Opposition Brief — O'Brien v. Consolidated Rail Corp.

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No. 92-870

In The

Supreme Court of the United States

October Term, 1992

¢

WILLIAM J. O’BRIEN,

Petitioner,

Vv.

CONSOLIDATED RAIL CORPORATION,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

~ For The First Circuit

*

ae

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

.

1s

Bs Rosert L. FARRELL”

Gary D. Buseck

— PARKER, Coutter, DaLtey & WHITE

~ One Beacon Street

= : Boston, Massachusetts 02108

(617) 723-4500

*Counsel of Record

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QUESTIONS PRESENTED

The Questions Presented as set forth in the Petition

for Writ of Certiorari are as follows:

I. Is the preemptive effect of the Railway Labor Act

to be judged by the same standard set forth in Lingle v.

Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988),

which addressed preemption under the Labor Manage-

ment Relations Act, or by a different standard?

II. 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?

III. 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?

il

STATEMENT PURSUANT TO

SUPREME COURT RULE 29.1

The respondent, Consolidated Rail Corporation, has

no parent company. It has the following subsidiaries:

CRR Industries, Inc.

CG Projects, Inc.

Conrail Mercury, Inc.

CRR Credit Corp.

CRR Investment, Inc.

PD Land Services, Inc.

CRC Properties, Inc.

Merchants Despatch Transportation Corp.

Penn Central Communications Co.

0. St. Lawrence & Adirondack Railway Com-

any

11. ladione Harbor Belt Railroad Company

12. General American Insurance Company

13. Calumet Western Railway Company

14. Monongahela Railway Company

15. CG Lockport, Inc.

16. CR Quality Services, Inc.

BWP Perr?

Consolidated Rail Corporation has the following

affiliates:

Akron & Barberton Belt Railroad Company

Albany Port Railroad Company

Belt Railway Company of Chicago

Chicago & Western Indiana Railway Com-

an

(adele Dock & Railroad Terminal Com-

pany

Nicholas, Fayette & Greenbrier Railroad

Company

Peoria & Pekin Union Railway Company

= er rr errr

_

iii

STATEMENT PURSUANT TO

SUPREME COURT RULE 29.1 - Continued

8.

e.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

ai:

22.

23.

24.

25.

Pittsburgh, Chartiers & Youghiogheny

Railway Company

Transportation Data Xchange, Inc.

Trailer Train Company

CU Energy Partnership LP

Concord Resources Group

Peoria Midwest Transportation Corpora-

tion

Calpro Company

Railbox Company

Railgon Company

Railroad Assoc. Ins. LTD.

Concord Canada, Inc.

Land Acquisition Services, Inc.

Soretox, Inc.

Stablex Canada, Inc.

Stablex Filtration, Inc.

Incinerator Projects Joint Venture

New York Land Acquisition Services, Inc.

Black Hawk Development, Inc.

iv

TABLE OF CONTENTS

CIEE IEW PUMICE MED coc cccceeccssccsesuccce i

STATEMENT PURSUANT TO SUPREME COURT

a FR ee Per rer ere eT errr ery ii

pe Bet Aes rr nee iv

py OR ee is + sso. rr ere vi

foo 8 8 ees er rere rey ee er errr 1

oo ye eee woke Pe ee ere Pree 1

STATUTORY PROVISIONS INVOLVED............. 2

PUSS COE FOUR CAGE, cock ccccnscnccccssass 2

REASONS FOR DENYING THE WRIT............. 7

I. THE ISSUES PRESENTED BY THE PETI-

TIONER IN HIS FIRST AND SECOND QUES-

TIONS FOR REVIEW WERE NEITHER

RAISED NOR RESOLVED IN THE COURTS

BELOW AND, THEREFORE, ARE NOT PROP-

ERLY BEFORE THIS COURT................ 7

II. THE FIRST QUESTION PRESENTED BY THE

PETITIONER FAILS TO DEMONSTRATE A

CONFLICT IN THE CIRCUIT COURTS OF

APPEALS. AND, THEREFORE, DOES NOT

SATISFY THE REQUIREMENTS FOR A

GRANT OF CERTIORARI UNDER SUPREME

CRPOE Me ie adda cnnccceecnses 10

Vv

TABLE OF CONTENTS - Continued

Page

| Ill. THE SECOND QUESTION PRESENTED BY

THE PETITIONER FAILS TO SATISFY THE

REQUIREMENTS FOR A GRANT OF CER-

TIORARI UNDER EITHER SUPREME COURT

RULE 10.1(a) OR RULE 10.1(c)............-. 16

IV. THE THIRD QUESTION PRESENTED BY THE

PETITIONER FAILS TO DEMONSTRATE A

CONFLICT BETWEEN THE DECISION

BELOW AND APPLICABLE DECISIONS OF

THIS COURT AND, THEREFORE, DOES NOT

SATISFY THE REQUIREMENTS FOR A

GRANT OF CERTIORARI UNDER RULE

Wee sk en Ps 18

COI EAIE os chek hecewccntuunescassbusebseuan te 21

vi

TABLE OF AUTHORITIES

Page

CAsEs:

Alexander v. Gardner-Denver Company, 415 U.S. 36,

94 S.Ct. 1011, 39 L.Ed.2d 147 (1974)............... 19

Allis-Chalmers Corp. v. Lueck, 471 U.S. 200, 105

S.Ct. 1904, -85 L.Ed.2d 206 (1985).........00sseeee- 14

Beard v. Carrollton R.R., 893 F.2d 117 (6th Cir. 1989) .... 14

Colorado Anti-Discrimination Commission v. Conti-

nental Airlines, 372 U.S. 714, 83 S.Ct. 1022, 10

Led. 25- Gb CIP so avid ce ick evens custwalessenas 17

Davies v. American Airlines, Inc., 971 F.2d 463 (10th

Che FORE scksccnscsekdsdtedesastastiawonrnes 7, 14, 15

Delta Air Lines, Inc. v. August, 450 U.S. 346, 101

S.Ct. 1146, 67 L.Bd.2d 287 (1961)... 0.6 sccecescsees 7

Duignan v. United States, 274 U.S. 195, 47 S.Ct. 566,

TE EB, DOG CURA) ok cece cndsntsanasesetesteniess 7

English v. General Electric Co., 496 U.S. 72, 110 S.Ct. |

2270, 196 L.Ed © (FFG)... oven cee svcancvcnscds 11

Espinosa v. Norfolk & Western Ry. Co., 750 F. Supp.

BID CEE. PM BOM soak toccnvncknsedsceancnnss> 14

Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85

me 8 ree reer rite ry rrr eee eee e 11

Lingle v. Norge Division of Magic Chef, Inc., 486 U.S.

399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988).... passim

Maher v. New Jersey Transit Rail Operation, Inc., 125

N.J. 455, SOB AOE FOU CARO eD an cess cnsacncavneess 12

McCall v. Chesapeake & Ohio Ry. Co., 844 F.2d 294

(6th Cir. 1988) cert. denied 109 S.Ct. 196 (1988)

TUTTI er re eee ia, 15, 17

Vii

TABLE OF AUTHORITIES - Continued

Page

Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S.

724, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985)......... 11

O’Brien v. Consolidated Rail Corp., 972 F.2d 1 (1st

Ce MN rahe akc apace vane i ens s hasan benens xt 12, 17

United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585,

| pk 2 Oy oo.) ee cer 8

United States v. Williams, __ U.S. __, 112 S.Ct.

o,f. RE See re eer re err ee. re ee ere 8

Youakim v. Miller, 425 U.S. 231, 96 S.Ct. 1399, 47

BOR) 6). . error Terr Tre reer eee 7

STATUTES:

United States Code

29 U.S.C. § 185 (§ 301 of the Labor Management

i Y . POPPE E ee TEe eee eee eee chhad bie 8

29 U.S.C. § 793 (§ 503 of the Rehabilitation Act

ES rr Terr re ree yc Tt Tete eee eek 5

ae Br reer rere rere eer ee 8

ly | Ee Terre, Terr rr erry Tse 2

Massachusetts General Laws

Mises. Gomeenl Laws ©. IBID .... «2... cccccsseccesess 6

Mass. General Laws c. 151B, § 5............eee008: 6

Code of Federal Regulations

41 CFR 60-741.26(g)..........ccscccsccccccsssecccee 5

Vili

TABLE OF AUTHORITIES - Continued

Page

RULEs:

Supreme Court Rule 10.1(a)............ 10, 15, 16, 18

Supreme Court Rule 10.1(c)............ 16, 17, 18, 20

MISCELLANEOUS:

13 Moore's Federal Practice 810.45 (2d ed. 1991).... 20

No. 92-870

4

In The

Supreme Court of the United States

October Term, 1992

4

WILLIAM J. O’BRIEN,

Petitioner,

CONSOLIDATED RAIL CORPORATION,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

*

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

4

OPINIONS BELOW

The respondent accepts the citation of the opinions

and judgments below as set forth in the petitioner’s peti-

tion for writ of certiorari.

JURISDICTION

The petitioner would seek to invoke the jurisdiction

of this Court pursuant to 28 U.S.C. §§ 1254(1) and 2101(c).

¢

1

Ne OOO

STATUTORY PROVISIONS INVOLVED

The respondent accepts the petitioner’s statement of

statutory provisions involved with one exception. The

petitioner’s citation to 45 U.S.C. § 184 has no relevance to

the present case. Section 184 refers exclusively to carriers

by air and not railroads.

STATEMENT OF THE CASE

The petitioner, William J. O’Brien, who was born

without a right hand, was hired by Consolidated Rail

Corporation (“Conrail”) on or about February 15, 1977 as

a crew dispatcher in Boston, Massachusetts and was

eventually promoted to Yardmaster. (Petition, p. A-2). In

August, 1985, O’Brien applied for the position of steve-

dore! at Conrail’s Framingham, Massachusetts location.

Specifically, following a layoff, he sought to exercise his

rights under the governing union contract to “bump” a

less senior Conrail employee, who held a Framingham

stevedore’s position. (Petition, pp. A-2 to A-3). On that

same date, the plaintiff was advised by J.M. Riley

(“Riley”), the Conrail employee with supervisory respon-

sibility over the Framingham stevedore operation, that

O’Brien was disqualified for the stevedore position

1 For Conrail, the job of stevedore in issue relates to the

railroad’s transportation of automobiles. Stevedores perform a

variety of tasks including unchaining automobiles, driving

automobiles off the railroad cars, opening railroad car doors,

and:raising multilevels, as well as climbing the metal ladders

and handling the bridge plates.

because he was physically incapable of performing the

duties of a stevedore. (Petition, p. A-3).

Following the disqualification, on September 9, 1985,

O’Brien filed a claim for compensation under the govern-

ing union contract for working days lost as a stevedore

since the date of his attempt to “bump” in August, 1985.

(See Petition, p. A-4). O’Brien asserted his claim under

Rule 59, the non-discrimination provision, of the govern-

ing collective bargaining agreement. (Petition, pp. A-4;

D-20). That claim was denied by Riley in a letter dated

September 16, 1985. Riley also advised the petitioner that

his disqualification was agreed to by Dr. Hanson of the

Conrail medical staff.

Approximately nine days later, on or about Septem-

ber 25, 1985 and at his request, the petitioner was given a

field test in Framingham in order to allow O’Brien the

opportunity to demonstrate his ability to perform the

stevedore job. (See Petition, p. A-3). A committee of six,

including Riley, Dr. Hanson (Conrail’s Regional Medical

Directcr) and other Conrail employees from the Labor

Relations office, was present at the field test. (See Petition,

p- A-3).

As a result of the field test, Conrail concluded that

O’Brien was not qualified to perform the stevedore job.

Specifically, Conrail determined that O’Brien would not

be able to climb ladders safely under snow and ice condi-

tions and would not be able to handle 40-pound bridge

plates used in the stevedore operation. (Petition, pp. A-3

to A-4). As a result, Conrail determined that the peti-

tioner’s performance would present a safety hazard both

to O’Brien and his fellow Conrail employees.

Following these events, the petitioner pursued two

courses of action. First, O’Brien continued to seek relief

through his union and the collective bargaining agree-

ment’s grievance procedure. (Petition, p. A-4). Second,

O’Brien filed a complaint of discrimination in employ-

ment with the Office of Federal Contract Compliance

Programs (“the OFCCP”). (Petition, p. A-5).

With respect to the grievance procedure under the

governing collective bargaining agreement, the peti-

tioner’s discrimination claim was progressed by the

union to the Manager-Labor Relations on October 15,

1985 and was denied by letter dated January 10, 1986. (See

Petition, p. A-4). Following this, the union and Conrail

formulated a Joint Submission to further advance the

petitioner’s claim to the Senior Director-Labor Relations,

Conrail’s highest appellate officer. The Senior Director-

Labor Relations, G.F. Bent, denied O’Brien’s claim by

letter dated August 11, 1986, finding that the non-dis-

crimination provision of the collective bargaining agree-

ment was not violated. (See Petition, p. A-4).

Approximately one year later, by letter dated August

9, 1987, the petitioner served notice of his intention to file

a submission with the National Railroad Adjustment

Board, Third Division (“the NRAB”), “covering an unad-

justed dispute between me and Conrail involving the

question of discrimination in covering the position of

stevedore in Framingham, Massachusetts.” In two sub-

—-issions to the NRAB, the petitioner asserted his claim of

handicap discrimination against Conrail.

On June 29, 1989, the NRAB issued an Award and

Order, denying the petitioner’s discrimination claim and

finding the absence of substantial probative evidence to

meet the petitioner’s burden of overcoming Conrail’s

finding of insufficient qualifications for the stevedore

position. (Petition, pp. E-1 to E-6). In conclusion, the

NRAB found no “proof of record” of a “Carrier violation

of Agreement provisions.” (Petition, p. E-6).

In addition to the grievance procedures under the

collective bargaining agreement and involving the NRAB,

the petitioner simultaneously was pursuing a claim with

the OFCCP, having filed a Complaint of Discrimination in

Employment on or about December 2, 1985. Among other

things, O’Brien asserted that Conrail made no accom-

modations to employ him as a stevedore.

The OFCCP issued its Notification of Results of

Investigation on May 22, 1986, concluding that Conrail

“did not violate its obligations under the nondiscrimina-

tion and affirmative action provisions of Section 503, as

amended [29 U.S.C. § 793].” (See Petition, p. A-5). By

letter dated June 17, 1986, the petitioner requested review

of the OFCCP’s decision to the Director of the OFCCP

pursuant to 41 CFR 60-741.26(g). The Director denied

O’Brien’s request for reconsideration by letter dated on or

about June 10, 1988. (See Petition, p. A-5).

On January 8, 1988, while the petitioner’s discrimina-

tion claim was pending before the NRAB and while that

same claim was pending reconsideration before the

Director of the OFCCP, the petitioner was again notified

of a layoff; and he again sought to exercise his “bump-

ing” rights for the stevedore’s position. (Petition, p. A-5).

Before his request was denied by Conrail, the peti-

tioner filed a complaint with the Massachusetts Commis-

sion Against Discrimination (“the MCAD”) on March 14,

1988. (Petition, p. A-6). On October 6, 1988, the MCAD

assented to the petitioner’s request to remove his action

from the MCAD to allow the filing of a civil action in

court. (Petition, p. A-7).

The plaintiff commenced the present action in Massa-

chusetts Superior Court, Suffolk County, Civil Action No.

88-6010-E, on October 20, 1988. Subsequently, on Novem-

ber 17, 1988, Conrail filed a timely petition to remove the

action to the United States District Court for the District

of Massachusetts; and that petition was allowed by the

court on December 2, 1988. (See Petition, pp. A-7 to A-8).

In essence, the petitioner alleged that Conrail dis-

criminated against him on account of his physical hand-

icap by refusing O’Brien’s request to move into the

position of stevedore by exercising his rights under the

governing union contract to “bump” a less senior C nrail

employee in violation of Massachusetts General Laws c.

151B. (Petition, pp. A-6 to A-7).

Subsequently, Conrail filed a motion for summary

judgment, asserting that Conrail was entitled to a judg-

ment as a matter of law on the grounds of: (1) preemption

under the Railway Labor Act; (2) preemption under Sec-

tion 503 of the Rehabilitation Act of 1973; (3) issue preclu-

sion as the result of the petitioner’s proceeding before the

NRAB,; (4) issue preclusion as the result of the proceeding

before the OFCCP; and (5) the six-month statute of limita-

tions found in Massachusetts General Laws c. 151B, § 5.

(Petition, p. A-8).

eee

—_ OOOO

In her Report and Recommendation, United States

Magistrate Marianne Bowler recommended that Conrail’s

motion be granted on all of the asserted grounds except

the statute of limitations. (Petition, pp. A-9; B-1 to B-39).

The District Court (Young, J.) approved the Report and

Recommendation; and a judgment was entered in favor

of Conrail. (Petition, pp. A-9; C-1 to C-3).

On appeal, Conrail argued that the judgment in its

favor should be affirmed on all of the grounds presented

to the District Court on its motion for summary judg-

ment. Addressing only the question of preemption under

the Railway Labor Act, the United States Court of

Appeals for the First Circuit affirmed the judgment of the

District Court. (Petition, pp. A-1 to A-27).

¢

REASONS FOR DENYING THE WRIT

I. THE ISSUES PRESENTED BY THE PETITIONER IN

HIS FIRST AND SECOND QUESTIONS FOR

REVIEW WERE NEITHER RAISED NOR

RESOLVED IN THE COURTS BELOW AND,

THEREFORE, ARE NOT PROPERLY BEFORE THIS

COURT.

This Court has consistently stated that “[o]rdinarily,

[it] does not decide questions not raised or resolved in

the lower court. . . . ‘It is only in exceptional cases coming

here from the federal courts that questions not pressed or

passed upon below are reviewed’.” Youakim v. Miller, 425

U.S. 231, 234, 96 S.Ct. 1399, 1401, 47 L.Ed.2d 701 (1976),

quoting from Duignan v. United States, 274 U.S. 195, 200, 47

S.Ct. 566, 568, 71 L.Ed. 996, 1000 (1927); Delta Air Lines,

Inc. v. August, 450 U.S. 346, 362, 101 S.Ct. 1146, 1155, 67

L.Ed.2d 287 (1981) (although raised in petition for cer-

tiorari, issue not raised in the Court of Appeals “is not

properly before us”); United States v. Ortiz, 422 U.S. 891,

898, 95 S.Ct. 2585, 2589, 45 L.Ed.2d 623 (1975) (same);

United States v. Williams, ___ U.S. ___, 112 S.Ct. 1735, 1738

(1992) (“Our traditional rule . . . precludes a grant of

certiorari only when ‘the question presented was not

pressed or passed upon below’ ”).

In the first question presented here, (Petition, p. i),

the petitioner argues that there is a conflict in the circuits

as to whether preemption under the Railway Labor Act,

45 U.S.C. §§ 151-163 (“the RLA”), is governed by the

standard set forth by this Court in Lingle v. Norge Division

of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100

L.Ed.2d 410 (1988), with respect to preemption under

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

§ 185 (“the LMRA”). (Petition, pp. 12-25).

Assuming for the sake of argument alone that it is

proper to speak in terms of a conflict on this point, but see

Section II, below, the petitioner never raised the question

which he now seeks to have reviewed in either the Dis-

trict Court or the Court of Appeals. More particularly, the

petitioner asks this Court to consider an alleged circuit

conflict and to decide that the LMRA preemption stan-

dard set forth in Lingle, supra, applies to preemption

under the RLA as well. However, the petitioner never

cited Lingle to the lower courts and never argued that the

proper standard for RLA preemption was set forth in

Lingle, supra.

Therefore, this Court should refuse to review the first

question presented for the simple reason that the ques-

tion was never raised by the petitioner below and no

exceptional circumstances exist to justify the Court's

departure from its traditional rule.

In the second question presented here (Petition, p. i),

| the petitioner raises the issue of whether state law hand-

icap discrimination claims are “more vulnerable to fed-

eral labor act preemption” than other types of

discrimination claims. In amplifying on this question, the

petitioner argues that the decision of the Court of

Appeals in this case: (1) conflicts with Ninth Circuit

decisions as to the preemption of handicap discrimina-

tion claims under the LMRA; and (2) creates confusion as

to the types of discrimination claims which are not pre-

empted by the RLA. (Petition, pp. 25-34).

In pursuing the former point, the petitioner seeks to

raise an issue broader than RLA preemption, i.e., “federal

labor act preemption,” and argues the existence of a

conflict based upon differing decisions on the preemption

of state law handicap discrimination claims under the

| RLA and the LMRA. (Petition, pp. 32-34). However, the

petitioner never urged this point in the courts below and

never cited the Ninth Circuit LMRA cases in his briefs.

Indeed, the petitioner has not previously raised the pre-

emption treatment of state law handicap discrimination

cases under the LMRA.

As to the latter point, the petitioner argues that, for

preemption purposes, the elements of handicap discrimi-

nation claims cannot be distinguished from the elements

: of other unlawful bases of discrimination. (Petition, pp.

10

25-32). Again, the petitioner never pursued this argument

in the courts below in seeking to avoid the preemption of

his state law handicap discrimination claim under the

RLA.

Therefore, the Court should also refuse to review the

second question presented on the ground that the ques-

tion was never raised by the petitioner below and no

exceptional circumstances exist to justify the Court’s

departure from its traditional rule.

For all of the foregoing reasons, the respondent sub-

mits that review should be denied as to the first and

second questions presented in the petition for certiorari.

II. THE FIRST QUESTION PRESENTED BY THE

PETITIONER FAILS TO DEMONSTRATE A CON-

FLICT IN THE CIRCUIT COURTS OF APPEALS

AND, THEREFORE, DOES NOT SATISFY THE

REQUIREMENTS FOR A GRANT OF CER-

TIORARI UNDER SUPREME COURT RULE

10.1(a).

In his first question presented, the petitioner asks

this Court to determine whether preemption under the

RLA is governed by the same standard which this Court

has established for preemption under the LMRA in Lingle

v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct.

1877, 100 L.Ed.2d 410 (1988). (Petition, p. i). Basing his

request for certiorari on Supreme Court Rule 10.1(a), the

petitioner asserts that there is a conflict in the circuits as

to the applicability of Lingle to claims of preemption

under the RLA. (Petition, pp. 12-25). The respondent

———— ee

11

submits that the petitioner has failed to identify a genu-

ine circuit conflict which can support the grant of a

petition for certiorari.

It is axiomatic that “[iJn deciding whether a federal

law preempts a state statute, [the Court’s] task is to

ascertain Congress’ intent in enacting the federal statute

in issue.” Metropolitan Life Ins. Co. v. Massachusefis, 471

U.S. 724, 738, 105 S.Ct. 2380, 2388, 85 L.Ed.2d 728 (1985);

English v. General Electric Co., 496 U.S. 72, 110 S.Ct. 2270,-

2275, 110 L.Ed.2d 65 (1990).

Therefore, the issue of the preemptive effect of any

particular federal statute creates a unique and distinctive

question. As this Court stated in Hines v. Davidowitz, 312

U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941),

There is not — ‘and from the very nature of the

problem there cannot be - any rigid formula or

rule which can be used as a universal pattern to

determine the meaning and purpose of every act

of Congress. . . . In the final analysis there can

be no crystal clear distinctly marked formula.

Our primary function is to determine whether,

under the circumstances of this particular case,

[the state law in issue] stands as an obstacle to

the accomplishment and execution of the full

purposes and objectives of Congress.

The nature of the power exerted by Con-

gress, the object sought to be obtained, and the

character of the obligations imposed by the law,

are all important in considering the question of

ee

12

whether supreme federal enactments preclude

enforcement of state laws on the same subject.

Id., 312 U.S. at 67, 70, 61 S.Ct. at 401, 403.

In light of these principles, the question of the pre-

emptive effect of the RLA with respect to state law claims

of handicap discrimination presents a unique question for

the courts. It presents a question separate and distinct

from the preemptive effect of the LMRA which was

addressed in Lingle. Therefore, Lingle does not and can-

not, by definition, apply directly to the question of RL.

preemption. As a result, it is misleading to speak of a

conflict in the circuits as to the proper application of

Lingle to RLA preemption.?

Rather, the only question conceivably before this

Court is whether, as to the proper standard to govern

RLA preemption, there is a conflict in the circuits. How-

ever, the petitioner has identified no conflict in the cir-

cuits and no conflict between the First Circuit’s decision

and that of any state court of last resort as to the proper

standard to govern RLA preemption, particularly with

respect to a state law claim of handicap discrimination.

Indeed, the federal circuits and the highest state courts

are in agreement that such claims are preempted. O’Brien

v. Consolidated Rail Corp., 972 F.2d 1 (1st Cir. 1992); McCall

v. Chesapeake & Onio Ry. Co., 844 F.2d 294 (6th Cir. 1988)

cert. denied, 109 S.Ct. 196 (1988); Maher v. New Jersey

2 Put another way, the petitioner’s argument that there is a

circuit conflict “regarding the comparative preemptive effect of

the LMRA and RLA,” (Petition, p. 17), raises a non-issue. “Com-

parative preemptive effect” is, at best, a matter of intellectual

interest. It has no relevance to the case before the Court.

13

Transit Rail Operation, Inc., 125 N.J. 455, 593 A.2d 750

(1991).3

In addition, even as to the broader, more abstract

question of some general standard for RLA preemption

apart from the consideration of any particular type of

state law claim, the petitioner has demonstrated no con-

flict in the circuits. Rather, the petitioner has simply

asserted that the Circuit Courts of Appeals have taken

different approaches to the incorporation of the LMRA

preemption standard set forth in Lingle into the analysis

of RLA preemption. (Petition, pp. 16-22).

As noted above, Lingle, by definition, does not sup-

ply the standard for RLA preemption; and, therefore, any

variations in the application of the teachings of Lingle by

the Circuit Courts of Appeals on questions of RLA pre-

emption cannot per se create a conflict if there are no

ultimate, conflicting results in the RLA decisions of the

circuits.

Moreover, even assuming for the sake of argument

alone that the application of the Lingle standard is perti-

nent to the question of a circuit conflict on RLA preemp-

tion, the petitioner’s effort to identify “at least three

different trends” in the circuit courts, (see Petition, pp.

16-22), is strained at best. A review of the decisions from

? It is also perhaps worth noting, a® pointed out in the

Petition itself, that there is no conflict in the circuits as to how

LMRA preemption applies to state law handicap discvimination

claims. (Petition, p. 15). In addition, there is, as a result, a

consistency among the circuits that RLA preemption and LMRA

preemption lead to different results with respect to state law

claims of handicap discrimination.

14

the various circuits cited by the petitioner reveals that all

of the circuit courts look to LMRA preemption cases, ¢.g.,

Lingle and Allis-Chalmers Corp. v. Lueck, 471 U.S. 200, 105

S.Ct. 1904, 85 L.Ed.2d 206 (1985), for some guidance on

the issue of RLA preemption. Although the language of

the decisions may vary, the central point is that all of the

courts find the LMRA preemption cases, including Lingle,

instructive; and none of them has held Lingle to be dis-

positive of the RLA preemption question in every circum-

stance. In other words, no circuit has completely rejected

the relevance of LMRA cases to the question of RLA

preemption; and no circuit has adopted the LMRA cases,

including Lingle, as applicable in all cases to RLA pre-

emption.®

4 The petitioner cites to three decisions for the proposition

that Lingle controls under both the LMRA and the RLA. (Peti-

tion, p. 19). However, the two opinions cited from the Seventh

Circuit predate Lingle; and the Tenth Circuit’s opinion more

properly reflects the view that it is appropriate for the court to

look to LMRA cases for guidance as to preemption under the

RLA. Davies v. American Airlines, Inc., 971 F.2d 463, 466 (10th Cir.

1992). Davies does not preclude the possibility that, in a particu-

lar case, RLA preemption might be broader than LMRA pre-

emption.

5 The weakness in the petitioner’s effort to maintain the

existence of “three different trends” in the circuit courts is dem-

onstrated by how easily decisions can be construed to fall into

one “trend” or another. For example, the petitioner cites deci-

sions from the Sixth Circuit as falling within two different

“trends.” Espinosa v. Norfolk & Western Ry. Co., 750 F. Supp. 819

(E.D. Mich. 1990) (proposition: RLA has more preemptive effect

than LMRA), and Beard v. Carrollton R.R., 893 F.2d 117 (6th Cir.

1989) (proposition: Lingle is “instructive”). Moreover, an argu-

ment can certainly be made that another Sixth Circuit decision

15

In sum, the petitioner has failed to demonstrate the

existence of a conflict in the circuits on any question

relating to the proper standard for preemption under the

RLA.

Beyond the issue of the existence of a conflict it is

also worth noting that the ultimate result the petitioner

seeks on his first question presented is presumably a

holding that Lingle applies to the issue of RLA preemp-

tion of his Massachusetts state law handicap discrimina-

tion claim. However, the First Circuit in this case clearly

looked to the LMRA preemption standard in Lingle as a

foundation for its analysis of the petitioner’s claim. (Peti-

tion, pp. A-13 to A-20). Therefore, the petitioner’s com-

plaint is ultimately with the First Circuit’s application of

that standard to the facts of the present case (see Petition,

pp. 21-25). However, that complaint provides no basis for

the grant of certiorari.

For all of the foregoing reasons, the petitioner has

failed to set forth an adequate ground for the grant of

certiorari under Supreme Court Rule 10.1(a) as to the first

question presented.

applied Lingle as if it governed RLA cases. McCall v. Chesapeake

& Ohio Ry. Co., 844 F.2d 294, 304 (6th Cir. 1988) (on rehearing).

Similarly, if one accepts the petitioner’s insistence on the

existence of three separate and distinct “trends,” one must ques-

tion the Tenth Circuit’s decision in Davies v. American Airlines,

Inc., 971 F.2d 463 (10th Cir. 1992), where, in support of its RLA

preemption position, the court cites at least one case from each

of the petitioner’s asserted “trends.” Id. at 466-467.

Finally, the petitioner finds each of his three “trends” in the

First Circuit’s decision in this case (see Petition, pp. 21-22, 32).

16

III. THE SECOND QUESTION PRESENTED BY THE

PETITIONER FAILS TO SATISFY THE REQUIRE-

MENTS FOR A GRANT OF CERTIORARI UNDER

EITHER SUPREME COURT RULE 10.1(a) OR

RULE 10.1(c).

In his second question presented, the petitioner asks

this Court to determine whether state law claims of hand-

icap discrimination are “more vulnerable to federal labor

act preemption than state law claims of discrimination on

the basis of race, sex, age, etc.” (Petition, p. i). Basing

this request on Supreme Court Rules 10.1(a) and 10.1(c),

(Petition, p. 34), the petitioner apparently asserts that:

(1) there is a conflict in the decisions of the First and

Ninth Circuits; and (2) the First Circuit “has decided an

important question of federal law which has not been, but

should be, settled by this Court.” (See Supreme Court

Rules 10.1(a) and 10.1(c)).

As to the first point, the petitioner seeks to manufac-

ture a conflict by broadening his question beyond RLA

preemption, which is the proper focus of this petition, to

encompass “federal labor act preemption.” (Petition, p. i).

Once broadened, the petitioner then asserts a conflict

between the First Circuit’s RLA preemption decision in

this case and two Ninth Circuit LMRA preemption deci-

sions involving state law claims of handicap discrimina-

tion. (Petition, pp. 32-34). However, as demonstrated in

Section II, above, RLA preemption and LMRA preemption

ultimately involve distinct and independent inquiries

regardless of any similarities between the two issues; and

it is simply improper to speak of a conflict in the circuits

based on preemption decisions under two different fed-

eral statutes. Therefore, the petitioner’s efforts to bring

17

RLA preemption and LMRA preemption together as a

single issue of “federal labor act” preemption should be

rejected.

As to the second point, in seeking review under

Supreme Court Rule 10.1(c), the petitioner argues that the

First Circuit in this case and the Sixth Circuit in McCall,

supra, have created “confusion” as to the preemption of

state law discrimination claims and rendered decisions

which “threaten[] preemption of all state law discrimina-

tion claims.” (Petition, pp. 25-32).

However, the “confusion” and “threat” which the

petitioner perceives are wholly illusory in light of this

Court’s decision in Colorado Anti-Discrimination Commis-

sion v. Continental Airlines, 372 U.S. 714, 83 S.Ct. 1022, 10

L.Ed.2d 84 (1963), which squarely prohibits the perceived

“threat,” i.e., RLA preemption of all state law discrimina-

tion claims. Moreover, both the First and Sixth Circuits

have clearly traced, for preemption purposes, the lines of

distinction between a handicap discrimination claim on

the one hand and other types of discrimination claims on

the other hand. McCall, supra at 302-303; O’Brien v. Consol-

idated Rail Corp., supra at 5-6; (Petition, pp. A-24 to A-26).

Therefore, there is also no “confusion” as to the scope of

RLA preemption with respect to state law discrimination

claims.§ In sum, the petitioner has failed to demonstrate

6 The petitioner challenges the correctness of the First and

Sixth Circuits’ analysis finding a distinction between handicap

discrimination claims and other types of discrimination claims.

(Petition, pp. 28-31). Without endeavoring to demonstrate the

appropriateness of the two courts’ analysis, suffice it to say at

this point that the petitioner’s dispute with the courts’ reason-

ing does not create the basis for a grant of certiorari in this case.

18

any federal question which should be settled by this

Court.

For all of the foregoing reasons, the petitioner has

failed to set forth an adequate ground for the grant of

certiorari under either Supreme Court Rule 10.1(a) or

Rule 10.1(c) as to the second question presented.

IV. THE THIRD QUESTION PRESENTED BY THE

PETITIONER FAILS TO DEMONSTRATE A CON-

FLICT BETWEEN THE DECISION BELOW AND

APPLICABLE DECISIONS OF THIS COURT AND,

THEREFORE, DOES NOT SATISFY THE

REQUIREMENTS FOR A GRANT OF CER-

TIORARI UNDER RULE 10.1(c).

In his third question presented, the petitioner asks

this Court to determine the scope of a union’s power to

prospectively waive its members’ state statutory rights

“to be free from discrimination based on handicaps, race,

sex, age, or other protected categories.” (Petition, p. i).

Basing his request on Supreme Court Rule 10.1(c), the

petitioner asserts that the First Circuit’s decision conflicts

with the reasoning of prior decisions of this Court. (Peti-

tion, pp. 34-47). The respondent submits that the peti-

tioner has raised a question which has no relevance to the

present case and, moreover, has demonstrated no conflict

with this Court’s decisions.

The present case concerns whether state law hand-

icap discrimination claims are preempted under the RLA

in light of the Congressional intent as demonstrated by

the scope of the federal RLA statutory scheme. If the

petitioner’s claim is preempted, that result is dictated by

asennad e

19

Congress and not by any action of the petitioner’s labor

union. As a result, the question of whether the union may

waive its members’ individual state-law rights is “a ques-

tion distinct from that of whether a claim is pre-emp-

ted... .” Lingle, supra, 486 U.S. at 409 n.9, 108 S.Ct. at

1883 n.9. Therefore, the First Circuit quite properly never

addressed the issue of waiver in this case where the

question was preemption and the respondent, Conrail,

never argued that the petitioner had waived any right he

may have had to pursue his state law claim.

Just as clearly, the petitioner’s attempted reliance on

Alexander v. Gardner-Denver Company, 415 U.S. 36, 94 S.Ct.

1011, 39 L.Ed.2d 147 (1974), is misplaced because Gardner-

Denver was not a preemption case and because, in Gard-

ner-Denver, the employer had argued that the employee

had prospectively waived his federal Title VII discrimina-

tion claim in the governing collective bargaining agree-

ment. Id., 415 U.S. at 51-54, 94 S.Ct. at 1021-1022. Gardner-

Denver speaks clearly to the issue of waiver; however,

that issue is simply irrelevant to the present case where

the court held that Congressional intent as expressed in

the RLA required preemption of the petitioner’s state law

claim.

Once it is determined that the present case involves

preemption and does not concern the prospective waiver

of employees’ statutory rights, it becomes clear that there

is, by definition, no conflict between the decision below

in this case and any decision of this Court addressing the

waiver issue.”

7 From his argument, it seems clear that the petitioner also

seeks to meld together the questions of waiver and preemption,

20

Finally, as one commentator has noted,

The mere assertion of conflict with Supreme

Court precedent will not suffice. Rule 10

requires that the application of the precedent to

the case at bar be clear,5 and that the .. . federal

court of appeals, did not follow that precedent.

13 Moore’s Federal Practice 810.45, p. SC10-51 and n.5 (2d

ed. 1991). The petitioner has clearly failed to allege sucha

conflict and, therefore, there is no basis for a grant of

certiorari under Supreme Court Rule 10.1(c) as to the

third question presented.

suggesting that concerns about waiver should inform the

courts’ decisions about preemption. (Petition, pp. 34-37). How-

ever, such an analysis, in fact, conflicts with this Court’s deter-

mination that waiver and preemption are distinct issues. Lingle,

supra, 486 U.S. at 409 n.9, 108 S.Ct. at 1883 n.9. Moreover, the

petitioner certainly does not dispute the proposition that RLA

preemption applies at least where a state law claim requires

interpretation of the governing collective bargaining agreement.

However, such an analysis means that there is an agreement

provision to be interpreted; that the provision was bargained for

by the union; and that the existence of the provision results in a

valid finding of preemption. Under the petitioner’s analysis,

this would presumably also be an unacceptable prospective

waiver, invalidating preemption. In short, the petitioner’s rea-

soning proves too much; conflicts with settled preemption case

law; and cannot stand.

ananassae aia)

21

CONCLUSION

For all of the foregoing reasons, the respondent, Con-

solidated Rail Corporation, respectfully requests that Wil-

liam J. O’Brien’s Petition for a Writ of Certiorari be

denied.

Respectfully submitted,

Rosert L. FARRELL*

Gary D. Buseck

PARKER, COULTER, DALEY & WHITE

One Beacon Street

Boston, Massachusetts 02108

(617) 723-4500

*Counsel of Record

DATED: December 3, 1992