# Opposition Brief — American Airlines, Inc. v. Davies

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 950

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1860%3A3. Public record. Not legal advice.