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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 928

## Text

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

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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

15

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).

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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:

19

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.

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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: Prov

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1710%3A1. Public record. Not legal advice.