Petition for Writ of Certiorari — O'Brien v. Consolidated Rail Corp.

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92-879

No. 92-

Bopreme Court, U.S

FJ )LEQD

NOV 3 1992

IN THE SUPREME COURT OF

OE OF THE CLERM

UNITED STATES

October Term, 1992

William J. O’Brien

Petitioner

Vv.

Consolidated Rail

Corporation,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Harold L. Lichten

Ruth A. Bourquin*

ANGOFF, GOLDMAN,

MANNING, PYLE, WANGER &

HIATT, P.C.

24 School Street

Boston, MA 02108

(617) 723-5500

Philip G. Boyle, Esq.

Charles Street

Meeting House

121 Mt. Vernon Street

Boston, MA 02108

(617) 227-7119

*Counsel of Record

QUESTIONS PRESENTED

i. Is the preemptive effect of

the Railway Labor Act to be judged by

the same standard set forth in Lingle

v._No ivision of Magic Chef,

Inc., 486 U.S. 399 (1988), which

addressed preemption under the Labor

Management Relations Act, or by a

different standard?

2. Are state law claims of

handicap discrimination more

vulnerable to federal labor act

preemption than state law claims of

discrimination on the basis of race,

sex, age, etc?

3. When, if ever, may labor

unions, through the collective

bargaining process, prospectively

waive the State statutory rights of

their members to be free from

discrimination based

on handicaps, race, sex, age, or

other protected categories?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED............. (i)

TABLE OF CONTENTS........ eer (ii)

TABLE OF AUTHORITIES............ (iv)

INTRODUCTION....... eee rs ee 1

OPINIONS BELOW............. eee 1

SUREOUECTOIN G55 kiko 4 605 00% ioseae es 2

STATUTORY PROVISIONS INVOLVED.....3

STATEMENT OF THE CASE.............9

REASONS FOR GRANTING THE WRIT.....12

I. THIS COURT SHOULD RESOLVE

THE SPLIT IN THE CIRCUIT

COURTS OVER WHETHER THE

LINGLE STANDARD FOR

DETERMINING PREEMPTION

APPLIES UNDER THE RAILWAY

TABOR ACP... ci cescs eee 5 44 5 12

Il.

THIS COURT SHOULD RESOLVE

CONFUSION AMONG THE CIRCUIT

COURTS AS TO WHETHER STATE

HANDICAP DISCRIMINATION

CLAIMS ARE MORE SUSCEPTIBLE

TO LABOR ACT PREEMPTION THAN

ARE RACE OR OTHER

DISCRIMINATION CLAIMS.......

(11)

IIl. THE FIRST CIRCUIT’S

DECISION ALLOWS LABOR

UNIONS TO WAIVE THEIR

MEMBERS’ STATE

ANTI-DISCRIMINATION RIGHTS

AND CONFLICTS WITH THE

REASONING OF PRIOR

DECISIONS OF THIS COURT....34

CONCLUSION. wc cccccccccscccccccccces 48

APPENDICES A - E

(iii)

Cases

Ackerman v. Western

Electric 860 F.2d 1514

(9th Cir. 1988)

Alexander v. Gardner-

Denver, 31, 415 U.S. 36,

94 S.Ct. 1011, 39 L.Ed.2d

147 (1974)

_ por Pty

& Nashville R. Co.,

406 U.S. 320, 92 S.Ct.

1562, 32 L.Ed.2d

95 (1972)

Atchison, Topeka and

Sante Fe Ry. Co, V.

Buell], 480 U.S. 557,

107 S.Ct. 1410, 94

L.Ed.2d 563 (1986)

Barrantine v.

Arkansas-Best

j t nc.,

450 U.S. 728,

101 S.Ct. 1437,

67 L.Ed.2d 641 (1981)

Beard v. Carrollton

Railroad, 893 F.2d 117

(6th Cir. 1989)

Brown v. Holiday Station

stores, Inc., 723 F.Supp.

396 (D. Minn. 1989)

(iv)

assi

17, 20

Colorado Anti- Page

¥ rire

Commission v.

& er tbtines

372 U.S. 174, 83 S.Ct.

1022, 10 L.Ed.2d 84

(1963) 26,

Conway v. Boston

Edison Co., 745 F.Supp.

773 (D. Mass. 1990) 31

Cronan v. New England

Telephone Co., No. 86-

0242-S, 41 Four Empl.

Proc. Cas. (BNA) 1268 (D.

Mass. Apr. 11, 1986)

(Lexis, Genfed. library,

Dist. file). 15

D vi , :

j j , 971 F.2a

463 (10th Cir. 1992) 19

Deford Vv. Soo Line R.R. 27

867 F.2d 1080 (8th Cir.),

cert. denied, 109 S.Ct.

3265 (1989) 21

Dothard v. Rawlinson,

433 U.8. 321, 97 S.Ct.

2720, 53 L.Ed.2d 786

(1977) 30

Espinosa v. Norfolk

& W.R. Co., 750 F.Supp.

819 (E.D. Mich. 1990),

aff’d mem., 946 F.2d

894, (6th Cir. 1991) 17-18

(v)

Vv n

Pacific Trang. Co.,

213 Cal. App. 3d 1378,

262 Cal. Rptr. 416

(1989)

Vv n

Island Railroad,

723 F.

Supp. 892

(E.D.N.Y. 1989)

107 S.

, 482 U.S.

Ct. 2211,

96 L.Ed.2a 1 (1987)

411 U.

Vv j son,

S. 677,

93 S.Ct. 1764 (1973)

Gilmer v.

Interstate/Johnson

Lane Corp.

111 S.

114 L.

, U.S. ’

Ct. 1647,

Ed.2d 26 (1991)

Vv ns World

Airlines, 905 F.2d

1307,

(9th Cir. 1990)

vy. Johnson Controls,

1196,

(1991)

S. , 111 S.Ct.

113 L.Ed.2d 158

(vi)

38,

i7,

Jackson v. Liquid

Carbonic Corp., 863 F.2d

111 (lst Cir. 1988),

cert. denied, 490

U.S. 1107 (1989) 24

Lancaster v.

Norfolk and Western

Railway, 773 F.2d

807 (7th Cir. 1985),

cert. denied,

480 U.S. 945 (1987) 19, 20

Leu _v. Norfolk

& W. Ry., 820 F.2d 825,

(7th Cir. 1987) 19

Lingle v. Norge

ta hef

Inc., 486 U.S. 399,

108 S.Ct. 1877, 100

L.Ed.2d 410 (1988) passim

Vv W e

Transit Rail Opern. Inc.,

125 N.J. 455, 593 A.2d

750 (1991) 28

McCall v. C&O Ry. Co.,

844 F.2d 294 (6th Cir.),

cert. denied, 488

U.S. 879 (1988) 18, 21,

27, 34

McCann v. Alaska

irli , 758 F.

Supp. 559 (N.D. Cal. 1991) 18

McDonald v. West Branch,

466 U.S. 284, 466

U.S. 284, 104 S.Ct. 1799,

80 L.Ed.2d 302 (1984) 37

(vii)

802, 93 S.Ct. 1

1824 (1973)

Air Lines, 931

-S. 792,

817,

F.2d 558

(9th Cir.), cert.

denied, 112 S.Ct. 189

(1991)

Miller v. ATT Network

Systems, 850 F.

(9th Cir. 1988)

(en banc)

’

887 F.2d 683

(6th Cir. 1989)

2d 543

Quinn v. Southern

Pacific Trans. Co.,

76 Or. App. 617,

P. 24 139 (198

711

a Buildi

Trades Council v. Garmon,

359 U.S. 236, 79 S.Ct. 773,

3 L.Ed.2d 775 (

1989)

School] _ Bd. of Nassau

County v. Arline

U.S. 273, 107 S

94 L.Ed.2d 307

, 480

Ct. 1123

(1987)

Smolarek v. Crysler

Corporation, 879 F.2d

1326 (6th Cir.

(en banc)

1989)

(viii)

15,

Texas Dept. of Community

Affairs v. Burdine, 450

101 S.Ct. 1089

U.S. 248,

(1981)

Trans World Airlines,

Inc. v. Thurston, 469

105 S.Ct 613,

67 L.Ed.2d 207 (1985)

Underwood v. Trans

World Airlines, 710

F. Supp. 78 (S.D.N.Y.

U.S. ill,

1989)

U Sentons

Trail Tours, Inc.,

531 F.2d 224 (5th

Cir. 1976)

Statutes

M.G.L. c.

28 U.S.C.

151B,

§1254

§1291

§1331

§1332

§ 4(16)

(1988 Ed.)

(ix)

Page

29 U.S.C. § 185 13, 22, 39,

40, 45

29 U.S.C. § 794 31

29 U.S.C. §12101 A3, 22, 39,

40, 45

29 U.S.C. §12117 41

29 U.S.C. §12201 41, 47

45 U.S.C. §§151-88 5-9

Rules of The Supreme Court

of The United States

Rule 10.1 (a) 25, 34

Rule 10.1 (c) 34, 47

(x)

INTRODUCTION

William O’Brien, an individual

who was born without a right hand,

petitions for a writ of certiorari to

review the judgment of the First

Circuit Court of Apeals, which held

that his state law handicap

discrimination claim was entirely

preempted by the Railway Labor Act.

OPINIONS BELOW

The opinion of the First Circuit

Court of Appeals, which held that

plaintiff’s state law handicap

discrimination claim was preempted by

the Railway Labor Act, is reported at

972 F.2d 1 (1992). It is reproduced

in the appendix at pages A-1 to

A-27. The Report and Recommendation

of the United States magistrate are

reported in the appendix at pages B-1

to B-39. The order and judgment of

the United States District Court for

the District of Massachusetts, which

adopted the recommendation of the

magistrate, are unreported, but are

reproduced in the appendix at pages

C-1 to C=3.

S ON

The judgment of the First Circuit

Court of Appeals was entered on

August 5, 1992. Petitioner invokes

the jurisdiction of the Court under

28 U.S.C. §1254 (1988 Ed.) The Court

of Appeals had jurisdiction pursuant

to 28 U.S.C. §1291.

STATUTORY PROVISIONS

INVOLVED

Mass. General Laws Chapter 151B,

§4 provides in pertinent part:

It shall be an unlawful practice:

16. For any employer, personally

or through an agent, to dismiss

from employment, or refuse to

hire, rehire or advance in

employment or otherwise

discriminate against, because of

his handicap, any person alleging

to be a qualified handicapped

person, capable of performing the

essential functions of the

position involved with reasonable

accommodations, unless the

employer can demonstrate that the

accommodation required to be made

to the physical or mental

limitations of the person would

impose an undue hardship to the

employer’s business.

In determining whether an

accommodation would impose an

undue hardship on the conduct of

the employer’s business, factors

to be considered include:-

(1) the overall size of the

mployer’s business with respect

to the number of employees,

number and type of facilities,

and size of budget or available

assets;

(2) the type of the employer’s

operation, includina the

composition and structure of the

employer’s workforce; and

(3) the nature and cost of the

accommodation needed.

Physical or mental job

qualification requirement with

respect to hiring, promotion,

demotion or dismissal from

employment or any other change in

employment status or

responsibilities shall be

functionally related to the

specific job or jobs for which

the individual is being

considered and shall be

consistent with the safe and

lawful performance of the job.

An employer may not make

preemployment inquiry of an

application as to whether the

applicant is a handicapped

individual or as to the nature or

severity of the handicap, except

that an employer may condition an

offer of employment on the

results of a medical examination

conducted solely for the purpose

of determining whether the

employee, with reasonable

accommodation, is capable of

performing the essential

functions of the job, and an

employer may invite applicants to

voluntarily disclose their

handicap for purposes of

assisting the employer in its

affirmative actions efforts.

The Railway Labor Act, 45 U.S.C.

§§151-88 provides in relevant part:

§15la. General purposes.

The purposes of the chapter are

(1) To avoid any interruption to

commerce or to the operation of

any carrier engaged therein; (2)

to forbid any limitation upon

freedom of association among

employees or any denial, as a

condition of employment or

otherwise, of the right of

employees to join a labor

organization; (3) to provide for

the complete independence of

carriers and of employees in the

matter of self-organization to

carry out the purposes of this

chapter; (4) to provide for the

prompt and orderly settlement of

all disputes concerning rates of

pay, rules, or working

conditions; (5) to provide for

the prompt and orderly settlement

of all disputes growing out of

grievances or out of the

interpretation or application of

agreements covering rates of pay,

rules or working conditions.

§153. National Railroad

Adjustment Board

First. Establishment;

composition; powers and duties;

divisions; hearings and awards;

judicial review

There is established a Board,

to be known as the "National

Railroad Adjustment Board", the

members of which shall be

selected within thirty days after

June 21, 1934, and it is

provided-...

(i) The disputes between an

employee or group of employees

and a carrier or carriers growing

out of grievances or out of the

interpretation or application of

agreements concerning rates of

pay, rules, or working

conditions, including cases

pending and unadjusted on June

21, 1934, shall be handled in the

usual manner up to an including

the chief operating officer of

the carrier designated to handle

such disputes; but, failing to

reach an adjustment in this

manner, the disputes may be

referred by petition of the

parties or by either party to the

appropriate division of the

Adjustment Board with a full

statement of the facts and all

supporting data bearing upon the

disputes...

(m) The awards of the several

divisions of the Adjustment Board

shall be stated in writing. A

copy of the awards shall be

furnished to the respective

parties to the controversy, and

the awards shall be final and

binding upon both parties to the

dispute. In case a dispute

arises involving an

interpretation of the award the

division of the Board upon

request of either party shall

interpret the award in the light

of the dispute.

§184. System, group, or regional

boards of adjustment

The disputes between an

employee or group of employees

and a carrier or carriers by air

growing out of grievances, or out

of the interpretation of

application of agreements

concerning rates of pay, rules or

working conditions, including

cases pending and unadjusted on

April 10, 1936 before the

National Labor Relations Board,

shall be handled in the usual

manner up to and including the

chief operating officer of the

carrier designated to handle such

disputes; but, failing to reach

an adjustment in this manner, the

disputes may be referred by

petition of the parties or in

either party to an appropriate

adjustment board, as hereinafter

provided with a full statement of

the facts and supporting data

bearing upon the disputes.

It shall be the duty of every

carrier and to its employees,

acting through their

representatives, selected in

accordance with the provisions of

the subchapter, to establish a

board of adjustment of

jurisdiction not exceeding the

jurisdiction which may be

lawfully exercised by systen,

group, or regional boards of

adjustment, under the authority

of section 153 of this title.

Such boards of adjustment may

be established by agreement

between employees and carriers

either on any individual carrier,

or system, or group of carriers

by air and any class or classes

of its or their employees; or

pending the establishment of a

permanent National Board of

Adjustment as hereinafter

provided. Nothing in this

chapter shall prevent said

carriers by air, or any class or

classes of their employees, both

acting through their

representatives selected in

accordance with provisions of

this subchapter, from mutually

agreeing to the establishment of

a National Board of Adjustment of

temporary duration and of

Similarly limited jurisdiction.

T 2) CAS

In this case, the petitioner

William O’Brien, who was born without

a right hand, challenges the decision

of his employer Consolidated Rail

Corporation ("Conrail") to deny him a

"stevedore" position solely because

of its belief that he could not

perform the job because of his

physical handicap. The district

court, affirmed by the Court of

Appeals, held that O’Brien’s state

statutory discrimination claim was

preempted by the Railway Labor Act.

Petitioner O’Brien was employed

by Conrail as a yardmaster for more

that 10 years. In January of 1988 he

was laid off from that position. He

then exercised the undisputed right

to "bump" a less senior employee

holding the position of "stevedore".

972 F.2d at 2 (A.3). Conrail denied

O’Brien this position solely because

of its belief that his physical

handicap would prevent him from

performing two of the many duties of

that position: 1.) climbing ladders

in adverse weather conditions and 2)

handling "forty pound

bridgeplates."1

1tThe company made this

determination 3 years earlier in

1985 when O’Brien first sought the

stevedore position. At no time did

Conrail even consider the question

of whether these two duties were

essential functions or whether with

reasonable accommodations such

duties could be performed by

O’Brien. See M.G.L. c. 151B,

§4(16). O’Brien filed a grievance

- 10 =

Believing that, given the

opportunity, he could prove his

ability to perform the essential

functions of the stevedore position,

O’Brien filed an administrative

complaint with the Massachusetts

Commission Against Discrimination

("MCAD"). He later requested and

received permission from the MCAD to

file his claim in Massachusetts state

court, and he did so. Conrail

footnote continued

in 1985 under his union’s labor

contract challenging Conrail’s

denial of the stevedore position to

him. The grievance was eventually

submitted to the National Railroad

Adjustment Board as provided in the

Labor contract. The Board ruled

that it was concerned about the

case, but was constrained and

without authority to review de novo

the merits of Conrail’s

determination. Appendix E-4 to E-6.

- ll-

removed the action to the Federal

District Court pursuant to 28 U.S.C.

§1331 and §1332. It then moved for

summary judgment alleging inter alia

that O’Brien’s claim was preempted by

the Railway Labor Act ("RLA"). A

Magistrate recommended that summary

judgment be granted on the basis of

RLA preemption, and the district

court adopted the magistrate’s

recommendation and entered summary

judgment for Conrail. The United

States Court of Appeals for the First

Circuit affirmed in a decision dated

August 5, 1992 (A-1).

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD RESOLVE THE

SPLIT IN THE CIRCUIT COURTS OVER

WHETHER THE LINGLE STANDARD FOR

DETERMINING PREEMPTION APPLIES

UNDER THE RAILWAY LABOR ACT.

In Ling} N bieins

Magic Chef, Inc., 486 U.S. 399, 108

- 12 -

S.Ct. 1877, 100 L.Ed.2d 410 (1988),

this Court resolved a long-standing

debate in the Federal Courts of

Appeals when it articulated a

straight-forward test for determining

when a state law claim is preempted

by Section 301 of the Labor

Management Relations Act ("LMRA"), 29

U.S.C. § 185 ("Section 301"). This

Court held that the LMRA does not

preempt state law employment claims

of unionized employees unless such

Claims "require[{ ] the interpretation

of a collective bargaining

agreement." Lingle, 486 U.S. at

413; see also id. at 407 (no

premption unless claim "requires

construing" the collective bargaining

agreement).

- 13-

The Court in Lingle noted that

even when "the state law analysis

might well involve attention to the

same factual considerations as the

contractual determination...," it is

not the case that "such parallelism

renders the state law analysis

dependent upon the contractual

analysis." Id. at 408.

In other words, even if dispute

resolution pursuant to a

collective bargaining agreement,

on the one hand, and state law,

on the other, would require

addressing the same set of facts,

as long as the state law claim

can be resolved without

interpreting the agreement

itself, the claim is

"independent" of the agreement

for §301 preemption purposes.

id. at 410 (footnote omitted).

- 14 -

Following Lingle, the federal

courts have uniformly held that state

law handicap discrimination claims

are not preempted by the LMRA,

because the resolution of state law

handicap discrimination claims does

not depend on any interpretation of

the contract. See Miller v. AT&T

Network Systems, 850 F.2d 543 (9th

Cir. 1988) (en banc); Ackerman v._

Western Electric, 860 F.3d 1514 (9th

Cir. 1988); O’Shea v. Detroit News,

887 F.2d 683 (6th Cir. 1989);

Smolarek v. Crysler Corporation, 879

F.2d 1326 (6th Cir. 1989) (en banc);

onan v Ww Ba.

No. 86-0242-S, 41 Fair Empl. Prac.

Cas. (BNA) 1268 (D. Mass. Apr. 11,

1986) (LEXIS, Genfed. library, Dist.

file). The reasoning of the

- 15 -

—OOON

decisions in those cases is that

resolution of the issue of whether

there has been unlawful

discrimination based on a handicap is

not dependent upon resolution of any

Claim under the collective bargaining

agreement, regardless of whether an

arbitrator might be empowered to

address similar issues under the

collective bargaining agreement.

Statutory discrimination claims

require no interpretation of or

construing of the collective

bargaining agreement.

However, there now exists a split

among the Federal Courts of Appeals

as to whether the Lingle analysis

applies to claims of preemption under

the Railway Labor Act. Indeed, at

least three different trends have now

- 16 =

a nara

pints -e

emerged in the Circuit Courts

regarding the comparative preemptive

effect of the LMRA and RLA.

Relying on a statement in dicta

in Andrews v. Louisville & Nashville

R. Co., 406 U.S. 320, 323, 92 S.Ct.

1562, 32 L.Ed.2d 95 (1972), the Sixth

and Ninth Circuit Courts of Appeals

have held that the RLA has more

preemptive effect over state law

claims than the LMRA and that the

Lingle standard is not applicable

under the RLA. See, e.g., Melanson

vy. United Air Lines, 931 F.2d 558,

562 (9th Cir.), cert. denied, 112

S.Ct. 189 (1991); Grote v. Trans

World Airlines, 905 F.2d 1307, 1309

(9th Cir. 1990); Espinosa v. Norfolk

& W.R. Co., 750 F.Supp. 819, 825

(E.D. Mich. 1990), aff’d mem., 946

- 17 <=

F.2d 894 (6th Cir. 1991); McCall v.

C & O Ry. Co., 844 F.2d 294, 304 (6th

Cir.) (order denying rehearing after

Lingle), cert. denied, 488 U.S. 879

(1988); see also McCann v. Alaska

Airlines, Inc., 758 F. Supp. 559

(N.D. Cal. 1991) (applying

“inextricably intertwined" test

rejected by this Court in Lingle).

Lower courts in the Second and

Eight Circuits seem to have arrived

at the same conclusion. See Feldleit

vy. Long Island Railroad, 723 F. Supp.

892, 899 (E.D.N.Y. 1989); Brown v.

Holiday Station Stores, Inc., 723

F.Supp. 396, 406 (D. Minn. 1989);

d Vv W irlines,

710 F. Supp. 78, 82 (S.D.N.Y. 1989).

- 18 -

At least two other Circuit Courts

of Appeals, the Seventh and the

Tenth, have held, on the other hand,

that the preemptive effect of the

LMRA and RLA is identical and thus

Lingle controls under both statutes.

Davies v. American Airlines, 971 F.2d

463, 466-67 (10th Cir. 1992); Leu v.

Norfolk & W. Ry., 820 F.2d 825, 125

LRRM 2390 (7th Cir. 1987); Lancaster

v. Norfolk and Western Railway, 773

F.2d 807 (7th Cir. 1985), cert.

denied, 480 U.S. 945 (1987).

In Lancaster v. Norfolk and_

Western Railway, Judge Posner, after

analyzing in detail the history and

purpose of the RLA and the LMRA,

concluded that no persuasive grounds

exist to distinguish between the

preemptive effect of these two

- 19 -

federal labor statutes. In his

words, "it is hard to see why [the

RLA] should have more preemptive

force than the National Labor

Relations Act." 773 F.2d at 816-17.

Likewise in Davies, the Tenth Circuit

acknowledged that RLA preemption is

statutory whereas LMRA preemption is

contractual, but concluded that that

fact does not affect "the inquiry

into whether a claim requires

interpretation of a [collective

bargaining agreement])." 971 F.2d at

467 n.5, citing Andrews v. Louisville |

& Nashville R. Co., supra and

expressly rejecting the analysis of

Grote, supra.

Still other courts have concluded

that Lingle does not control the

preemption analysis under the RLA,

- 20 -

but is "instructive" to some

undefined extent. See Beard v.

Carrollton Railroad, 893 F.2d 117,

122 (6th Cir. 1989); v. Soo

Line R.R., 867 F.2d 1080, 1086 (8th

Cir.), cert. denied, 492 U.S. 926

(1989).

In the present case, the First

Circuit, in some places in its

opinion, appears to have taken the

middle-of-the-road position that LMRA

preemption cases, including Lingle,

are not controlling but are of

assistance in construing the RLA.

972 F.2d at 4, 5. (A-13 to A-15) In

others, it states that virtually all

labor disputes are preempted by the

RLA, id. at 4, quoting McCall, 844

F.2d at 301 (A-18 to A-19), and rules

that "the mere fact that O’Brien’s

- 21-

cause of action under Chapter 151B is

‘independent’ of the RLA says nothing

about whether such action is

preempted by the RLA." Id. at 3

(A-11). The latter statement is of

course tantamount to a rejection of

this Court’s holding in Lingle that

if the state law claim is

"independent" of the collective

bargaining agreement, it is not

preempted by Section 301. See 486

U.S. at 407, 410.2

2The Court’s rejection of

Lingle, at most, or its

misapplication of Lingle, at a

minimum, is further revealed by its

statement that preemption is

warranted under both the LMRA and

the RLA whenever the case involves

"state law claims connected with the

collective bargaining agreement."

972 F.2d at 4 (A-19). This is

Clearly not the Lingle standard.

- 22 -

The First Circuit concluded that

O’Brien’s physical handicap

discrimination claim would "“require[ }

interpretation of the collective

bargaining agreement," 972 F.2d at 5

(A-20), but never stated what in the

collective bargaining agreement

"requires" interpretation in order to

decide O’Brien’s state statutory

discrimination claim.

3Indeed, all that the court

below did was identify provisions of

the collective bargaining agreement

pursuant to which a parallel

proceeding could be brought. Such

parallelism, however, was clearly

rejected by the Court in Lingle as

the basis for preemption. See 486

U.S. at 408-10, 412-13. In one

place, the court below found that

"under the collective bargaining

agreement he was entitled to ’bump’

the less senior employee filling the

position." 972 F.2d at 2 (A-3).

Hence, the court’s later

- 933 -

Because of the disarray in the

lower federal courts over the

footnote continued

discussion to the effect that the

court would have to determine as a

"threshold question...0O’Brien’s

eligibility for the job," and hence

"would need to interpret the

collective bargaining agreement to

determine whether

it... entitled O’Brien to ‘bump’

the present holder of the Stevedore

position," 972 F.2a4 at 5 (A-22), is

inexplicable. Moreover, resolution

of this threshold question, like

resolution of claims for damages,

would not justify preemption of the

enire discrimination clain. See

Lingle, 486 U.S. at 413 n.12. The

First Circuit has generally resisted

the notion that this Court meant

"require" when it said "require" in

Lingle. See

, 863 F.2d 111, 121

(lst Cir. 1988), cert. denied, 490

U.S. 1107 (1989). In the decision

below, the court admitted that the

Jackson court’s analysis leads to

the conclusion that "state law

Claims arising out of the employment

relationship" are preempted. 972

F.2d at 4 (A-16). This is of course

inconsistent with the "requires"

standard of Lingle.

- 24 -

question of the proper standard for

determining RLA preemption,

particularly as it affects state law

discrimination claims against rail

and air carriers, this Court should

grant certiorari in this case. See

Rules of the Supreme Court of the

United States, 10.1(a).

II. THIS COURT SHOULD RESOLVE

CONFUSION AMONG THE CIRCUIT

COURTS AS TO WHETHER STATE

HANDICAP DISCRIMINATION CLAIMS

ARE MORE SUSCEPTIBLE TO LABOR ACT

PREEMPTION THAN ARE RACE OR OTHER

DISCRIMINATION CLAIMS.

Whatever standard governs RLA

preemption, there is a confusion

among the circuits as to whether

handicap discrimination claims are

more susceptible to preemption than

race, sex, age or other

discrimination claims.

- 295 -

The First Circuit has now joined

the Sixth -_.-_it in concluding that

handicap discrimination claims are