaining agreements (“CBAs”) throughout the U.S.

railroad and airline industries.' That regime serves the

critically important national purpose of minimizing the

risk that railroad or airline labor disputes could lead to

“any interruption to commerce or to the operation of

any earrier engaged therein.” Jd. § 15la(1). To that

end, “Congress endeavored to promote stability in

labor-management relations . . . by providing effective

and efficient remedies for the resolution of railroad-

employee [and airline-employee] disputes arising out of

the interpretation of collective-bargaining agreements.”

Union Pac. R.R. v. Sheehan, 489 U.S. 89, 94 (1978).

In Section 3 of the RLA, Congress provided an

exclusive federal system, founded on “compulsory

arbitration procedures,” Consol. Rail Corp. v. Ry.

Labor Execs. Ass’n, 491 U.S. 299, 303 (1989), “for the

prompt and orderly settlement of all disputes growing

out of grievances or out of the interpretation or

‘In 1936 Congress extended the RLA to the airline industry. See

45 U.S.C. §§ 181-88. Both the railroad and the airline industries

are adversely affected by the decision of the court of appeals in this

case and by the split in the circuits over the question presented.

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application of [CBAs],” 45 U.S.C. § 151a(5).2 Such

disputes are known as “minor disputes.” See, e.g.,

Elgin, Joliet, & E. Ry. v. Burley, 325 U.S. 711, 723-24

(1945); Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246,

256 (1994) (further defining minor disputes as disputes

that “involv[e] the interpretation or application of

existing labor agreements”). Because arbitration is

mandatory, any claim brought under state law that

“constitute[s] a minor dispute” is preempted by the

RLA. Id. at 253.

This case presents an issue that now divides nine

of the courts of appeals along a six-to-three split:

whether federal courts have federal question

jurisdiction over a claim pled under state law that

involves interpretation or application of a CBA subject

to the RLA and hence constitutes a minor dispute

? Specifically, Section 3, First of the RLA establishes the National

Railroad Adjustment Board (“NRAB?”), and provides that all such

disputes that cannot be resolved consensually are to be referred to

it, id. § 153, First (i), to regional adjustment boards sitting under

authority delegated by the NRAB, 7d. § 153, First (x), or to similar

system, group or regional boards (including public law boards)

established by voluntary agreement between railroad employers

and uuions, id. § 153, Second—Adjustment board awards are both

enforceable and reviewable in federal district court. Jd. § 153,

First (p) & (q).

* “Minor disputes” are distinguished from “major disputes” not by

their scope or importance — minor disputes frequently involve

industry-wide issues affecting the terms under which railroad or

airline employees are employed — but by their relationship to

CBAs. Any dispute involving the interpretation or application of

an existing CBA is “minor,” whereas a dispute arising “out of the

formation or change of’ a CBA is “major.” Detroit & Toledo Shore

Line R.R. v. United Transp. Union, 396 U.S. 142, 145 n.7 (1969).

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subject to mandatory arbitration under Section 3 of the

RLA, 45 U.S.C. § 153.

That issue arises when an employee files a state

law claim against a railroad or airline employer and

seeks relief from a state court instead of, or (as in this

case) in addition to, filing the grievance before the

adjustment board.

Six circuit courts have held that there is federal

question jurisdiction over the employee’s state law

claim if it involves interpretation or application of a

CBA subject to the RLA. As a result, district courts in

those circuits are available, upon removal, 28 U.S.C. §

1441, to determine whether the claim constitutes a

~ minor dispute and, if so, to enforce the exclusivity of

the RLA-specified mechanisms for resolving such

disputes.

Three circuit courts, including the Sixth Circuit

in this case, have held that there is no such federal

question jurisdiction. Therefore, the determination of

what constitutes a minor dispute and enforcement of

the federal dispute resolution system are left to the

state courts within those circuits.

ii. Statement Of Facts

Petitioner Grand Trunk Western Railroad

Incorporated (“GTW”) operates railway lines in

Michigan and three other states. GTW is a part of the

railway system of Canadian National Railway (“CN”),

which operates coast to coast in Canada and south from

Canada through sixteen states in the United States to

the Gulf of Mexico. CN’s lines run in states located in

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the Second, Third, Fifth, Sixth, Seventh, Eighth and

Eleventh Circuits. The CN system, including GTW, is

an integral part of the U.S. freight railway network,

connecting directly with the six other major North

American freight railroads that operate within the

United States. Together, the major railroads

interchange freight with hundreds of smaller railroads.

Railroads carry freight in every state, and the U.S.

freight railway system, in turn, interconnects with the

railway systems of Canada and Mexico and is an

essential foundation of much of the United States and

North American economies. The freight railroads in

the United States also provide tracks and other

infrastructure facilities used by Amtrak and other

passenger lines.

Improper train operation poses significant safety |

risks that arise from both the size and speed of the

trains and the hazardous materials that frequently are

shipped by rail. Accordingly, GTW, like other railroads

operating in the United States, is subject to the

provisions of the Federal Railroad Safety Act of 1970

(“FRSA”), now codified as amended at 49 U.S.C. §§

20101, et seg. Regulations promulgated by the

Secretary of Transportation under the FRSA prohibit

railroad employees such as respondent from using “a

controlled substance at any time, whether on duty or

off duty,” 49 C.F.R. § 219.102, and subject railroad —

employers such as GTW to civil penalties for violating

the “duty of due diligence to prevent” such on- or off-

duty drug use, id. §§ 219.9(a), 219.105(b). See generally

Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602, 608

(1989) (noting “the obvious safety hazards of drug and

alcohol use by railroad employees” addressed by FRSA

regulations). Under these regulations, “({eJ}xisting

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procedural rights with respect to employment remain

unabridged,” specifically, “investigation, grievance and

adjustment under the collective bargaining agreement

and section 3 of the Railway Labor Act, 45 U.S.C. 153.”

Random Drug Testing; Amendments to Alcohol/Drug

Regulations, 53 Fed. Reg. 47,102, 47,107 (Fed. R.R.

Admin. Nov. 21, 1988).

This case arises out of GTW’s employment of

respondent James T. Roddy (“Roddy”). As a conductor,

Roddy operates a freight train for GTW, typically in

concert with only one other person, an engineer. A

conductor is responsible for directing train movement

to assure employee and public safety. This includes

such “safety-sensitive tasks,” Skinner, 489 U.S. at 620,

as directing the engineer in the operation of the train,

coupling and uncoupling cars to and from the train, and

operating switches that determine the track to be

occupied by the train.

The terms of Roddy’s employment, i.e., his rate

of pay, rules and working conditions, are governed by a

CBA with Roddy’s union, the United Transportation

Union (““UTU”). Pursuant to the CBA, GTW has

exercised the right to promulgate work rules relating

to personal conduct and controlled substances,

including investigatory procedures and disciplinary

sanctions. Disputes involving the interpretation and

application of those rules are subject to mandatory

arbitration under the RLA.

On July 11, 2000, less than three hours before he

was to begin a conductor shift, Roddy was arrested on,

inter alia, misdemeanor charges of possessing the

controlled substances methylphenidate and marijuana

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_and resisting arrest. After police subdued him with

pepper spray, Roddy was detained and jailed overnight.

Approximately one hour before his shift was to begin,

his wife called GTW to report that he was “unavailable

for work” that night. Compl. J 15 G.A. 13).4 Roddy’s

absence on short notice resulted in the train’s delay.

(J.A. 75.)

GTW investigated Roddy’s failure to report for

his shift. During that investigation, GTW obtained a

copy of Roddy’s arrest record. In accordance with the

provisions of the CBA between GTW and UTU, GTW

held an investigational hearing into both Roddy’s

connection with illegal drugs and his short notice to

GTW of his unavailability for work, in violation of GTW

work rules. (.A. 69-96, 149-50.) Roddy was

represented by a union official, also in accordance with

the CBA. Based on the resulting record (see J.A. 69-

96), GTW suspended Roddy for sixty days and required

that, before he could return to service, Roddy had to

undergo an Employee Assistance Program (“EAP”)

evaluation, comply with any resulting

recommendations, obtain a release from the EAP

counselor to allow for GTW’s verification, and undergo

a company medical examination that included a drug

test. (J.A. 128, 220.) At this time, the criminal drug

charges were still pending against Roddy. (J.A. 158,

191-93.) :

Roddy refused to undergo the required EAP

evaluation and also failed to satisfy any of the other

requirements for his return to service. GTW convened

* References herein to “J.A. __” are to the Parties’ Joint Appendix

filed with the Sixth Circuit in this case.

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another investigational hearing pursuant to the CBA

and found that Roddy’s noncompliance violated GTW

work rules requiring employee compliance with

department managers’ instructions applying to their

duties. (J.A. 97.) GTW dismissed Roddy for violation

of those rules. Roddy unsuccessfully appealed his

dismissal within the GTW disciplinary process. (J.A.

97, 221-23.)

Roddy exercised his rights under the CBA and

the RLA to challenge the investigation, hearing, and

dismissal in binding arbitration. He sought

reinstatement, pay for all time lost (including payment

for “all benefits, privileges and rights lost”) and

“expunging [of] all notation of investigation from [his]

work record.” Award No. 15, NMB, Pub. L. Bd. No.

6441, Docket No. 1000-2001—UTU files, 4465-R-GTW

files (Aug. 26, 2003) (App. 42a-43a).° The arbitration

panel determined that it had “jurisdiction of the parties,

claim and subject matter,” id. at 43a, and that Roddy “is

guilty of the charges.” Jd. at 45a-46a. Because Roddy

was “(a] long term employee with an otherwise good

work record,” however, it reduced the discipline from

dismissal to “suspension from service for a period of

three (3) months and [Roddy] will otherwise be made

whole for wages, benefits and his seniority date.” /d. at

45a-46a.

5 The adjustment board’s award is a matter of public record. A

copy is included as App. E (App. 42a-46a). ‘

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iii. Course Of Proceedings And

Disposition Below

Prior to the arbitration award, Roddy also filed a

complaint against GTW and the other petitioners (GTW

officials) in Michigan state court, which covered much of

the same ground as his RLA arbitration. Like Roddy’s

arbitration demand, the complaint stated that it

concerned the “terms, conditions, or privileges of

[Roddy’s] employment.” Compl. ¥{ 17, 30.

The complaint asserted that GTW had violated a

Michigan statute that prohibits an employer from

requesting, making, or retaining a record of an

employee’s misdemeanor arrest if that arrest did not

result in a conviction, Mich. Comp. Laws § 37.2205a (the

Michigan “Elliott-Larsen” statute). Roddy alleged that

“fat] all material times, Plaintiff [Roddy] was an

employee, and Defendant GTW was his employer,”

Compl. ¢ 23, and that “{aJs a result of the Defendants

requesting, making or maintaining of a record or

information of [Roddy’s] misdemeanor arrest and

detention, Defendant, GTW, conducted a _ formal

company investigation on a charge of possession of

marijuana which were [sic] alleged to be in connection

to the terms, conditions, or privileges of Plaintiffs

employment,” id. J 17; see also id. | 30, and eventually

“terminate|[d] [Roddy’s] employment,” id. ¢ 27. Among

other relief, the complaint sought compensatory and

exemplary damages based on Roddy’s alleged “lost

wages” and job benefits (id., Prayer J 3), an injunction

to prevent GTW from imposing further discipline based

on Roddy’s arrest (id., Prayer | 5), and other relief

paralleling his RLA arbitration demands, e.g.,

reinstatement (id., Prayer § 6), and an order requiring

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GTW to destroy the records of its disciplinary

proceedings arising from Roddy’s arrest (id., Prayer J

7).

Petitioners filed a timely notice of removal,

stating that Roddy’s “rights, if any, with regard to [his]

claims in this case are governed and controlled by the

mandatory provisions of the [RLA]” in that “any

dispute regarding his rates of pay,-hours, or conditions

of employment are [sic] subject to the mandatory

provisions of the [RLA],” and that the District Court

“has original jurisdiction of plaintiff's complaint in this

matter pursuant to 28 U.S.C. § 1331.” @J.A. 8.) Roddy

_ moved for remand to the state court. (J.A. 42-44.)

In a bench ruling, the district court denied the

motion to remand. The court reasoned that “there are

certain areas in which there is complete preemption,

and certain aspects of the Federal Railway Labor Act

are included in those.” (App. 19a.) Further, :

the issues involved in the minor dispute

here are areas exclusively reserved to the

administrative scheme of the Railway

Labor Act, including the character, fitness

and safety of the personnel to operate the

equipment involved. ... {T]he safety,

character and fitness of the employees. to

operate the trains is a matter which needs

to be fully considered within the

administrative scheme [of the RLA].

(Id: at 26a-27a.)

In a written opinion, the district court granted

petitioners’ subsequent motion for summary judgment,

concluding that:

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[Roddy’s] state law claims are

inextricably intertwined with

interpretation of rights and obligations

that exist under the parties’ CBA; ie.,

whether [GTW}] has the right to request,

make, or maintain a record of information

regarding an off-duty misdemeanor drug

arrest that did not result in a conviction

and whether [Roddy] has a right to

impede access to this information or to

refuse to answer questions regarding such

an arrest.

(App. 37a.) Further, Roddy’s state law claims could not

“be resolved independently of the CBA” and federal

regulations, and were “in direct conflict” with GTW’s

rights and responsibilities thereunder. Jd. The District

Court also relied upon the holding in Gore v. Trans

World Airlines, 210 F.3d 944 (8th Cir. 2000), that

“{ujnder the RLA, parties are obligated to arbitrate

minor disputes, which are controversies arising out of

the application or interpretation of the collective

bargaining agreement, and therefore, complete

preemption applies to disputes involving duties and

rights created or defined by the collective bargaining

agreement.” Jd. at 949 (quoted at App. 34a-35a).

On Roddy’s appeal from both orders, the Court

of Appeals for the Sixth Circuit found a conflict in the

other circuits as to whether the RLA has “the

extraordinary preemptive force necessary to create

federal removal jurisdiction,” App. 12a; see id. at 7a-13a

(discussing cases), i.e., whether federal courts have

federal question jurisdiction over a claim pled under

state law that involves interpretation or application of a

CBA subject to the RLA, and hence constitutes a minor

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dispute subject to mandatory arbitration under Section

3. The court of appeals acknowledged that “(t]he RLA

gives the National Railroad Adjustment Board

exclusive jurisdiction over disputes that arise out of

collective bargaining agreements,” but discerned “no

indication that [in the RLA] Congress intended for

federal courts to acquire jurisdiction solely to ensure

that minor disputes are redirected from the courts to

the boards of adjustment.” Jd. at 9a-10a (citations

emitted). On that basis, it held that state law claims

that constitute minor disputes under the RLA fall

outside federal question jurisdiction. It therefore

reversed the denial of Roddy’s motion to remand,

vacated the grant of summary judgment based only on

its finding that the district court lacked jurisdiction,

and returned the case to the district court with

instructions to remand it to the state court. (App. la-

14a.)°

GTW filed a timely petition for rehearing with a

suggestion for rehearing en banc. On March 15, 2005,

the Court of Appeals denied rehearing. (App. 47a-48a.)

* The district court, in turn, remanded to the Michigan circuit

court, where no action has been taken. It is well-settled that such

remand does not “defeat this Court’s jurisdiction” or affect this

Court’s “authority to review” the decision of the court of appeals.

Aetna Cas. & Sur. Co. v. Flowers, 330 U.S. 464, 466-67 (1947); ef.

Graddick v. Newman, 453 U.S. 928, 945 n.* (1981) (Rehnquist, J.)

(issuance of mandate or obedience to judgment does not bar

review).

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REASONS FOR GRANTING THE WRIT

The writ should be granted for three reasons:

1. The Sixth Circuit’s decision places it on the

minority side of a six-to-three circuit split on an

important and recurring issue of federal law that likely

will persist until resolved by this Court;

2. The Sixth Circuit’s decision conflicts with

decisions of this Court holding that (a) federal courts

have federal question jurisdiction to enforce the RLA

obligation to arbitrate minor disputes, and (b) Section 3

of the RLA has no less preemptive force than Section

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

§ 185, under which state court actions asserting

arbitrable grievances are subject to federal question

jurisdiction; and

3. The Sixth Circuit’s decision is contrary to

Congress’s intent to make the federal courts available

to enforce the RLA dispute resolution process.

Z. The Sixth Circuit’s Decision Places it On

The Minority Side Of A Six-To-Three Circuit

Split On An Important And — Issue

of Federal Law.

The Sixth Circuit’s decision widens a split among

the courts of appeals. It directly conflicts with

decisions of the United States Courts of Appeals for the

Second, Fourth, Fifth, Seventh, Eighth and Ninth

Circuits, all of which have held that a state law cause of

action that constitutes a minor dispute under the RLA

“aris[es} under the ... laws . . . of the United States.”

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28 U.S.C. § 1331. Two other courts of appeals, the

Third and Eleventh Circuits, have preceded the Sixth

Circuit in holding that RLA minor disputes do not

implicate federal question jurisdiction when pled as

state law causes of action.

In ‘sum, nine circuits (plus numerous district

courts’) have decided the issue, with six circuits

determining the issue one way and three determining it

the other. This circuit split undermines Congress’s goal

of uniformity and thereby also threatens the

congressional goal of stability in rail and airline labor

relations. Moreover; the uncertainty brought about by

this circuit split is aggravated by the fact that the

Nation’s railroads and airlines face uncertainty as to

the approaches to RLA matters that may be taken by

the many state court judges in the ten states

encompassed by the Third, Eleventh, and Sixth

Circuits. This Court should grant certiorari in order to

resolve this deep and long-standing conflict. See Sup.

Ct. R. 10(a).°

7 For example, district courts in the First Circuit have also held,

contrary to the decision below, that there is federal question

jurisdiction over minor disputes pled as state law claims. See, e.g.,

Burgos v. Exec. Air, Inc., 914 F. Supp. 792, 797 (D.P.R. 1996)

(“removal from the Commonwealth court is appropriate, due to the

RLA’s complete preemption of state contract law in this matter”);

Sirois v. Bus. Express, Inc., 906 F. Supp. 722, 729 (D.N.H. 1995)

(“[t]o deny removal under these circumstances would be to ignore

Congressional intent” and “would jeopardize federal labor policies

and encourage the proliferation of varying and inconsistent state

court constructions of collective bargaining agreements”). The

First Circuit itself has not addressed the issue.

* Other district courts have also recently noted the conflict among

the courts of appeals. See, e.g., Solimo v. Metro-North Commuter

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A. Six Circuits Hold That State Law

Claims That Constitute Minor

Disputes Under The Railway Labor Act

Fall - Within Federal Question

Jurisdiction.

1. Seventh Circuit. In Graf v. Elgin,

Joliet & Eastern Railway, 790 F.2d 1341 (7th Cir.

1986), the Seventh Circuit ruled that the RLA “so

pervasively occupies the field of railroad labor disputes

_ that a railroad worker's claim of wrongful discharge

necessarily invokes federal law,” id. at 1344, for which

reason the claim comes within “federal-question

jurisdiction under 28 U.S.C. § 1331,” and “the district

judge was authorized to decide whether Graf's claim of

wrongful discharge is barred by the Railway Labor

Act,” id. at 1348. See also Leu v. Norfolk & W. Ry., 820

F.2d 825, 829 (7th Cir. 1987) (““Where the worker is

covered by a collective bargaining contract and

therefore has a potential federal remedy, judicial or

arbitrable [sic], the cases hold that that remedy is

exclusive; the worker has no state remedies.” (quoting

Graf, 790 F.2d at 1346)).

g. Fourth Circuit. In Arbogast v.

CSX Corp., 831 F.2d 290 (unpublished table decision),

reported in full at 1987 WL 38662 (4th Cir. 1987), the

R.R., 253 F. Supp. 2d 733, 735 n.1 (S.D.N.Y. 2003); Chille v. United

Airlines, 304 F. Supp. 2d 466, 469 (W.D.N.Y. 2004); Mersmann v.

Cont'l Airlines, 335 F. Supp. 2d 544, 552 (D.N.J. 2004). The conflict

has also been discussed in academic literature. See, e.g., Erie J.

Moss, The Breadth of Complete Preemption, 76 Va. L. Rev. 1601,

1618-25 (1990); 16 James Wm. Moore et al., Moore’s Federal

Practice § 107.14[4][b][v][D], at nn.265.1-.3 (8d ed. 1997 & Supp.

2005).

16

Fourth Circuit followed Graf in holding that the RLA’s

“minor dispute provisions convert a state law claim into

a federal claim for purposes of removal jurisdiction.”

1987 WL 38662, at **1. It therefore held that an action

seeking penalties under a West Virginia statute for

failure to pay wages promptly was properly removed

to, and dismissed by, the district court; the penalties

sought were derived solely from the state statute, but

the duty sought to be enforced — the duty to pay wages

— was created by the RLA-governed CBA.

z. Eighth Circuit. The Eighth Circuit

has held in both Deford v. Soo Line R.R., 867 F.2d 1080

(8th Cir. 1989), and Gore, 210 F.3d 944, that state law

claims that constitute minor disputes are within federal

question jurisdiction. It reasoned in Deford that the

RLA “pervasively occupies’ the field of railroad labor

disputes, completely preempting state law claims

arising out of collective bargaining agreements.” 867

F.2d at 1085 (citation omitted). The “RLA’s

preemptive force is so extraordinary that it takes over

the whole field of railroad labor disputes arising from

the collective bargaining agreement.” Id.

L. Ninth Circuit. The Ninth Circuit

has held that state law claims that constitute minor

disputes “are completely preempted by the RLA,” and

thus cannot be remanded to state court. Grote v. Trans

World Airlines, Inc., 905 F.2d 1307, 1810 (9th Cir.

1990); accord Beers v. S. Pac. Transp. Co., 703 F.2d 425,

427 (9th Cir. 1983) (affirming removal because “the

functioning of the labor relations process under the

RLA is the heart of the Act and an area of federal

concern”); Schroeder v. Trans World Airlines, Inc., 702

F.2d 189, 191 (9th Cir. 1983) (“The application of this

17

statute and the necessity of its interpretation establish

the existence of a federal question as an essential

element of plaintiffs’ cause of action, providing the basis

for removal.”).°

5. Fifth Circuit. The Fifth Circuit

has stated that federal question jurisdiction supporting

removal would exist if the state cause of action asserted

in state court constituted a minor dispute under the

RLA. Anderson v. Am. Airlines, Inc., 2 F.3d 590, 594

(5th Cir. 1993).”

6. Seeond Crrcurt. The Second

Circuit has held that “i]f the state claims put forward

are in fact preempted by the RLA, the action may

properly be removed to the federal courts, even when

®° The Sixth Circuit cited one Ninth Circuit case decided after

Schroeder and Beers but before Grote to contend that “[t]he Ninth

Circuit has also rejected a finding that a plaintiffs state law claims

were completely preempted by the RLA.” App. 10a. However,

the pre-Grote case cited, Price v. PSA, Inc., 829 F 2d 871 (9th Cir.

1987), made no reference to any CBA or to Section 3 of the RLA,

45 U.S.C. § 153, but rather addressed preemption based only on

the organization ahd collective bargaining provisions of Section 2,

Fourth of the RLA, 45 U.S.C. § 152, Fourth. More recently, the

Ninth Circuit has reviewed a district court’s preemption analysis

in a minor dispute case after the defendant “removed the action to

federal court asserting federal question jurisdiction based on [inter

alia] the RLA,” without suggesting any retreat from its holding in

- Grote that there is federal question jurisdiction over state law

claims that constitute minor disputes. Espinal v. N.W. Airlines,

90 F.3d 1452, 1455 (9th Cir. 1996).

'° The Fifth Circuit held that the particular state claims asserted in

Anderson did not constitute minor disputes and therefore were not

removable.

18

the plaintiff's complaint does not itself include a federal

cause of action.” Shafii v. British Airways, PLC, 83

F.3d 566, 569 (2d Cir. 1996)."

B. Two Other Circuits Preceded The

Sixth Circuit In Holding That State

Law Claims That Constitute Minor

Disputes Under The RLA Fall Outside

Federal Question Jurisdiction

1. Third Circuit. In Railway Labor

Executives’ Ass'n v. Pittsburgh & Lake Erie R.R., 858

F.2d 936 (3d Cir. 1988) (““P&LE”), the Third Circuit

held that state law claims that constitute minor

disputes are outside federal question jurisdiction. It

reasoned that Congress had “fail[ed] to create in the

RLA a civil enforcement action” in federal court, and

that there was no “affirmative evidence of a

Congressional intent to permit removal despite the

plaintiff's exclusive reliance on state law.” Id. at 942-

43,2

' The Second Circuit held that the particular state claims asserted

in Shafii did not constitute minor disputes and therefore were not

removable. As a statement of the law in the Second Circuit, Shafti

has been applied as the basis for removal of state law claims that

do constitute minor disputes. See Solimo, 253 F. Supp. 2d at 735 &

n.l (holding such claims “ineligible for remand” because the

Second Circuit “is clearly of the opinion that the RLA, like the

Labor Management Relations Act (‘LMRA’) which it closely

resembles, offers complete preemption and thus removal

jurisdiction for artfully pled state law complaints in the RLA

field”).

2 The Eighth Circuit in Deford, 867 F.2d at 1086, criticized PELE

as taking an “unnecessarily narrow” approach to the interpretation

of congressional intent:

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2. Eleventh Circuit. In Geddes v.

American Airlines, Inc., 321 F.3d 1849 (11th Cir. 2003),

the Eleventh Circuit followed P&LE in denying federal

question jurisdiction over state law claims that

constitute minor disputes, because it could not discern

any “indication that Congress intended for federal

courts to acquire jurisdiction solely to ensure that

minor disputes are redirected from courts to the boards

of adjustment.” Jd. at 1354. The Sixth Circuit relied

heavily on Geddes in the opinion below. See App. 9a-

13a.

Cc. This Deeply Entrenched Conflict Will

Likely Persist Until Resolved By This

Court.

The issue of federal jurisdiction over minor

disputes pled as state law claims has been percolating

for almost two decades, and each circuit’s position

(except that of the Seventh Circuit in Graf) was

reached following a contrary decisicn by at least one

other circuit. For example, the Third Circuit ruled

against such federal question jurisdiction in P&LE in

1988, and the Eighth Circuit ruled in favor of it in

Not only must we look to affirmative congressional

intent and civil enforcement provisions, but we

must also look to such factors as the history and

purpose of the statute. Recent case law

illustrating the federal nature of the statute and

analogous statutes with complete preemptive

powers are also informative. Having analyzed the

RLA under this light, we conclude that it was

Congress' intent that the RLA govern all railway

labor disputes such as those in this case arising

from collective bargaining agreements.

20

Deford in 1989, in an opinion explicitly eschewing

P&LE’s “unnecessarily narrow” approach. 867 F.2d at

1086.

This Court’s review is likely the only avenue for

resolving the conflict. It is unlikely that all six circuits

that have ruled in favor of federal question jurisdiction

will reverse their position. Their positions are long- -

standing and, as discussed below, there are good

reasons for believing that federal question jurisdiction

is consistent with Congress’s intent in the RLA and

with this Court’s RLA precedents.

There also is little reason to expect a reversal of

the position of the three circuits that have ruled against

federal question jurisdiction over state law claims that

constitute minor disputes. Indeed, they likely will have

no opportunity to do so. District courts following

circuit precedent in these circuits will remand to state

courts for lack of subject matter jurisdiction, and such

remands are “not reviewable on appeal or otherwise.”

28 U.S.C. § 1447(d); see Things Remembered, Inc. v.

Petrarca, 516 U.S. 124, 127-28 (1995).

Il. The Sixth Circuit’s Decision Conflicts With

Relevant Decisions Of This Court.

The Sixth Circuit’s decision is inconsistent with

this Court’s decisions that have long and consistently

recognized that, in enacting Section 3 of the RLA,

Congress intended federal courts to have jurisdiction to

compel compliance with its provisions. It also cannot be

squared with this Court’s precedents holding both that

the preemptive force of Section 3 of the RLA is the

same as (or greater than) that of Section 301 of the

21

Labor-Management Relations Act (“LMRA”), 29

U.S.C. § 185, and that Section 301 of the LMRA has the

preemptive force necessary to create federal question

jurisdiction. These conflicts present independent

reasons for this Court to review the Sixth Circuit’s

decision. Sup. Ct. R. 10(c).

A. This Court Has Held That Federal

Courts Have Federal Question

Jurisdiction To Enforce The RLA

Obligation To Arbitrate Minor

Disputes. -

The Sixth Circuit’s holding that “there is no

indication that Congress intended federal courts to

acquire jurisdiction solely to ensure that minor disputes

are redirected from the courts to the boards of

adjustment,” App. 10a, conflicts with this Court’s long-

standing and consistent determination that “the

District Court has jurisdiction’ . . . to enforce

compliance with the requirements of [Section 3 of] the

Railway Labor Act.” Bhd. of R.R. Trainmen v.

Chicago River & Ind. R.R., 353 U.S. 30, 42 (1957)

(quoting Bhd. of R.R. Trainmen v. Howard, 343 U.S.

768, 774 (1952)). For example, after surveying the

RLA’s legislative history and purpose, the Court in

Chicago River unanimously recognized that Congress

in the RLA intended that federal jurisdiction be

available so that “federal courts can compel compliance

with the provisions of the Act” regarding resolution of

minor disputes by adjustment boards. 353 U.S. at 39.

Likewise, in California v. Taylor, 353 U.S. 553 (1957),

the Court ruled that federal question jurisdiction was

available to plaintiff employees after the carrier

members of an adjustment board (specifically, the First

22

Division of the NRAB) refused to arbitrate a minor

dispute based on the erroneous belief that they lacked

jurisdiction over the CBA at issue. It held that the

employees were entitled to a federal court order

compelling the arbitration of the minor dispute. See

also Consol. Rail Corp., 491 U.S. at 304 (noting federal

court jurisdiction to “enjoin strikes arising out of minor

disputes”); cf. Pittsburgh & Lake Erie R.R. v. Ry.

Labor Execs. Ass’n, 491 U.S. 490, 513 (1989) (noting

federal court jurisdiction to enjoin a union from striking

“when the dispute concerns the interpretation or

application of [an RLA-governed] contract and is

therefore subject to compulsory arbitration,” citing

Chicago River).

The Sixth Circuit denied the existence of federal

question jurisdiction to enforce Section 3 of the RLA

based in part on its understanding that the RLA

contains no legislative language “creating a ‘federal

cause of action for the resolution of [minor] disputes.”

App. 10a (citing Geddes, 321 F.3d at 1354)." However,

Section 3 of the RLA does provide causes of action for

federal district court enforcement and review of

adjustment board awards. 45 U.S.C. § 153, First (p) &

(q). Moreover, “(t]he absence of a specific statute

conferring jurisdiction,” as opposed to the general

grant of federal question jurisdiction in 28 U.S.C. §

1331, is “of no moment” in RLA cases. Int'l Ass’n of

Machinists v. Central Airlines, Inc., 372 U.S. 682, 690

8 The Eleventh and Third Circuits employed similar reasoning.

See Geddes, 321 F.3d at 1354 (“the statute includes no language

granting general jurisdiction over minor disputes to federal

courts”); P&LE, 858 F.2d at 942 (relying on “Congress’ failure to

create in the RLA a civil enforcement action” in federal court).

23

n.13 (1963) (citations omitted). In Central Airlines, an

airline employer refused to comply with an RLA

arbitration award, and the affected employees brought

a federal action to enforce the award. The lower courts

found federal jurisdiction wanting because the RLA did

not expressly create a federal cause of action to enforce

airline (as opposed to railroad) arbitration awards. This

Court unanimously reversed, following a long line of

prior holdings that found “other duties imposed upon

the carriers and their employees by the Railway Labor

Act binding and their breach redressable in the federal

courts, such as the duty to bargain, and the duty of a

certified bargaining representative to represent all

members of the craft without discrimination.” Jd. at

690 (citations omitted).

The Sixth Circuit’s contrary approach conflicts

with this Court’s decisions recognizing federal question

jurisdiction under 28 U.S.C. § 1331 to enforce Section 3

of the RLA without recourse to specific jurisdictional

provisions. This conflict warrants this Court’s review.

‘4 Cf. Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., No.

04-603, slip op. at 9 (June 13, 2005) (“[T]he absence of a federal

private right of action [is] evidence relevant to, but not dispositive

of, the ‘sensitive judgments about congressional intent’ that § 1331

requires.” (quoting Merrell Dow Pharms., Inc. v. Thompson, 478

US. 804, 810 (1986))).

a

B. This Court Has Held That Section 3 Of

The RLA Has No Less Preemptive

Force Than Section 301 Of The Labor-

Management Relations Act, 29 U.S.C. §

~ 185, Under Which State Court Actions

Asserting Arbitrable Grievances Are

Subject To Federal Question

Jurisdiction.

The Sixth Circuit’s conclusion “that the RLA

does not have the extraordinary preemptive force

necessary to create federal removal jurisdiction,” App.

12a, also is inconsistent with this Court’s decisions. To

the contrary, this Court’s precedents hold that the

preemptive force of Section 3 of the RLA is no less than

that of Section 301 of the LMRA, and that Section 301

of the LMRA does have such preemptive force as to

provide federal removal jurisdiction.

This Court has already settled the issue of

federal removal jurisdiction under the LMRA, ruling

that a “claim under [a] collective bargaining agreement

[governed by the LMRA] is one arising under the ‘laws

of the United States.” Avco Corp. v. Aero Lodge No.

725, Int'l Ass’n of Machinists, 390 U.S. 557, 560 (1968)

(citation omitted). In Avco, this Court upheld the

removal to federal court of an employer’s state law

claim for breach of a “no-strike” clause in a CBA, under

which “grievances” were to be settled amicably or by

binding arbitration. This Court held that Section 301

completely preempts state law causes of action to

enforce such CBAs, replacing them with a federal cause

of action to enforce the agreement. /d. at 559-61. This

Court later elaborated upon Avco as follows:

25

The necessary ground of decision was that

the preemptive force of § 301 is so

powerful as to displace entirely any state

cause of action “for violation of contracts

between an employer and a labor

organization.” Any such suit is purely a

creature of federal law, notwithstanding

the fact that state law would provide a

cause of action in the absence of § 301.

Avco stands for the proposition that if a

federal cause of action completely

preempts a state cause of action any

complaint that comes within the scope of

the federal cause of action necessarily

“arises under” federal law.

Franchise Tax Bd. v. Constr. Laborers Vacation

Trust, 463 U.S. 1, 23-24 (1983) (footnote

omitted).

This Court’s precedents establish that the

“preemptive force” of Section 3 of the RLA is no less

than that of Section 301 of the LMRA. Both statutes

serve the same general goal of averting strikes and

other labor disruptions by directing grievance disputes

that cannot be resolved amicably to arbitration. See,

© This Court has subsequently re-affirmed Avco’s “complete pre-

emption’ approach,” Beneficial Nat'l Bank v. Anderson, 539 US. 1,

7 (2003), and applied it to support federal question jurisdiction over

state common-law causes of action asserting improper processing

of benefit claims under a plan regulated by the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§

1001, et seg., Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (1987), and

over state common-law causes of action for usury against national

banks, Beneficial.

26

e.g., Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-

57 (1965) (LMRA); Texas & New Orleans R.R. v. Bhd.

of Ry. & S.S. Clerks, 281 U.S. 548, 564-67 (1930) (RLA).

If anything, the federal interest underlying the RLA is

stronger than that underlying the LMRA, since the

LMRA merely enforces voluntary agreements to

arbitrate, while the RLA compels such arbitration. See

Andrews v. Louisville & Nashville R.R., 406 U.S. 320,

323 (1972). Recognizing the similarities between the

two statutes, and in consideration of the “desirability of

having a uniform common law of labor law pre-

emption,” Hawaiian Airlines, 512 U.S. at 263 n.9, this

Court has “adoptfed]” the standard for preemption

developed under the LMRA “to resolve claims of RLA

pre-emption.” Jd. at 263. In keeping with the

desirability of uniformity under the LMRA and the

RLA, several of the courts of appeals that have upheld

federal question jurisdiction over state law claims that

constitute minor disputes have explicitly followed

Avco’s “complete preemption” approach. See, e.g., Gore,

210 F.3d at 949; Deford, 867 F.2d at 1084-86; Graf, 790

F.2d at 1345-46. Their reasoning has been reinforced

by this Court’s recent re-affirmation of Avco’s

“complete pre-emption’ approach” in Beneficial, 539

U.S. at 7, where the Court confirmed the soundness of

that approach and extended it beyond the LMRA and

ERISA to another area of federal law."*

* Indeed, one commentator has suggested that Beneficial

undercuts the Eleventh Circuit’s reasoning in Geddes, 321 F.3d

1349, for denying federal question jurisdiction under the RLA. See

Note, Federal Question Jurisdiction, 37 Loy. L.A. L. Rev. 1443,

1489 n.250 (2004).

27

If allowed to stand, the Sixth Circuit’s contrary

decision will bring about an anomalous result: under

Avco, federal courts will be available to protect the

voluntary labor arbitration process under the LMRA,

but under Roddy, federal courts will not be available to

protect the mandatory labor arbitration process that

Congress required in the RLA. The Sixth Circuit

defended this conclusion on the basis that “it would be

difficult to find [the] extraordinary preemptive force

{required for federal question jurisdiction under the

“complete preemption” approach] when the Supreme

Court has specifically rejected the contention that the

RLA broadly preempts state-law claims based on

discharge or discipline.” App. lla. That reasoning,

however, ignores Hawaiian Airlines’ “uniform common

law of labor law pre-emption,” 512 U.S. at 263 n.9,

under which the breadth of Section 3 of the RLA’s

preemption of such state law claims is precisely the

same as that of Section 301 of the LMRA, which, this

Court held in Avco, has the required preemptive force.

_ The Sixth Circuit’s decision conflicts with this

Court’s adoption of the “complete preemption”

approach in Avco and a “uniform common law of labor

law of pre-emption” in Hawaiian Airlines. This

additional conflict also warrants this Court’s review.

Ill. The Sixth Circuit’s Decision Is Contrary To

Congress’s Intent to Make The Federal

Courts Available To Enforce The RLA

Dispute Resolution Process.

This Court has long recognized that the RLA is a

federal “instrument of industry-wide government,”

which Congress created to preserve the autonomy and

28

integrity of the railroad industry as a “state within a

state.” Taylor, 353 U.S. at 565-66 (citation omitted);

accord, ¢.g., Virginian Ry. v. Sys. Fed’n No. 40, 300

U.S. 515, 541-45, 552-53 (1937). In enacting the RLA,

Congress understood that federal protection of the

autonomy of that system from state regulation was

critically important to its goal: “the Railway Labor Act

is ‘all-embracing in scope and national in its purpose,

which is as capable of being obstructed by state as by

~ individual action.” Taylor, 353 U.S. at 566 (quoting

United States v. California, 297 U.S. 175, 186 (1936)).

The RLA preserves the autonomy of the federal

arbitration system by preempting not only state laws,

but also state'law actions. As this Court recognized in

Hawazian Airlines, 512 U.S. at 253-59, a state law claim

may proceed only if it presents a dispute that is not

arbitrable because it involves rights that do not involve

and are unaffected, or could not be affected, by the

terms of a CBA.

The Sixth Circuit’s decision curtails the

availability of the federal courts to protect the

autonomy of the RLA system by denying federal

question jurisdiction over state law claims that

constitute minor disputes. See App. 12a-13a. Under

that holding, federal courts no longer are available

(absent diversity or supplemental jurisdiction) to

delineate the RLA’s preemptive scope.

The Sixth Circuit’s holding is contrary to

Congress’s intent. The text, structure, history and

context of the RLA indicate that Congress considered

it important to support the RLA arbitration system not

only with federal law, but also with federal court

29

enforcement. Congress expressly provided that

adjustment board orders are enforceable and

reviewable “in the [appropriate] District Court of the

United States.” 45 U.S.C. § 153, First (p) & (q); see,

e.g., Gunther v. San Diego & Ariz. E. Ry., 382 U.S. 257

(1965). Moreover, as discussed above, this Court has

consistently interpreted the RLA to create federal

question jurisdiction to compel compliance with its

arbitration system. See supra, Section II.A, and cases

cited therein."

By contrast, there is no support in the text of the

RLA or in this Court’s RLA precedents for the Sixth

Circuit’s implicit conclusion that Congress intended to

create federal question jurisdiction to compel

arbitrations, enforce and review arbitration awards,

and enjoin strikes that would compromise the integrity

of the arbitration system, yet did not intend to create

federal question jurisdiction to protect the integrity of

that federal system from overlapping state court

actions.

The tension between the intent of Congress and

the Sixth Circuit’s opinion means that this Court’s

‘7 The RLA’s express and implied grants of federal question

jurisdiction to compel and enforce arbitration distinguish it from

the “anomal[ous]” jurisdictional scheme of the Federal Arbitration

Act, 9 U.S.C. §§ 1-12, which “creates a body of federal substantive

law establishing and regulating the duty to honor an agreement to

arbitrate, yet. it does not create any independent federal-question

jurisdiction.” Moses H. Cone Mem’l Hosp. v. Mercury Constr.

Corp., 460 U.S. 1, 26 n.32 (1983). The Sixth Circuit’s reasoning

might be appropriate under that hybrid scheme, but it ignores the

greater preemptive force of the more fully integrated and focused

federal system created-by the RLA.

30

review is also necessary to give the issue of federal

question jurisdiction over minor disputes a coherent

resolution that reflects the means and ends that

Congress considered important in enacting the RLA

and the proper role of the federal courts in

safeguarding the RLA dispute resolution system.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

PAUL A. CUNNINGHAM

Counsel of Record

ROBERTS. HAWKINS GERALD P. NORTON

ANDREW J. ROLFES DAVID A. BONO

KLETT, ROONEY, SIMON A. STEEL

LIEBER & SCHORLING HARKINS CUNNINGHAM LLP ~

Two Logan Square 1700 K Street, N.W.

12“ Floor Suite 400

Philadelphia, PA 19108 Washington, DC 20006-3817

(215) 567-7500 (202) 973-7600

Of Counsel Attorneys for Petitioners

July 13, 2005

la

APPENDIX A

(any footnotes trail end of each document)

No. 02-2499.

peak Ee ae

United States Court of Appeals,

Sixth Circuit.

James T. RODDY, Plaintiff-Appellant,

Vv.

GRAND TRUNK WESTERN RAILROAD

INCORPORATED; Tracy Miller; Lawrence T.

Wizauer; David Cromie; Peter Brandon; Thomas

Willett; Lawrence R. Martenis,

Defendants-Appellees.

Argued: April 28, 2004.

Decided and Filed: Jan. 14, 2005.

Rehearing En Banc Denied March 15, 2005.

Douglas A. McKinney, Auburn Hillis, Michigan, for

Appellant.

Gregory A. Clifton, Durkin, McDonnell, Clifton, Davis

& O'Donnell, Detroit, Michigan, for Appellees.

Before: MARTIN and ROGERS, Circuit Judges;

BELL, Chief District Judge.*

~

BELL, Chief District Judge.

Plaintiff-Appellant James T. Roddy ("Roddy") appeals

2a

the district court's denial of his motion to remand and

the district court's subsequent grant of summary

judgment in favor of the Defendants-Appellees, Grand

Trunk Western Railroad, Inc., Tracy Miller, Lawrence

T. Wizauer, David Cromie, Peter Brandon, Thomas

Willett and Lawrence Martenis (collectively referred to

as "Grand Trunk"). For the reasons that follow we

reverse the denial of the motion to remand, vacate the

entry of summary judgment, and remand to the district

court with instructions to enter an order remanding the

entire case to state court.

I.

Roddy alleged in his complaint that he began his

employment for Grand Trunk in 1965 as a brakeman.

In 2000 Roddy was employed by Grand Trunk as a

conductor. On July 11, 2000, while driving a motor

vehicle on personal business, Roddy was subjected to a

routine traffic stop by the.City of Durand, Michigan,

Police Department. He was arrested and jailed on

misdemeanor charges including possession of

marijuana. Roddy's wife notified Grand Trunk that

Roddy was unavailable for work on the night of July 11,

2000.

Roddy alleged in his complaint that the individual

defendants, who are employees and/or agents of Grand

Trunk, requested, made or maintained a record of

information regarding Roddy's misdemeanor arrest or

detention. Based upon those records Grand Trunk

conducted a formal company investigation on a charge

of possession of marijuana and ultimately terminated

Roddy's employment. The misdemeanor charges that

had been filed against Roddy on July 11, 2000, were

eventually dismissed and no conviction resulted.

3a

Roddy commenced this action in the Circuit Court for

the County of Shiawassee, State of Michigan, alleging

that Grand Trunk's conduct in requesting, making or

maintaining a record of the misdemeanor arrest where

a conviction did not result, and their conduct in

threatening, coercing, and/or ordering Roddy to release

information regarding the misdemeanor arrest or face

further disciplinary action violated Roddy's rights

under the Michigan Elliott Larsen Civil Rights Act,

M.C.L. § 37.2205a.' The relief Roddy requested

included compensatory damages, exemplary damages,

attorney fees and injunctive relief. Defendants

removed the action to federal court on the basis of

federal question jurisdiction. The district court denied

Roddy's motion for remand and granted Defendants'

motion for summary judgment. Roddy appealed both of

these rulings.

IT.

The district court denied Roddy's motion to remand

based upon its determination that Roddy's claim under

the Michigan Elliott Larsen Civil Rights Act was

completely preempted by the Railway Labor Act, 45

U.S.C. § §-151-163, 181-188. We review the denial of a

motion to remand de novo. Ahearn v. Charter Twp. of

Bloomfield, 100 F.3d 451, 453 (6th Cir.1996). In

conducting this review we look to the complaint at the

time of removal and determine whether the action was

properly removed in the first place. Jd.

“Only state-court actions that originally could have

been filed in federal court may be removed to federal

court by the defendant." Caterpillar, Inc. v. Williams,

482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)

(citing 28 U.S.C. § 1441(a)). "As a general rule, absent

4a

diversity jurisdiction, a case will not be removable if

the complaint does not affirmatively allege a federal

claim." Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 6,

123 S.Ct. 2058, 156 L.Ed.2d 1 (2008).

Federal district courts have original jurisdiction over

“all civil actions arising under the Constitution, laws, or

treaties of the United States." 28 U.S.C. § 1331. In —

determining whether a complaint arises under federal

law we apply the "well-pleaded complaint" rule. Loftis

v. United Parcel Serv., Inc., 342 F.3d 509, 514 (6th

Cir.2003). Under this rule "we examine the ‘well

pleaded' allegations of the complaint and ignore

potential defenses." Beneficial Nat. Bank, 539 U.S. at

6, 123 S.Ct. 2058. "[F Jederal jurisdiction exists only

when a federal question is presented on the face of the

plaintiff's properly pleaded complaint." Caterpillar, 482

USS. at 392, 107 S.Ct. 2425. The well-pleaded complaint

rule recognizes that the plaintiff is the master of his

complaint. Loftis, 342 F.3d at 515. Accordingly, if the

plaintiff chooses to bring a state law claim, that claim

cannot generally be "recharacterized" as a federal claim

for the purpose of removal. [d. (citing Metro. Life Ins.

Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95

L.Ed.2d 55 (1987)). It is settled law that "a case may

not be removed to federal court on the basis of a federal

defense, including the defense of pre-emption, even if

the defense is anticipated in the plaintiff's complaint,

and even if both parties concede that the federal

defense is the only question truly at issue." Caterpillar,

482 U.S. at 393, 107 S.Ct. 2425 (emphasis in original).

See also Beneficial Nat. Bank, 539 U.S. at 6, 123 S.Ct.

2058 ("[A] defense that relies on ... the pre-emptive

effect of a federal statute will not provide a basis for

removal."); Metro. Life Ins. Co. v. Taylor, 481 U.S. 58,

5a

63-64, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) ("Federal

pre-emption is ordinarily a federal defense to the

plaintiff's suit. As a defense, it does not appear on the

face of a well-pleaded complaint, and, therefore, does

not authorize removal to federal court.").

A state claim may be removed to federal court in only

two circumstances--when Congress expressly so

provides,’ or "when a federal statute wholly displaces

the state-law cause of action through complete pre-

emption." Beneficial Nat. Bank, 539 U.S. at 8, 123 S.Ct.

2058. The “complete preemption" doctrine, developed in

the case law, recognizes that "Congress may so

completely pre-empt a particular area that any civil

complaint raising this select group of claims is

necessarily federal in character." Metro. Life, 481 U.S.

at 63-64, 107 S.Ct. 1542. Complete preemption applies

where "the pre-emptive force of a statute is so

‘extraordinary’ that it ‘converts an ordinary state

common-law complaint into one stating a federal claim

for purposes of the well-pleaded complaint rule.’ "

Caterpillar, 482 U.S. at 398, 107 S.Ct. 2425 (quoting

Metro. Life, 481 U.S. at 65, 107 S.Ct. 1542). “Once an

area of state law has been completely pre-empted, any

claim purportedly based on that pre-empted state law

‘is considered, from its inception, a federal claim, and

therefore arises under federal law." Caterpillar, 482

US. at 398, 107 S.Ct. 2425.

To date the Supreme Court has recognized complete

preemption under only three statutes: § 301 of the

Labor Management Relations Act, 1947 (LMRA), 29

U.S.C. § 185, § 502(a) of the Employee Retirement

Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001

et seq., and § 30 of the National Bank Act, 12 U.S.C. § §

6a

85 & 86. Beneficial Nat. Bank, 539 U.S. at 6-7, 11, 123

S.Ct. 2058. As we noted in Alongi v. Ford Motor Co.,

386 F.3d 716 (6th Cir.2004), it is the “unusually powerful

pre-emptive force of § 301" that places it in the small

category of statutes that not only preempt state law

but also authorize removal of actions that sought relief

only under state law. Id. at 723-24, (quoting Beneficial

Nat. Bank, 539 U.S. at 7, 123 S.Ct. 2058). In those cases

where the Supreme Court has found complete

preemption, "the federal statutes at issue provided the

exclusive cause of action for the claim asserted and also

set forth procedures and remedies governing that cause

of action." Beneficial Nat. Bank, 539 U.S. at 8, 123

S.Ct. 2058.

Complete preemption that supports removal and

ordinary preemption are two distinct concepts. Warner

v. Ford Motor Co. 46 F.3d 531, 535 (6th Cir.1995) (en

banc). "The fact that a defendant might ultimately

prove that a plaintiff's claims are pre-empted under [a

federal statute] does not establish that they are

removable to federal court." Caterpillar, 482 U.S. at

398, 107 S.Ct. 2425. Complete preemption that permits

removal is reserved for statutes "designed to occupy

the regulatory field with respect to a particular subject

and to create a superseding cause of action" while

ordinary preemption applies to statutory sections that

arguably supersede conflicting state laws without

creating the right of removal. 46 F.3d at 535. "[T]he

congressional intent necessary to confer removal

jurisdiction upon the federal district courts through

complete preemption is expressed through the creation

of a parallel federal cause of action that would ‘convert’

a state cause of action into the federal action for

purposes of the well-pleaded complaint rule." Strong v.

Ta

Telectronics Pacing Sys., Inc., 78 F.3d 256, 260 (6th

Cir.1996) (citing Warner, 46 F.3d at 534-35).

In the absence of explicit direction from Congress, the

Supreme Court has stated that it would be reluctant to

find the extraordinary preemptive power that converts

an ordinary state common law complaint into one

stating a federal claim for purposes of the well-pleaded

complaint rule. Metro. Life, 481 U.S. at 64-65, 107 S.Ct.

1542.2 As we recently noted:

Complete preemption is a narrow exception to the

well-pleaded complaint rule, whereby plaintiff is

master of his complaint and can choose to assert only

state law claims, in situations where Congress has

indicated an intent to occupy the field so completely

that any ostensibly state law claim is in fact a federal

claim for purposes of arising-under jurisdiction.

AmSouth Bank v. Dale, 386 F.3d 763, 776 (6th

Cir.2004). See also Peters v. Lincoln Elec. Co., 285

F.3d 456, 468 n. 11 (6th Cir.2002) ( "Without evidence of

Congress's intent to transfer jurisdiction to federal

courts, there is no basis for invoking federal judicial

power.").

It is true that the doctrine of complete preemption

goes beyond the usual contours of the well-pleaded

complaint rule, in that it requires courts to attend to

the underlying substance of a plaintiff's cause of

action, and not merely whether it is denominated as

arising from state or federal law. But, as the

Supreme Court has instructed us, the compiete

preemption doctrine does not abrogate the federal

courts' traditional focus on the complaint, in deciding

questions of removal jurisdiction.

Alongi, 386 F.3d at 727.

8a

The Supreme Court discussed the circumstances under

which the RLA will preempt state law claims in

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 260-64,

114 S.Ct. 2239, 129 L.Ed.2d 203 (1994). This discussion,

however, only involved concepts of ordinary

preemption and did not address the issue of complete

preemption.

Grand Trunk has cited two Sixth Circuit cases in

support of its contention that the RLA completely

preempts Roddy's state law civil rights claim. In

McCall v. Chesapeake & Ohio R.R., 844 F.2d 294 (6th

Cir.1988), we held that the plaintiff's state law

Handicappers Civil Rights Act claim was preempted by

the RLA. /d. at 308. McCall does not impact our

present discussion. The plaintiff's claim in McCall was

removed to federal court on diversity grounds and our

preemption analysis involved ordinary preemption

rather than complete preemption.

Grand Trunk has also cited Beard v. Carrollton R.R.,

893 F.2d 117 (6th Cir.1989). In Beard we noted in

passing that the plaintiff's state law claims had not been

removed "improvidently and without jurisdiction" to

federal court. Jd. at 121. Although this finding

suggests that the RLA completely preempted

plaintiff's state law claims, we did not engage in any

discussion of the distinction between complete

preemption and ordinary preemption and we did not

analyze the RLA for Congressional intent. Most of our

opinion in Beard was dedicated to the issue of ordinary

preemption rather than complete preemption. It

appears to this Court that to the extent we found

complete preemption in Beard, that holding has been

undermined by subsequent cases addressed above that

9a

have discussed the prerequisites for a finding of

complete preemption. Accord, Tyree v. Burlington

Northern and Santa Fe Ry. Co., 973 F.Supp. 786, 791

(W.D.Tenn.1997) (concluding that Beard is no longer

good law).

In determining whether the RLA completely preempts

Roddy's state civil rights claim we must begin by

looking at the RLA itself. Congress passed the RLA

"to promote stability in labor-management relations by

providing a comprehensive framework for resolving

labor disputes." Hawaiian Airlines, 512 U.S. at 252,

114 §.Ct. 2239. The framework provided by the RLA is

a mandatory arbitral mechanism for “the prompt and

orderly settlement of all disputes growing out of

grievances or out of the interpretation or application of

agreements covering rates of pay, rules, or working

conditions." 45 U.S.C. § 15la. The RLA gives the

National Railroad Adjustment Board exclusive

jurisdiction over disputes that arise out of collective

bargaining agreements. Beard, 893 F.2d at 121-22. The

existence of a mandatory arbitration provision,

however, does not answer the question of whether

Congress intended the RLA to occupy the field so

completely that any "ostensibly state law claim"

touching on railroad employment "is in fact a federal

claim" for purposes of removal jurisdiction. See

AmSouth Bank, 386 F.3d at 776.

The Eleventh Circuit examined the RLA in Geddes v.

Am. Airlines, Inc., 321 F.3d 1349 (11th Cir.2003).

Based upon the language and substance of the RLA and

its legislative history, the Eleventh Circuit concluded

that the RLA did not have the extraordinary

preemptive force necessary to create federal removal

10a

jurisdiction. Jd. at 1357. The court noted that in

contrast to the LMRA and ERISA, the RLA does not

create a federal cause of action for the resolution of

disputes. Jd. at 1354. Accordingly, federal courts are

not in a position to fashion a cohesive body of federal

law for enforcement of collective bargaining

agreements under the RLA. /d. Moreover, there is no

indication that Congress intended for federal courts to

acquire jurisdiction solely to ensure that minor disputes

are redirected from the courts to the boards of

adjustment. /d.

The Third Circuit similarly found “no evidence in the

RLA or its legislative history of a Congressional intent

to permit recharacterization and removal of what

purports to be a state claim." Ry. Labor Execs. Ass'n v.

Pittsburgh & Lake Erie R.R. Co., 858 F.2d 936, 942 (3d

Cir.1988). The Ninth Circuit has also rejected a finding

that a plaintiff's state law claims were completely

preempted by the RLA. Price v. PSA Inc., 829 F.2d

871, 876 (9th Cir.1987). “Congress has not indicated, as

it did with LMRA § 301 and ERISA, that the RLA is

'so powerful as to displace entirely any state cause of

action.' " Jd. (quoting Metro. Life, 481 U.S. at 64, 107

S.Ct. 1542). See also Tyree, 973 F.Supp. at 792 (holding

that removal was improper because “it is clear that the

RLA does not satisfy the complete preemption doctrine

because it does not create a parallel federal cause of

action.").

Not ail of the circuits are in agreement. The Eighth

Circuit has held that “the RLA's preemptive force is so

extraordinary that it takes over the whole field of

railroad labor disputes arising from collective

bargaining agreements." Deford v. Soo Line R.R. Co.,

lla

867 F.2d 1080, 1085 (8th Cir.1989). More recently the

Eighth Circuit held in Gore v. Trans World Airlines,

210 F.3d 944, 949 (8th Cir.2000), that the plaintiff's state

law claims of false arrest, negligence, libel and slander,

and invasion of privacy were completely preempted by

the RLA and were removable to federal court because

they were inextricably intertwined with the provisions

of the labor contract. Jd. at 950. See also Anderson v.

American Airlines, Inc., 2 F.3d 590 (5th Cir.1993)

(holding that employee's workers compensation

retaliation claim was not completely preempted by

RLA because claim did not require interpretation of

the CBA).

On review we conclude that the Eleventh Circuit's

analysis of the RLA in Geddes, 321 F.3d at. 1353-57, is

most consonant with the Supreme Court's instructions

on how to approach issues of complete preemption.

Complete preemption represents a substantial

departure from the firmly established well-pleaded

complaint rule. This Court is hesitant to find such a

departure absent clear Congressional intent to that

effect. We agree with the Eleventh Circuit that

Congress has not clearly manifested an intent to make

all causes of action that touch on railroad employment

remevable to federal court.

Indeed, it would be difficult to find such extraordinary

preemptive force when the Supreme Court has

specifically rejected the contention that the RLA

broadly preempts state-law claims based on discharge

or discipline:

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

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

held that a state-law claim of wrongful termination

12a

was pre-empted, not because the RLA broadly pre-

empts state-law claims based on discharge or

discipline, but because the employee's claim was

firmly rooted in a breach of the CBA itself.

Hawaiian Airlines, 512 U.S. at 257, 114 S.Ct. 2239

(emphasis in original). We conclude that the RLA does

not have the extraordinary preemptive force necessary

to create federal removal! jurisdiction.

Grand Trunk has suggested in the alternative that the

district court's finding of complete preemption finds

support in the Railroad Administration Regulations at

49 C.F.R. § 219.1 et seq. In AmSouth we rejected the

contention that a federal regulation could completely

preempt state law claims. We noted that although an

agency has the ability to promulgate regulations with

the force of federal law and therefore has the ability to

preempt state causes of action through ordinary

preemption, it does not have the ability to create a right

of action where Congress has not intended it do so. 386

F.3d at 776-77. "While the agency can create federal

law, it cannot expand federal jurisdiction." Jd. at 777.

We conclude that there was no removal jurisdiction in

this case and that the case should be remanded to state

court. Bécause there is no removal jurisdiction, we do

not have jurisdiction to reach the question of whether

Roddy's state claim is in fact preempted by federal law.

We agree with the Third and Eleventh Circuits that

"[s]tate courts are competent to determine whether

state law has been preempted by federal law and they

must be permitted to perform that function in cases

brought before them, absent a Congressional intent to

the contrary." Geddes, 321 F.3d at 1357 (quoting Ry.

Labor Execs. Ass'n, 858 F.2d at 942). See also Price,

\

13a

829 F.2d at 876 ("We express no opinion on the merits of

PSA's federal preemption defense. We have confidence

in the ability and willingness of state courts to enforce

federal defenses.").

IT].

For the foregoing reasons, the denial of plaintiff's

motion to remand is REVERSED, the entry of

summary judgment is VACATED, and the case is

REMANDED with instructions to REMAND the

entire action to the Shiawassee County Circuit Court

for the State of Michigan for further proceedings.

Footnotes

* The Honorable Robert Holmes Bell, Chief United

States District Judge for the Western District of

Michigan, sitting by designation.

1.This statute provides in pertinent part:

An employer, employment agency, or labor

organization, other than a law enforcement agency of

this state or a political subdivision of this state, shall

not in connection with an application for employment or

membership, or in connection with the terms,

conditions, or privileges of employment or membership

request, make, or maintain a record of information

regarding a misdemeanor arrest, detention, or

disposition where a conviction did not result.

M.C.L. § 37.2205a. :

2.As an example, the Supreme Court noted that the

Price-Anderson Act contains an unusual preemption

provision, 42 U.S.C. § 2014(hh), that not only gives

federal courts jurisdiction over tort actions arising out

14a

of nuclear accidents but also expressly provides for

removal of such actions brought in state court even

when they assert only state-law claims. Beneficial Nat.

Bank, 539 U.S. at 6, 123 S.Ct. 2058 (citing El Paso

Natural Gas Co. v. Neztsoste, 526 U.S. 478, 484-85, 119

S.Ct. 1430, 143 L.Ed.2d 635 (1999)).

3.This reluctance was emphasized by Justice Brennan

in his concurring opinion:

While I join the Court's opinion, I note that our decision

should not be interpreted as adopting a broad rule that

any defense premised on congressional intent to pre-

empt state law is sufficient to establish removal

jurisdiction. The Court holds only that removal

jurisdiction exists when, as here, "Congress has clearly

manifested an intent to make causes of action ...

removable to federal court." Ibid. (emphasis added). In

future cases involving other statutes, the prudent

course for a federal court that does not find a clear

congressional intent to create removal jurisdiction will

be to remand the case to state court.

Metro. Life, 481 U.S. at 67-68, 107 S.Ct. 1542 (Sreanan,

J., concurring).

4.The Ninth Circuit has identified an apparent conflict

within the circuit as to whether or not the RLA has

complete preemptive power. See Holman v. Laulo-

Rowe Agency, 994 F.2d 666, 669 n. 4 (9th Cir.1993)

(comparing Price v. PSA Inc., 829 F.2d 871 (9th

Cir.1987) with Grote v. Trans World Airlines, Inc., 905

F.2d 1307 (9th Cir.1990) (citing Price with approval on a

related issue, but then holding, without discussion, that

the RLA does have complete preemptive power)).

15a

APPENDIX B

No. 02-72976

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

James T. Roddy, Plaintiff

—

Vv.

Grand Trunk Western Railroad, Inc., et al.,

Defendant(s)

ORDER DENYING PLAINTIFF'S MOTION TO

REMAND

This matter came before the Court on Plaintiff's motion

to remand. Being fully advised in the premises, having

read the pleadings, and for the reasons stated on the

record, the Court hereby orders as follows:

Plaintiff's motion to remand is denied.

s/Nancy G. Edmunds

USS. District Judge

Dated: 04 OCT 2002

16a

APPENDIX C

No. 02-72976

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

James T. Roddy, Plaintiff

v.

Grand Trunk Western Railroad, Inc., et al., Defendants

MOTION TO REMAND

BEFORE THE HONORABLE

NANCY G. EDMUNDS

United States District Judge

226 Theodore Levin U.S. Courthouse

231 Lafayette Boulevard West

Detroit, Michigan

September 25, 2002

APPEARANCES: _

MR. DOUGLAS A. MCKINNEY, ESQ.,

In behalf of Plaintiff.

MR. GREGORY A. CLIFTON, ESQ.,

In behalf of Defendant.

17a

LAW CLERK: Court calls 02-72576, Roddy versus

Grand Trunk Western Railroad. Counsel, please state

your appearances for the record.

MR. MCKINNEY: Douglas McKinney on behalf of the

plaintiff, James Roddy.

MR. CLIFTON: Good afternoon, Your Honor, Greg

Clifton and Jerry McDonnell on behalf of defendant

Grand Trunk.

THE COURT: It's plaintiff's motion to remand.

MR. MCKINNEY: Thank you, Your Honor. This

matter was initially commenced in the Shiawasee

Circuit Court in the State of Michigan. Matter was

removed by a joint removal filed by the defendant. This

motion to remand is based on the fact that my original

complaint states no federal question and does not

require the constitution of the United States statute,

statute of the United States or a treaty of the United

States to render jurisdiction. In this particular case, my

claim rests entirely on the Elliott Larson Michigan

Civil Rights Act and --

THE COURT: Well, it doesn't really depend on what

you call it, though, does it? I mean, it depends on what

underlying facts and law need to be resolved in order

to effectuate the relief that you seek.

MR. MCKINNEY: Well, Your Honor, I have sat in my

office and thought about this issue and whether or not

this court had original jurisdiction of the case; in other

words, could I have drafted any complaint in such a way

as to grant subject matter jurisdiction in this court cover

18a

my complaint, and I have come up with no statute, no

court rule that would allow me to bring this type of

action in the federal court.

THE COURT: That's not dispositive either because I

think that the response to that, anticipating Mr. Clifton

and Mr. McConnell, is you may not have a cause of

action right now because of the administrative

regulatory scheme of the railroad act, National Railroad

Act. I mean, I'm assuming that what will follow, if I

keep this, is a motion to dismiss because it shouldn't be

here in federal court. In fact, your client was

proceeding through the grievance process under the

RLA at the time that you decided to file this lawsuit.

MR. MCKINNEY: Well, Your Honor, I've discovered

unlawful conduct prescribed by Michigan statute

engaged in by the employer in this case, acts that are

specifically prescribed by the Michigan statute. The

Michigan statute does not -- my relief does not rely

upon the collective bargaining agreement. The question

is is there unlawful conduct engaged in by the

employer.

THE COURT: What's the unlawful conduct?

MR. MCKINNEY: They requested, made, and

maintained records of a misdemeanor arrest of the --- of

my client that did not result in a conviction. Those are

specifically outlined in the statute as being something

the employer cannot do. Does not depend, the actions of

the employer do not depend upon the collective

bargaining agreement. Did they engage in this conduct?

Did this conduct damage the plaintiff in this case? As

such, it exists independent of the collective bargaining

19a

agreement and is governed entirely by state law,

conferring no jurisdiction over my case in this court. ©

This is really a defense to a state law claim brought in

the state court, not here.

THE COURT: Well, you're mixing black letter remand

removal law with these preemption issues, and

generally speaking, you're correct. If it's a defense

based in federal law and the complaint is based

exclusively in state law, the plaintiff has the right to

put their complaint where they want to put it. But

there are certain areas in which there is complete

preemption, and certain aspects of the Federal Railway

Labor Act are included in those, and there's that whole

body of law about minor disputes and how to resolve

minor disputes and all of those issues. So whether it's

asserted as a defense and that would ordinarily be

dispositive I don't think is really the issue in this case.

MR. MCKINNEY : Well, I'm not sure what the Court

is trying to determine from my complaint, but I think if

you look at Hawaiian Airlines versus Norris, it clearly

indicates that if the state law claim exists independent

of the collective bargaining agreement that it is not

preempted.

THE COURT: Well, isn't the underlying question, you

know, whether his discipline was appropriate or not,

whether he violated the terms of the operating rules,

and whether they had the right to impose discipline as a

matter of the collective bargaining agreement under

the operating rules? Maybe I got that reversed. But I

mean, isn't this really a dispute involving a --- a minor

dispute involving rights of pay, rules and working

conditions?

20a

MR. MCKINNEY: No, it involves unlawful conduct

engaged in by the employer for which I'm entitled to a

state remedy. They could be, in my view they could be

completely consistent with the collective bargaining

agreement yet violate state law, and state law gives me

an alternate, not an alternate, an additional remedy

over and above what other remedies he may have as set

forth in the statute. The State of Michigan has decided

that it's against public policy to allow employers to

request, make or maintain arrest records for

misdemeanors that do not result in a conviction. They

engaged in that conduct. Whether or not they had any

authority under the rules to de so, I suppose is another

issue. However, this is direct, unlawful conduct

prescribed by the State of Michigan which they have

engaged in. Michigan law allows me other relief,

specifically injunctive relief prohibiting the employer

from continuing to engage in conduct that violates the

Act, which I have requested in the complaint. I want

injunctive relief, as well.

So there's no way to get injunctive relief under the

Railway Labor Act to-prohibit their unlawful conduct.

This is precisely the reason the legislature enacted,

Michigan enacted this law, to give additional remedies

and describe unlawful conduct. I don't see anything in

the Railway Labor Act or the rules and regulations

which say that a carrier and a union can somehow agree

to violate state law. It seems to me such a contract

would be void as against public policy, and in this

particular instance, if we look directly at my case and I

believe based on their filings here, they basically

admitted that they violated in part the act; I would be

entitled to summary disposition, as well, because they

violated the act.

2la

There is another claim of improper action by the

employer, specifically, making him or requiring him to,

or forcing him not to exercise the rights guaranteed to

him under the Michigan Elliott Larson Civil Rights

Act. Specifically, not to have to make mention of his

misdemeanor arrest while it's pending, and didn't result

in a conviction. This is what happened. After the initial

discipline was imposed, he was required to go toa

treatment program which he appeared at, but in order

to enter the program, they required him to admit

wrongdoing, admit that he violated the law, and then

sign a release allowing that information to be

disseminated presumably to the prosecutor who is

presenting the case. This is the purpose of the statute,

not to allow them to coerce him to give up rights that

he otherwise would have in the criminal action.

And I will state that the underlying charges were

dismissed with prejudice in the case. There was never a

conviction for either the possession of the drugs or for

resisting, obstructing a police officer. In short, what

they've done is, they've used the police report that

they're not supposed to have access to then put him in

disciplinary action, and then force, try to force him to,

quote unquote, confess, and that's what the statute is

trying to avoid. It's trying to avoid putting an employee

in such a position where the employer can hold over his

head his continued employment unless he confesses,

which is precisely what they're trying to avoid by

enacting the statute.

THE COURT: All right. Let me hear from Mr. Clifton.

MR. CLIFTON: Good afternoon, Your Honor.

22a

I think, with due respect to Mr. McKinney, he is

missing the point that the court was trying to make

which is, assuming for the moment that there is some

basis for a Elliott Larson claim in this case, which we

deny based on the circumstances, but even if, assuming

it was, the point of the matter is the Railroad Labor

Act supersedes any such potential claim and mandates

that under this type of circumstance, a plaintiff's sole

remedy is to proceed through the exclusive procedures

of the-- of that act and the National Adjustment Board.

And particularly given the facts in-this case where you

have an individual who was arrested on July 11, 2000

for possession of marijuana, whose violent behavior at

the time of that arrest resulted in him also being

charged with resisting arrest, and whose willingness to

lie to his employer about the circumstances of it

because he was scheduled to work that night, certainly,

all of those types of issues, those facts, concern Mr.

Roddy's physical ability to do his job, the physical

requirements of his job, and because of that, Grand

Trunk was certainly entitled under the collective

bargaining agreement between Mr. Roddy and his

union to commence a labor hearing to look into these

facts as to how they affect Mr. Roddy's ability to

perform his work. Then, as part of that, assess his

violation of very specific work rules, as pointed out by

the Court, that says you can't do this type of thing.

THE COURT: Well, but how do you square that with

the very explicit prohibition in the civil rights act? I

mean, it seems to me that this is somewhat different

from the usual preemption case that we get in that the

allegation is, okay, he's arrested, charged with a

misdemeanor which ultimately is dismissed.

23a

MR. CLIFTON: As part of a plea agreement, I might

add.

THE COURT: Well, regardless, it doesn't matter

whether it's part of a plea agreement or anything else.

There's no conviction in this case.

MR. CLIFTON: That's well understood, Your Honor.

THE COURT: And Grand Trunk is taking that

conviction -- I mean that arrest and using it to impact

his employment in what looks to me to be a square

contradiction of MCL 37.2205(a) which says an

employer shall not, in connection with an application, et

cetera, or in connection with the terms, conditions or

privileges of employment request, make or maintain a

record of information regarding a misdemeanor arrest,

detention or disposition where a conviction did not

result.

So how -- I mean, the statute is, seems to me, pretty

clear, and I'm --

MR. CLIFTON: May I address that, Your Honor?

THE COURT: You may.

MR. CLIFTON: First of all, I guess it's not for today,

but it's worth mentioning, I suppose, that the Michigan

Court of Appeals has ruled, and the Sixth Circuit has

adopted that ruling that this particular civil rights act

and the provision regarding arrest records only applies

to prospective employers, not current employers such

as Grand Trunk, but that aside for the moment, I guess

the central issue here is why was Mr. Roddy disciplined

24a

on July 26 following his arrest on July 11? It was not |

because there was an arrest record, because as the, I

think it's the Quatrine(ph) case pointed out, it would be

folly to suggest that Grand Trunk could go to the police

station and get this information and come back and then

conduct a disciplinary hearing, and that would be

permissible, but the mere fact that they obtained a copy

of the arrest record, that somehow makes it

inappropriate.

The reason he was disciplined initially was not because

of the existence of an arrest record. The reason he was

disciplined was because, as I indicated, he had in his

possession marijuana when he was scheduled to work

that night on a train crew that could be taking trains

from point A to point B and cause catastrophic

damages.

THE COURT: And how do you know that?

MR. CLIFTON: Because he was scheduled to work --

one of the charges against him was when he was

scheduled to work that night, he had his wife call in and

falsify a report regarding why he couldn't come into

work that night. :

THE COURT: So how does it come up that he had

marijuana in his possession?

MR. CLIFTON: Well, again, when it came to the

railroad's attention that this individual was perhaps not

being forthright in why he did not come to work that

particular evening.

THE COURT: And how did that come to its attention?

25a

MR. CLIFTON: Well, I think a co-employee of Mr.

Roddy, frankly, advised somebody in supervision that I

think you should look into this, you might find out that

he's not telling the truth, and then they conducted an

investigation which, by the way, and I haven't had a

chance to get to it yet, as a separate. basis for

exclusively RLA jurisdiction, the railroad was

essentially mandated by provisions of 49 CFR 219 to

conduct this exact type of investigation. Those

provisions set forth some rather strict and severe

procedures for what a railroad is supposed to do when

they learn that an employee may be involved in some

type of drug or alcohol use, and that's all that the

railroad did here was conduct an investigation, and

when they concluded that, yes, this individual did

violate these work rules as a result of his conduct, he

was disciplined for that.

His arrest record had nothing to do with it, frankly, and

if you look at the transcript of the hearing, it was rather

incidental to the entire proceeding.

THE COURT: All right. Let me have a brief reply from

plaintiff's counsel.

MR. MCKINNEY: I didn't see a citation of the statute

he just indicated or the CFR that he just talked about,

however, I don't see how you could read the transcript

of that proceeding and not come to the conclusion that

based entirely upon the unlawfully obtained arrest

record he was disciplined. Based on that record alone,

they made a finding that he was in possession of

marijuana and disciplined him as a result of that. There

was no other evidence on that record that he possessed

an illegal substance. So for them to now say, well, it was

26a

incidental, it wasn't incidental. It was the major reason

they ordered him to go to drug rehabilitation. There

was no admissions made on the record as to that issue.

Now, I don't see how, unless there's an express intent

of congress to preempt, have the Railway Labor Act

preempt state civil rights statute like this that they can

infer that it exists. In other words, what they're trying

to say here is that because of the Railway Labor Act

and because of a contract, we can disregard state law,

and Hawaiian Airlines says that's not the case, and in

fact it's not preempted if it involves an independent

state right not negotiated in the contract.

THE COURT: All right. Thank you.

I'm going to deny the motion to remand. [ think Mr.

McKinney actually kind of hit it on the head right at the

end. I don't believe that the state civil rights claim is

independent of the Railway Labor Act. In fact, the

issues involved in the minor dispute here are areas

exclusively reserved to the administrative scheme of

the Railway Labor Act, including the character fitness

and safety of the personnel to operate the equipment

involved, and to the extent that there is a conflicting

civil rights statute, and I'm not foreclosing the

possibility of some relief under the civil rights statute,

it still has to be reconciled with the administration of

the Railway Labor Act.

Obviously, the safety, character and fitness of the

employees to operate the trains is a matter which needs

to be to be fully considered within the administrative

scheme, taking into account any laws that may be

impacted. So motion to remand denied.

27a

MR. MCKINNEY: Are you suggesting that I can get

injunctive relief from this court on my cause of action?

THE COURT: I'm not suggesting that you can or can't

get anything. I'm just ruling on your motion to remand.

Thank you. :

MR. MCKINNEY: Is the court going to prepare an

order, or should I?

THE COURT: My order will simply state for the

reasons stated on the record, but we'll prepare it.

MR. CLIFTON: Thank you, Your Honor.

28a

APPENDIX D

No. 02-72976

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

James T. Roddy, Plaintiff

v.

Grand Trunk Western Railroad, Inc., et al., Defendants

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT

Honorable Nancy G. Edmunds

Clerk’s Office U.S. District Court Eastern Michigan

Filed: 11/21/2002 ,

This matter comes before the Court on Defendants'

motion for summary judgment brought pursuant to

Fed. R. Civ. P. 12(c) and 56(c). Defendants' motion is

GRANTED. For the reasons stated below, this Court

lacks subject matter jurisdiction over Plaintiff James T.

Roddy's state law claims. Plaintiff's complaint is

dismissed.

I. Facts

Plaintiff began his employment with Defendant Grand

Trunk in 1965 as a brakeman. In July 2002, Plaintiff was

employed at Grand Trunk as a conductor. (Compl. Pars.

29a

11, 20.) He was a member of the United Transportation

Union, and the terms of his employment were subject

to a collective bargaining agreement ("CBA"). (Defs.

motion, Ex. B, Kovacs Aff. Par. 5.)

The events giving rise to Plaintiffs lawsuit occurred on

July 11, 2000. At approximately 8:05 p.m. while Plaintiff

was off-duty, he was arrested by the City of Durand

Police Department for, inter alia, possession of

marijuana and resisting arrest (both misdemeanors).

Plaintiff alleges that during his arrest, he was exposed

to chemical irritants (pepper spray) and jailed. (Compl.

Par. 14.) Plaintiff was scheduled to report for duty at

10:45 p.m. (Defs. motion, Ex. C, 7/26/00 Hr’g Tr. at 6.)

Plaintiff's wife called Defendant Grand Truck at

approximately 9:40 p.m. indicating that he was sick and

would not be reporting for his scheduled work. (/d.;

Compl. Par. 15.) Plaintiff was released on bond at

approximately 4:30 p.m. on July 12, 2000. (Defs. motion,

Ex. C, 7/26/00 Hr'g Tr. at 22.) Plaintiff alleges that the

charges arising out of the events of July 11, 2000 were

dismissed and no conviction resulted. (Compl. Par. 25.)

Representatives of Defendant Grand Trunk learned

about the above events and an investigation by Grand

Trunk Manager David Cromie confirmed Plaintiff's

possession of marijuana and other unlabeled drugs as

well as his resisting arrest charge. Defendant Grand

Trunk obtained a copy of the Durand Police Report

regarding the July 11, 2000 incident and a State of

Michigan Drug Test Report. (Defs. motion, Ex. A.)

Based on this information, Grand Trunk held an

investigative hearing on July 26, 2000 to determine

Plaintiff's responsibility for: (1) "alleged conduct

unbecoming an employee by being arrested for

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possession of a controlled substance at approximately

2100 hours on July 11, 2000, in violation of GTOR E,

paragraph 2"; and (2) “allegedly having [Mrs. Roddy]

book [Plaintiff] sick as a subterfuge to avoid duty at

2140 hours on July 11, 2000." (Defs. motion, Ex. C, at 1.)

Grand Trunk Operating Rule E provides that:

Employees must be courteous, orderly, of good

moral character, and must conduct themselves at

all times whether on or off of company property

in such a manner as not to bring discredit upon

the company. Card playing, gambling, making

bets, fighting or participating in any illegal,

immoral, or unauthorized activity while on

company time is prohibited.

Defs. Br. at 4-5 (emphasis added). The July 26, 2000

hearing was conducted in accordance with the

provisions of the CBA between Grand Trunk and the

United Transportation Union (Plaintiff's Union). (Defs.

motion, Ex. B, Kovacs Aff. Par. 16, Senior Manager of

Labor Relations for Grand Trunk.). Plaintiff was

represented at the hearing by his Union.

On August 4, 2000, consistent with the CBA, Plaintiff

was assessed the following discipline:

Sixty (60) Day Suspension

For conduct unbecoming an employee by being

arrested for possession of a controlled substance

at approximately 2100 hours on July 11, 2000, in

violation of GTOR E, paragraph 2 and having

your wife book you sick as a subterfuge to avoid

duty at 2140 hours on July 11, 2000.

dla

In addition, you must undergo an EAP

evaluation and fully comply with any

recommendation developed from the evaluation.

You must get a release from the EAP counselor

and undergo a company medical examination

before you will be allowed to return to service.

Defs. motion, Ex. D, 8/25/00 letter to Plaintiff. Plaintiff

was scheduled to attend an Employee Assistance

Program (EAP) evaluation with Insight Clinic on

September 8, 2000.

Plaintiff failed to provide evidence that he had

completed the EAP evaluation/counseling and other

requirements of his discipline. Accordingly, a second

investigative hearing was held, pursuant to the CBA,

on November 6, 2000 to determine Plaintiff's

responsibility "for violation of Canadian National

Illinois Central Operating Rule 'B" which provides that

employees are to comply with instructions from

supervisors. (Defs. motion, Ex. E, 11/6/00 Hr'g Tr. at 1;

Ex. F, 1/19/01 letter to Union at 1-2.) Plaintiff was also

represented at this hearing by his Union. Plaintiff was

found guilty of violating Operating Rule "B", and on

November 25, 2000, he was dismissed from employment

with Defendant Grand Trunk. (Defs. motion, Ex. F,

1/19/01 letter at 2.)

The Union, on Plaintiff's behalf, filed a first level appeal

of his dismissal. This proved unsuccessful. (Defs.

motion, Ex. F’,, 1/19/01 letter at 2-3.) Consistent with the

CBA, Plaintiff is entitled to further pursue his dismissal

through an appeal to the carrier's senior manager of

labor relations. He also has the right to ultimately

appeal his dismissal to binding arbitration before a

32a

panel of the National Railroad Adjustment Board in

~ accordance with provisions of the Railway Labor Act,

45 U.S. C. §§ 151, et seq. Plaintiff asserts that he is

following this procedure. (Pl.'s Resp. at 10.)

In addition to pursuing internal appeal procedures for

his discipline and discharge, Plaintiff also filed a civil

action in the Circuit Court for the County of

Shiawassee in June of 2002. Plaintiff's complaint alleges

that Defendants wrongfully terminated him in violation

of his rights, pursuant to Michigan's Elliott-Larsen

Civil Rights Act, Mich. Comp. Laws Annot. § 37.2205a,

not to be discriminated against for an off-duty

misdemeanor drug arrest that did not result in a

conviction. Plaintiff seeks both legal and equitable

remedies; i.e., compensatory and exemplary damages,

an order enjoining Defendants from discriminating or

retaliating against him, requiring Defendants to

remove and destroy all documents mentioning the

disciplinary action described above, and requiring

Defendants to reinstate Plaintiff to the position he

would have held absent the alleged discrimination,

(Compl. at 7.)

Defendants removed this action in July 2002, and this

Court denied Plaintiff's motion to remand on October 4,

2002.

II. Standard of Review

A. Judgment on the Pleadings

At any time after the pleadings close, but before trial

commences, a party may move for a judgment on the

pleadings. See Fed. R. Civ. P. 12(c). The standard of

33a

review is the same as on a motion to dismiss pursuant

to Fed. R. Civ. P. 12(b)(6).

As with a 12(b)(6) motion, in a light most favorable to

Plaintiff, the court must assume that Plaintiff's factual

allegations are true and determine whether the

Complaint states a valid claim for relief. See Albright v.

Oliver, 510 U.S. 266 (1994); Bower v. Federal Express

Corp., 96 F.3d 200, 203 (6th Cir. 1996); Forest v. United

States Postal Serv., 97 F.3d 187, 139 (6th Cir. 1996).

This standard of review "requires more than the bare

assertion of legal conclusions."' In re Sofamor Danek

Group, Inc., 123 F.3d 394, 400 (6th Cir. 1997) (quoting

Columbia Natural Resources, Inc. v. Tatum, 58 F.3d

1101, 1109 (6th Cir. 1995)). The Complaint must include

direct or indirect allegations "respecting all the material

elements to sustain a recovery under some viable legal

theory." See In re Delorean Motor Co., 991 F.2d 1236,

1240 (6 Cir. 1993) (citations omitted). A court should

not grant such a motion unless the movant shows

“beyond doubt that the plaintiff can prove no set of

facts in support of his claim," Conley v. Gibson, 355 U.S.

41, 45-46 (1957).

B. Standard for Summary Judgment

Summary judgment is appropriate only when there is

no genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56(c). The central inquiry is “whether

the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-

sided that one party must prevail as a matter of law."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52

34a

(1986). After adequate time for discovery and upon

motion, Rule 56(c) mandates summary judgment

against a party who fails to establish the existence of an

element essential to that party's case and on which that

party bears the burden of proof at trial. See Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986).

III. Analysis

The essence of Plaintiff's complaint is that:-he was

wrongfully discharged because Michigan law precludes

his employer from disciplining him based en an off-duty

misdemeanor drug arrest that did not result in a

conviction. See Mich. Comp. Laws § 37.2205a (West

2001).' Defendants bring this motion asserting that this

action should be dismissed because Plaintiff's state-law

claims are preempted by the Railway Labor Act

("RLA"), 45 U.S.C. § 151, et seq., and this Court lacks

subject matter jurisdiction over them.

“Whether federal law pre-empts a state law

establishing a cause of action is a question of

congressional intent." Hawatian Airlines, Inc. v.

Norris, 512 U.S. 248, 252 (1994). Congress passed the

RLA to promote stability in labor-management

relations for the railway industry “by providing a

comprehensive framework for resolving labor disputes.

Id. (citing 45 U.S.C. § 151a). Defendants' preemption

argument is premised on the assertion that Plaintiff's

state-law claims are “minor disputes" within the

meaning of the RLA and are therefore subject to

arbitration under the RLA's exclusive jurisdiction

provisions. “Under the RLA, parties are obligated to

arbitrate minor disputes, which are controversies

arising out of the application or interpretation of the

35a

collective bargaining agreement, and therefore,

complete preemption applies to disputes involving

duties and rights created or defined by the collective

bargaining agreement." Gore v. Trans World Airlines,

210 F.3d 944, 949 (8th Cir. 2000), cert denied, 532 U.S.

921 (2001).

The RLA defines "minor disputes" as those that "“gro[w]

out of grievances or out of the interpretation or

application of agreements covering rates of pay, rules,

or working conditions." 45 U.S.C. § 15la. Preemption

under the RLA is governed by the same standard as

that applied under § 301 of the Labor and Management

Relations Act, 29 U.S.C. § 185. See zd. "[U]nder this

standard ‘a state-law cause of action is not pre-empted

by the RLA if it involves rights and obligations that

exist independent of the [collective bargaining

agreement]." Jd. (quoting Hawatian Airlines, 512 U:S.

at 260). Stated otherwise, as long as the state-law claim

can be resolved without interpreting the parties’ rights

and obligations under the CBA, then the claim is

independent for preemption purposes. See Hawaiian

Airlines, 512 U.S. at 262, As observed by the Supreme

Court, "collective bargaining agreements may include

implied, as well as express, terms" and that "the parties'

‘practice, usage and custom’ is of significance in

interpreting their agreement." Consolidated Rail Corp.

v. Railway Labor Executives' Assn, 491 U.S. 299, 311

(1989). See also Hawazian Airlines, 512 U.S. at 265 n.10

(citing Consolidated Rail, 491 U.S. at 311-12; United

Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363

U.S. 574, 578-79 (1960)). "The collective agreement

covers the whole employment relationship."

Consolidated Rail, 419 U.S. at 312 (internal quotes and

citations omitted).

i

36°

It is not disputed here that Defendant Grand Trunk has

implemented the Federal Railroad Administration

regulations governing alcohol and drug use by railroad

employees. See 49 C.F.R. § 219.1, et seq. “Pursuant to

congressional authorization and in response to evidence

implicating substance abuse in railroad accidents, the

‘Federal Railroad Administration in 1985 promulgated a

comprehensive set of detailed regulations concerning

the use of alcohol and drugs by railroad employees."

Union Pacific Railroad Co. v. United Transportation

Union, 3 F.3d 255, 261 (8th Cir. 1993) (citing 50 Fed.

Reg. 31508 (1985) (codified as amended at 49 C.F .R.

Part 219)). These federal regulations set forth the

parties’ rights and obligations when addressing issues

concerning a railroad employee's alcohol or drug use.

Their general purpose is "to prevent accidents and

casualties in railroad operations that result from

impairment of employees by alcohol or drugs" and to

prescribe "minimum Federal safety standards for

control of alcohol and drug use" while not "restrict[ing]

a railroad from adopting and enforcing additional or

more stringent requirements not inconsistent" with

these regulations. 49 C.F.R. § 219.1.

Defendants assert that Plaintiff's state-law claims

would require interpretation of the parties’ rights and

obligations under their CBA; i.e., Operating Rule E and

these federal regulations promulgated by the Federal

Railroad Administration. See 49 C.F.R. §§ 219.1, 219.13,

219.101, and 219.102. Defendants argue that Operating

Rule E and 49 C.F.R. § 219.102 govern off-duty drug

use and that Plaintiff's state-law claims directly conflict

with the duties imposed on them under 49 C.F.R. §

219.105. Accordingly, they argue, Plaintiff's state-law

claims are preempted as "minor disputes" by the "RLA",

37a

45 U.S.C. § 15la, are subject to its exclusive

adjudicative procedures, and thus Plaintiff's claims

must be dismissed as this Court lacks subject matter

jurisdiction over them. This Court agrees with

Defendants.

Plaintiff's state-law claims are inextricably intertwined

with interpretation of rights and obligations that exist

under the parties' CBA; i.e., whether Defendant Grand

Trunk has the right to request, make, or maintain a

record of information regarding an off-duty

misdemeanor drug arrest that did not result in a

conviction and whether Plaintiff has a right to impede

access to this information or to refuse to answer

questions regarding such an arrest. Defendants assert

that Operating Rule E allows it to investigate whether

Plaintiff conducted himself in a manner that does not

discredit the company even when he is off-duty. They

further assert that 49 C.F.R. § 219.102 prohibits

railroad employees from using controlled substances

like marijuana "at any time, whether on duty or off

duty" and that 49 C.F.R. § 219.105 imposes a duty on a

railroad employer to “exercise due diligence to assure

compliance with . . . § 219.102 by each covered

employee" and Plaintiff is a covered employee. Plaintiff

disagrees.

Plaintiff's argument, that his state-law claims brought

pursuant to Michigan's Elliott- Larsen Civil Rights Act,

§ 37.2205a involve rights and obligations that exist

independent of the parties' CBA, is overly simplistic.

Plaintiff fails to address, as he must, whether his state-

law claims can be resolved independently of the CBA,

Operating Rule E, and the above-referenced federal

regulations. They cannot. In fact, Plaintiffs state-law

38a

claims are in direct conflict with Defendants'

responsibilities under these federal regulations.

Pursuant to § 219.105, Defendants have a duty to

investigate and assure compliance with § 219.102's

prohibition against off-duty use of a controlled

substance. This is a broad requirement that does not

distinguish between misdemeanor drug violations and

felonies or between arrests leading to convictions and

those that do not. A railroad employer cannot comply

with these federal regulations and Mich. Comp. Laws §

37.2205a when the off-duty drug activity involves a

misdemeanor arrest, detention, or disposition not

resulting in a conviction.

Plaintiffs state-law claims, that he was wrongfully

disciplined and discharged based on consideration of his

off-duty misdemeanor drug arrest, cannot be

understood without reference to the CBA, Operating

Rule E, and the above-referenced federal regulations.

To prove his claim, Plaintiff must prove that

Defendants did not have the right, under the express or

implied terms of the CBA governing their working

relationship, to investigate and consider evidence of

employee drug use under the circumstances presented

here. The instant case is fundamentaily a labor dispute

and is properly defined as a "minor dispute" within the

meaning of the RLA, 45 U.S.C. § 151 a. Accordingly,

Plaintiff's state-law claims are preempted and subject

to dismissal for lack of subject matter jurisdiction

because the RLA sets forth the exclusive mechanism

for resolution of minor disputes.*

39a

IV. Conclusion

For the foregoing reasons, Defendants' motion for

summary judgment is GRANTED, and Plaintiffs

complaint is dismissed.

s/Nancy G. Edmunds

U.S. District Judge

Dated: 21 Nov 2002

Footnotes

FN1. Mich. Comp. Laws Annot. § 37.2205a provides

that:

(1) An employer, employment agency, or labor

organization, other than a law enforcement

agency of this state or a political subdivision of

this state, shall not in connection with an

application for employment or membership, or in

connection with the terms, conditions, or

privileges of employment or membership

request, make, or maintain a record of

information regarding a misdemeanor arrest,

detention, or disposition where a conviction did

not result. A person is not guilty of perjury or

otherwise for giving a false statement by failing

to recite or acknowledge information the person

has a civil right to withhold by this section. This

section does not apply to information relative to

a felony charge before conviction or dismissal.

F'N2. In light of the above, there is no need to address

Defendants’ additional dismissa! arguments; i.e., (1)

that Michigan's Civil Rights Act provides solely for

40a

employer liability, not individual employee liability; and

(2) that the Act applies only to prospective rather than

current employers.

4la

No. 02- 72976

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

James T. Roddy, Plaintiff

Vv.

Grand Trunk Western Railroad, Inc. , et al. Defendants

JUDGMENT

The Court having reviewed the pleadings in this

matter and being fully advised in the premises;

IT IS HEREBY ORDERED AND ADJUDGED that

Defendants' motion for summary judgment is hereby

GRANTED, and the case is DISMISSED.

So ORDERED.

Nancy G. Edmunds

U.S. District Judge

Dated: 21 Nov 2002

42a

APPENDIX E

Award No. 15

National Mediation Board

Public Law Board

No. 6441

Canadian National Railway

And

United Transportation Union (GTW)

Grand Trunk Western Railway

Docket No. 1000-2001-UTU files

4465-R-GTW files

Case No. 15

Claimant: J.T. Roddy

For the Organization: Bruce Wigert, Vice President,

UTU

For the Carrier: Sean McFarlin, CN-Manager Human

Relations

Neutral: Dr. James R. McDonnell

STATEMENT OF CLAIM

Claim of Trainman, J.T. Roddy, for reinstatement to

service with seniority rights unimpaired, with payment

43a

of all time lost as a result of investigation held

November 6, 2000, for alleged violation of Canadian

National/Illinois U.S. Operating Rule “B”

REPORTING AND COMPLYING WITH

INSTRUCTIONS. Pay for all time lost including

- payment for all benefits, privileges and rights lost and

expunging all notation of investigation from work

record.

FINDINGS OF THE BOARD

The Board, upon the whole record an all evidence finds

that the parties herein are Carrier and Employee

within the meaning of the Railway Labor Act, as

amended (“RLA”); that the Board is duly constituted

by agreement;and has jurisdiction of the parties, claim

and subject matter which was held on July 18, 2003 in

Troy, Michigan. The Board makes the following

additionai findings.

DECISION

The Claimant has been an employee of the Carrier for

32 years prior to November 6, 2000. At that time he

worked as a conductor.

On August 25, 2000, the Carrier sent a letter to the

Claimant, which said, in part:

#395 — Sixty (60) Day Suspension

For conduct unbecoming an employee by being

arrested for possession of a controlled substance

at approximately 2100 hours on July 11, 2000, in

violation of GTOR E, paragraph 2 and having

your wife book you sick as a subterfuge to avoid

44a

duty at 2140 hours on July 11, 2000.

In addition, you must undergo an EAP

evaluation and fully comply with any

recommendation developed from the evaluation.

You must get a release from the EAP counselor

and undergo a company medical examination

before you will be allowed to return to service.

On October 13, 2000, the Carrier sent a letter to the

Claimant, which said, in part:

Peter Brandon, Manager of Medical Services has

informed me that you have failed to comply with

the terms of your discipline assessed on August

4, 2000, which states as follows:

“In addition, you must undergo an EAP

evaluation and fully comply with any

recommendations developed from the

evaluation. You must get a release from

the EAP counselor and undergo a

company medical examination before you

will be allowed to return to service.”

Per your conversation with Mr. Brandon on

Thursday, October 12, 2000 at approximately

1:20 p.m., you were further informed that you

MUST undergo the EAP Assessment and

provide Mr. Brandon with a written report and

any recommendations from the counselors. This

information MUST be forwarded to Mr. Brandon

no later than Monday, October 23, 2000.

Failure to comply with the above instructions

may result in further disciplinary actions.

45a

The Claimant failed to comply with the letters and

directives sent to him by the Carrier.

A formal invest ‘ation was held on November 6, 2000

and on November 28, 2000. Carrier issued a Notice of

Discipline informing the Claimant that he had been

dismissed from service.

The Carrier has carried its required burden of proof in

the instant claim. The Claimant failed to comply with

the requirements related to the EAP counselor

procedures.

The Board, however, believes that the decision by the

Carrier to dismiss the claimant from services is

excessive. It seems that there are mitigating

circumstances which must be taken into account.

At the time of the Claimant’s arrest for charges noted

above, the Claimant had a confrontation with a police

officer. Claimant hired legal counsel who advised him

that he should not sign a release from EAP and he did

not.

Claimant was later cleared of the charges. But, advice

of counsel kept him from completing the EAP

requirements in a timely fashion. Thus, the Claimant

caught between these two forces found himself in a

dilemma.

A long term employee with an otherwise good work

record will be given reasonable consideration by this

Board.

The Board, therefore, concludes that the Claimant is

46a

guilty of the charges, and will have a suspension from

service for a period of three (3) months end will

otherwise be made whole for wages, benefits and his

seniority date.

AWARD

Claim sustained in accordance with the Decision.

ORDER

This Board hereby orders that an award favorable to

the Claimant be made. The Carrier is ordered to make

the Award effective on or before 30 days following the

postmarked date the Award is transmitted to the

parties.

Bruce Wigert, Vice President, UTU

Sean McFarlin, CN —- Manager, LR

s/Dr. James R. McDonnell, Neutral

August 26, 2003

Date

47a

APPENDIX F

No. 02-2499.

United States Court of Appeals

for the Sixth Circuit.

James T. RODDY, Plaintiff-Appellant,

v.

GRAND TRUNK WESTERN RAILROAD

INCORPORATED, ET AL.

Filed: March 15, 2005

ORDER

BEFORE: MARTIN and ROGERS, Circuit Judges;

and BELL,’ District Judge.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only

to the original panel members but also to all other

active judges of this court, and no judge of this court

having requested a vote on the suggestion for

rehearing en banc, the petition for rehearing has been

referred to the original panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original

submission and decision of the case. Accordingly, the

petition is denied.

48a

ENTERED BY ORDER OF THE COURT

s/Leonard Green, Clerk

Footnote

*Hon. Robert Holmes Bell, Chief United States District

Judge for the Western District of Michigan, sitting by

designation.

1.

49a

APPENDIX G

STATUTORY APPENDIX

Section 1331 of Title 28 of the United States

Code, titled “Federal question,” provides as follows:

2.

The district courts shall have original

jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United

States.

Section 1441 of Title 28 of the United States

Code, titled “Actions removable generally,” provides as

follows: ;

(a) Except as otherwise expressly provided by

Act of Congress, any civil action brought in a

State court of which the district courts of the

United States have original jurisdiction, may be

removed by the defendant or the defendants, to

the district court of the United States for the

district and division embracing the place where

such action is pending. For purposes of removal

under this chapter, the citizenship of defendants

sued under fictitious names shall be disregarded.

(b) Any civil action of which the district courts

have original jurisdiction founded on a claim or

right arising under the Constitution, treaties or

laws of the United States shall be removable

without regard to the citizenship or residence of

the parties. Any other such action shall be

removable only if none of the parties in interest

properly joined and served as defendants is a

50a

citizen of the State in which such action is

brought.

(c) Whenever a separate and independent claim

or cause of action within the jurisdiction

conferred by section 1331 of this title is joined

with one or more otherwise non-removable

claims or causes of action, the entire case may be

removed and the district court may determine all

issues therein, or, in its discretion, may remand

all matters in which State law predominates.

(d) Any civil action brought in a State court

against a foreign state as defined in section

1603(a) of this title may be removed by the

foreign state to the district court of the United

States for the district and division embracing the

place where such action is pending. Upon

removal the action shall be tried by the court

without jury. Where removal is based upon this

subsection, the time limitations of section 1446(b)

of this chapter may be enlarged at any time for

cause shown. -

(e)

(1) Notwithstanding the provisions of

subsection (b) of this section, a defendant

in a civil action in a State court may

remove the action to the district court of

the United States for the district and

division embracing the place where the

action is pending if--

(A) the action could have been

brought in a United States district

5la

court under section 1369 of this

title; or

(B) the defendant is a party to an

action which is or could have been

brought, in whole or in part, under

section 1369 in a United States

district court and arises from the

same accident as the action in

State court, even if the action to be

removed could not have been

brought in a district court as an

original matter.

The removal of an action under this

subsection shall be made in accordance

with section 1446 of this title, except that

a notice of removal may also be filed

before trial of the action in State court

within 30 days after the date on which the

defendant first becomes a party to an

action under section 1369 in a United

States district court that arises from the

same accident as the action in State court,

or at a later time with leave of the district

court.

(2) Whenever an action is removed under

this subsection and the district court to

which it is removed or transferred under

section 1407(j) has made a liability

determination requiring further

proceedings as to damages, the district

court shall remand the action to the State

court from which it had been removed for

52a

the determination of damages, unless the

court finds that, for the convenience of

parties and witnesses and in the interest

of justice, the action should be retained

for the determination of damages.

(3) Any remand under paragraph (2) shall

not be effective until 60 days after the

district court has issued an order

determining liability and has certified its

intention to remand the removed action

for the determination of damages. An

appeal with respect to the liability

determination of the district court may be

taken during that 60-day period to the

court of appeals with appellate

jurisdiction over the district court. In the

event a party files such an appeal, the

remand shall not be effective until the

appeal has been finally disposed of. Once

the remand has become effective, the

liability determination shall not be subject

to further review by appeal or otherwise.

(4) Any decision under this subsection

concerning remand for the determination

of damages shall not be reviewable by

appeal or otherwise.

(5) An action removed under this

subsection shall be deemed to be an action

under section 1369 and an action in which

jurisdiction is based on section 1369 of this

title for purposes of this section and

sections 1407, 1697, and 1785 of this title.

53a

(6) Nothing in this subsection shall

restrict the authority of the district court

to transfer or dismiss an action on the

ground of inconvenient forum.

(f) The court to which a civil action is removed

under this section is not precluded from hearing

and determining any claim in such civil action

because the State court from which such civil

action is removed did not have jurisdiction over

that claim.

3. Section 151 of Title 45 of the United States Code,

titled “Definitions; short title,” provides as follows:

When used in this chapter and for the purposes

of this chapter--

First. The term "carrier" includes any railroad

subject to the jurisdiction of the Surface

Transportation Board, any express company

that would have been subject to subtitle IV of

Title 49, as of December 31, 1995, and any

company which is directly or indirectly owned or

controlled by or under common control with any

carrier by railroad and which operates any

equipment or facilities or performs any service

(other than trucking service) in connection with

the transportation, receipt, delivery, elevation,

transfer in transit, refrigeration or icing,

storage, and handling of property transported by

railroad, and any receiver, trustee, or other

individual or body, judicial or otherwise, when in

the possession of the business of any such

"earrier": Provided, however, That the term

54a

“cearrier" shall not include any street, interurban,

or suburban electric railway, unless such railway

is operating as a part of a general steam-railroad

system of transportation, but shall not exclude

any part of the general steam-railroad system of

transportation now or hereafter operated by any

other motive power. The Surface Transportation

Board is authorized and directed upon request of

the Mediation Board or upon complaint of any

party interested to determine after hearing

whether any line operated by electric power falls

within the terms of this proviso. The term

“carrier” shall not include any company by reason

of its being engaged in the mining of coal, the

supplying of coal to a carrier where delivery is

not beyond the mine tipple, and the operation of

equipment or facilities therefor, or in any of such

activities.

Second. The term "Adjustment Board" means

the National Railroad Adjustment Board created

by this chapter.

Third. The term "Mediation Board" means the

National Mediation Board created by this

chapter.

Fourth. The term "commerce" means commerce

among the several States or between any State,

Territory, or the District of Columbia and any

foreign nation, or between any Territory or the

District of Columbia and any State, or between

any Territory anc any other Territory, or

between any Territory and the District of

Columbia, or within any Territory or the District

55a

of Columbia, or between points in the same State

but through any other State or any Territory or

the District of Columbia or any foreign nation.

Fifth. The term "employee" as used herein

includes every person in the service of a carrier

(subject to its continuing authority to supervise

and direct the manner of rendition of his service)

who performs any work defined as that of an

employee or subordinate official in the orders of

the Surface Transportation Board now in effect,

and as the same may be amended or interpreted

by orders hereafter entered by the Board

pursuant to the authority which is conferred

upon it to enter orders amending or interpreting

such existing orders: Provided, however, That no

occupational classification made by order of the

Surface Transportation Board shall be construed

to define the crafts according to which railway

employees may be organized by their voluntary

action, nor shall the jufisdiction or powers of

such employee organizations be regarded as in

any way limited or defined by the provisions of

this chapter or by the orders of the-Board.

The term “employee" shall not include any

individual while such individual is engaged in the

physical operations consisting of the mining of

coal, the preparation of coal, the handling (other

than movement by rail with standard railroad

locomotives) of coal not beyond the mine tipple,

or the loading of coal at the tipple.

Sixth. The term "representative" means any

person or persons, labor union, organization, or

4,

56a 2

corporation designated either by a carrier or

group of carriers or by its or their employees, to

act for it or them.

Seventh. The term "district court" includes the

United States District Court for the District of

Columbia; and the term "court of appeals"

includes the United States Court of Appeals for

the District of Columbia.

This chapter may be cited as the “Railway Labor

Act."

Section 151(a) of Title 45 of the United ates

Code, titled “General purposes,” provides as follows:

The purposes of the chapter are:

(1) To avoid any interruption to commzzce

or to the operation of any carrier engaged

therein;

(2) to forbid any limitation upon freedom

_of association among employees or any

denial, as a condition of employment or

otherwise, of the right of employees to

join a labor organization;

(3) to provide for the complete

independence of carriers and of employees

in the matter of self-organization to carry

out the purposes of this chapter;

(4) to provide for the prompt and orderly

settlement of all disputes concerning rates

of pay, rules, or working conditions;

57a

(5) to provide for the prompt and orderly

settlement of all disputes growing out of

grievances or out of the interpretation or

application of agreements covering rates

of pay, rules, or working conditions.

5. Section 153 of Title 45 of the United States

Code, entitled “National Railroad Adjustment Board,”

provides as follows:

First. Establishment; composition; powers and

duties; divisions; hearings and awards; judicial

review.

There is established a Board, to be known as the

"National Railroad Adjustment Board", the

members of-whieh-shall be selected within thirty

days after June 21, 1934, and it is provided—

(a) That the said Adjustment Board shall

consist of thirty-four members, seventeen

of whom shall be selected by the carriers

and seventeen by such labor

organizations of the employees, national

in scope, as have been or may be

organized in accordance with the

provisions of sections 15la and 152 of this

title. :

(b) The carriers, acting each through its

board of directors or its receiver or

receivers, trustee or trustees, or through

an officer or officers designated for that

purpose by such board, trustee or

58a

trustees, or receiver or receivers, shall

prescribe the rules under which its

representatives shall be selected and

shall select the representatives of the

carriers on the Adjustment Board and

designate the division on which each such

representative shall serve, but no carrier

or system of carriers shall have more

than one voting representative on any ©

division of the Board.

(c) Except as provided in the second -

paragraph of subsection (h) of this

section, the national labor organizations,

as defined in paragraph (a) of this section,

acting each through the chief executive or

other medium designated by the

organization or association thereof, shall

prescribe the rules under which the labor

members of the Adjustment Board shall

be selected and shall select such members

and designate the division on which each

member shall serve; but no labor

organization shall have more than one

voting representative on any division of

the Board.

(d) In case of a permanent or temporary

vacancy on the Adjustment Board, the

vacancy shall be filled by selection in the

same manner as in the original selection.

(e) If either the carriers or the labor

organizations of the employees fail to

select and designate representatives to

59a

the Adjustment Board, as provided in

paragraphs (b) and (c) of this section,

respectively, within sixty days after June

21, 1934, in case of any original

appointment to office of a member of the

Adjustment Board, or in case of a

vacancy in any such office within thirty

days after such vacancy occurs, the

Mediation Board shall thereupon directly

make the appointment and shall select an

individual associated in interest with the

carriers or the group of labor

organizations of employees, whichever he

is to represent.

~

(f) In the event a dispute arises as to the

right of any national labor organization to

participate as per paragraph (c) of this

section in the selection and designation of

the labor members of the Adjustment

Board, the Secretary of Labor shall

investigate the claim of such labor

organization to participate, and if such

claim in the judgment of the Secretary of

Labor has merit, the Secretary shall

notify the Mediation Board accordingly,

and within ten days after receipt of such

advice the Mediation Board shall request

those national labor organizations duly

qualified as per paragraph (c) of this

section to participate in the selection and

designation of the labor members of the

Adjustment Board to select a

representative. Such representative,

together with a representative likewise

60a

designated by the claimant, and a third or

neutral party designated by the

Mediation Board, constituting a board of

three, shall within thirty days after the

appointment of the neutral member,

investigate the claims of the labor

organization desiring participation and

decide whether or not it was organized in

accordance with sections 151la and 152 of

this title and is otherwise properly

qualified to participate in the selection of

the labor members of the Adjustment

Board, and the findings of such boards of

three shall be final and binding.

(g) Each member of the Adjustment

Board shall be compensated by the party

or parties he is to represent. Each third

or neutral party selected under the

provisions of paragraph (f) of this section

shall receive from the Mediation Board

such compensation as the Mediation

Board may fix, together with his

" necessary traveling expenses and

expenses actually incurred for

subsistence, or per diem allowance in lieu

thereof, subject to the provisions of law

applicable thereto, while serving as such

third or neutral party.

(h) The said Adjustment Board shall be

composed of four divisions, whose

proceedings shall be independent of one

another, and the said divisions as well as

~ ~

6la

the number of their members shall be as

follows:

First division: To have jurisdiction

over disputes involving train- and

yard-service employees of carriers;

that is, engineers, firemen,

hostlers, and outside hostler

helpers, conductors, trainmen, and

yard-service employees. This

division shall consist of eight

members, four of whom shall be

selected and designated by the

carriers and four of whom shall be

selected and designated by the

labor organizations, national in

scope and organized in accordance

with sections 15la and 152 of this

title and which represent

employees in engine, train, yard,

or hostling service: Provided,

however, That each labor

organization shall select and

designate two members on the

First Division and that no labor

organization shall have more than

one vote in any proceedings of the

First Division or in the adoption of

any award with respect to any

dispute submitted to the First

Division: Provided further,

however, That the carrier member's

of the First Division shall cast no

more than two votes in any

proceedings of the division or in

62a

the adoption of any award with

respect to any dispute submitted

to the First Division.

Second division: To have

jurisdiction over disputes

involving machinists,

boilermakers, blacksmiths, sheet-

metal workers, electrical workers,

carmen, the helpers and

apprentices of all the foregoing,

coach cleaners, power-house

employees, and railroad-shop

laborers. This division shall consist

of ten members, five of whom shall

be selected by the carriers and five

by the national labor organizations

of the employees.

Third division: To have jurisdiction

over disputes involving station,

tower, and telegraph employees,

train dispatchers, maintenance-of-

way men, clerical employees,

freight handlers, express, station,

and store employees, signal men,

sleeping-car conductors, sleeping-

car porters, and maids and dining-

car employees. This division shall

consist of ten members, five of

whom shall be selected by the

carriers and five by the national

labor organizations of employees.

Fourth division: To have

63a

jurisdiction over disputes

involving employees of carriers

directly or indirectly engaged in

transportation of passengers or

property by water, and all other

employees of carriers over which

jurisdiction is not given to the

first, second, and third divisions.

This division shall consist of six

members, three of whom shall be

selected by the carriers and three

by the national labor organizations

of the employees.

(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 working conditions, including

cases pending and unadjusted on June 21,

1934, shall be haridled 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 adjustmént 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 supporting data bearing upon the

disputes.

(j) Parties may be heard either in person,

64a

by counsel, or by other representatives,

as they may respectively elect, and the

several divisions of the Adjustment

Board shall give due notice of all hearings

to the employee or employees and the

carrier or carriers involved in any

disputes submitted to them.

(k) Any division of the Adjustment Board

shall have authority to empower two or

more of its members to conduct hearings

and make findings upon disputes, when

properly submitted, at any place

designated by the division: Provided,

however, That except as provided in

paragraph (h) of this section, final awards

as to any such dispute must be made by

the entire division as hereinafter

provided.

(1) Upon failure of any division to agree

upon an award because of a deadlock or

inability to secure a majority vote of the

division members, as provided in

paragraph (n) of this section, then such

division shall forthwith agree upon and

select a neutral person, to be known as

"referee", to sit with the division as a

member thereof, and make an award.

Should the division fail to agree upon and

select a referee within ten days of the

date of the deadlock or inability to secure

a majority vote, then the division, or any

member thereof, or the parties or either

party to the dispute may certify that fact

65a

to the Mediation Board, which Board

shall, within ten days from the date of

receiving such certificate, select and

name the referee to sit with the division

as a member thereof and make an award.

The Mediation Board shall be bound by

the same provisions in the appointment of

these neutral referees as are provided

elsewhere in this chapter for the

appointment of arbitrators and shall fix

and pay the compensation of such

referees.

(m) The awards of the several divisions of

the Adjustment Board shall be stated in

writing. A copy of the awards shall be

furnished to the respective parties to the

controversy, and the awards shall be final

and binding upon both parties to the

dispute. In case a dispute arises involving

an interpretation of the award, the

division of the Board upon request of

either party shall interpret the award in

the light of the dispute.

(n) A majority vote of all members of the

division of the Adjustment Board eligible

to vote shall be competent to make an

award with respect to any dispute

submitted to it.

(o) In case of an award by any division of

the Adjustment Board in favor of

petitioner, the division of the Board shall

make an order, directed to the carrier, to

66a

make the award effective and, if the

award includes a requirement for the

payment of money, to pay to the

employee the sum to which he is entitled

under the award on or before a day

named. In the event any division

determines that an award favorable to

the petitioner should not be made in any

dispute referred to it, the division shall

make an order to the petitioner stating

such determination.

(p) If a carrier does not comply with an

order of a division of the Adjustment

Board within the time limit in such order,

the petitioner, or any person for whose

benefit such order was made, may file in

the District Court of the United States

for the district in which he resides or in

which is located the principal operating

office of the carrier, or through which the

carrier operates, a petition setting forth

briefly the causes for which he claims

relief, and the order of the division of the

Adjustment Board in the premises. Such

suit in the District Court of the United

States shall proceed in all respects as

other civil suits, except that on the trial of -

such suit the findings and order of the

division of the Adjustment Board shall be

conclusive on the parties, and except that

the petitioner shall not be liable for costs

in the district court nor for costs at any

subsequent stage of the proceedings,

unless they accrue upon his appeal, and

67a

such costs shall be paid out of the

appropriation for the expenses of the

courts of the United States. If the

petitioner shall finally. prevail he shall be

allowed a reasonable attorney's fee, to be

taxed and collected as a part of the costs

of the suit. The district courts are

empowered, under the rules of the court

governing actions at law, to make such

order and enter such judgment, by writ of

mandamus or otherwise, as may be

appropriate to enforce or set aside the

order of the division of the Adjustment

Board: Provided, however, That such

order may not be set aside except 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.

(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 ina

dispute referred to it, or is aggrieved by

any of the terms 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 paragraph (p)

could be filed, a petition for review of the

68a

division's order. A copy of the petition

shall be forthwith 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 proceedings

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 cf 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.

(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.

(s) The several divisions of the

Adjustment Board shall maintain

69a

headquarters in Chicago, Illinois, meet

regularly, and continue in session so long

as there is pending before the division

any matter within its jurisdiction which

has been submitted for its consideration

and which has not been disposed of.

(t) Whenever practicable, the several

divisions or subdivisions of the

Adjustment Board shall be supplied with

suitable quarters in any Federal building

located at its place of meeting.

(u) The Adjustment Board may, subject

to the approval of the Mediation Board,

employ and fix the compensations of such

assistants as it deems necessary in

carrying on its proceedings. The

compensation of such employees shall be

paid by the Mediation Board.

(v) The Adjustment Board shall meet

within forty days after June 21, 1934, and

adopt such rules as it deems necessary to

control proceedings before the respective

divisions and not in conflict with the

provisions of this section. Immediately

following the meeting of the entire Board

and the adoption of such rules, the

respective divisions shall meet and

organize by the selection of a chairman, a

vice chairman, and a secretary.

Thereafter each division shall annually

designate one of its members to act as

chairman and one of its members to act as

70a

vice chairman: Provided, however, That

the chairmanship and vice-chairmanship

of any division shall alternate as between

the groups, so that both the chairmanship

and vice-chairmanship shall be held

alternately by a representative of the

carriers and a representative of the

employees. In case of a vacancy, such

vacancy shall be filled for the unexpired

term by the selection of a successor from

the same group.

(w) Each division of the Adjustment

Board shall annually prepare and submit

a report of its activities to the Mediation

Board, and the substance of such report

shall be included in the annual report of

the Mediation Board to the Congress of

the United States. The reports of each

division of the Adjustment Board and the

annual report of the Mediation Board

shall state in detail ail cases heard, all

actions taken, the names, salaries, and

duties of all agencies, employees, and

officers receiving compensation from the

United States under the authority of this

chapter, and an account of all moneys

appropriated by Congress pursuant to

the authority conferred by this chapter |

and disbursed by such agencies,

employees, and officers.

(x) Any division of the Adjustment Board

shall have authority, in its discretion, to

establish regional adjustment boards to

Tla

act in its place and stead for such limited

period as such division may determine to

be necessary. Carrier members of such

regional boards shall be designated in

keeping with rules devised for this -

purpose by the carrier members of the

Adjustment Board and the labor

members shall be designated in keeping

with rules devised for this purpose by the

labor members of the Adjustment Board.

Any such regional board shall, during the

time for which it is appointed, have the

same authority to conduct hearings, make

findings upon disputes and adopt the

same procedure as the division of the

Adjustment Board appointing it, and its

decisions shall be enforceable to the same

extent and under the same processes. A

neutral person, as referee, shall be -

appointed for service in connection with

any such regional adjustment board in

the same circumstances and manner as

provided in paragraph (1) of this section,

with respect to a division of the

Adjustment Board.

Second. System, group, or regional! boards:

establishment by voluntary agreement; special

adjustment boards: establishment, composition,

designation of representatives by Mediation

Board, neutral member, compensation, quorum,

finality and-enfereement of awards.

72a

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

representatives, selected in accordance with the

provisions of this chapter, 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 arrangement, it may upon ninety days'

notice to the other party elect to come under the

jurisdiction of the Adjustment Board.

If written request is made upon any individual

carrier by the representative of any craft or

class of employees of such carrier for the

establishment of a special board of adjustment

to resolve disputes otherwise referable to the

Adjustment Board, or any dispute which has

been pending before the Adjustment Board for

twelve months from the date the dispute (claim)

is received by the Board, or if any carrier makes

such a request upon any such representative,

the carrier or the representative upon whom

such request is made shall join in an agreement

establishing such a board within thirty days

from the date such request is made. The cases

which may be considered by such board shall be

defined in the agreement establishing it. Such

board shall consist of one person designated by

the carrier and one person designated by the

representative of the employees. If such carrier

73a

or such representative fails to agree upon the

establishment of such a board as provided

herein, or to exercise its rights to designate a

member of the board, the carrier or

representative making the request for the

establishment of the special board may request

the Mediation Board to designate a member of

the special board on behalf of the carrier or

representative upon whom such request was

made. Upon receipt of a request for such

designation the Mediation Board shall promptly

make such designation and shall select an

individual associated in interest with the carrier

or representative he is to represent, who, with

the member appointed by the carrier or

representative requesting the establishment of

the special board, shall constitute the board.

Each member of the board shall be compensated

by the party he is to represent. The members of

the board so designated shall determine all

matters not previously agreed upon by the

carrier and the representative of the employees

with respect to the establishment and

jurisdiction of the board. If they are unable to

agree such matters shall be determined by a

neutral member of the board selected or

appointed and compensated in the same manner

as is hereinafter provided with respect to

situations where the members of the board are

unable to agree upon an award. Such neutral

member shall cease to be a member of the board

when he has determined such matters. If with

respect to any dispute or group of disputes the

members of the board designated by the carrier ~

and the representative are unable to agree upon

74a

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 for

the consideration and disposition of such dispute

or group of disputes. In the event the members

of the board designated by the parties are

unable, within ten days after their failure to

agree upon an award, to agree upon the

selection of such neutral person, either member

of the board may request the Mediation Board

to appoint such neutral person and upon receipt

of such request the Mediation Board shall

promptly make such appointment. The neutral

person so selected or appointed shall be

compensated and reimbursed for expenses by

the Mediation Board. 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.

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 proceedings for

enforcement of compliance with awards of the

Adjustment Board.

MOTION FILED \

AUG 19 2005

No. 05-106

IN THE

Supreme Court of the Anited States

GRAND TRUNK WESTERN RAILROAD INC., ef al.,

Petitioners,

i

JAMES T. RODDY,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

MOTION FOR LEAVE TO FILE AND BRIEF OF

AMICI CURIAE AIRLINE INDUSTRIAL RELATIONS

CONFERENCE, ASSOCIATION OF AMERICAN

RAILROADS, AND NATIONAL RAILWAY LABOR

CONFERENCE IN SUPPORT OF PETITIONERS

—

HARRY A. RISSETTO *

RALPH J. MOORE, JR.

THOMAS E. REINER7, JR.

JONATHAN C. FRITTS

MORGAN, LEWIS

BOCKIUS LLP

1111 Pennsylvania Ave., N.W.

Washington, D.C. 20004

* Counsel of Record ————— (202) 739-3000

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

® <P 00

IN THE

Supreme Court of the Anited States

No. 05-106

GRAND TRUNK WESTERN RAILROAD INC., ef al.,

Petitioners,

Vv.

JAMES T. RODDY,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

MOTION FOR LEAVE TO FILE BRIEF

AMICI CURIAE 1N SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

Pursuant to Supreme Court Rule 37.2, the Airline Industrial

Relations Conference (“AIRCON”), the Association of

American Railroads (“AAR”), and the National Railway

Labor Conference (“NRLC”) move for leave to file the

attached brief as amici curiae in support of the Petition for a

Writ of Certiorari. The amici are filing this motion because

the Respondent has refused to consent to the filing of this

brief. Petitioners have consented to the filing of this brief

and their letter of consent has been lodged with the Clerk of

the Court.

The antici seek to file the attached brief to emphasize the

importance of the question presented in this case to the airline

and railroad industries in the United States—the two

industries whose labor relations are regulated by the Railway

Labor Act. The question presented affects the integrity of the

Act’s compulsory framework for the resolution of labor

disputes, and hence the stability of labor relations in two

industries that Congress deemed critical to the national

economy. The amici represent the collective views of the

Nation’s major air and rail carriers.

AIRCON was formed in 1946 as a voluntary association of

various passenger and air cargo carriers.' AIRCON’s pur-

pose is to facilitate the exchange of ideas and information

concerning personnel and labor relations issues and to rep-

resent member carriers, who collectively operate in 49 states,

concerning legislative, judicial and administrative matters.

AIRCON has submitted amicus briefs in this Court in

numerous cases, including US Airways, Inc. v. Barnett, 535

U.S. 391 (2002); Eustern Associated Coal Corp. v. United

Mine Workers, Dist. 17, 531 U.S. 57 (2000); Trans World

Airlines, Inc. v. Independent Federation of Flight Attendants,

489 U.S. 426 (1989); and Northwest Airlines, Inc. v. Air Line

Pilots Ass'n, 486 U.S. 1014 (1988).

AAR is a trade association whose membership includes

freight railroads that operate 77 percent of the line-haul -

mileage, employ 92 percent of the workers, and account for

94 percent of the freight revenue of all railroads in the United

States; and passenger railroads that operate intercity pas-

senger trains and provide commuter rail service. It represents

its members in connection with numerous administrative,

legislative, and judicial matters. AAR has submitted amicus

briefs in this Court in numerous cases, including Norfolk

' AIRCON’s current members include: ABX Air, Inc., AirTran Air-

ways, Alaska Airlines, Inc., Aloha Airlines, Inc., America West Airlines,

Amcrican Airlines, Inc., ASTAR Air Cargo, Inc., ATA, Continental Air

Lines, Inc., Delta Air Lines, Inc., Federal Express Corp., Frontier Airlines,

Inc., Hawaiian Airlines, Inc., Independence Air, jetBlue Airways, North-

west Airlines, Inc., Southwest Airlines, United Atrlines, United Parcel

Service, and US Airways.

Southern Ry. Co. v. Kirby, 125 §. Ct. 385 (2004); Norfolk &

Western Ry. Co. v. Ayers, 538 U.S. 135 (2003); and Norfolk

Southern Ry. Co. v. Shanklin, 529 U.S. 344(2000).

The members of the NRLC include all United States Class

I freight ratlroads and many smaller lines.” The NRLC,

through its National Carriers’ Conference Committee, repre-

sents most of its members in multi-employer collective

bargaining with the major rail labor organizations. It also

advises railroads on labor-related matters; administers

industry-wide health and welfare plans for rail employees;

represents the industry on rail labor issues before congres-

sional committees, other governmental bodies, and the courts;

provides training programs; and represents railroads in labor

arbitration cases before the National Railroad Adjustment

Board and other tribunals. NRLC has filed briefs as amicus

curiae in numerous cases before this Court, including Brown

v. Pro Football, 518 U.S. 231 (1996); and Conrail v. RLEA,

491 U.S. 299 (1989).

Because the amici represent virtually all of the major air

and rail carriers covered by the Railway Labor Act, the views

of the amici expressed in the attached brief will assist the

Court in understanding the scope and impact of the decision

below. The decision of the court below exacerbates a conflict

among the Courts of Appeals concerning the jurisdiction of

federal courts to decide whether a claim filed in state court

constitutes a “minor dispute” that must be resolved through

the grievance arbitration procedures mandated by Congress.

Federal jurisdiction is essential to ensure that these disputes

are consistently and finally resolved through the Act’s dispute

resolution procedures, rather than through a multitude of state

? The Class I freight railroads include BNSF Railway Co., Soo Line

Railroad Co., Canadian National Railway Co., CSX Transportation, Inc.,

Kansas City Southern Railway Co., Norfolk Southern Railway Co., and

Union Pacific Railroad Co.

court litigation. By holding that no such federal jurisdiction

exists, the court below has threatened the stability of labor

relations in the airline and railroad industries. That is why the

amici seek leave to file the attached brief urging the Court to

grant the Petition.

Respectfully submitted,

HARRY A. RISSETTO *

RALPH J. MOORE, JR.

THOMAS E. REINERT, JR.

JONATHAN C. FRITTS

MORGAN, LEWIS

BocKius LLP

1111 Pennsylvania Ave., N.W.

Washington, D.C. 20004

* Counsel of Record (202) 739-3000

TABLE OF CONTENTS

Fe OR, RE EF TR eccnasicnessesstnccernnnesasnoadunsonaes

BPE PERRET GA BO EINE piisdsdnsscassessnncniccsinsegensncns

SUMMARY OF THE ARGUMENT ......000

PE os retediicantes Ulbdedeeeintnsasetenstiaseschmsessecucenseneen

[.. FEDERAL JURISDICTION IS ESSENTIAL

TO THE ORDERLY RESOLUTION OF

DISPUTES UNDER THE RLA..........0.000...

A. The RLA Establishes Mandatory Dispute

RESOUMIGN PYOCCIUIES ......0.00:.c00csccseecescecensss

B. The Act Discourages the Fragmentation of

Labor Disputes on a Local or State-by-

EERIE Se soe are eR eee Pe Fae

C. Federal Jurisdiction Is Essential to the

Purpose and Structure of the RLA...............

Il. THE STANDARD APPLIED BY THE

COURT BELOW THREATENS THE STA-

BILITY OF LABOR RELATIONS IN THE

AIR AND RAIL INDUSTRIES...........00..

RMI Satihistaciteierabcatishacostanieenticseusihcastaiiieisssonass

(i)

TABLE OF AUTHORITIES

CASES Page

Air Line Pilots Association v. O'Neill, 499 U.S.

2 bj | SM RAMEN to acre ple FA Ste E SORE EC mee 6

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

Ci a sacica ined scaccebansentinneicbin uiconce cat laecaids iammieconent 5

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

Ch TE paket ii ceracintenmcnde shake 3,5

Brotherhood of Railroad Trainmen v, Chicago

River & Indiana R.R. Co., 353 U.S. 30 (1957)... 3, 6

Chicago & North Western Railway Co. v. United

Transportation Union, 402 U.S. 570 (1971)..... 6

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246

iis vhstiniisisscaicchisosiueespesthancaes tle ddcsecenakenasiindaksiaeae 3

International Association of Machinists _ v.

Central Airlines, Inc., 372 U.S. 682 (1963) ...... 4, 6,8

International Association of Machinists v.

Central Airlines, Inc., 295 F.2d 209 (Sth Cir.

DE PiiahteskecAciccarsscachaernadigedicnsecdh daaasibiaign nclipiadsetes 8

Texas & N. O. R. Co. v. Brotherhood of Railway

& Steamship Clerks, 281 U.S. 548 (1930) ........ 6

Trans World Airlines, dnc. v. Independent

Federation of Flight Attendants, 489 U.S. 426

| Rea T a eM MLE Feed NSE ORE 6

FEDERAL STATUTES

BURG 4 he ee a 3

Ot EE 8 oe ae 5

ee 4,5

FEDERAL ADMINISTRATIVE AGENCY CASES

American Airlines, Inc., 19 NMB 113 (1991)....... 4

Pennsylvania Railroad Co., 1 NMB 23 (1937)..... 4

\

tii

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS |

ASSOCIATION OF AMERICAN RAILROADS, RAIL-

ROAD FACTS 68-69 (2004) ...........ccceccesessssssessenes

BUREAU OF TRANSPORTATION STATISTICS, DEP’T

OF TRANSPORTATION, NUMBER OF EMPLOYEES—

CERTIFICATED CARRIERS 2004 YEAR END

DATA, available at http://www.bts.gov/

programs/airline_information/number_of_emp

loyees/certificated_carriers/html/2004.html......

Page

IN THE

Supreme Court of the United States

No. 05-106

GRAND TRUNK WESTERN RAILROAD INC., ef al.,

Petitioners,

Vv.

JAMES T. Robby,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF AMICI CURIAE IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

STATEMENT OF INTEREST'

The interests of the amici are set forth in the preceding

motion and therefore are not repeated here.

SUMMARY OF THE ARGUMENT

The question presented in the Petition is important to the

stability of labor relations on the Nation’s airlines and

railroads and to the administration of the Railway Labor Act

(“RLA” or “Act”). Labor relations stability in the air and rail

industries depends in large part on the Act’s mandatory

Pursuant to S. Ct. R. 37.6, the amici state that counsel for a party did

not author this brief in whole or in part and that no one other than the

amici, their members, or counsel! made a monetary contribution to the

preparation or submission of this brief.

2

grievance arbitration procedures. Disputes involving the

interpretation or application of a collective bargaining agree-

ment (so-called “minor disputes”) must be resolved in a

uniform and consistent manner. The RLA’s mandatory griev- _

ance arbitration procedures are the mechanism for ensuring

uniformity and consistency—and ultimately labor peace—in

two industries Congress has deemed critical to the national

economy. This dispute resolution system, carefully crafted

by Congress to avoid interruptions to commerce, is jeop-

ardized if disputes that should be resolved through the Act’s

grievance arbitration procedures are instead resolved in

collateral litigation in a different forum.

Ensuring that federal courts have jurisdiction to determine

what kinds of disputes are subject to mandatory arbitration

under the Act, and thus are removable from state court, is

essential to the Act’s proper administration. It makes the

federal courts available to be the gatekeepers for the griev-

ance arbitration process, and thereby reduces the risk that

inconsistent adjudication will lead to disparate treatment of

.similarly situated employees—a potential source of labor

discord that the Act was designed to prevent. To provide for

uniform application of the RLA, the critical threshold deter--

mination of whether a dispute is a “minor dispute” should be

made by federal courts that deal more regularly with the

conceptual intricacies of “minor disputes” under the Act. By

applying a different standard, the court below exacerbates a

conflict among the Courts of Appeals and further increases

the likelihood of forum-shopping by litigants who seek to

avoid the mandatory minor dispute resolution procedures that

are essential to the Act’s proper administration.

3

ARGUMENT

I. FEDERAL JURISDICTION IS ESSENTIAL TO

THE ORDERLY RESOLUTION OF DISPUTES

UNDER THE RLA.

Labor relations stability in the air and rail industries

depends on the resolution of “minor disputes”—disputes

involving the interpretation or application of a collective bar-

gaining agreement—through the RLA’s grievance arbitration

procedures. Federal jurisdiction is essential to fulfilling that

fundamental purpose.

A. The RLA Establishes Mandatory Dispute Reso-

lution Procedures.

The Act’s primary purpose is to “avoid any interruption to

commerce or to the operation of any c

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