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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 506 U.S. 1054

## Text

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

a?

21

18

Colorado Anti- Page
¥ rire
Commission v.
& er tbtines
372 U.S. 174, 83 S.Ct.
1022, 10 L.Ed.2d 84
(1963) 26,
45

Vv

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

Vv n

Pacific Trang. Co.,
213 Cal. App. 3d 1378,

262 Cal. Rptr. 416

(1989)

F

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,

U.

1196,
(1991)

S. , 111 S.Ct.
113 L.Ed.2d 158

(vi)

1,

38,

i7,

28

18

42

30

39

20

30

Jackson v. Liquid

Carbonic Corp., 863 F.2d

111 (lst Cir. 1988),

cert. denied, 490

U.S. 1107 (1989) 24

Lancaster v.
W

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
5)

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,

29

17

33

15

28

42

31

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.
28 U.S.C.
28 U.S.C.

28 U.S.C.

151B,
§1254
§1291
§1331

§1332

§ 4(16)

(1988 Ed.)

(ix)

29

29

18

30

12

12

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.

ae

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

an eet

the burden of proving she is capable

of performing the job in question.

In any state law claim of unlawful
race, sex or age discrimination where
there is no direct proof of
discriminatory intent, the plaintiff
has the burden of proving that she is
qualified to perform the job in
question. See McDonnell Douglas _

Corp. v. Green, 411 U.S. 792, 802, 93
S.Ct. 1817, 1824, 36 L.Ed.2d 668

(1973) (race; element of prima facie
cases is ability to perform the job);
+ . ) = ity Affai
Burdine, 450 U.S. 248, 253-54, 101
S.Ct. 1089, 1094 (1981) (sex); Trans
World Airlines, Inc. v. Thurston, 469
U.S. 111, 121-22, 105 S.Ct 613,

621-22, 67 L.Ed.2d 207 (1985) (age).

- 29 =-

Likewise, in mandatory retirement
cases and other bona fide
occupational qualification (BFOQ)
cases under both Title VII of the
Civil Rights Act of 1964 and the Age
Discrimination in Employment Act
(ADEA), the central issue is whether
members of the class of persons at
issue are or are not able to pertorm

the duties of the job. See, e.g.,

_ ee -

Controls, ___ U.S. __, 111 S.Ct.
1196, 1206, 113 L.Ed.2d 158 (1991);
Dothard v. Rawlinson, 433 U.S. 321,

335-37, 97 S.Ct. 2720, 2730, 53

L.Ed.2d 786 (1977); Frontier v.
Richardson, 411 U.S. 677, 93 S.Ct.
1764, 36 L.Ed.2d 583 (1973); Usery v.

Tamiami Trail Tours, Inc., 531 F.2d

224, 236 (Sth Cir. 1976). In such

cases, ability to perform the job is

- 30 -

aC aN sali te eseciies 8 2 Met ls tT ORAS 8 Hts BOS copa ies pak

Nt MC TA ant im, Pit ah CTI

St Ct ih nl se Rl Sed ar

an issue to no greater or lesser

extent that in handicap
discrimination cases.° Hence,
across all categories of
discrimination claims, there will be
cases involving the same types of
disputes about the plaintiff’s
ability to perform the job as there
are in handicap discrimination

cases. Thus, the rationale of the

°M.G.L. c. if1B, §4(16) is
virtually identical! to Section 504
of the Rehabilitatiion Act of 1973,
29 U.S.C. §794, which was at issue
in School Bd. of }
Arline, 480 U.S. 273, 107 S.Ct.
1123, 94 L.Ed.2d 307 (1987). As
under the federal act, a plaintiff
under M.G.L. c.151B, §4(16), must
prove that he or she is qualified
and capable of performing the duties
of the job, with or without
reasonable accommodations. See

, 745

F.Supp. 773 (D. Mass. 1990).

- 31-

decision below threatens preemption
of all state law discrimination
Claims.

The First Circuit, purporting to
apply Lingle to determine RLA
preemption, found that the
availablity of parallel proceedings
under the collective bargaining
agreement meant that O’Brien’s
handicap discrimination Claim was
preempted. In the lower court’s
words:

Perhaps the best
indication that fitness
and ability are the
subject of the collective
bargaining agreement is
the very grievance that
O’Brien brought under this
collective bargaining
agreement on the issue of
his fitness and ability to
be a stevedore.

972 F.2d at 5.

- 32 -

ts 10 le PAE ltt ta tng At SPR arg ae

The Ninth Circuit, following

Lingle, has rejected such an
analysis, holding that state handicap
discrimination claims are not
preempted even when the collective
bargaining agreement provides a
mechanism for asserting a parallel
claim. Ackerman v. Western Electric
860 F.2d 1514 (9th Cir. 1988); Miller |

vy. ATT Network Systems, 850 F.2d 543
(9th Cir. 1988) (en banc).

There is therefore a conflict ~
among the Courts of Appeals over when
handicap discrimination claims
“require[] the interpretation of a
collective-bargaining agreement,"
Lingle, 486 U.S. at 413, and over

whether handicap discrimination, like

race discrimination, is "conduct that

- 33 -

is not by any construction a subject
for collective bargaining and
arbitration.’" Decision below, 972
F.2d at 5-6, quoting McCall, 844 F.2d
at 302 (A-25 to A-26).

The status of the law with
respect to preemption by federal
labor statutes of state handicap
discrimination claims needs to be
Clarified by this Court. See Rules
of the Supreme Court of the United

States, Rule 10.1(a) and (c).

III. THE FIRST CIRCUIT’S DECISION
ALLOWS LABOR UNIONS TO WAIVE
THEIR MEMBERS’ STATE
ANTI-DISCRIMINATION RIGHTS AND
CONFLICTS WITH THE REASONING OF

T.

In substance, the First Circuit’s
decision in this case means that

O’Brien’s right to pursue a state law

- 34 +

handicap discrimination claim was

prospectively waived at the

bargaining table when the union

signed onto the collective bargaining
agreement with Conrail. This is in
conflict with decisions of this
Court.

In Alexander v. Gardner-Denver _
Co., 415 U.S. 36, 94 S.Ct. 1011, 39
L.Ed.2d 167 (1973), this Court held
that a union may not waive its
members’ rights to pursue claims
under Title VII of the Civil Rights
Act of 1964. The Court distinguished
“independent statutory rights
accorded by Congress," id. at 49-50,
from "certain statutory rights
related to collective activity, such
as the right to strike," which "are
conferred on employees collectively

-+.- and properly may be exercised or

- 35 -

relinquished by the union as a
collective bargaining agent to obtain

economic benefits for union members."

id. at $1.

Title VII, on the other hand,
stands on plainly different
ground; it concerns not
majoritarian processes, but an
individual’s right to equal
employment opportunities. Title
VII’s strictures are absolute and
represent a congressional command
that each employee be free from
discriminatory practices. of
necessity, the rights conferred
can form no part of the
collective bargaining process
since waiver of those rights
would defeat the paramount
purpose behind Title VII. In
these circumstances, an
employee’s rights under Title VII
are not susceptible to
prospective waiver.

Id. at 51-52.
Likewise, in Atchis opeka and

Sante Fe Ry. Co. v. Buell, 480 U.S.

557, 564-65, 107 S.Ct. 1410, 1415, 94

L.Ed.2d 563 (1986), this Court held

- 36 -

that the availability of the

arbitration process for "minor
disputes" under the Railway Labor Act
does not preclude covered (6
from asserting independent statutory

rights.

This Court has, on numerous
occasions, declined to hold that
individual employees are, because
of the availability of
arbitration, barred from bring
Claims under federal statutes.

See, e.g., McDonald v. West
Branch, 466 U.S. 284 (1984);
Freight System, Inc., 450 U.S.
728 (1981); Alexander v._
Gardner-Denver Co., 415 U.S. 36
(1974).
id. (parallel citations omitted).
Then, in Lingle v. Norge Division
of Magic Chef, 486 U.S. at 411-12,
this Court made clear that the
reasoning in Buell, which involved

federal statutory rights, applies

- 37 =

equally when the independent rights
arise under a state statute, such as
M.G.L. c. 151B.

Although our comments in Buell,
construing the scope of Railway
Labor Act preemption, referred to
independent federal statutory

rights, we subsequently rejected
a claim that federal law preempts

a state statute...

id., citing Fort Halifax Packing Co.
v. Coyne, 482 U.S. 1, aa, 267 6:Ct.
2211, 2222, 96 L.Ed.2da 1 (1987).

The clear message of these
decisions is that the Courts should
be very hesitant to find that
Congress, in enacting general federal
labor statutes, intended to confer on
labor unions the authority to waive
the independent Statutory rights of
their members through the collective
bargaining process. This reticence

is particularly warranted in the

- 38 -

ti Alea

anti-discrimination area for the

reasons articulated in Alexander v.

Gardner-Denver Co., 415 U.S. at
49-51.°

This was acknowledged by the
Court in Lingle, where it stated

that:

The Court of Appeals
‘recognize[d] that § 301

6This Court’s ruling in

Vv S n
fore, _- Bale _ » S83 BiGe. 1647,
114 L.Ed.2d 26 (1991) is not to the
contrary. There the Court held that
individuals who register as
securities representatives with the
stock exchanges may individually
waive their federal statutory
discrimination claims by personally
agreeing to arbitrate all
controversies with their employers.
The Court specifically noted the
distinction between individual
agreements to arbitrate and
agreements made by unions on their
members’ behalves. 111 S.Ct. at
1657.

- 39 -

does not preempt state
anti-discrmination laws,
even though a suit under
these laws . . . requires a
state court to determine
whether just cause existed
to justify the discharge. ’
486 U.S. at 412, quoting 823 F.24
at 1046, n.17. While the Court
found that in Lingle’s case,
which concerned a state law other
than a state anti-discrimination
law, the distinction was
"unnecessary for determining
whether § 301 preempts the state
law in question," id., it seemed
to endorse, and certainly did not
reject, the conclusion that State

anti-discrimination laws are not

subject to premption under a

- 40 =

Lingle analysis.’
: In Lingle, this Court relied upon

its earlier decision in Fort Halifax

Packing Co., 482 U.S. 1, 107 S.Ct.
2211, 96 L.Ed.2d 1 (1987), in which

the Court emphasized the principles

of federalism that are at stake when

7In 1990, Congress enacted
a federal prohibition against
handicap discrimination in
employment, when it enacted the
Americans With Disabilities Act
("ADA"), 29 U.S.C. §12101 et seq.
Title I of the ADA, which prohibits
discrimination in employment, became
effective on July 26, 1992, and
expressly incorporates state law
remedies through the deferral
mechanism used under Title VII. 29
U.S.C. §12117. Hence, Congress has
endorsed state law handicap
discrimination remedies. Cf. Lingle,
486 U.S. at 412 (quoting with
apparent approval the lower court’s
recognition that Congress had
endorsed state anti-discrimination
laws).

- 41-

ea ai iii

a claim of preemption is raised.
Lingle, 486 U.S. at 412, quoting Fort |
Halifax, 482 U.S. at 21, 23. Where
the subject matter "falls within the
traditional police power," as does

the subject of handicap
discrimination, see note 7 supra,
“preemption should not be lightly

inferred..." Fort Halifax, 482 U.S.

at 21. See also San Diego Building —
Trades Council v. Garmon, 359 U.S.

236, 239, 79 S.Ct. 773, 776, 3
L.Ed.2d 775 (1989) (federal law
preemption of state law claims gives
“rise to difficult problems of
federal-state relations") .

In spite of the teachings of
Lingle, Fort Halifax and Alexander,
the decision of the First Circuit

below, like the decisions of the

- 42 =

Ne

Sixth Circuit in McCall, supra and

its progeny, cedes to labor unions
the exclusive power tc determine the
scope of protection to be afforded
their members against handicap
discrimination. In every case, there
will be some language in a collective
bargaining agreement to which an
employer can point as being relevant
to the question of what is the scope
of a job in question, or to the
question of whether the employer’s
action was warranted as a matter of
contract. For instance, almost every
collective bargaining agreement
continains language concerning
eligibility for promotions, etc.
Moreoever, most contracts contain an

anti-discrimination provision.

- 43 a plaintiff must

prove that he/she is a

"It shall be an unlawful
practice:

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 accommodation,
unless the employer caii
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 (M.G.L. c. 151B
§4(16)).

qualified handicapped person.
O’Brien has carried this buffer
through both administrative
proceedings, and their findings must
be given preclusive effect.

Cc. Amendment of Answer
(Docket #31)

Conrail asserts a third basis
for summary judgment which relies
upon a statute of limitations
defense not raised in its Answer to
the Complaint. Conrail has moved to
amend the Answer, stating that
M.G.L. c.151B, §5 requires that a
complaint to the MCAD must be tried
within six months of the alleged act

of discrimination. Christo v.

Edward G. Boyle Ins. Agency, Inc.,

402 Mass. 815, 816 (1988).

-B-32°

In view of the prior

reasoning in Sections A and B, a
decision concerning amendment of the
answer is essentially moot.

However, in an effort to be
complete, Conrail’s motion shall be
considered.

Fed.R.Civ.P. 9(c) requires a
party to plead affirmatively its
defenses. If not done at the
outset, a party may amend or
supplement its answer under the
provisions of Fed.R.Civ.P. 15(a). If
a party moves for leave of court,
the rule requires that "leave shall
be freely given when justice so
requires."

In determining whether leave
to amend should be granted, the

court is guided by the following

-B-33-

factors: whether bad faith,
repeated failure to cure, futility,
undue delay or undue prejudice to
the plaintiff were present.
Perlmutter v. Shatzer, 102 F.R.D.
245, 247 (D. Mass 1984) (citing
Foman v. Davis, 371 U.S. 178, 182

(1962) and Farkas v. Texas

Instruments, Inc., 429 F.2d 849 (lst

Cir. 1970)).

Conrail has not stated any
reason for its failure to raise the
statute of limitations defense
before this time. However, there is
no evidence of bad faith or
intentional delay, nor has Conrail
repeatedly failed to cure. While
the delay was lengthy (November 17,
19980 to June 29, 1990, a period of
nineteen months), it is not

determinative of this issue.

-B-34-

O’Brien argues that the
amendment is futile because a
continuing act of discrimination
brings the claim within the six
month period. Based upon the
undisputed facts, this assertion
appears problematic, although the
Court cannot say as a matter of law
that a jury could not find a
continuing act of discrimination.
O’Brien also argues that he would be
prejudiced by the allowance of this
motion, because he could have used
other avenues in search of a
remedy. This assertion is
unsupported by any concrete
examples, and such avenues are not
immediately apparent to the court.
O’Brien also contends that the costs

he has incurred in pursuing this

litigation over the past nineteen

months would have been avoided if
the statute of limitations had been
raised by Conrail at the outset.
This assumes that Conrail would not
have raised the preceding grounds of
preemption and issue preclusion in
support of its motion for summary
judgment, and that is an assumption
the Court cannot make.

Recent decisions have allowed
defendants to raise an affirmtive
defense in a motion for summary
judgment “regardless of the failure
to plead it in the answer." Buhl v.

Biosearch Medical Products, Inc.,

635 F.Supp. 956, 959 (D. Mont. 1985)

(citing Rivera v. Anaya, 726 F.2d
564, 566 (9th Cir. 1984)); LaPorte

v.R.D. Werner Co., Inc., 561

F.Supp. 189, 191 (N.D. Ill.) 1983)

(relying on Baker v. Chicago Fire

and Burglary Detection, Inc., 489
F.2d 953, 955 (7th Cir. 1973));
Mamos _v. School Committee of the
Town of Wakefiled, 553 F.Supp. 989,
992 (D. Mass. 1983) ("Defendants did
not waive their statute of
limitations defense by delaying its
assertion").

In essence, the court must
not put form over substance and
should act in the spirit of
Fed.R.Civ.P. 1 and seek a "just,
speedy, and inexpensive
determination of every action." A
defendant should not be barred from
asserting a valid legal defense to a
claim without a showing of futility,
intentional or inexcusable delay or

prejudice to the plaintiff.

-B-37-

Therefore, Conrail’s Motion

to Amend Answer (Docket #31) should

be ALLOWED. However, the court

cannot find as a matter of law that

O’Brien’s claim is time barred under
M.G.L. c.151B, §55.
CONCLUSION

The court recommends® that
Conrails Motion for Summary Judgment
(Docket #21SS) be ALLOWED on the

grounds that O’Brien’s state law

Sany objections to this
Report and Recommendation must be
filed with the Clerk of Court within
ten days of receipt of the Report
and Recommendation and must identify
the portion of the Report and
Recommendation to which objection is
made and the basis for such
objection. Any party may respond to
another party’s objections within
ten days after service of the
objections. Failure to file
objections within the specified time
waives the right to appeal the
district court’s order. United
States v. Escoboza Vega, 678 F.2d
376, 378-79 (lst Cir. 1982); United

STates v. Valencia-Copete, 792 F.2d
4, 6 (ist Cir. 1986).

-B-36-

claim of handicap discrimination
(M.G.L. c. 151B, §4(16)) is
preempted by the RLA and Section 503
of the Rehabilitation Act of 1973,
and that the decisions of the NRAB
and OFCCP should be given preclusive
effect. Conrails Motion to Amend

Answer (Docket #31) is also ALLOWED.

MARIANNE B. BOWLER
UNITED STATE MAGISTRATE

=-—-39-

APPENDIX C

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION
NO. 88-2541-N

WILLIAM J. O’BRIEN,
Plaintiff,

Vv.
CONSOLIDATED RAIL

CORPORATION,
Defendant.

ee ee ee ee ee ee ee ee”

DECEMBER 27, 1991
The report and recommendation is
approved as to docket no. 215 for the
reasons stated herein. Summary
judgment shall enter for the defendant
Conrail. While the Magistrate judge,
in her typically thorough manner, has

made a report and recommendation on

docket no. 311, no action need be taken

thereon, as action on the motion for

summary judgment moots the issue.

William Young
District Judge

-C-2-

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION
NO. 88-2541-N

WILLIAM J. O’BRIEN,

)
)
Plaintiff, )
)
Vv. ) Cc. A. No.
) 88-2541-N
CONSOLIDATED RAIL )
CORPORATION, )
Defendant. )
)
JUDGMENT
YOUNG, D.J. December 27, 1991

The motion for summary judgment
having been allowed, judgment shall,
and hereby does, enter for the
defendant Consolidated Rail

Corporation.

Kate Myrick, Deputy Clerk

Approved as to form:

WILLIAM J. YOUNG
UNITED STATES DISTRICT JUDGE

APPENDIX D

AGREEMENT

BETWEEN
CONSOLIDATED RAIL CORPORATION

AND

BROTHERHOOD OF RAILWAY, AIRLINE
AND STEAMSHIP CLERKS, FREIGHT
HANDLES, EXPRESS AND STATION

EMPLOYES

CLERKS

EFFECTIVE JULY 1, 1979

[EXCERPTS ]

D-1-

kkk

RULE 2 - APPOINTMENT TO PARTIALL
EXCEPTED POSITIONS

(a) All new partially excepted
positions or vacancies in positions
listed in Appendix No. 1 will be made
known by means of a notice posted on all
bulletin boards in the seniority district
with the advice that interested employees
should, in writing, within five (5)
calendar days after the date of the
notice advise the Company officer having
jurisdiction over the position, with copy
to the Division Chairman of the seniority
district in which the vacancy occurs, his
desire for consideration and state his
qualifications.

Preferential consideration will be
given to the above applicants prior to
giving consideration to other employees
covered by this Agreement or to employees

not covered by this Agreement.

D-2-

(b) When a partially excepted

position is vacated by the incumbent for
more than sixty (60) days and no notice
has been posted under paragraph (a), or
is abolished for more than sixty (60)
days (except as provided in Rule 18(b) or
(c)) it can only be reestablished by
agreement between the Senior
Director-Labor Relations and the General
Chairman.

RULE 3 - CONSIDERATION FOR PROMOTION

Employees will be given

consideration for promotion to Appendix 2
and Appendix 3 excepted positions as

opportunity may offer.

U 4 _ - QUALIFICATIONS FO ULLETINED
POSITIONS OR VACANCIES

(a) Assignment and displacement
rights to advertised positions or

vacancies under these rules, shall be

p-3-

based on seniority, fitness and ability.

Fitness and ability being sufficient,
seniority shall prevail
NOTE: The word "sufficient" is

intended to more clearly
establish the right of the
senior employee to the
position or vacancy where two
(2) or more employees have

adequate fitness and ability.

(b) Where the words "qualified
employee" are used in this Agreement,
they shall mean that an employee has
sufficient fitness and ability as those
terms are defined in paragraph (a) above.

(c) Employees required to take a
written intelligence test as a
prerequisite for employment shall not be
required to take this particular test a

second time, including persons

D-4-

*ransferring from the scope of one

agreement to another.

No intelligence or similar test
shall be given nor used as a basis to
determine the rights of the employee for
promotion to positions covered by the

Scope Rule of this Agreement.

RULE 5 - BULLETINING AND AWARDING OF
POSITIONS

(a) All new positions and vacant

positions known to be of more than thirt
(3) days duration, will be bulletined in
the seniority district on the Wednesday
following the date they occur, but not
later than the succeeding Wednesday for |
period of seven (7) calendar days in
places accessible to employees affected.
Bulletin will show position (indicating

if new), location, primary duties, tour

D-5=

of duty, assigned meal period, days of
rest, rate of pay, symbol number and
whether position is of permanent or
temporary nature. A position which it is
anticipated will be of six (6) months or
more duration will be bulletined as a
permanent position. Copies of bulletins
and notices of award will be furnished
the Division and Local Chairman. (Note:
if the Wednesday is a holiday, the
bulletin will be posted on the following
day.)

Bulletins advertising seasonal
positions in addition to stating that the
position is of a permanent or temporary
nature will also state if it is a
seasonal position.

Temporary positions which become
permanent, through any cause, shall be
rebulletined. Temporary positions of six
(6) months duration will be rebulletined

as permanent.

Bulletined positions requiring
stenographic duties will regularly

perform such duties. If a bulletined

stenographic position does not regularly

perform stenographic duties such position
shall be readvertised without
stenographic duties.

(b) Employees, including those
furloughed, desiring bulletined
positions, will file their bids in
writing, prior to the expiration of the
bulletin, with the designated official
with copy to the Local Chairman. All
furloughed employees will be considered
automatic bidders for permanent positions
bulletined on their seniority district
which do not require a change in
residence, as defined in Section 501( )

of the Act. (Appendix No. 8).

D-7-

An employee who desires to withdraw

his application for a bulletined position
must file his request, in writing, with
the official whose name appears in the
bulletin prior to the time and date on
which the bulletin is closed.

(Cc) Bulletined positions will be
awarded to the senior qualified bidder
effective on the day following close of
the advertising period. Notice of award
will be posted where the position was

- bulletined on the following Wednesday,
showing position, symbol number, date
bulletined an the name of the employee
awarded the position.

(d) Any employee, in service,
awarded a bulletined position shall be

transferred to such assignment within

fourteen (14) calendar days after the
effective date of the Award. If the

employee is not transferred within the

D-8-

specified time limit, he shall receive

pay for an additional three (3) hours at
the straight time rate of the position
awarded for each work day that he is
withheld from such assignment. (Zé
withheld from an extra list assignment,
he shall be paid at the extra list rate
of pay).

(e) When a permanent position is
awarded to a qualfied furloughed employee
and it does not require a change in
residence, he shall be recalled by
certified mail to his home address. An
employee failing to report for duty
within ten (10) calendar days after such
notice was mailed, except under
circumstances beyond his control, shall
forfeit all seniority.

(f) The provisions of the Agrement
of May 12, 1978, (Appendix No. 13), will
be continued in effect for transfer
purposes under Title V of the Act.

D=-3-

er anime at BOM 8M

(g) Positions of thirty (30)

calendar days or less duration and
vacation absences may be filled without |
bulletining. The senior qualified
available employee requesting such
position or requesting a bulletined
position, pending assignment of a
successful applicant, will be assigned,
except where agreement requires the use
of extra employees, provided this will
not entail additional expense to the
Company.

(h) Bulletined positions may be
filled temporerily pending assignment.

(1) (1) Vacancies of more than
five (5) days but less than thirty (30)
calendar days’ duration, and vacation
absences of more than five (5) working
days, will, if filled, be assigned on a
hold-down basis to the senior qualified
employee making written application for
same. Hold-down on a vacant extra list
position will not be permitted.

D-10-

(2) A vacancy created by a

regular employee assigned to a hold-down
will not be subject to further hold-down
and will be filled under the provisions
of paragraph (d) of Rule 40 or paragraphs
(f), (g) and (h) of Rule 24.

(3) An employee granted a
hold-down must cover the position for the
duration of the vacancy or absence and
will assume the rest days of the
position. An employee on a hold-down up
to and including the work day preceding
the rest days of the position, must
observe the rest days.

(4) An employee on a hold-down
who is displaced from his regular
assigned position or whose regular
- assigned position is abolished, will not
be required to exercise his seniority
until after completion of the hold-down.

Under these circumstances, observance

D-11-

of the last rest days of the hold-down
will not be applicable and the bumping
period will commence the day following

the last work day of the hold-down.

POSITION

When more than one position subject
to the application of the provisions of
Rule 5 exists at the same time, employees
Shall have the right to bid on any or
all, stating preference. Nothing in this
Agreement shall be construed to prevent
employees bidding on all bulletined
positions, irrespective of whether the
position is of the sane, greater or
lesser remuneration.

D-12-

RULE 7 - BIDDING ON FORMER POSITION

When an employee bids for and is
awarded a bulletined position, his former
position will be bulletined, if the
former position is one which is subject
to the provisions of Rule 5. Such
employee can file a bid for the said
former position and the same shall be
considered, provided no other employee

bids for it on the initial bidding.

RULE - DECLINING PROMOTION OR TO BID
Employees declining promotion or
declining to bid for a bulletined
position, shall not lose their seniority

except as otherwise provided in Rule 18.

RULE 9 - TIME IN WHICH TO QUALIFY

(a) Employees awarded bulletined
positions or exercising displacement
rights will be allowed thirty (30) days

in which to qualify and failing to

DeliJj=

qualify may exercise seniority under Rule
18(d). The thirty (30) days may be
extended by agreement between the Local
Chairman and the proper Company official.

(b) When it is evident that an
employee will not qualify for a position,
after conference with the Local Chairman,
he may be removed from the position
before the expiration of thirty (30) days
and be permitted to exercise seniority
under Rule 18(d). The Division Chairman
will be notified in writing the reason
for the disqualification.

(Cc) Employees will be given full
cooperation of the department heads and
others in their efforts to qualify.

D-14-

RULE 10 - RETURNING FROM TEMPORARY _

POSITION

An employee assigned to a temporary
position shall, upon expiration of same,
or when displaced or disqualified, within
seven (7) calendar days thereafter,
return to his former position if
available to him, or select any position
bulletined during his absence which was
awarded a junior employee. In the event

he has no regular position, he shall

exercise seniority under Rule 18(d).

RULE 11 - RETURNING FROM LEAVE OF
ABSENCE, ETC.

An employee returning to duty after
leave of absence, vacation, sickness,
disability, jury duty or suspension shall
either return to his former position if
available to him, or shall select any
position bulletined during his absence
which was awarded to a junior employee.

D-i5-

kkk

RULE 49 - PHYSICAL FITNESS,
DETERMINATION OF

When an employee has been removed
from his position due to his physical
condition and the employee or his
representative desires the question of
his physical fitness to be finally
decided before he is permanently removed
from his position, the case shall be
handled in the following manner:

The General Chairman shall bring the
case to the attention of the Senior
Director-Labor Relations. The Company
and the General Chairman shall each
select a doctor to represent them, each
notifying the other of the name and
address of the doctor selected. These
two (2) doctors will confer and appoint a
third doctor. Such Board of Doctors
shall then fix a time and place for the
employee to meet then.

»=-16=

After completion of the examination,

they shall make a full report in
triplicate, one copy each to be sent to
the Senior Director-Labor Relations, the
Medical Director and the General
Chairman.

The decision of the Board of
Doctors, setting forth the employee’s
physical fitness and their conclusions as
to whether he meets the requirements of
the Company’s physical examination
policy, shall be final and binding on the
parties, but this does not mean that a
change in physical condition shall
preclude a reexamination at a later time.

The doctors selected for such Board
shall be experts in the disease or injury
from which the employee is alleged to be
suffering, and they shall be located at a
convenient point so that it will only be
necessary for the employee to travel a

D-17-

minimum distance and, if possible, not to
be away from home for a longer period
than one (1) day.

The fees and expenses of the third
or neutral physician shall be borne
equally by the Company and the employee.
All other expenses shall be paid by the
Company and the employee incurring then,
including the fees of the physician
selected by them. At the time the
Board’s report is made, a bill for the
fee, and traveling expenses, if any, of
the third or neutral physician should be
made in duplicate, one (1) copy to be
sent to the Company’s Medical Director

and one (1) copy to the employee.

RULE 50 - INCAPACITATED EMPLOYEES

(a) Efforts will be made to furnish
suitable employment to employees who have
become physically incapacitated to

D-18-

continue in service in their present
occupation.

(b) By agreement, in writing,
between the Division Chairman and the
Manager Labor Relations, a disabled
employee covered by the Scope of this
Agreement, may be assigned to a new
position or vacancy, or be placed in an
existing position without regard to his
seniority or the seniority of any other
employee, provided he is capable of
performing the service.

(c) A disabled employee while so
assigned will not be permitted to bid for
an advertised position.

(ad) An employee displaced in the
application of this Rule may exercise

seniority in accordance with Rule 18.

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RULE 59 - NON-DISCRIMINATION

(a) The parties to this Agreement
pledge to comply with Federal and State
Laws dealing with non-discrimination
toward any employee. This obligation to
not discriminate in employment includes,
but is not limited to placement,
transfer, demotion, rates of pay or other
forms of compensation, selection for
training, lay-offs, and termination.

(b) Wherever words are used herein
in the masculine gender, they shall be
construed as though they were also used
in the feminine gender in all cases where
they would so apply.

RULE 60 - EXCEPTION TO RULE

(a) Exceptions to any rule or rules
in this Agreement, in writing, between
the Senior Director-Labor Relations and
the General Chairman.

D-20-

(b) Where provision is made in this

Agreement for exceptions or special
agreements between the Company and the
duly accredited representatives of the
employees, agreements with respect
thereto will be in writing and numbered
consecutively by seniority district, two
(2) copies of each to be furnished the
General Chairman and Senior

Director-Labor Relations.

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lis

APPENDIX E

NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION

Form 1 Award No. 27989
Docket No. MS-28026
89-3-87-3-590

The Third Division consisted
of the regular members and in
addition Referee Marty E.
Zusman when award was
rendered.

(William J. O’Brien

S (
DISPUTE: (Consolidated Rail
(Corporation

STATEMENT OF CLAIM:

"This is to serve notice, as
required by the rules of the National
Railroad Adjustment Board of my intention
to file an ex parte submission September
8, 1987 covering an unadjusted dispute
between me and Conrail involving the
question of discrimination in covering
the position of stevedore in Framinghan,

Massachusetts."

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FINDINGS:

The Third Division of the Adjustment
Board upon the whole record and all the
evidence, finds that:

The carrier or carriers and the
employee [sic] or employees [sic]
involved in this dispute are respectively
carrier and employees [sic] within the
meaning of the Railway Labor Act as
approved June 21, 1934.

This Division of the Adjustment
Board has jurisdiction over the dispute
involved herein.

Parties to said dispute were given
due notice of hearing thereon.

Considering the case at bar on
merits, the on-property record indicates
that Claimant requested to exercise his
Agreement rights to displace onto a

Stevedore position at the Auto Terminal
-E-2-

in Framington, Massachusetts effective

August 27, 1985. His request was denied
by Carrier’s Supervisor due to physical
disability (absent a hand since birth).
During the progression of this Claim
on property the Carrier provided Claimant
a test to determine his physical
qualifications for the Stevedore
position. A committee of six (6)
determined that in the Carrier’s words
the Claimant “could not safely perform
the various duties of the Stevedore
assignment and therefore could not be
considered qualified." The record
specifically notes that Claimant was
unable to safely climb ladders in
inclement weather and handle forty pound

bridge plates.

Claimant argued on property and

before this Board that he had sufficient
fitness and ability to perform the job.
Further, with normal wrist action and a
dedicated history of safely performing

heavy and similar tasks, claimant was

qualified. If Carrier had such concerns,

some minimal accommodation or more proper

and complete test should have been
given. The Claimant argues that
Carrier’s actions were arbitrary,
capricious, biased and defective.

The Board is concerned with this
instant case, but as an appellate forum
and not a court of equity, we must rule
precedentially and upon the probative

evidence.

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By long established precedent this
Board has found that "fitness and
ability" determinations are vested with
the Carrier (First Division Awards 20384,
17523; Second Division Award 6233; Third
Division Awards 15387, 9534; Fourth
Division Awards 4093, 3960). In the
instant case, the test committee
consisted of the Regional Medical
Director, Safety Supervisor, District
Claim Agent, Personnel Specialist, Health
Services Manager and Supervisor. On the
record, there is nothing that this Board
can find to support Claimant’s alleged
Agreement violations. Once the Carrier
finds insufficient qualifications, the
burden of proof shifts to the Claimant to

overcome that decision with substantial

probative evidence. Based upon the cold

record, such evidence is absent. The
Commission that evaluated the allegation
on property found no Carrier defect.
Absent proof of record to shoulder the
burden of an unfair test or Carrier
violation of Agreement provisions, we are
constrained to deny the clain.

AWARD

Claim denied.

NATIONAL RAILROAD ADJUSTMENT
BOARD
By Order of Third Division

Attest:

Nancy J. Beuer - Executive
Secretary

Dated at Chicago, Illinois, this 29th day
of June 1989

append-e

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1663%3A1. Public record. Not legal advice.