Opposition Brief — American Airlines, Inc. v. Davies

Supreme Court, U.S.

FI't. ED

No. 92-1077 JAN 2 6 1993

OFFICE UF THE CLERK

In The

Supreme Court of the United States

October Term, 1992

+

AMERICAN AIRLINES, INC.,

Petitioner,

SCOTT DAVIES,

Respondent.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

°

RESPONDENT'S BRIEF IN OPPOSITION

¢

Gary G. Grisso*

Jot L. WurtE

1718 West Broadway

Coilinsville, Oklahoma 74021

(918) 371-2531

Attorneys for Respondent

*Counsel of Record

-——~ —

we

COCKLE LAW BRIEF PRINTING CO., o 225-6964

OR CALL COLLECT (402) 342-283

ISSUE PRESENTED IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Whether the United States Court of Appeals for the

Tenth Circuit properly held that respondent’s state law

claim for termination in violation of public policy, based

on petitioner’s discharge for union organizing activity

was not preempted by the Railway Labor Act, 45 U.S.C.

§§ 151 et seq.?

ii

TABLE OF CONTENTS

Page

ISSUE PRESENTED IN OPPOSITION TO PETITION

FOR WRIT OF CERTRARARD 2.5 cccesvenctasaeans i

TABLE GP CRRUTRONS Os va ons cecacuesesane ye eee ii

TABLE CH ALTIUS sc cccnccenGeaenebeneenen iii

FURIE OR. CEUs CID 8 ce seccasnuscebaseb ee eum 2

SIATEMEN! GF TRS CASE. «osc sxcnsnbewsnenees 2

SUMMARY OF ARGAINGEINE «05 .csscucvducunesneeean 4

REASONS FOR DENYING THE WRIT............. 4

A. OKLAHOMA LAW PROTECTS CITIZENS

FROM WRONGFUL DISCHARGE, A MATTER

OF SIGNIFICANT STATE CONCERN.......... 4

B. THE RAILWAY LABOR ACT SHOULD NOT BE

EXERCISED TO PREEMPT MINIMAL STATE

Wo tit oe, reer re er re 6

C. THE RLA NEITHER EXPLICITLY NOR IMPLIC-

ITLY PREEMPTS STATE PROTECTION ........ 10

D. THE EMPLOYMENT STATUS OF A RETALIA-

TORY DISCHARGE VICTIM IS IMMATERIAL

WHEN ADJUDICATING STATE PROTECTION... 13

E. ARBITRATION WHICH OMITS CONSIDER-

ATION OF A PRETEXTUAL DISCHARGE

AFFORDS NO REMEDY FOR WRONGFUL TER-

MINATION AND CANNOT PRECLUDE MINI-

EAL, DEALS EMGMAPUD 05 sccenssuseresaeeuees 14

we wth 6 ePrrerryrtrrc ry te 16

ill

TABLE OF AUTHORITIES

Page

CASES

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) .... 14

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985) 5, 7, 12

Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935

eG ew ins ch asacndvncccesccccsccs: 7

Atchison T.& S.F. Ry. v. Buell, 480 U.S. 557 (1987)

SS OO 74. Wer a

Barrentine v. Arkansas-Best Freight System, 450 U.S.

MERU OCR GS kde ass aa cee cseecvasscccess 14, 15

Bishop v. Federal Intermediate Credit Bank, 908 F.2d

Er ee 5

Brotherhood of Ry. Trainmen v. Terminal Co., 394 U.S.

EE Se eee tt, 32

Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989) . passim

Burke v. Campania Mexicana De Aviavan, 433 F.2d

8 7

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) ..... 8,9

Cipollone v. Liggett Group, Inc., __ U.S. __, 112

ne 10, 11

Commodore v. University Mechanical Contr., 839 P.2d

ee asc n ss iuscnscssinaccssss 13

Consolidated Rail Corp. v. Railway Labor Executives’

Association, 491 U.S. 299 (1989) .................... 7

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

eS Bie deo kas s Kes sekscacccceccsss passim

Davies v. American Airlines, Inc., No. 89-C-881-PD,

slip op. (N.D. Okla. Sep. 28, 1991)................. 3

iv

TABLE OF AUTHORITIES - Continued

Page

English v. General Elec. Co., 496 U.S. 72 (1990)....... 11

Farmer v. United Brotherhood of Carpenters & Joiners,

Loom 25, 450 UD. 2re CIO F Dan in cc ceeds a A

Glover v. St.Louis-San Francisco Ry. Co., 393 U.S.

ES ok ain ee eR NAME KERN DOOR ANG OO ONES EES 15

Grote v. Trans World Airlines, 905 F.2d 1307 (9th Cir.

1990), cert. denied, US. —.. 111 S.Ct. 306

Es Suck ued REN KMTEREGHEKASH CRORES ANCES aS 8, 9

Hall v. Farmers Ins. Exchange, 713 P.2d 1027 (Okla.

OP Ee Terr err e TTT Ty eer yr Terr Teer Teer 10

Huddleston v. Dwyer, 322 U.S. 232 (1944) ............. 9

International Ass'n of Machinists v. Central Airlines,

Sy: Se Se Oe CEM ics ta kec ad Racbeceunty eas 12

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399

Poy 4045-655 CLR owes Kahne Lakh OOa DARK Oe passim

Lorenz v. CSX Transportation, Inc., ___ F.2d ___, 141

foe. Ee eee re errr ee 8, 9

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

Cir. 1992), cert. denied, __ U.S. __; 61 U.S.L.W.

3476 (No. 92-670, Jan. 11, 1993).........cewcceeses 12

Oklahoma Tax Com’‘n v. Graham, 489 U.S. 838 (1989) ..... 8

Pikop v. Burlington Northern R. Co., 390 N.W.2d 743

(Minn. 1986), cert. denied, 480 U.S. 951 (1987) ...... 7

Price v. PSA, Inc., 829 F.2d 871 (9th Cir. 1987), cert.

Memsed, 496 US. MOOG (TORE)... vec vcsecsasscess 7, 8

Roscello v. Southwest Airlines Co., 726 F.2d 217 (5th

= POR err rere rere Teer Pe 7, 12

TABLE OF AUTHORITIES - Continued

Page

Ruhlin v. New York Life Ins. Co., 304 U.S. 202 (1938) ..... 9

San Diego Building Trades Council v. Garmon, 359

fo ee a rer oP err 11

Sargent v. Central Nat. Bank & Trust Co., 809 P.2d

SE ES ROE cCcdsccl Dunaeenee ke eeebbens ewes 5

Southwest Forest Industries v. Sutton, 868 F.2d 352

TN st ae MER LRN BEI in 2 13, 14

Tate v. Browning-Ferris, Inc., 833 P.2d 1218 (Okla.

re ee CCL ere et 5, 6, 11, 14

Terminal Railroad Assoc. of St. Louis v. Brotherhood of

Railroad Trainmen, 318 U.S. 1 (1943)............. Pe

Todd v. Frank’s Tong Service, Inc., 784 P.2d 47 (Okla.

oo MEE ae ey GTA Reirson er ye wens 5

White v. American Airlines, Inc., 915 F.2d 1414 (10th

ERs Cacb SC RGAA ES SKS eM AOL A bee eee TAT 5

STATUTES

29 U.S.C. §§ 141 et seq. (Labor-Management Rela-

ME Cn ncaa net eee kN UWA ee VEER ETERS RO UREA TAO 5

29 U.S.C. §§ 151-169 (National Labor Relations

EEG Sica eee sue Teas LMAO hae NaS ee ee aceumes 5

42 U.S.C. §§ 2000e et seg. (Civil Rights Act, Title

i RIE rr ry ree hair a) ee eee ee eee 14

45 U.S.C. §§ 51 et seg. (Federal Employers’ Lia-

EEE PUREE LETT TE OLE TTT CET eee: 10

eee

vi

TABLE OF AUTHORITIES — Continued

Page

45 U.S.C. §§ 151 et seq. (Railway Labor Act) .......... i

45 U.S.C. & Ua ee res eae ieiecsns ee

45 U.S.C. © Fae Peas ei ee eee a Me ee

45 U.S.C. & WSR Pie Be Came as oo coc vee ciascsc sess. 7

Rule 15.2, Rules of the Supreme Court of the

United SRmQGts aan cen ensd Bisa Reh Hawes ee esa 2

OTHER AUTHORITIES

Note, The Need for a New Approach to Federal Pre-

emption of Union Members’ State Law Claims, 99

Vale Lj. Qi Re te i ee ess oo cc 13

No. 92-1077

®

In The

Supreme Court of the United States

October Term, 1992

4

AMERICAN AIRLINES, INC.,

Petitioner,

SCOTT DAVIES,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

* —

RESPONDENT'S BRIEF IN OPPOSITION

4

Respondent Scott Davies (“DAVIES”) respectfully

submits this Brief In Opposition to petitioner, American

Airlines, Inc.’s (‘AMERICAN”), Petition for Writ of Cer-

tiorari to review the decision of the United States Court

of Appeals for the Tenth Circuit.

*

JURISDICTIONAL ISSUE

Respondent received a copy of the Petition for Writ

of Certiorari on December 28, 1992. This Brief In Opposi-

tion is timely filed under Rule 15.2 of the Rules of the

Supreme Court of the United States.

4

STATEMENT OF THE CASE

DAVIES was employed by AMERICAN at its Tulsa,

Oklahoma facility as an aircraft mechanic. As a condition

of employment, DAVIES was required to be a member of

the Transport Workers Union (“TWU”), party to a collec-

tive bargaining agreement (“CBA”) with AMERICAN.

In 1989, DAVIES and other AMERICAN mechanics

initiated a petition drive calling for an election to deter-

mine whether the Airline Mechanics Fraternal Associa-

tion (“AMFA”) should replace the TWU. AMFA would

have represented only skilled crafts, in contrast to the

TWU which represented both skilled and unskilled

classes and crafts. Additionally, AMERICAN employees

were dissatisfied with TWU representation.

DAVIES was elected chairman of the AMFA organiz-

ing committee. In that capacity, DAVIES, on AMFA’s

behalf, placed a debate notice in a local newspaper con-

taining the words “AMERICAN AIRLINES”. AMERICAN

disciplined DAVIES alleging he “ma[de] false or slan-

derous statements about the Company ... ” (Petition For

Writ of Certiorari (“Petition”), App. 22a).

When DAVIES refused to capitulate to AMERICAN’s

pressure and desist from AMFA activities, he was fired to

quell AMFA’s organizing efforts. Thereafter AMFA orga-

nizing activity ceased.

DAVIES, represented by the TWU, the same union he

sought to replace, arbitrated his discharge. The System

Board of Adjustment upheld his discharge but neither

addressed nor even considered whether DAVIES was

fired for a pretextual reason. (Petition, App. 20a-39a).

DAVIES sued AMERICAN in the United States Dis-

trict Court for the Northern District of Oklahoma (“Dis-

trict Court”) for violation of public policy as set forth in

the RLA, § 152 Third, prohibiting carrier “interference,

influence, or coercion . . . in any manner to prevent the

designation by its employees as their representa-

tives...” DAVIES also alleged violation of public policy

as embodied in the RLA, § 152 Fourth, prohibiting a

carrier “deny[ing] or question[ing] the right of its

employees to join, organize, or assist in organizing the

labor organization of their choice... . ”

DAVIES’ diversity claim was decided by a jury which

awarded $81,000 in actual damages and $15,000 in puni-

tive damages. Following trial, the District Court sus-

tained AMERICAN’s motion for judgment notwith-

standing the verdict (“JNOV”). Davies v. American Air-

lines, Inc., No. 89-C-881-P, slip op. (N.D. Okla. Sep. 28,

1991). (Petition, App. 15a-19a).

The Court of Appeals for the Tenth Circuit (“Court of

Appeals”) reversed, finding no CBA interpretation neces-

sary and that DAVIES’ claim was not a “minor dispute”

within the RLA purview. Davies v. American Airlines, Inc.,

971 F.2d 463, 465-466 (10th Cir. 1992), reh’g denied, Sep-

tember 8, 1992 (“Davies”).

SUMMARY OF ARGUMENT

The Court of Appeals correctly determined that no

CBA interpretation was necessary to adjudicate DAVIES’

state law claim, protecting Oklahoma citizens against dis-

charge in violation of clear mandates of public policy.

Because no CBA interpretation was required, no “minor

dispute” under the RLA was implicated, and the RLA did

not preempt DAVIES’ state law action.

The Court of Appeals also correctly determined that

DAVIES’ state law claim did not encroach on the RLA’s

purview. Additionally, the Court of Appeals was correct

that DAVIES’ employment status did not affect his action

for violation of public policy and that arbitration did not

preclude an Oklahoma remedy.

.

REASONS FOR DENYING THE WRIT

A. OKLAHOMA LAW PROTECTS CITIZENS FROM

WRONGFUL DISCHARGE, A MATTER OF SIG-

NIFICANT STATE CONCERN.

DAVIES’ diversity action does not, as AMERICAN

asserts, circumvent the RLA. Oklahoma law provides a

remedy unavailable under the RLA only when a dis-

charge contravenes “a clear mandate of public policy.”

Burk v. K-Mart Corp., 770 P.2d 24, 28 (Okla. 1989) (AMERI-

CAN briefing as amicus curiae).

DAVIES’ Burk claim sought redress for his discharge

because of union organizing activity. Davies, at 464.

DAVIES’ discharge violated the RLA’s “public policy,”

§ 152 Third and Fourth, because his discharge was

designed to interfere with employees’ selection of a rep-

resentative. A Burk action augments RLA protection by

deterring carrier discharges inimical to public policy. A

Burk claim actually effectuates the RLA’s public policy by

providing Oklahoma employees a remedy when a dis-

charge violates the RLA’s clear principles. Because Davies

correctly evaluated the issues and followed precedent,

this Court’s review is unwarranted.

Since Burk, “public policy” violations under Okla-

homa law have been found in a variety of sources. See €.2.

Tate v. Browning-Ferris, Inc., 833 P.2d 1218, 1222 (Okla.

1992) (discharge for filing racial discrimination claim);

Sargent v. Central Nat. Bank & Trust Co., 809 P.2d 1298

(Okla. 1991) (discharge for refusing to alter audit report);

Todd v. Frank's Tong Service, Inc., 784 P.2d 47, 50 (Okla.

1989) (discharge for refusing to operate unsafe vehicle);

White v. American Airlines, Inc., 915 F.2d 1414, 1419 (10th

Cir. 1990), rev'd on other grounds (retaliatory discharge for

refusal to commit perjury); Bishop v. Federal Intermediate

Credit Bank, 908 F.2d 662 (10th Cir. 1990) (retaliatory dis-

charge for Congressional testimony).

This Court recognizes a state’s substantial interest in

its protecting citizens. Cf. Lingle v. Norge Div. of Magic

Chef, Inc., 486 U.S. 399 (1988) (state law protection is not

preempted by 29 U.S.C. §§ 141 et seq. Labor-Management

Relations Act (“LMRA”) when CBA interpretation not

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

211-12 (1985) (same); Farmer v. United Brotherhood of Car-

penters & Joiners, Local 25, 430 U.S. 290 (1977) (29 U.S.C.

§§ 151-169, National Labor Relations Act (“NLRA”) did

not preempt union official’s tort claim).

Davies relied on Tate v. Browning-Ferris, Inc., infra, in

reversing the District Court. Davies, at 468. Tate rebutted

arguments that DAVIES’ sole remedy was through RLA

procedures and that the mere presence of an inadequate

federal regulatory scheme did not preclude a Burk action:

“By statutory mandate the common law remains in full force

in this state, unless a statute explicitly provides to the con-

trary.” “Where the common law gives a remedy, and another is

provided by statute, the latter is merely cumulative, unless the

statute declares it to be exclusive.” Id., at 1225-1226 (cita-

tions omitted, emphasis in original).

AMERICAN has consistently failed to support its

protestation of how the RLA’s purpose of “avoid[ing]

interruption of commerce” would be undermined by Burk

actions. By definition, Burk applies to “a narrow class of

cases in which the discharge is contrary to a clear man-

date of public policy.” Burk, at 28. Because Burk’s applica-

tion is so tightly circumscribed, no interference with

federal labor regulation can be established. Furthermore,

Oklahoma’s protection against wrongful discharge, coupled

with Burk’s limited application is of paramount impor-

tance to evaluate preemption claims.

B. THE RAILWAY LABOR ACT SHOULD NOT BE

EXERCISED TO PREEMPT MINIMAL STATE LAW

PROTECTION.

A “minor dispute” is one which “require[s] CBA

interpretation. Because Davies’ Burk action does not

require CBA interpretation, it is not a “minor” dispute,

and accordingly it is not preempted from judicial resolu-

tion.” Davies, at 468. See also, Lingle, at 413; Atchison T.&

S.F. Ry. Co. v. Buell, 480 U.S. 557, 564-565 (1987).

“Minor disputes” involve rates of pay, rules, or work-

ing conditions. RLA, 45 U.S.C. § 153 First (i) (1970).

“Minor disputes” are to enforce CBA terms and may be

resolved by CBA interpretation. Consolidated Rail Corp. v.

Railway Labor Executives’ Association, 491 U.S. 299, 305

(1989).

The essence of AMERICAN’s argument is that the

mere existence of an employment relationship ipso facto

confers RLA jurisdiction on any employment dispute.

AMERICAN urges RLA preemption even when an

employer’s actionable conduct is unrelated to matters

within CBA purview. Those broad preemption conten-

tions have been rejected time and again. Cf. Allis-Chalmers

Corp. v. Lueck, supra; Farmer v. United Brotherhood of Car-

penters & Joiners, Local 25, supra; Terminal Railroad Assoc. of

St. Louis v. Brotherhood of Railroad Trainmen, 318 U.S. 1

(1943).

The RLA does not divest courts of jurisdiction to

decide actions based on violations of RLA principles. See

Price v. PSA, Inc., 829 F.2d 871, 876 (9th Cir. 1987), cert.

denied, 486 U.S. 1006 (1988) (implied right of action exists

under RLA, § 152 Fourth); Arcamuzi v. Continental Air

Lines, Inc., 819 F.2d 935, 936 (9th Cir. 1987) (same); Pikop v.

Burlington Northern R. Co., 390 N.W.2d 743 (Minn. 1986),

cert. denied, 480 U.S. 951 (1987); Roscello v. Southwest Air-

lines Co., 726 F.2d 217, 220 (5th Cir. 1984) (private action

under RLA, § 152 Fourth); Burke v. Campania Mexicana De

Aviacion, 433 F.2d 1031, 1033 (9th Cir. 1970) (same).

Price v. PSA, Inc., infra addressed similar factual and

parallel legal claims and construed the breadth of RLA

preemption:

. . . Congress has not indicated, as it did with

LMRA § 301 and ERISA, that the RLA is “so

powerful as to displace entirely any state cause

of action.” Absent a direct expression of con-

gressional intent to create federal jurisdiction

for all causes of action within the scope of sec-

tion 2, Fourth of the RLA, we believe we must

abide by the well-pleaded complaint rule.

Id. at 876 (citations omitted).

The “well-pleaded complaint rule,” looks only to the

plaintiff’s allegations rather than a defendant’s antici-

pated defenses. Oklahoma Tax Com’n v. Graham, 489 U.S.

838, 840-41 (1989); Caterpillar, Inc. v. Williams, 482 U.S.

386, 398-99 (1987). State jurisdiction cannot be obviated

“on the basis of a federal defense, including the defense

of pre-emption, even if the defense is anticipated in the

plaintiff’s complaint .. . ” Caterpillar, at 393.

The heart of Davies is that no CBA interpretation was

required, applying only Oklahoma law to the jury’s fac-

tual inquiry. Id. at 468. Of utmost significance is, that

when adjudicating “purely factual questions . . . and the

conduct and motivation of the employer,” stripped of

AMERICAN’s legal parlance, the jury found AMERICAN

culpable and awarded punitive damages. Cf. Lingle, supra,

at 407.

AMERICAN cites Lorenz v. CSX Transportation, Inc.,

___ F.2d __, 141 LRRM 2921 (4th Cir. 1992) and Grote v.

Trans World Airlines, 905 F.2d 1307 (9th Cir. 1990), cert.

denied, __ U.S. __, 111 S.Ct. 386 (1990), asserting a

conflict of circuits. Lorenz noted that the plaintiff “chal-

lenges CSX’s conduct in the application of the investiga-

tory procedures required by the [CBA].” Id. at 2924.

Likewise, the gravamen of Grote was that the wrongful

discharge arose from a CBA based obligation to pass a

health examination. Grote, at 1309. Davies is distinguish-

able because nothing in his discharge implicated any CBA

provision, including a “just cause” term. Id. at 466.

As a state law matter, certiorari should be denied:

“As to questions controlled by state law, . - . conflict

among the circuits is not of itself a reason for granting a

writ of certiorari. The conflict may be merely corollary to

a permissible difference of opinion in the state courts.”

Ruhlin v. New York Life Ins. Co., 304 U.S. 202, 206 (1938).

When reviewing state law questions, this Court “ordi-

narily [] accept[s] and therefore do[es] not review, save in

exceptional cases, the considered determination of ques-

tions of state law by the intermediate federal appellate

courts.” Huddleston v. Dwyer, 322 U.S. 232, 237 (1944).

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987),

cogently rejected the same preemption argument AMERI-

CAN advances:

[I]ndividual employment contracts are not inev-

itably superseded by any subsequent collective

agreement covering an individual employee,

and claims based upon them may arise under

state law. Caterpillar’s basic error is its failure to

recognize that a plaintiff covered by a collective-

bargaining agreement is permitted to assert

legal rights independent of that agreement,

including state-law contract rights, so long as

10

the contract relied upon is not a collective-bar-

gaining agreement.

Id., at 396 (emphasis in original).

Atchison T.& S.F. Ry. Co. v. Buell, supra succinctly

rejected a similar premise of RLA preemption: “It is

inconceivable that Congress intended that a worker who

suffered a disabling injury would be denied recovery

under the [Federal Employers’ Liability Act (“FELA”), 45

U.S.C. §§ 51 et seq.] simply because he might also be able

to process a narrow labor grievance under the RLA to a

successful conclusion.” Id. at 565. It is just as inconceiv-

able that Congress, through the RLA, intended to deprive

aggrieved employees of minimal state protection afforded

by Burk. Such a position would sanction wholesale public

policy violations cloaked with protection of federal law.

Despite AMERICAN’s legal ruminations, Burk was

designed to prevent the very harm inflicted on DAVIES:

“[T]he interests of the people of Oklahoma are not best

served by a marketplace of cut-throat business dealings

where the law of the jungie is thinly clad in contractual

lace.” Id. at 26, quoting Hall v. Farmers Ins. Exchange, 713

P.2d 1027, 1029 (Okla. 1985).

C. THE RLA NEITHER EXPLICITLY NOR IMPLIC-

ITLY PREEMPTS STATE PROTECTION.

Cipollone v. Liggett Group, Inc., ___ U.S. ___, 112 S.Ct.

2608 (1992) found that federal law should be construed

against preemption of state police power, that Congres-

sional enactments do not automatically pre-empt other

| 7

1]

regulation, and looked to inherent conflict between fed- -

eral and state regulations. Id. at 2618. See also, English v.

General Elec. Co., 496 U.S. 72, 79 (1990). Absent an “actual

conflict,” state law is not pre-empted. Id. at 90; Tate v.

Browning-Ferris, Inc., supra, at 1222.

With Burk’s “tightly circumscribed” application, the

specter of interference with federal law advanced is illu-

sory. Only when employers contravene public policy does

Burk protect against reprisals as DAVIES suffered.

Clearly, the RLA does not encompass every employment

dispute. See Brotherhood of Locomotive Engineers v. Bal-

timore & Ohio R.R. Co., 372 U.S. 284, 289-90 (1963); Termi-

nal Railroad Assoc. of St. Louis, supra, at 6-7.

Under Cipollone, there is no conflict between the RLA

and a Burk action. Farmer, supra, noted that when Con-

gress did not provide “specific directions with respect to

the scope of preempted state regulation,” not all local

regulation which concerns employment is preempted.

Farmer, at 295-96.

Cipollone recognized that “state regulation can be as

effectively exerted through an award of damages as

through some form of preventive relief. The obligation to

pay compensation can be, indeed is designed to be, a

potent method of governing conduct and controlling pol-

icy.” Cipollone, at 2620 quoting San Diego Building Trades

Council v. Garmon, 359 U.S. 236, 247 (1959). Oklahoma’s

protection against “a marketplace of cut-throat business

dealings” together with damage award deterrents, merely

implement Burk’s protection.

Davies correctly found no encroachment into the

RLA’s regulatory scheme. Cf. Cipollone, at 2618. Accord,

12

Atchison T.& S.F. Ry. Co. v. Buell, supra at 566-567 (FELA

emotional injury action would not wreak havoc with

RLA; absent an intolerable conflict, RLA does not repeal

any part of the FELA).

Courts frequently rely on other labor enactments in

construing RLA application. Cf. Brotherhood of Ry. Train-

men v. Terminal Co., 394 U.S. 369 (1969) (NLRA used to

construe RLA); International Ass'n of Machinists v. Central

Airlines, Inc., 372 U.S. 682, 692 (1963) (same), Roscello v.

Southwest Airlines Co., supra, at 222 (same).

AMERICAN argues that the LMRA, upon which Lin-

gle was decided, should not apply to RLA cases (Petition,

at 8). However, the pervasive RLA preemption to which

AMERICAN alludes refers to the NLRA’s original regula-

tory scheme dating to the Wagner Act, as administered by

the National Labor Relations Board. Now, the entire

NLRA includes the Taft-Hartley Act of 1947 amendments,

29 U.S.C. § 185, Section 301, embodied in the NLRA and

enforced by the National Labor Relations Board. Most

CBAs include exclusive grievance and arbitration provi-

sions, exactly paralleling the RLA’s arbitration remedy.

Cf. Allis-Chalmers Corp v. Lueck, supra, at 220. Also, this

Court very recently declined to review the propriety of

Lingle’s preemption test in RLA cases. O’Brien v. Consoli-

dated Rail Corp., 972 F.2d 1 (1st Cir. 1992) cert. denied, __

U.S. __, 61 U.S.L.W. 3478 (No. 92-870, Jan. 11, 1993).

13

D. THE EMPLOYMENT STATUS OF A RETALIA-

TORY DISCHARGE VICTIM IS IMMATERIAL

WHEN ADJUDICATING STATE PROTECTION.

Both AMERICAN and District Court reliance on “at-

will” status was “essentially a variant of . . . Burk [being]

unavailable where a discharged employee has an alter-

nate remedy.” Davies, at 469. Davies recognized that

“[w]hen an employer discharges an employee in violation

of such a public policy, society is equally aggrieved

whether the employee is “at-will” or can be discharged

only for “just cause[]” and “parties to a contract may not

incorporate in it rights and obligations which are clearly

injurious to the public.” Id., at 469 (citations omitted). See

also, Southwest Forest Industries v. Sutton, 868 F.2d 352, 355

(10th Cir. 1989) (it is a “disturbing proposition” that

union employees must surrender tort remedies not con-

sidered in collective bargaining).

Commodore v. University Mechanical Contr., 839 P.2d

314, 318-319 (Wash. 1992), a state law tort action rejecting

LMRA, § 301 preemption similarly rejected defendant’s

“just cause” defense:

In passing section 301, Congress did not intend

to give union workers fewer rights than non-

union workers. If an employer could eliminate a

union member'’s right to bring a state law action

simply by asserting a defense requiring CBA

interpretation, employees would see unioniza-

tion as a less desirable alternative.

Id., quoting Note, The Need for a New Approach to Federal

Preemption of Union Members’ State Law Claims, 99 Yale L.J.

209, 229 (1989) (footnote omitted).

14

Tate v. Browning-Ferris, Inc., supra, relied on Alexander

v. Gardner-Denver Co., 415 U.S. 36 (1974), noting that the

Civil Rights Act, Title VII, 42 U.S.C. § 2000e et seq. (“Title

VII”) allowed “multiple enforcement fora.” Tate, at

1222-1223, n. 13. Tate found Title VII protection a “floor

beneath which federally provided protection may not

drop.” Id., at 1222. Similarly, Davies held that Burk was to

protect society by carrying out public policy. Davies, at

469.

E. ARBITRATION WHICH OMITS CONSIDER-

ATION OF A PRETEXTUAL DISCHARGE

AFFORDS NO REMEDY FOR WRONGFUL TER-

MINATION AND CANNOT PRECLUDE MINIMAL

STATE REMEDIES.

Claiming Adjustment Board appeal was DAVIES’

sole remedy, AMERICAN omits that the arbitration

award did not consider a pretextual discharge. (Petition,

App. 20a-39a). It defies credulity to suggest that arbitra-

tion provides a “remedy” while overlooking the

employer’s true motivation. Adjustment Board appeal is

absurd when AMERICAN’s underlying motive could not

be examined.

The Court of Appeals acknowledged that arbitrators

may lack expertise to adjudicate questions of law rather

than interpreting a CBA. Davies, at 467. Accord, Barrentine

v. Arkansas-Best Freight System, 450 U.S. 728, 743 (1981)

(arbitration forum inadequate to enforce minimum wage

statutes); Alexander v. Gardner-Denver Co., supra at 53

(arbitrators lack authority to invoke public laws); South-

west Forest Industries v. Sutton, supra, at 355 (arbitration

15

remedies inadequate when discharge contravenes public

policy).

AMERICAN’s exclusive remedy claims also ignore

that DAVIES would be represented by the TWU, the same

union he sought to replace. Cf. Glover v. St.Louis-San

Francisco Railway Co., 393 U.S. 324, 330 (1969) (Adjust-

ment Board submission not mandatory when remedy is

wholly futile or must be submitted to group against

whom complaint is made). See also, Barrentine, supra, at

742 (union may sacrifice individual’s rights to those of

entire bargaining unit).

AMERICAN’s claim that employees “try out” arbitra-

tion deliberately disregards that an arbitrator’s expertise

is in the law of the shop rather than the law of the land.

An arbitral “remedy” failing to consider pretextual rea-

sons cannot be regarded as a remedy at all. Analysis of

state-law and contractual considerations premised on the

same facts is consonant with this Court’s rulings. Lingle,

supra, at 408; Davies, at 466.

*

16

CONCLUSION

There are no issues which justify granting certiorari.

The Court of Appeals correctly found that DAVIES’ state

law action was not preempted by the RLA. The Petition

for Writ of Certiorari should be denied.

Respectfully submitted,

Gary G. Grisso*

Joe L. WuitE

1718 West Broadway

Collinsville, Oklahoma 74021

(918) 371-2531

Attorneys for Respondent

*Counsel of Record