Amicus Curiae Brief — American Airlines, Inc. v. Davies

No. 92-1077

Jn the Supreme Court of the Giuted States

OCTOBER TERM, 1992

AMERICAN AIRLINES. INC... PETITIONER

v.

SCOTT DAVIES

ON PETITION FOR A WRIT OF CERTIORARI

LO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

WILLIAM C. BRYSON

Acting Solicitor (56 rie ral

STUART BE. SCHIFFER

Acting Assistant Attorney General

MAUREEN EF. MAHONEY

De puty Solicitor General

JOHN F. MANNING

Assistant to the Solicitor General

WILLIAM KANTER

JEFFREY A. CLAIR

Attorneys

Departme nt of Justices

Washington, D.C. 20520

(202) 514 QDI?

QUESTIONS PRESENTED

1. Whether respondent’s civil action challenging his

dismissal for union activity is barred by 45 U.S.C. 153 First (i)

and 184, which make the Railway Labor Act arbitration

procedures the exclusive remedy for certain employment

disputes.

2. Whether 45 U.S.C. 152 Third and Fourth, which give

covered employees the right to organize and bargain

collectively without interference by the employer, preempt

state-law tort remedies for retaliatory discharges in violation

of that federal right.

(I)

TABLE OF CONTENTS

Page

i aoe causa ncainhennbananeasinbasehaenesedaonsnessncccesesns 1

asa eendanbenbnccnmhaeenaavendincatacsse 5

ee icc a ide aspnupensaneunensenunnsieesqnsannonsansnenensse 20

TABLE OF AUTHORITIES

Cases:

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) ...... 10, 16

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985) ....... 8, 12, 13

. Atchison, T. & S.F. Ry. v. Buell, 480 U.S. 557 (1987) ...... 6, 8,

10, 16

Barrentine v. Arkansas-Best Freight System, Inc., 450

Nee oe on a ausned denekadsivekvetnesenecsanens 16

Brotherhood of R.R. Trainmen v. Central of Georgia Ry.,

SEED GME, BUIED snscessssscndscsessvecscososoeesanescocoss 17

Brotherhood of R.R. Trainmen v. Chicago R. & I. R.R.,

ia acne ri cedesisnsdsaeshanuensennnewnneacsecesss 6

Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989) .............. 4, 18

Colorado Anti-Discrimination Comm’n v. Continental

Air Lines, Inc., 372 U.S. 714 (1968) ...............ccccsccceees 10, 13, 19

Conrad v. Delta Air Lines, Inc., 494 F.2d 914 (7th Cir.

eee ised seid caiebdevicnsigibasoanosesssessasonsaesees 17

Consolidated Rail Corp. v. Railway Labor Executives’

Ass'n, 491 U.S. 200 (1989) .............ccrcccrrrrcssereees 4, 6, 7, 8, 9, 11

Edelman v. Western Airlines, Inc., 892 F.2d 839 (9th Cir.

le in can dnesdapentenaneneansnouheosenseeres 14

Elgin, J. & E. Ry. v. Burley, 325 U.S. 711 (1945), aff’d on

rehearing, 327 U.S. 661 (1946) ...............cssccccssseeeeeeeeees 6, 11

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987) ..... 10

Franklin v. Gwinnett County Public Schools, 112 S. Ct.

ae ai a tis hnepesantebnnanehnnbindeasstacsonuasien 15

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

Cir.), cert. denied, 498 U.S. 958 (1990) ................. 12-13, 14, 16

(III)

IV

Cases—Continued: Page

Hodges v. Atchison, T. & S.F. Ry., 728 F.2d 414 (10th

Cir.), cert. denied, 469 U.S. 822 (1984) ................... eee. 14

International Ass’n of Machinists v. Central Airlines,

eg Se is EE CIEE Giuiecltsseadasansnceunentasdcebanseassonanass 7

International Ass’n of Machinists v. Northwest Airlines,

re ee Se te i BI hic tecepnererceinnsnsnsdinsivstscns 17

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

CITE: nattnslichbnsaniehasinidgenibckauaassnieipdenaeiateceannetuesaenibas 4, 11, 12, 13

Local 174, Teamsters v. Lucas Flour Co., 369 U.S 95

SUTUNIEE Asudeloihachisnisduesaiccuenenndiakatenineneniacasousipaanesapsdiinnicabbiceies 11

Lorenz v. CSX Transportation, Inc., 980 F.2d 263 (4th

Aes SPIE susssnconneneininennnnicpevinncanennionnonnentéantnndsnunptnchbenseion 14

Magnuson v. Burlington Northern, Inc., 576 F.2d 1367

(9th Cir.), cert. denied, 439 U.S. 930 (1978) .................. 14

National R.R. Passenger Corp. v. International Ass’n of

Machinists, 915 F.2d 48 (1st Cir. 1990) .......0. 17

Railway Labor Executives’ Ass’n v. Boston & Maine

Corp., 808 F.2d 150 (ist Cir. 1986), cert. denied, 484

Se IN SIIPE scicchuncetnisisionaarsnchnentanbcanunahiedebbnasienapnainaneen 17

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

SITE <a hocssedbassdisstasdnicichcbmitienieithesetaltblacnisaanesiglidatiipenianinigntarwiniaie 17

Tello v. Soo Line R.R., 772 F.2d 458 (8th Cir. 1985) ......... 17

Texas & N.O. R.R. v. Brotherhood of Ry. & Steamship

I Se. Cs. SO III «ce ictctcnciantectatnentncnsncsenmitienennas 15

Textile Workers Union v. Lincoln Mills, 353 U.S. 448

SIIITIEL. siadcitbidbassaanecaacildasietemascinbacabiaedameicnsinaliakundnneamtiakiaiiahekdianen 1]

Trans World Airlines, Inc. v. Independent Federation of

Flight Attendants, 489 U.S. 426 (1989) .................eeee. 16, 17

Virginia Ry. v. Railway Employees, 300 U.S. 515

EIU TD . picsasniadsraleshiauasabsinieninnahdbneenarannnansincinbniatnninbtnininnnnis 15, 17

Walker v. Southern Ry., 385 U.S. 196 (1966) ................... 7

Wisconsin Dep’t of Industry, Labor & Human Relations

7; Gree Feet, SI Ee Te CI esivnncinsnecesescnncesnsssecesscss 19

Zimmerman v. Atchison, T. & S.F. Ry., 888 F.2d 660

ESTEE TEA SEITE <ssenicath oeniesnssctebitttniltadelsncbsknsibaetaebsckahdeledenensaddnabeaindemanles 14

Constitution and statutes: Page

U.S. Const. Amend. I ..............ccccccccccccccccccccsecevesescsccscceees 3

Act of Apr. 10, 1936, ch. 166, 49 Stat. 1189 .........-...:seeeee 7

Federal Employers’ Liability Act, 45 U.S.C. 51 ef seq. .... 16

Labor Managment Relations Act, 29 U.S.C. 141 ef seq. :

§ B01, 29 U.S.C. 185.002... ceccserceeseecsesessnssesenseeens 4, 11, 12, 13

§ 301(a), 29 U.S.C. 185 (a) .........ceeceeeeeeeeeneeeeeeneeeeeeeeeees 11

National Labor Relations Act, 29 U.S.C. 151 ef seq. ......... 3

Railway Labor Act, 45 U.S.C. 151 et 8@q. ...........sseeeeeeeeees 6

BE, UUG.G.. UBD B) vavescnccvcecssvessesessevenerescnsscnenvescosansasoss 6

BE TE BO conccavcanccseccsicastsscsisncveesievecsenasessinsimaennens 17

45 U.S.C. 162 Third ......:00c..ccceceveeseess 3, 5, 7, 15, 16, 17, 18, 19

45 U.S.C. 152 Fourth ...............008 2, 3, 5, 7, 15, 16, 17, 18, 19

45 U.S.C. 153 First (i) ...........sccccccccssccrsessscssvcccceoes 4, 6, 7, 14

45 U.S.C. 158 First (im) ...........ccccsccosccccceccsccesscsseseees 7

45, U.S.C. 188 Second .....cccccccccscscoscccccescssccccvevcsessesces 6, 7

BB U.S.C. 1B1-1BB ccccccescscccscscsesesscncccsscccsssecrsessonenecenss 7

BE Oe Fe vnenecsunvecacacscnasvcosnsnceasensuxsnenvecesvatnccareas 4, 6, 7, 14

. Ste Loe) ss pabnauecenusdtnavigencanenueeensetsrinmieteaets 3

Miscellaneous:

H.R. Rep. No. 1944, 73d Cong., Ea. | eee 6

In the Supreme Court of the Anited States

OCTOBER TERM, 1992

No. 92-1077

AMERICAN AIRLINES, INC., PETITIONER

Vv.

ScoTT DAVIES

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is submitted in response to the Court’s order

inviting the Solicitor General to express the views of the

United States.

STATEMENT

1. Petitioner employed respondent as an aircraft

mechanic in Tulsa, Oklahoma. Respondent was covered by

a collective bargaining agreement between petitioner and

the Transport Workers Union (TWU). That agreement

allowed petitioner to discharge respondent only for “just

cause.” Pet. App. 2a, 17a-18a.

Respondent served on the organizing committee of the

Airline Mechanics Fraternal Association (AMF A), which

was seeking to have a representation election held for the

craft employees represented by the TWU. On October 9,

(1)

2

1989, respondent placed an advertisement in the local

newspaper, announcing a debate between representatives

of the TWU and the AMFA. Without petitioner’s

authorization, respondent placed the name “American

Airlines” in the advertisement’s heading. The advertise -

ment was directed to all skilled labor and announced the

participants, place, and time of the debate. Pet. App. 2la-

22a, 25a.

After concluding that the advertisement violated its

work rules, petitioner instituted formal disciplinary action

against respondent. On October 19, 1989, petitioner

concluded that respondent’s unauthorized use of the words

“American Airlines” in the advertisement violated work

rule 21, which prohibits employees from making “false or

slanderous statements about the Company,” and work rule

24, which forbids employees from performing any act

“detrimental” to the welfare of the company or fellow

employees. Petitioner then informed respondent that he

would either have to sign a letter of commitment agreeing

to comply with company rules and regulations or be

discharged. Pet. App. 22a-23a.

Respondent refused to sign the letter of commitment.

Instead, on October 20, 1989, he filed suit in the United

States District Court for the Northern District of

Oklahoma, seeking a temporary restraining order against

his dismissal. Respondent alleged that petitioner was

terminating him because of his union organizing act-

ivities, in violation of the Railway Labor Act (RLA), 45

U.S.C. 152 Fourth. See Pet. C.A. App. Exh. 2. Later that

day, petitioner discharged respondent (Pet. App. 24a),

rendering his motion for a temporary restraining order

moot.

Respondent initiated an arbitration proceeding,

contending that his conduct did not violate the work rules.

Pet. App. 34a-35a. He did not contend, however, that his

termination was motivated by anti-union animus. [bid.

The grievance was referred to a System Board of

3

Adjustment, consisting of a company representative, a

union representative, and a neutral referee. On January

24, 1990, the Board determined that respondent had

violated the work rules and that discharge was an appro-

priate sanction. The Board noted that petitioner had

explained to respondent that great harm could result from

unauthorized use of petitioner’s name, particularly in

connection with an inter-union dispute. Nevertheless, the

Board explained, “he remained recalcitrant in admitting

error or in committing to desist from such action in the

future.” Pet. App. 38a-39a. Finally, the Board observed

that respondent had offered a “patently absurd excuse” for

his actions—specifically, that he had used the words

“American Airlines” to refer not to petitioner, but to all

airlines in America. Jd. at 36a, 39a. Under those cir-

cumstances, the Board upheld the discharge. Jd. at 39a.

The Board did not, however, address petitioner’s moti-

vation for the termination.

2. While the arbitration proceedings were pending,

respondent pursued the present civil action against

petitioner in federal district court.’ Respondent’s

amended complaint alleged that he was terminated “in

retaliation for his attempts to organize and designate

union representation of his choice” and that petitioner’s

action violated “public policy as found within * * * the

Railway Labor Act, 45 U.S.C. § 152 Third and Fourth” and

other sources of federal law. Pet. C.A. App. Exh. 10, at 1.’

1 In his first amended complaint, respondent alleged that federal

jurisdiction was proper because he was alleging a violation of his rights

under the RLA, 45 U.S.C. 152 Third and Fourth, to designate union

representation without employer interference. See Pet. C.A. App. Exh.

3, at }. In his second amended complaint, respondent relied on diversity

of citizenship under 28 U.S.C. 1332. See Pet. C.A. App. Exh. 10, at 1.

2 In addition to the RLA, respondent relied on the First Amend-

ment and the National Labor Relations Act (NLRA), 29 U.S.C. 151 et

seq. See Pet. C.A. App. Exh. 10, at 1-2.

i iis

4

Respondent sought compensatory and punitive damages

and either reinstatement or “front pay.” Jd. at 2.

Although the jury awarded respondent $81,000 in com-

pensatory damages and $15,000 in punitive damages (Pet.

5), the district court granted petitioner’s motion for

judgment notwithstanding the verdict. First, the court

noted that because respondent was not an at-will employee,

he could not bring a state tort action for “the discharge of

an at-will employee in violation of public policy.” Pet. App.

18a (discussing Burk v. K-Mart Corp., 770 P.2d 24 (Okla.

1989)). Second, the trial court held that, in any case, a

state-law public policy tort was unavailable, because of the

existence of an alternative remedy under the RLA. Pet.

App. 18a-19a; see id. at lla.

3. The court of appeals reversed. The court first

observed that the RLA provides an exclusive arbitral

remedy for “disputes * * * growing out of grievances or out

of the interpretation or application” of collective bargain-

ing agreements. 45 U.S.C. 153 First (i); see 45 U.S.C. 184;

Pet. App. 4a. The court determined, however, that the tort

action brought by respondent is not within the class of

disputes covered by Sections 153 First (i) and 184, which

are referred to under RLA case law as “minor disputes.”*

Relying on Lingle v. Norge Division of Magic Chef, Inc.,

486 U.S. 399 (1988), a case arising under Section 301 of the

Labor Management Relations Act (LMRA), 29 U.S.C. 185, |

the court of appeals held that a state-law claim is

preempted by the arbitral provisions of the RLA if the

resolution of the claim depends on the meaning of the

collective bargaining agreement. Pet. App. 6a.

8 The terms “major dispute” and “minor dispute” do not appear in

the RLA. Instead, this Court “adopted the major/minor terminology,

drawn from the vocabulary of rail management».nd rail labor, as a

shorthand method of describing two classes of controversy Congress

had distinguished in the RLA: major disputes seek to create contrac-

tual rights, minor disputes to enforce them.” Consolidated Rail Corp. v.

Railway Labor Executives’ Ass'n, 491 U.S. 299, 302 (1989).

- 5

In the court’s view, respondent’s retaliatory discharge

suit could be resolved without reference to the meaning of

the collective bargaining agreement. As the court

explained, “[t]he gravamen of [respondent’s] action is that

[petitioner’s] actual or primary motivation in firing him,

irrespective of any ‘just cause’ it may have had under the

[collective bargaining agreement], was to stop his

unionizing activity.” Pet. App. 7a.‘

4. In its petition for rehearing, petitioner argued for the

first time that even if respondent’s claim was not a minor

dispute, remediable solely through arbitration, any state-

law action based on retaliation for union organizing

activity would be preempted by 45 U.S.C. 152 Third and

Fourth—the provisions of the RLA that guarantee

employees the right to select their collective bargaining

representatives free of employer interference or coercion.

On September 8, 1992, the court of appeals denied the

petition without addressing that issue. Pet. App. 40a-41a.

DISCUSSION

In our view, the court of appeals correctly held that the

claim in this case is not subject to the RLA’s exclusive

arbitral mechanism. The courts of appeals have consis-

tently found that the RLA’s exclusive arbitral mechanism

for contract disputes does not foreclose a judicial remedy

to vindicate the federal statutory right of rail and airline

employees to select representatives of their choosing

without employer interference. At the same time, we

believe that respondent was required to bring his claim as

a federal cause of action under the provisions of the RLA

that protect an employee’s union organizing activities, 45

U.S.C. 152 Third and Fourth, and not as a state-law claim.

4 The court of appeals also concluded that the state tort action for

wrongful discharge in violation of public policy was not available only

to at-will employees. Pet. App. lla-l4a. Hence, it reversed the trial

court’s award of judgment notwithstanding the verdict and reinstated

the jury verdict in favor of respondent. /d. at 14a.

A

6

Petitioner did not timely raise this preemption issue,

however, so it was never addressed by the court of appeals.

There is no basis for concluding that the Tenth-Circuit (or

any other court of appeals) would allow such a state-law

action to proceed if the employer properly raises this

preemption defense in a timely manner. Accordingly,

there is no conflict in authority that warrants review at

this time.

1. The Railway Labor Act, 45 U.S.C. 151 et seq., was

enacted, inter alia, to establish a mechanism for “the

prompt and orderly settlement of all disputes growing out

of grievances or out of the interpretation or application of

agreements covering rates of pay, rules, or working

conditions.” 45 U.S.C. 151a(5); see 45 U.S.C. 153 First (i)

(establishing arbitral mechanism for such disputes); 45

U.S.C. 184 (arbitral provision for such disputes in airline

industry).° In resolving those so-called “minor disputes”

(Elgin, J. & E. Ry. v. Burley, 325 U.S. 711, 723 (1945), aff’d

on rehearing, 327 U.S. 661 (1946)), the RLA first requires

the parties to resort to a carrier’s “internal dispute

resolution processes.” Atchison, T. & S.F. Ry. v. Buell,

480 U.S. 557, 563 (1987); see 45 U.S.C. 153 First (i), 184. If

a dispute cannot be resolved internally, either party may

then refer it to “arbitration before the National Railroad

Adjustment Board * * * or before an adjustment board

established by the employer and the unions representing

the employees.” Consolidated Rail Corp. v. Railway

Labor Executives’ Ass’n, 491 U.S. 299, 303-304 (1989)

(Conrail); see 45 U.S.C. 153 First (i), Second.

5 Such disputes involve “controversies over the meaning of an

existing collective bargaining agreement in a particular fact situation.”

~ Brotherhood of R.R. Trainmen v. Chicago R. & I. R.R., 353 U.S. 30, 33

(1957); see H.R. Rep. No. 1944, 73d Cong., 2d Sess. 2-3 (1934) (the bill

“provide(s] sufficient and effective means for the settlement of minor

disputes known as ‘grievances’, which develop from the interpretation

and/or application of the contracts between the labor unions and the

carriers, fixing wages and working conditions”).

7

The submission of a dispute to arbitration is compulsory

upon the request of either party. 45 U.S.C. 153 First (i),

Second; see 45 U.S.C. 184; see also, e.g., Conrail, 491 U.S.

at 303; Walker v. Southern Ry., 385 U.S. 196, 198 (1966).

The decisions of an adjustment board are “final and

binding.” 45 U.S.C. 153 First (m), Second; see Conrail, 491

US. at 303.°

2. Petitioner argues that respondent’s allegations of

tortious activity should not have been adjudicated outside

the arbitral process. In our view, the court of appeals

correctly determined that respondent’s tort claim—

alleging that he had been discharged in violation of the

RLA’s policy against interfering with an employee’s

choice of union representative (45 U.S.C. 152 Third and

Fourth)—is not a minor dispute subject to the exclusive

arbitral mechanism of the Act.

a. The proper framework for evaluating the existence

of a minor dispute is set forth in this Court’s decision in

Conrail, supra. In that case, the Court addressed whether

a dispute over the carrier’s implementation of an employee

drug testing program was a “major” dispute over a change

in the collective bargaining agreement—subject to the

RLA’s bargaining and mediation provisions—or a “minor”

dispute—subject to compulsory arbitration.

In holding that the controversy at issue was a minor

dispute, the Court in Conrail looked “to whether a claim

6 A similar scheme exists for the airline industry—to which

Congress extended the RLA in 1936. Act of Apr. 10, 1936, ch. 166, 49

Stat. 1189; see 45 U.S.C. 181-188; International Ass’n of Machinists v.

Central Airlines, Inc., 372 U.S. 682, 685 (1963) (the purpose of the 1936

legislation was “to extend to air carriers and their employees the same

benefits and obligations available and applicable in the railroad indus-

try”). The principal difference, which is not material here, is that no

national adjustment board has been established for airlines; hence,

minor disputes are adjudicated exclusively by system adjustment

boards formed by the airlines and the unions under 45 U.S.C. 184. See

Conrail , 491 U.S. at 304 n.4; Central Airlines, 372 U.S. at 686.

8

has been made that the terms of an existing agreement

either establish or refute the presence of a right to take

the disputed action.” 491 U.S. at 305. As the Court

explained, “(t]he distinguishing feature of such a case [i.e.,

a minor dispute] is that the dispute may be conclusively

resolved by interpreting the existing [collective bargain -

ing] agreement.” Jbid. The Court made plain, moreover,

that parties may not trigger the RLA’s exclusive arbitral

framework merely by asserting a contractual claim based

on “insubstantial grounds.” Jd. at 306. Rather, when “an

employer asserts a contractual right to take [a] contested

action, the ensuing dispute is minor [only] if the action is

arguably justified by the terms of the parties’ collective -

bargaining agreement.” Id. at 307.

b. The conclusion of the court of appeals that re-

spondent’s tort claim does not constitute a minor dispute

is fully supported by this Court’s decision in Conrail.

Irrespective of any terms of the collective bargaining

agreement, respondent’s claim cannot be “conclusively

resolved” (Conrail, 491 U.S. at 305) by interpreting that

agreement. As the Tenth Circuit explained, the tort claim

in this case turned on a factual dispute about petitioner’s

motivation for terminating respondent—an issue that was

not even addressed in the grievance proceedings. Because

a collective bargaining agreement cannot eliminate sub-

stantive legal protections provided to employees indepen-

dent of the agreement (see Buell, 480 U.S. at 563;

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212 (1985)

(LMRA)), the tort claim in this case could not be resolved

by adjudicating the distinct legal question whether there

was just cause for respondent’s discharge under the labor

contract. Pet. App. 6a. Respondent could not prevail on

his tort claim even if he proved that petitioner lacked just

cause to dismiss him under the contract, because the tort

alleged required proof of unlawful animus. Conversely,

even if the court found that respondent’s work-rule

violations gave petitioner just cause to discharge him

9

under the collective bargaining agreement, that finding

could not “arguably justif[y]” (Conrail, 491 U.S. at 307) a

discharge motivated by anti-union animus. In other words,

as the court below concluded, this case does not present a

minor dispute because “[t]he gravamen of [respondent’s]

action is that [petitioner’s] actual or primary motivation in

firing him, irrespective of any ‘just cause’ it may have had

under the [collective bargaining agreement], was to stop

his unionizing activity.” Pet. App. 7a.

c. Petitioner contends that the court of appeals’ analy-

sis is insufficiently protective of the RLA’s exclusive

arbitral mechanism. Petitioner would read the “arguably

justified” language in Conrail to require arbitration in

motive-based tort cases whenever a carrier couches its

factual defense in the legal terms of the collective

bargaining agreement. Pet. 15-18. This argument mis-

construes Conrail and the statutory scheme.

i. There were two aspects of the inquiry into whether

a minor dispute existed in Conrail. First, the Court found

that a minor dispute is one that may be “conclusively

resolved” under the collective bargaining agreement. 491

U.S. at 305. Second, even if that threshold requirement is

met, a dispute may not be subject to arbitration as a minor

dispute if the basis for the contract claim is insubstantial

—that is, if the conduct is not even “arguably justified”

under the contract. Jd. at 306-307. Petitioner seeks to

turn that framework on its head. Although petitioner

framed its defense in a way that referenced the contract—

by arguing that it had just cause to dismiss respondent for

violating the work rules under the collective bargaining

agreement—respondent was not required to dispute that

issue under applicable tort standards. The legal issue of

just cause simply could not, as set forth, “conclusively

resolve” a tort claim that turns on the factual question

whether petitioner terminated respondent because of anti-

union animus.

10

ii. Petitioner’s interpretation of the statute would

result in unduly broad preemption of state tort law, in

contravention of this Court’s precedents. Because “the

text of the RLA does not mention * * * tort liability”

(Buell, 480 U.S. at 562), the Act does not preempt States

from adopting minimum substantive tort law duties, even if

those duties relate to employment relationships covered by

the Act. That conclusion is evident from this Court’s

decision in Colorado Anti-Discrimination Comm’n v.

Continental Air Lines, Inc., 372 U.S. 714 (1963). There,

this Court rejected the claim that the RLA preempted

a state statute “protecting employees against racial

discrimination.” Jd. at 724. As the Court emphasized,

“[nJo provision in the [RLA] even mentions discrimination

in hiring,” and nothing in the Act “suggests that [it]

places upon an air carrier a duty to engage only in fair

nondiscriminatory hiring practices.” /Jbid. Because the

RLA “has never been used for that purpose,” this Court

found that the RLA did not preempt the state anti-

discrimination statute at issue. /bid.

In light of Colorado Anti-Discrimination Comm’n, the

compulsory arbitration provisions of the RLA do not

preempt claims premised upon state-law duties in areas of

legitimate state concern that are independent of those

assumed under the collective bargaining agreement.

Otherwise, state regulation would be substantially dis-

placed, or arbitrators would be required to adjudicate

issues of state tort law. Neither result is consistent with

this Court’s cases governing the regulation of labor

relations. See, e.g., Fort Halifax Packing Co. v. Coyne,

482 U.S. 1, 21, 23 (1987) (“pre-emption should not be lightly

inferred,” because “the establishment of labor standards

falls within the traditional police power of the State[s]”

and “does not impermissibly intrude upon the collective-

bargaining process”); Alexander v. Gardner-Denver Co.,

415 U.S. 36, 53 (1974) (arbitrators excced their authority if

il

they premise their decisions on a source of law outside the

collective bargaining agreement).’

d. Pet:.ioner further contends (Pet. 16) that the court

of appeals erred in relying on Lingle v. Norge Division of

Magic Chef, Inc., 486 U.S. 399 (1988), a case arising under

Section 301(a) of the LMRA, 29 U.S.C. 185(a), and not the

RLA. We disagree.

Section 301(a) authorizes federal jurisdiction over

“{sjuits for violation of contracts between an employer and

a labor organization representing employees in an

industry affecting commerce as defined in this [Act], or

between any such labor organizations.” 29 U.S.C. 185(a).*

The Court in Lingle held that Section 301 did not preempt

7 We disagree with petitioner’s contention (Pet. 18-19) that this

Court’s reference to the “omitted case” in Burley, 325 U.S. at 723,

requires every dispute incidental to the employment relationship to be

processed through the RLA’s exclusive arbitral mechanism. Burley

described a minor dispute as one that relates “either to the meaning or

proper application of a particular provision with reference to a specific

situation or to an omitted case.” 325 U.S. at 723. As this Court has

noted, not all aspects of the contractual relationship between the union

and employer are found in the particular provisions of a labor contract;

rather, because a collective bargaining agreement must “govern a

myriad of cases which the draftsmen cannot wholly anticipate,” an

agreement’s express terms are necessarily supplemented by “practice,

usage and custom.” Conrail, 491 U.S. at 311-312. Properly understood,

the “omitted case” merely refers to practice, usage, or custom that

becomes part of the contractual relationship that the arbitrator

enforces. Petitioner’s broader reading of Burley—which would displace

tort remedies for any dispute arising from railroad or airline employ-

ment—is inconsistent with the limited preemptive force of the arbitral

provisions of the RLA.

8 Under this Court’s cases, disputes requiring the interpretation of

iabor contracts covered by Section 301 are governed by federal common

law rules that preempt state rules of decision. See Textile Workers

Union v. Lincoln Mills, 353 U.S. 448, 456 (1957); Local 174, Teamsters

v. Lucas Flour Co., 369 U.S. 95, 103 (1962). In Lingle, this Court

addressed the extent to which preemption under Section 301 extends to

tort claims arising from the employment relationship.

12

a state tort of retaliatory discharge for filing a worker’s

compensation claim. Noting that the elements of the

state-law claim consisted of (1) dismissal of an employee

and (2) a motive to deter or interfere with his filing a

worker’s compensation claim, the Court concluded:

Each of these purely factual questions pertains to the

conduct of the employee and the conduct and

motivation of the employer. Neither of the elements

requires a court to interpret any term of a collective-

bargaining agreement. To defend against a retaliatory

discharge claim, an employer must show that it had a

nonretaliatory reason for the discharge * * *; this

purely factual inquiry likewise does not turn on the

meaning of any provision of a collective-bargaining

agreement.

486 U.S. at 407. Accordingly, the Court found that the

state tort was “ ‘independent’ of the collective-bargaining

agreement” because its resolution did “not require

construing [that] * * * agreement.” /bid. (emphasis added).

Lingle supplies an appropriate analogy in this case. To

be sure, the standard for preemption articulated under

Lingle—whether a state law claim requires the interpre-

tation of a labor contract—is articulated somewhat

differently from the standard for finding a minor dispute

under Conrail—whether a dispute may be conclusively

resolved by interpreting the collective bargaining

agreement. It is also true that the RLA, unlike the

LMRA, requires the arbitration of contract claims within

its sweep.° See Grote v. Trans World Airlines, Inc., 905

® That distinction between the RLA and the LMRA should not be

overstated. In establishing the framework for determining when a

state tort action is preempted under Section 301, this Court confronted

the need to “preserve[] the central role of arbitration in our ‘system of

industrial self-governance.’” Lueck, 471 U.S. at 219. The Court noted

that the “need to preserve the effectiveness of arbitration was one of the

central reasons that underlay the Court’s [preemption] holding in Lucas

’ call

Oa

13

F.2d 1307, 1309-1310 (9th Cir.), cert. denied, 498 U.S. 958

(1990). Nevertheless, Lingle is instructive in the RLA

context, because its analysis addresses a question common

to both statutes—how to accommodate the federal interest

in uniform interpretation of collective bargaining agree-

ments and the legitimate interest of the States in adopting

standards of conduct for employers subject to their police

power. Compare, e.g., Lingle, 486 U.S. at 409 (LMRA

“says nothing about the substantive rights a State may

provide to workers when adjudication of those rights does

not depend upon the interpretation of [collective bar-

gaining] agreements”) and Lueck, 471 U.S. at 212 (because

LMRA “does not grant the parties to a collective-

bargaining agreement the ability to contract for what is

illegal under state law,” “it would be inconsistent with

congressional intent under [Section 301] to pre-empt state

rules that proscribe conduct, or establish rights and

obligations, independent of a labor contract”) with Color-

ado Anti-Discrimination Comm’n, 372 U.S. at 724 (RLA

does not preempt state anti-discrimination law).

Accordingly, although it is unclear whether the stan-

dards set forth in Lingle and Conrail would lead to the

same result in every case, we believe that the court of

appeals properly consulted the policies underlying Lingle

to assist in defining the line between federal contract

claims and tort claims in this case. In any case, because

the court’s decision was correct under Conrail, this case

does not require consideration of the practical differences,

if any, that may distinguish the Lingle and Conrail tests.

3. Petitioner argues (Pet. 19-20) that this case

warrants further review to resolve a conflict among the

Flour,” and that the standard for preemption under Section 301 must

protect the parties’ “federal right to decide who is to resolve contract

disputes.” 471 U.S. at 219. Thus, although RLA preemption protects a

direct statutory right to arbitration, LMRA preemption protects a

statutory right to contract for an arbitral remedy.

14

circuits on the question whether retaliatory discharge

claims are preempted under the RLA.

a. Petitioner relies (Pet. 20) on several cases holding

that a state-law tort of retaliatory discharge is, in effect, a

wrongful discharge claim subject to preemption under the

RLA. Only one of those cases, however, Grote v. Trans

World Airlines, Inc., 905 F.2d 1307, 1309-1310 (9th Cir.),

cert. denied, 498 U.S. 958 (1990), was decided subsequent to

this Court’s decisions in Conrail and Lingle. As set forth,

those decisions clarified the proper approach for iden-

tifying RLA disputes subject to arbitration under

Sections 153 First (i) and 184 and clarified the con-

siderations that distinguish a substantive tort law claim

from a claim implicating federal interests in uniform labor

contract interpretation. Because this case was correctly

decided under Conrail and Lingle, the earlier court of

appeals decisions do not present a conflict warranting

further review.'°

10 Petitioner cites (Pet. 20 n.4) a number of decisions finding

preemption where the rights asserted under state law were derived

from the terms of the collective bargaining agreement. See Edelman

v. Western Airlines, Inc., 892 F.2d 839, 844-845 (9th Cir. 1989);

Zimmerman v. Atchison, T. & S.F. Ry., 888 F.2d 660, 662 (10th Cir.

1989) (per curiam); Hodges v. Atchison, T. & S.F. Ry., 728 F.2d 414,

416-417 (10th Cir.), cert. denied, 469 U.S. 822 (1984); Magnuson v.

Burlington Northern, Inc., 576 F.2d 1367, 1368-1370 (9th Cir.), cert.

denied, 439 U.S. 930 (1978). In contrast, respondent’s claim is wholly

independent of any rights he may have had under the collective

bargaining agreement.

Petitioner also relies (Pet. 8) on Lorenz v. CSX Transportation, Inc.,

980 F.2d 263 (4th Cir. 1992), in which an employee brought a tort action

for defamation arising out of statements made by his employer during a

grievance adjustment and disciplinary action. We note that the RLA

provides for arbitration of disputes “growing out of grievances or * * *

the interpretation or application” of the collective bargaining agree-

ment. 45 U.S.C. 153 First (i); see 45 U.S.C. 184. Where an employee

files a lawsuit alleging that an employer engaged in misconduct during

the grievance process, such a claim may be preempted under the RLA.

15

b. Although the Ninth Circuit’s decision in Grote is

premised upon a broader view of RLA preemption than the

decision below, we do not believe that the differing

approaches of the two courts call for the Court’s review in

this case. For the reasons set forth below, there is

a substantial basis to conclude that both circuits may well

resolve this issue in the same way in future cases.

i. The basis for the public policy tort alleged by

respondent is the right, codified in 45 U.S.C. 152 Third and

Fourth, of employees to select a collective bargaining

representative without carrier coercion or interference. !!

In Grote, the employee alleged state torts of breach of the

covenant of good faith and fair dealing, intentional and

negligent infliction of emotional distress, and defamation.

That distinction is significant. In finding that arbitration

represented the employee’s sole available remedy, the

court in Grote emphasized that the result would have been

Here, however, the dispute turns on the decision to terminate

respondent, not the process by which the termination was accomplished.

11 Section 152 Third provides that neither the carrier nor the

employees “shall in any way interfere with, influence, or coerce the

other in its choice of representatives.” Section 152 Fourth, moreover,

states that “[nJo carrier * * * shall deny or in any way question the

right of its employees to join, organize, or assist in organizing the labor

organization of their choice, and [that] it shall be unlawful for any

carrier * * * to influence or coerce employees in an effort to induce them

to join or remain or not to join or remain members of any labor

organization.” This Court has recognized an implied right of action to

enforce Section 152 Third and Fourth. See Texas & N.O. R.R. v.

Brotherhood of Ry. & Steamship Clerks, 281 U.S. 548, 554-555, 569-570

(1930) (injunctive relief against carrier’s interfering with, influencing,

or coercing employees in organization and designation of representa-

tive); Virginia Ry. v. Railway Employees, 300 U.S. 515, 543-544 (1937)

(dictum). While the Court has never defined in detail the scope of

available relief under those provisions, it has indicated generally that

when a private right of action is authorized, the Court will “presume

the availability of all appropriate remedies unless Congress has

expressly indicated otherwise.” Franklin v. Gwinnett County Public

Schools, 112 S. Ct. 1028, 1032 (1992).

16

quite different if federal claims had been at issue. 905 F.2d

at 1310.

As the court in Grote explained (905 F.2d at 1310), this

Court in Buell, supra, recognized that the RLA’s strong

policy in favor of arbitration must give way when

an employee’s cause of action arises from a federal statute

“designed to provide minimum substantive guarantees to

individual workers.” 480 U.S. at 565; see, e.g., Barrentine

v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 737

(1981) (policy favoring arbitration under LMRA does not

foreclose FLSA claim); Alexander v. Gardner-Denver

Co., 415 U.S. 36 (1974) (same for Title VII claim). In Buell,

the Court held that a railroad employee could maintain an

action for negligence under the Federal Employers’

Liability Act, 45 U.S.C. 51 et seq., even though that claim

may have been subject to arbitration under the RLA. 480

U.S. at 564-567. Because Congress enacted the FELA to

provide a remedy for workers injured by an employer’s or

co-worker’s negligence, the Court found it “inconceivable”

that Congress intended to limit federal relief to the

arbitral remedies for minor disputes under the RLA. 480

U.S. at 565. The Court emphasized, moreover, that the

FELA was designed to provide workers with “substantive

protection * * * independent of the employer’s obligations

under its collective-bargaining agreement.” Ibid.

Consistent with the reasoning of Buell, the courts of

appeals have uniformly recognized that the RLA’s minor

dispute mechanism does not displace civil actions based on

discrimination against an employee for exercising rights

protected by and judicially enforceable under the RLA.”

12 We note that Section 152 Third and Fourth have force principally

in the pre-certification context, when employees are selecting a

collective bargaining representative. See, e.g., Trans World Airlines,

Inc. v. Independent Federation of Flight Attendants, 489 U.S. 426, 440-

441 (1989). We believe, however, that the force of the RLA’s protections

logically must extend to representational disputes arising from an

employee’s efforts to select a new bargaining representative. As is the

17

See, e.g., Railway Labor Executives’ Ass’n v. Boston &

Maine Corp., 808 F.2d 160, 157-158 (1st Cir. 1986), cert.

denied, 484 U.S. 830 (1987); Roscello v. Southwest Airlines

Co., 726 F.2d 217, 219-220 & n.2 (5th Cir. 1984) (allegation of

discharge for union activity, in violation of Section 152, not

preempted); Conrad v. Delta Air Lines, Inc., 494 F.2d 914,

918 (7th Cir. 1974) (same); Brotherhood of R.R. Trainmen

v. Central of Georgia Ry., 305 F.2d 605, 607-609 (5th Cir.

1962) (same). Petitioner has not cited, and we are unaware

of, any decision holding that a lawsuit to enforce union

organizing rights under Section 152 of the RLA is

foreclosed by the minor dispute mechanism of the RLA.”

it. In addition, petitioner errs in contending (Pet. Reply

Br. 3) that Buell is inapposite here, and that arbitration is

required, because respondent proceeded on a state-law

cause of action.'* To the extent that petitioner challenges

\

case in the pre-certification context, the dispute resolution procedures of

the RLA—which are implemented by the carrier and the union—are

unlikely te be effective when the allegation is that the employee was

penalized by the employer for seeking to organize a new union.

18 The availability of federal jurisdiction over cases arising under

Section 152 Third and Fourth does not undermine the arbitral

mechanism of the RLA. Particularly in cases involving an existing

bargaining relationship, rather than an attempt to secure representa-

tion, a district court must dismiss or grant summary judgment on

jurisdictional grounds unless the plaintiff has made and supported

substantial allegations of anti-union animus. See, e.g., National R.R.

Passenger Corp. v. International Ass’n of Machinists, 915 F.2d 43, 50-53

(1st Cir. 1990); Tello v. Soo Line R.R., 772 F.2d 458, 461-462 (8th Cir.

1985); International Ass'n of Machinists v. Northwest Airlines, Inc., 673'

F.2d 700, 709-712 (3d Cir. 1982) (district court must look at merits before

taking jurisdiction). In establishing a claim under Section 152 Third

and Fourth, moreover, the plaintiff bears a heavy burden. See Trans

World Airlines, 489 U.S. at 440-441; Virginia Ry., 300 U.S. at 549-553.

14 In any case, while it is true that respondent framed his claim as a

state-law tort of discharge in violation of public policy, that claim

rested ultimately on federal rights. The Oklahoma public policy tort is

available when a discharge “is contrary to a clear mandate of public

18

the award of state-law relief for a violation of the rights

established by Section 152 Third and Fourth, that

contention is properly viewed as a claim that those

provisions of the RLA preempt state law on the subject

matter of unlawful interference with union organizing.”

Petitioner does not dispute that Buell would permit

respondent to bring this suit under the RLA outside the

arbitral process. See Pet. Reply Br. 3. Nor does

petitioner contest that an employee has judicially enforce-

able rights under Section 152 Third and Fourth. See Pet.

13-14. Thus, petitioner does not in fact contest res-

pondent’s right to bring a lawsuit claiming that he was

discharged on the basis of anti-union animus; rather, it

maintains that that right should have been measured

exclusively by federal law.

In our view, the federal cause of action available to

redress violations of the RLA preempts a state-law cause

of action, such as that asserted here, seeking damages

under state law for violations of Section 152 Third and

Fourth. The standards of liability and scope of redress

available for such violations should be governed exclu-

policy as articulated by constitutional, statutory or decisional law.”

Burk v. K-Mart Corp., 770 P.2d 24, 28 (Okla. 1989). Here, as we have

noted, respondent exclusively alleged violations of federal law. See

Pet. C.A. App. Exh. 10, at 1-2 (Second Amended Complaint). In effect,

respondent's action is an effort to secure state-law remedies for the

federal right—explicitly guaranteed by the RLA—to engage in union

organizing without coercion or interference by the employer. See Pet.

C.A. App. Exh. 10, at 1 (Second Amended Complaint); Br. in Opp. 3.

16 Apart from the question whether the arbitral provisions of the

RLA preempt a lawsuit to enforce union organizing rights, petitioner

presents the distinct question whether the provisions of the RLA that

guarantee union organizing rights preempt a state-law cause of action.

As we explain below, that issue is not presented in this case, because

petitioner did not timely raise it in the courts below.

19

sively by federal law.'* As petitioner acknowledges (Pet.

21 n.5.), however, it did not raise the preemptive effect of

Section 152 Third and Fourth until its petition for

reheuring in the court of appeals. The court of appeals

denied the petition without addressing that issue. And, as

petitioner notes (Pet. 21), neither this Court nor any court

of appeals has squarely addressed that issue. As a result,

it is not at all clear that the Tenth Circuit (or any other

circuit) would permit the state-law claim alleged here to

proceed if this distinct issue of RLA preemption were to be

raised and adjudicated in a subsequent case. There is

accordingly no conflict that warrants review at this time.

16 We do not believe that Congress intended to permit state law to

serve as the basis for a judicial remedy for the rights covered by

Section 152 Third and Fourth. That view is strongly supported by this

Court’s decision in Colorado Anti-Discrimination Comm’n, 372 U.S. at

724, which held that state anti-discrimination laws are not preempted

because the RLA does not address that subject matter. Because

Congress spoke with precision to the question of interference with the

choice of a bargaining representative, state law should not be permitted

to disrupt the careful scheme of relief that Congress crafted under the

RLA. Cf. Wisconsin Dep't of Industry, Labor & Human Relations v.

Gould Inc., 475 U.S. 282, 286 (1986) (to prevent any conflict with the

NLRA’s “complex and interrelated federal scheme of law, remedy, and

administration,” principles of NLRA preemption prevent States from

“providing their own regulatory or judicial remedies for conduct

prohibited or arguably prohibited by the Act”).

20

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

MAY 1993

WILLIAM C. BRYSON

Acting Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney General

MAUREEN E. MAHONEY

Deputy Solicitor General

JOHN F. MANNING

Assistant to the Solicitor General

WILLIAM KANTER

JEFFREY A. CLAIR

Attorneys