Petition for Writ of Certiorari — Toski v. McDonnell
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97.217 MAY 27 199
No. OFFICE OF THE CLERK
IN THE
Supreme Court of the Huiteds States
OCTOBER TERM, 1996
RUCE RICHARD TOSKI,
Petitioner,
v.
WILLIAM J. MCDONNELL
KENDALL G. WILLIAMS
JEFFERSON H. HENRY
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Bruce Richard Toski - Petitioner pro se
2361 S.W. 36th Terrace
Fort Lauderdale, FL 33312-4291
(954) 583-4191
QUESTION PRESENTED
Whether the District Court erred by applying the narrow test for
preemption articulated in Andrews v. Louisville & N.R. Co., 406 U.S.
320 (1972), to find that all eight (8) of petitioner’s claims were
preempted by the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et
seq., contrary to the plain language and intent of the RLA and the
unanimous decision of the United States Supreme Court in Hawaiian
Airlines, Inc. V. Grant T. Norris (No. 92-2058), 512 U.S. __, 129
Le.Ed.2d 203, 114 S.Ct 2239 (1994).
PARTIES TO THE PROCEEDING
Anania, Francis A. - Counsel for respondents
Blackwell, Donald A. - Counsel for respondents
Davis, Edward B. - United States District Court Judge
Eastern Air Lines, Inc. - Assisted counsel for respondents
Friedman, Jonathan S. - Counsel pro hac vice for petitioner
at the U.S. Court of Appeals
Henry, Jefferson H. - Respondent
Hite, M. Catherine - Counsel for respondents
a
McDonnell, William J. - Respondent ;
O’Brien, Richard F. - Counsel for respondents |
Toski, Bruce Richard - Petitioner
Turnoff, William C. - U.S. District Court Magistrate
Williams, Kendall G. - Respondent
ii
OPINIONS BELOW
Magistrate’s Report re: Summary Judgment ............. Appendix 67a
Judge Davis Order adopting Magistrate’ s Report .... Appendix 21a
Eleventh Circuit Court of Appeals Order affirming lower court
INN sstssbisncccebiltalcncscchceisatddeccbilisicieitiinninimnbintiiis Appendix 25a
JURISDICTION
Petitioner pro-se, filed suit against the respondents in Dade
County Circuit Court under Case #90-51972-CA-01 (Appendix 1a)
on October 23, 1990. The case was removed to federal court based
on partial reference to federal labor law in Count IV. Plaintiff's nine
(9) count complaint survived a Motion to Dismiss with the court only
striking Count VIII and part of Count I (R. 1-21)'. Four years later,
after denying the petitioner (1) an Opportunity to amend his initial
complaint (R. 6-168), and (2) oral argument, the district court issued
an Order (Appendix 21a) granting the respondents’ motion for
summary judgment (R. 4-97) on January 31, 1994.
Appellant filed a timely appeal (R. 6-180) (Appendix 23a)
to the Eleventh Circuit Court of Appeals on February 25, 1994. On
December 10th, 1996, the U.S. Court of Appeals for the Eleventh
Circuit affirmed (Appendix 25a) the lower court’s decision.
On December 30, 1996, petitioner filed a suggestion for a
rehearing en banc (Appendix 27a). The Court of Appeals for the
Eleventh Circuit denied (Appendix 37a) this suggestion on February
26, 1997. Petitioner herein filed a Petition for Writ of Certiorari
within the 90 day period specified in 28 U.S.C. § 2101(c). On June
Sth, 1997 the clerk of this Court responded to said petition and
allowed the petitioner 60 days to make necessary corrections.
This Court has jurisdiction to review this judgment of the
Court of Appeals pursuant to 28 U.S.C. § 1254(1).
References to the record. The first number is the volume #, the
second number is the docket entry.
STATUTES & CONSTITUTIONAL PROVISIONS.
AMENDMENT [VIL] “In suits at common law, where the
value in controversy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury, shall be otherwise
reexamined in any court of the United States , than according to the
rules of the common law.” -
AMENDMENT [V.] “No person shall... be deprived of
life, liberty, or property, without due process of law . . .”
RAILWAY LABOR ACT The pertinent sections of the
Railway Labor Act (RLA) 45 U.S.C. §151, et seg. are reproduced at
Appendix 39a.
28 U.S.C. § 2101(c) “Any other appeal or any writ or
certiorary intended to bring any judgment or decree in a civil action,
suit or proceeding before the Supreme Court for review shall be
taken or applied for within ninety days after the entry of such
judgment or decree.”
28 U.S.C. § 1254(1) “Cases on the courts of appeals may
be reviewed by the Supreme Court by the following methods:
(1) By writ of certiorari granted upon the petition of any party to any
civil or criminal case, before or after rendition of judgment or
decree...”
acd te AN Repetto x
STATEMENT OF THE CASE
A. Facts. Petitioner Bruce Richard Toski was hired on as a shop
laborer at Eastern Air Lines (EAL) on June 22, 1976. Subsequently,
the petitioner joined the International Association of Machinists’
union (IAM). In 1980 the petitioner was promoted to stock clerk
and then to mechanic in 1984. On October 16, 1986 the second shift
Ground Service Equipment (GSE) mechanics elected the petitioner
as Shop Steward. The respondents herein, are three airline officers
who directed, confirmed or ratified the discharge of the plaintiff from
his employment at EAL. The relationship between the petitioner and
the respondents was conditioned by federal laws, state laws, common
law, and finally by the Collective Bargaining Agreement (CBA)
entered into between EAL and the IAM. The CBA was made and
2
|
entered into in accordance with the provisions of the Railway Labor
Act (see Preamble to the CBA). The labor contract was of three years
duration, amenable on December 31, 1987 (CBA App. No. 26).
Petitioner had fully served the 120 day probationary period specified
in Article 7 of the CBA. Employees who had passed the
probationary period accrued seniority and could only be discharged
“for cause” (CBA Article 15E). Article 18 and 19 of the CBA stated
the steps required by both EAL and the IAM in connection with
terminations or discharges.
After 10 years meritorious service, the petitioner’s
employment at EAL was terminated by respondent Williams. This
dismissal occurred one (1) day after the petitioner filed a report with
the first aid department documenting an incident between
respondent McDonnell and the petitioner. Said incident occurred
with only two (2) minutes left to go at the end of the shift, when
McDonnell attacked the petitioner, in the men’s room, while
attempting to serve him a disciplinary letter.
B. Proceedings. The petitioner complied with all of the
procedures in Articles 18 and 19 of the CBA to appeal his discharge
to the system Board of Adjustment (SBA). However, while
petitioner’s SBA appeal was pending, EAL , in 1989, filed for
bankruptcy and all litigation was stayed by order of the bankruptcy
court. Petitioner filed the requisite proof of claims against EAL in
the N.Y. District Court. Apart from the EAL litigation, the petitioner
filed a complaint (Appendix 1a) in October of 1990 against his
former GSE supervisors (respondents) at EAL. EAL was not named
as a party in this lawsuit. Four (4) years later, in February of 1994,
the district court summarily decided - without benefit of oral
argument - that the petitioner had no legal basis to a jury trial and
granted (Appendix 21a) the respondents’ motion for summary
judgment. The Eleventh Circuit Court of Appeals affirmed
(Appendix 25a) with a short paragraph stating that the petitioners’
arguments were “meritless”. The opinion refused to address the on
point, unanimous decision of this Court clearly stated in Hawaiian
3
ines, Inc. V. Grant T. Norris, (No. 92-2058), 512 U.S. __, 129
Air] 2d 203, 114 S.Ct 2239 (1994)(Appendix 47a) and failed to
L.Esin why the arguments advanced by the petitioner were
©Xfritless”.
a REASONS FOR GRANTING THE WRIT
The decision of the Eleventh Circuit Court of Appeals in the
a sub-judice is in direct conflict with several Supreme Court
decStons: Hawaiian Airlines, Inc. v. Grant T. Norris (No. 92-2058),
517U-S.__ , 129 L.Ed.2d 203, 114 S.Ct. 2239 (1994), Lingle v.
Nox? Div. of Magic Chef, Inc., 486 US 399, 108 S.Ct.1877 (1988),
andinally Walker v. Southern Railway Company, 385 U.S. 196, 87
s, ¢t. 365 (1966). Only Norris was decided subsequent to the order
of the district court that granted summary judgment to the
defndants. Although Lingle and Walker are on point, one only need
loo: to the learned decision in Norris for guidance and finality to
preent a breach of the appellant’s substantive right to a trial by jury
in te case sub judice.
Norris is on point factually and legally. The plaintiff in
Novis - like the plaintiff herein - was an airline mechanic who was
als‘ terminated for alleged insubordination and refusing to perform
4M insafe repair. Like the plaintiff herein, Norris appealed his
"ination to the SBA, and subsequently filed separate actions
ac st the airline and against three (3) airline officers who directed,
corsrmed or ratified the retaliatory discharge. Like the case at bar,
\y of Norris’s claims were dismissed by the trail court as being
tert
ma
pre:
ren’ mpted by the RLA for alleged failures to exhaust administrative
coredies. The Supreme Court of Hawaii reversed both cases,
acti/uding that the RLA did not pre-empt respondent’s state tort
Norns. Norris v. Finazzo, 74 Haw. 235, 842 P.2d 634 (1992);
Theis v. Hawaiian Airlines, Inc., 74 Haw 648, 847 P.2d 634 (1993).
claicourt pointed to Lingle in which the Supreme Court held that a
1 of wrongful termination in retaliation for filing a state worker’s
eee
compensation claim’ did not require interpretation of a collective-
bargaining agreement, but depended upon purely factual questions
concerning the employee’s conduct and the employer’s motive. Jd.
at 407. One year later the Supreme Court affirmed and upheld the
decision of the Supreme Court of Hawaii. In a unanimous decision
the Court held:
“. . (W)e agree with the Supreme Court of Hawaii
that (Norris’s) claims for discharge in violation of
public policy and in violation of the Hawaii
Whistleblower Protection Act are not pre-empted by
the RLA, and we affirm that court’s judgment.”
Norris at 17.
Like Norris, the petitioner’s claims are based primarily upon state
law. Further, the petitioner’s claims, e.g. Battery, Negligent
Retention, etc., do not rquire interpretation of a collective
bargaining agreement, but instead depend upon purely factual
questions concerning the petitioner’s conduct and the respondents’
motives.
CONCLUSION
The U.S. Supreme Court has stated unequivocally that the RLA does
not displace state legal rules providing substantive protection for
employees, and that the RLA does not require extra contractual
causes of action be heard by SBAs. For the reasons stated above, the
judgment of the Court of Appeals for the Eleventh Circuit should be
reversed and remanded.
reap sd subunits Lal [st ot day of “ fa
Bruce Toski - Plaintiff, pro se
2361 S.W. 36 Terrace, Fort Lauderdale, FL 33312-4291
Tel: (954) 583-4191
? Petitioner herein was terminated the day after he filed a
Worker’s Compensation claim with EAL’s first aid department.
Ss
Rk. ERE. Ee
a
APPENDIX
ORDERS:
District Court Magistrate Turnoff’s Report & Recommendation
re: respondents’ Motion for Summary Judgment ...........00... 67a
District Court Judge Davis' granting of the respondents’
Motion for Summary Judgment .00..0..00.000.00000000sssessesseeoeeee.c..., 2la
U.S.C.A. (11th) opinion Affirming above Order o......ccecccceceoes... 25a
U.S.C.A. (11th) Order denying petition Sor rehearing .........0.... 37a
STATUTES:
Railway Labor Act (RLA) 45 U.S.C. §151, et NE wv einseionencendaiion 39a
OPINIONS RELEVANT TO THIS CASE:
Hawaiian Airlines, Inc. V. Grant T. Norris (No. 92-2058),
512 U.S. ___, 129 Le.Ed.2d 203, 114 S.Ct 2239 (1994) 00.00... 47a
OTHER RELEVANT MATERIAL:
Original Complaint filed in Circuit COUPE .o..cc.cc0ccc0ce0.ce000000........ la
Notice of Appeal to the Eleventh Circuit Court of Appeals ...... 23a
Suggestion for Rehearing En Bane ....0..00..s00+ssssssssesseesesesesseecce.., 27a
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT OF
FLORIDA, IN AND FOR DADE COUNTY
BRUCE RICHARD TOSKI,
CASE NO. 90 - 51972
Plaintiff, JUDGE: ROBINSON|
vs. AJURY TRIAL
IS DEMANDED
WILLIAM J. MCDONNELL,
JEFFERSON H. HENRY,
and
KENDALL G. WILLIAMS,
Defendants.
l
COMPLAINT
Plaintiff, BRUCE RICHARD TOSKI, pro se, sues the Defendants,
WILLIAM J. MCDONNELL, JEFF HENRY, and KEN WILLIAMS, and
alleges:
L_JURISDICTION AND PARTIES
1. The jurisdiction of this court is based on the amount in
controversy, which exceeds for each Defendant, exclusive of costs
and interest, the sum of $30,000.00.
2. Plaintiff is a student and resident of Broward County, Florida.
3. Plaintiff started working for Eastern Air Lines (hereinafter
EAL or the company) on June 22, 1976 as a shop laborer. At the
same time the Plaintiff joined the International Association of
Machinists and Aerospace Workers (hereinafter LIAMAW or the
union), which acted as the chief bargaining agent for the Plaintiff in
disputes arising out of employment. In 1980 Plaintiff was promoted
la
to the stock department. On April 24, 1984 Plaintiff was promoted
to mechanic at the Ground Service Equipment (hereinafter GSE)
shop under the supervision of Defendant HENRY. Plaintiff worked
in the GSE shop until he was terminated by Defendant WILLIAMS
on November 7, 1986.
4. Defendant, WILLIAM J. MCDONNELL, is a resident of
Broward County, who was employed as Plaintiff's supervisor at
EASTERN AIR LINES in Dade County, Florida.
5. Defendant, JEFF HENRY, is a resident of Broward County,
who was employed as Plaintiff's foreman, and later as Plaintiff's
general foreman at EASTERN AIR LINES in Dade County, Florida.
6. Defendant, KEN WILLIAMS, is a resident of Broward
County, who was employed as Plaintiff's manager at EASTERN AIR
LINES in Dade County, Florida.
7. The incidents complained of in this lawsuit all took place in
Dade County, Florida.
8. The "Agreement" referred to in this complaint is incorporated
by reference as "Exhibit A". The "Agreement" was made and
entered into in accordance with the provisions of the Railway Labor
Act, by and between EAL and the IAMAW. The purpose of the
"Agreement" was basically to cover working conditions and disputes
between EAL employees who are members of the IAMAW.
9. This court has jurisdiction over the claims herein, because, the
grievance procedure governed by Articles 17-19 of the Agreement is
no longer controlling or in effect. On the date of the filing of this
lawsuit, Plaintiff and the IAMAW were still on strike against EAL.
Arbitration has ceased to exist.
IL. FACTS
10. On July 31, 1984, HENRY placed a written reprimand in
Plaintiffs personnel file without notifying the Plaintiff.
MCDONNELL referred to this reprimand in disciplinary letters
issued to the Plaintiff dated October 23 and 24, 1986. These letters
are incorporated by reference as Exhibit "D".
11. On November 27, 1984, Plaintiff was served a letter for "Job
Performance” by Defendant HENRY. This letter concerned work
performed by the Plaintiff on a forklift #4649. This letter is
incorporated by reference as Exhibit "D".
12. Plaintiff filed a grievance to have the above letter removed
from his personnel file. On April 12, 1988 the System Board of
Adjustment (hereinafter SBA) convened to hear the grievance.
13. At the hearing above, WILLIAMS refused to produce the
Ground Support Equipment Work Order (hereinafter GEARS) which
documented work done by the Plaintiff on forklift #4649. (A copy
of the applicable pages from the transcript of the hearing is
incorporated by reference as Exhibit "E").
14. As a direct result of the Defendants’ failure to produce the
GEARS for the vehicle in dispute, the Plaintiff was unable to refute
certain false statements made by the Defendants at the April 12, 1988
arbitration hearing.
15. On or around March of 1985 Plaintiff asked MCDONNELL,
who was a union shop steward at the time, about the unavailability
of a special socket needed to repair tractor axles, which Defendant
Henry refused to obtain for shop use. (GSE parts request is
incorporated by reference as Exhibit "C"). MCDONNELL told the
Plaintiff, "Since everyone else is using a hammer and chisel instead
of the special socket to remove the axle nut, you should do the
same.”
16. On May 7, 1985 Pisaintiff filed two Potential Danger
Observance Reports (hereinafter PDORs) with HENRY. These two
PDORs are incorporated by reference as Exhibit "B"). EAL
3a
encouraged the reporting of safety problems with a large placard,
EAL stock part # 14GG0160. (A true sample of this placard is
incorporated by reference and attached to Exhibit "B").
17. On May 7, 1985, as a direct result of filing the PDORs,
HENRY complained to the GSE shop manager, who threatened the
Plaintiff with disciplinary action for filing any more PDORs.
18. The above incident was directly witnessed by six (6)
mechanics who worked with the Plaintiff on the third shift.
19. Upon information and belief, a written memo was placed in
the Plaintiffs personnel file involving an alleged discussion
concerning job performance with the Plaintiff on May 23, 1985.
Plaintiff was never counseled in any disciplinary matter by former
EAL foreman Mike Sikora and Plaintiff was never informed about
the memo placed in his personnel file. MCDONNELL referred to
this "discussion" in letters he issued to the Plaintiff dated October 23
and 24, 1986.
20. On or about January 1, 1986, MCDONNELL was promoted
from mechanic to foreman.
21. Upon information and belief, MCDONNELL had received
very little formal education and received minimal management
training prior to his promotion. Soon after his promotion
MCDONNELL attended a class titled "Confrontation Management."
22. On February 28, 1986, Plaintiff was served a "Letter of
Reprimand" by MCDONNELL because the Plaintiff had been
wearing a button stating "Frank is a Weenie." (This letter is
incorporated by reference as Exhibit "D".)
23. Defendant MCDONNELL had threatened Plaintiff several
times previously with termination if the button was not removed.
24. Plaintiff filed a grievance which was denied first by
MCDONNELL and then by MCDONNELL's manager because,
"This being the second letter, the grievance is denied."
25. Plaintiff had never been served with the first referenced
letter. This letter, written by HENRY was dated February 15, 1985
and concerned the wearing of "a large button” on the Plaintiff's work
4a
uniform. The LAMAW did not receive their copy until April 2, 1986.
The Plaintiff did not receive a copy until after he was fired.
26. On or about April 11, 1986 Plaintiff was seated in the break
room during lunch with two other mechanics. MCDONNELL
entered the room and demanded to see the Plaintiff's flashlight. A
few seconds later, MCDONNELL, acting with malicious intent and
with alcohol on his breath, lunged at the Plaintiff and wrestled the
flashlight from Plaintiff's belt.
27. Later the same day, MCDONNELL refused to allow the
Plaintiff to confer with the shop steward about writing a grievance
for the incident in § 26. That night MCDONNELL ordered the
Plaintiff to go home early.
28. On April 14, 1986, MCDONNELL served a letter of
"Discipline" to the Plaintiff concerning work done by the Plaintiff on
vehicles #2512 and #5663. (This letter is incorporated by reference
as Exhibit "D".)
29. The letter above concerned 1) a diesel vehicle which had an
illegal, noisy exhaust system, which the Plaintiff was attempting to
repair on April 7, 1986, with improper parts which management had
ordered and 2) Plaintiff was reprimanded for attempting to write a
grievance with the shop steward about the incident between
MCDONNELL and the Plaintiff in ¥ 26.
30. Upon information and belief, writing a grievance on
company time was a common practice before MCDONNELL
became the foreman in the GSE shop. While MCDONNELL was a
shop steward he often wrote grievances on company time and/or used
company time for union business.
31. Upon information and belief MCDONNELL removed the
GEARS for the vehicles #2512 and #5663 from the filing cabinet
where they were regularly stored. Plaintiff requested copies of the
GEARS from MCDONNELL. MCDONNELL never produced
copies for the Plaintiff and refused to allow Plaintiff to copy same.
32. On or about June 22, 1986, Defendant MCDONNELL,
assigned two workers on overtime from day shift, to road-call duty
5a
on second shift.
33. The assignment of workers to their jobs by MCDONNELL
instead of by the lead man was a violation of past practice and
Article 4B of the "Agreement" between the IAMAW and EAL.
34. MCDONNELL over-rode the lead man's objection and said,
"Go file a grievance. I am going to keep Hyrtzay and Delgado on
road call duty". Hyrtzay was a neighbor of MCDONNELL. This act
by MCDONNELL prevented the Plaintiff from being assigned to
road-call duty. Road-call duty was generally recognized as one of
the better assignments in the GSE shop.
35. As a result of Plaintiff filing a grievance concerning the
above incident, Jose Posadas (manager at that time of the GSE shop)
issued a letter to MCDONNELL instructing him that, all mechanics
will receive their assignments by the Lead Mechanic and not by the
foreman on duty.
36. On or around July 16, 1986, MCDONNELL applied for an
honorary withdrawal card from the IAMAW.
37. Plaintiff circulated a petition which was signed by twenty
two (22) other mechanics, which stated in essence, that, because
MCDONNELL was a very weak and ineffective shop steward and an
even worse example of leadership as a foreman, he should be denied
his honorary union withdrawal card.
38. MCDONNELL's application for honorary withdrawal was
rejected by the membership of the IAMAW.
39. Following the rejection, MCDONNELL told several of
Plaintiff's co-workers that he, (MCDONNELL), was a vindictive
person and that he would get even with those people who signed the
Plaintiff's petition. (This letter is incorporated by reference as
Exhibit "F".)
40. On July 30, 1986 Plaintiff attended training class on his day
off. MCDONNELL refused to pay Plaintiff as required under Article
6F(2) of the "Agreement." Plaintiff filed a grievance. Foreman
Garner settled the grievance and paid the Plaintiff.
41. During August of 1986 the Plaintiff broke a hammer on the
6a
POPC a
Oe en See ee eee ae
a
job. It was standard policy that tools broken on the job would be
replaced. Plaintiff gave this broken hammer to MCDONNELL.
Two (2) months later Plaintiff questioned MCDONNELL about a
replacement. MCDONNELL disavowed any knowledge of the prior
conversation or having received the broken hammer. MCDONNELL
said he would not get Plaintiff a new one.
42. On or about August 11, 1986, MCDONNELL charged the
Plaintiff with being one-minute tardy for work and refused to pay
Plaintiff for that one minute.
43. Plaintiff filed a grievance concerning MCDONNELL's
refusal to pay Plaintiff for the one minute tardy. In the first step of
the grievance HENRY refused to pay Plaintiff for the one minute.
In the second step of the grievance, the manager Jose Posadas
removed the tardy charged from the attendance roll and paid Plaintiff
for the one minute.
44. On August 28, 1986, Plaintiff was served a letter concerning
"Time Card Procedures" by HENRY. HENRY also refused to pay
the Plaintiff for three hours of training class which the Plaintiff
attended. (This letter is incorporated by reference as Exhibit "D".)
45. Plaintiff grieved the above letter. The three hours for
attendance at a training class were ordered paid at an arbitration
hearing on April 12, 1988.
46. On September 8, 1986, MCDONNELL issued Plaintiff a
"Letter of Instruction" for not wearing the EAL uniform properly.
(This letter is incorporated by reference as Exhibit "D".)
47. This letter concerned a situation where the Plaintiff was
forced to work in the hot sun, in 100 degree weather, in an area out
of public view. Plaintiff had removed his sticky, sweaty shirt in an
attempt to cool down. MCDONNELL, who never left his air
conditioned office, stated to the shop steward Tom Markham, that,
the reason he (MCDONNELL) was making a big deal out of a shirt
was because he wanted to harass the Plaintiff.
48. On September 10, 1986, after the Plaintiff had punched in to
go to a training class - for which he was scheduled to attend -
7a
MCDONNELL ordered the Plaintiff not to go to the class.
49. Plaintiff went to the training class - for which he was
scheduled to go - and turned in a time card to be paid for the three
hours spent in the training.
50. On September 11, 1986, Plaintiff was served a letter of
"Reprimand" by MCDONNELL concerning the incident on
September 10, 1986. The letter stated that the Plaintiff had "falsified
a Claim for pay.” (This letter is incorporated by reference as Exhibit
"D".) In addition MCDONNELL refused to pay the Plaintiff for the
three hours of class.
51. Plaintiff grieved the above letter on October 2, 1986. The
arbitrator for the SBA meeting of April 12, 1988 held that the
Plaintiff had not falsified a claim for pay.
52. Manager Jose Posadas ordered MCDONNELL to stop
harassing the Plaintiff in September, 1986. This directive came after
a meeting between the Plaintiff and Jose Posadas in September,
1986, wherein the Plaintiff requested relief from the constant
harassment of Defendant MCDONNELL.
53. On October 1, 1986, Jose Posadas was reassigned to
Terminal Aircraft Line Maintenance.
54. Upon information and belief, Ken Williams was to replace
Jose Posadas as the manager for the GSE shop. However, Defendant
Williams would not arrive to take control of the GSE shop until
Monday, November 3, 1986. In the meantime Jose Posadas was still
presiding over both areas.
55. On October 16, 1986, Plaintiff was elected Shop Steward for
the second shift GSE shop at the terminal.
56. On October 23, 1986, Plaintiff was served a letter of
"Reprimand" and a letter concerning "Job Performance" and ordered
to take five days off without pay by MCDONNELL. (These letters
are incorporated by reference as Exhibit "D".)
57. On October 23, 1986, MCDONNELL twice refused
Plaintiff's request to go on union business.
58. The next day, Plaintiff telephoned manager Jose Posadas and
8a
ti a aA aS
asked him why he allowed MCDONNELL to give out another letter
and time off to the Plaintiff.
59. Jose Posadas said that he was not even aware of the
disciplinary actions by MCDONNELL and ordered MCDONNELL
to rescind the "Job Performance" letter and the days off.
60. Plaintiff grieved the letter of "Reprimand” on October 24,
1986. The arbitrator at the SBA on April 12, 1988 ordered the letter
removed from the Plaintiff's personnel file.
61. On October 24, 1986, Defendant MCDONNELL attempted
to serve a letter concerning "Job Performance” on the Plaintiff in the
bathroom, at 11:18 P.M., two minutes before punch out time.
62. At 11:18 P.M. on October 24, 1986, MCDONNELL
followed the Plaintiff into the mens’ bathroom. As Plaintiff was
closing the door to the stall, MCDONNELL pushed on the door with
intentional force sufficient to knock down the Plaintiff over the
commode. As the Plaintiff stood up, MCDONNELL said, "Here,
take your damn letter now!", and shoved the letter into the Plaintiff's
breast pocket. MCDONNELL was shouting in Plaintiff's face and
Plaintiff smelled the strong odor of alcohol on MCDONNELL's
breath. Plaintiff reacted by trying to push MCDONNELL away.
MCDONNELL thrust the Plaintiff backwards into the stall again.
Plaintiff threw the letter out the door of the bathroom after
MCDONNELL exited.
63. Defendant then picked up the letter off the floor and went to
the Plaintiff's valise near the time clock. MCDONNELL then
opened Plaintiff's valise and placed the letter inside.
64. Defendant MCDONNELL got into his work truck, left, then
came back, stopped, got out, and went back to Plaintiff's vaiise,
opened it, and removed the letter.
65. Shortly after 11:20 P.M., in the foreman's office, the Plaintiff
was served the letter concerning "Job Performance" by
MCDONNELL. (This letter is incorporated herein as Exhibit "D").
66. On October 28, 1986, HENRY telephoned Plaintiff at
Plaintiffs home on Plaintiffs day off and apologized for
9a
MCDONNELL's attack. HENRY asked the Plaintiff what he could
do to appease the situation. Plaintiff replied that Henry should; 1)
remove all disciplinary letters frvin Plaintiff's personnel file, 2) have
MCDONNELL write a letter of apology, 3) pay Plaintiff for the one
day not paid due to issuance of the April 14, 1986 letter by
MCDONNELL, and 4) remove MCDONNELL from the second shift
so that he would not come into further contact with the Plaintiff.
67. On October 30, 1986, MCDONNELL served every worker
in the shop, except the Plaintiff, with a letter for alleged violation of
break time limits.
68. Early in the shift on October 31, 1986, HENRY asked the
Plaintiff to come into the office to "work things out man to man."
69. HENRY refused to allow the Plaintiff to tape record the
conversation that followed. HENRY apologized for
MCDONNELL'S actions but said that he could not discipline
MCDONNELL, that such action would have to come from
Defendant WILLIAMS, who would be the new manager of the GSE
shop on November 3, 1986. Plaintiff then requested that Henry set up
a meeting between the Plaintiff and Defendant Williams. HENRY
promised to set up such a meeting for November 3, 1986.
70. On November 3, 1986, Plaintiff attended a meeting with
Defendant Williams, to discuss the attack on the Plaintiff by
MCDONNELL. WILLIAMS told the Plaintiff that he would make
a decision concerning MCDONNELL after he (WILLIAMS) had
talked with Jose Posadas. In fact WILLIAMS never contacted Jose
Posadas to discuss the incident.
71. On November 6, 1986, Plaintiff filled out a written form in
the first aid department documenting the attack by Defendant
MCDONNELL in the bathroom.
72. On November 7, 1986, WILLIAMS, through Paul Priest of
EAL's Labor Relations Department, requested a cursory medical
examination of the Plaintiff by Eastern's Medical Doctor.
73. On November 7, 1986, Plaintiff was issued a letter by
WILLIAMS which stated that the Plaintiff was terminated
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PR te lb cick beh, delgh
immediately for "serious violations of various rules and regulations."
(This letter is incorporated by reference as Exhibit "D").
74. When the Plaintiff was led off the property his airport base
pass and employee I.D. were confiscated by WILLIAMS.
75. On November 17, 1986, the Plaintiff, in an attempt to avoid
another confrontation with MCDONNELL, assigned another shop
mechanic of the GSE shop to bring the Plaintiff's tools home.
MCDONNELL confiscated a number of Plaintiff's tools before he
would allow the Plaintiff's tool boxes to be taken home by Plaintiff's
assignee.
76. It was necessary for the Plaintiff (1) to drive to the job situs
and (2) call the head of Eastern Air Line's security department before
MCDONNELL acquiesced control of the remainder of Plaintiff's
tools into Plaintiff's possession.
77. On June 6, 1987, the Plaintiff demanded a base pass from
EAL Protective Services. A pass was necessary so that the Plaintiff
could return onto the airport property so that Plaintiff could continue
to represent the employees that elected him. Plaintiff's request for a
pass was denied. The reason given was that the Plaintiff had been
terminated by WILLIAMS and would not be allowed back on base.
78. On June 6, 1987, Plaintiff requested a pass from the Metro
Dade Aviation Department. The request was denied based on EAL's
refusal to grant permission to the Aviation Department.
79. On June 6, 1987, the Plaintiff requested access to the airport
property at the Metro Police Department Substation across from the
GSE shop in the Miami International Airport. Plaintiff was told that
no action would commence without _a court order. They advised the
Plaintiff that, if he insisted on asserting his rights by forcefully
entering EAL's property at the airport, and EAL requested Piaintiff's
arrest for trespassing, that in all likelihood they would arrest the
Plaintiff.
80. The Plaintiff, through General Chairman Ronald Orr of
District 100, on 07/07/87, requested a pass through Mr. John
MacDonald of the EAL Personnel Dept. Once again, based on the
lla
termination of the Plaintiff by WILLIAMS the request was denied.
81. At each contact the Plaintiff informed EAL's officers and
agents about the RLA and the clear wording of 45 U.S.C. § 152.
Most of the replies ran along the lines of, "So what ...take us to
court." The most memorable, though, came from Paul Priest who |
talked with on 06/23/87 while in the Protective Services office. Paul
Priest stated, "It'll be a cold day in hell when I give you a pass.”
COUNT I - BATTERY
(AGAINST WILLIAM J. MCDONNELL)
82. Plaintiff re-alleges all preceding paragraphs, and further
alleges:
83. Defendant WILLIAM J. MCDONNELL's drunken act of
striking Plaintiff during an attempt to serve a disciplinary letter was
willful and wanton and constituted a battery upon Plaintiff.
—6§4—Defendant-WILLiAM-+-MEDONNELE's drunken,act-of
hell Dinintiff-and-prabbine-the-flashtneht-from-his-bet
writfat-and-wantorr-and-constituted-a-battery upon Piamtiff. (struck
by court subsequent to motion for dismissal)
85. In both incidents above Defendant MCDONNELL acted with
malicious intent and without the Plaintiff's permission.
86. As a direct and proximate result of MCDONNELL's
intentional acts of battery, the Plaintiff suffered, including but not
limited to spraining his hip, emotional distress, loss of property, loss
of benefits, and lost wages.
87. WHEREFORE, Plaintiff demands judgment against
Defendant MCDONNELL for his damages, including the pain and
suffering, disability, impairment of his bodily functions, medical
expenses, lost earnings and punitive damages.
COUNT I NEGLIGENT RETENTION
(AGAINST JEFF HENRY and KEN WILLIAMS)
88. a. Plaintiff re-alleges paragraphs | through 81 and further
alleges:
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89. Defendant MCDONNELL was acting in the course and scope
of his employment as Plaintiff's supervisor at the times that he struck
and injured the Plaintiff.
90. During all times and incidents complained of heretofore, the
Plaintiff was legally on the premises when harassed and/or attacked
by MCDONNELL.
91. The Plaintiff came into contact with MCDONNELL as a
direct consequence of the employment of MCDONNELL as
Plaintiff's supervisor.
92. On occasions prior to and following MCDONNELL's attacks
on the Plaintiff, MCDONNELL had demonstrated animus towards
Plaintiff. Plaintiff and other persons had given active and/or
constructive notice to HENRY and WILLIAMS concerning same.
93. Defendants HENRY and WILLIAMS failed to make a
reasonable investigation into Plaintiff's (and others) assertions that
MCDONNELL's behavior was hostile, erratic and a danger to the
mechanics he was there to supervise.
94. Defendants HENRY and WILLIAMS knew or should have
known the impropriety of retaining MCDONNELL in a supervisory
position with a coincident high degree of personal interface.
95. Nevertheless, HENRY and WILLIAMS did nothing to
counsel MCDONNELL regarding his conduct or attitude towards
Plaintiff, did not discharge or reassign MCDONNELL, and thereby
encouraged MCDONNELL to continue in his course of conduct
aimed at causing injury, both physical and mental, to Plaintiff.
96. As masters, HENRY and WILLIAMS breached their duty to
exercise reasonable care under the circumstances herein, to control
MCDONNELL, a servant acting under their control, in order to
prevent MCDONNELL from intentionally harming others and from
creating an unreasonable risk of bodily harm to them.
97. At the time of the incidents alleged heretofore,
MCDONNELL answered to HENRY as master. Upon information
and belief, after November 1, 1986, HENRY answered to
WILLIAMS as master.
132
98. HENRY and WILLIAMS are liable for the injuries caused
by MCDONNELL under the doctrine of respondeat superior.
WHEREFORE Plaintiff demands judgment against Defendants
HENRY and WILLIAMS for his damages, including pain and
suffering, disability, medical expenses, lost wages, and punitive
damages.
COUNT Il WRONGFUL DISCHARGE
(AGAINST KEN WILLIAMS)
99. Plaintiff re-alleges paragraphs 1 through 81 and further
alleges:
100. The purpose of Plaintiff's filing of a report with the Medical
Department of EAL on November 6, 1986, was to establish a record
of the injuries sustained during the attack by MCDONNELL for
purposes of collecting worker's compensation at a later date if his
injuries should become so severe that it was warranted.
101. On November 7, 1986, Plaintiff was terminated by
WILLIAMS specifically on account of his having filed the report
described in the paragraph above. The act by WILLIAMS of
discharging Plaintiff because of his valid attempt to claim
compensation under the Workers' Compensation Law is a violation
of § 440.205 Fla. Stat. (1987), which states that "no employer shall
discharge, threaten to discharge, intimidate or coerce any employee
by reason of such employee's valid claim for compensation or
attempt to claim compensation under the Workers' Compensation
Law."
102. Plaintiff hereby accepts his discharge as final but only to
the extent that, but for the wrongful discharge, Plaintiff would have
worked at Eastern until March 4, 1989, and the Defendants are liable
for back wages and benefits up until that time.
103. Pursuant to § 448.08 Fla. Stat. (1987), this court may award
to the Plaintiff costs of the action and a reasonable attorney's fee for
having to bring this action for unpaid wages due to the wrongful
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discharge.
WHEREFORE Plaintiff requests restitution for all wages and
other perquisites of employment that he would have received but for
the wrongful discharge by Defendant WILLIAMS.
COUNT IV - NEGLIGENCE PER SE
UNFAIR LABOR PRACTICES
(AGAINST MCDONNELL, HENRY and WILLIAMS)
104. Plaintiff re-alleges paragraphs 1 through 81 and further
alleges:
105. In Florida union members and representatives are protected
under §§ 447.01 et. seq. Fla. Stat. (1987) and under the Railway
Labor Act 45 U.S.C.A. §§ 151 et. seq. (West 1972).
106. Plaintiff was a member and representative of the AMAW,
which belongs to the class the RLA and §§ 447.01 et. seq. are
intended to protect.
107. The RLA and §§ 447.01 et. seq. Fla. Stat. are intended to
protect against the type of harassment, coercion and subju-gation
which the Plaintiff was subjected to by the Defendants.
108. First, Defendant MCDONNELL violated 45 U.S.C.A. §
152 (Third) (West 1972) of the Railway Labor Act and § 447.09(2)
Fla. Stat. (1987). By attempting to coerce and influence mechanics
in the GSE shop prior to the election of Plaintiff as shop steward,
MCDONNELL tried to prevent Plaintiff's election as shop steward.
109. Second, Defendants MCDONNELL, HENRY, and
WILLIAMS violated, 45 U.S.C.A. §§ 152 (First and Second) (West
1972) and § 447.09(11) Fla. Stat. (1987) by failing to exert every
reasonable effort to make and maintain the agreement (between the
IAMAW and the EAL) and to settle all disputes in an expeditious
manner.
110. Third, Defendants MCDONNELL, HENRY, and
WILLIAMS violated 45 U.S.C.A. § 152 (Third) (West 1972) of the
Railway Labor Act and § 447.09(11) Fla. Stat. (1987) by refusing to
allow the Plaintiff access to the employees that elected him after he
lSa
(the Plaintiff) was terminated. The Railway Labor Act clearly states
that, "Representatives of employees for the purposes of this chapter
need not be persons in the employ of the carrier..." Since
employment with the company (EAL) is not a prerequisite to be a
representative, Plaintiff's rights were abridged when Defendants
refused to allow the Plaintiff back on base - after he was terminated -
to continue to represent the employees that elected him.
111. Defendants intentionally and maliciously breached their
duty to the Plaintiff under conduct proscribed by the RLA and the
Florida Statutes. As a proximate result thereof the Plaintiff suffered
mental and physical anguish, loss of wages and benefits.
112. Defendants were conspirators in an intentional and
malevolent plan to concentrate termination efforts on the front line
leadership of the [AMAW, the shop stewards. As a proximate result
thereof, the prospective advantage of the Plaintiff was considerably
diminished.
WHEREFORE, Plaintiff demands judgment against Defendants
MCDONNELL, HENRY, and WILLIAMS, compensatory fines as
specified in 45 U.S.C.A. § 152 (Tenth) (West 1972) of the Railway
Labor Act and § 447.14 Fla. Stat. (1987), compensation for lost
wages and benefits, and punitive damages such as the Court may
deem reasonable.
COUNTY
BREACH OF IMPLIED COVENANT OF GOOD FAITH
AND FAIR DEALING
(AGAINST MCDONNELL, HENRY, and WILLIAMS)
113. Plaintiff re-alleges paragraphs | through 81 and further
alleges:
114. Plaintiff was employed at EAL from 1976 until 1986, and
received numerous commendation letters and references. The
constructive discharge conspired by the Defendants without legal
cause, after many years of dedicated employment offends the
implied-in-law covenant of good faith and fair dealing contained in
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eee
all contracts.
WHEREFORE, Plaintiff demands judgment against Defendants
MCDONNELL, HENRY, and WILLIAMS for all the wages that he
would have received but for their tortious actions, including pension
benefits, welfare and health benefits, perquisites of employment and
interest, and punitive damages.
COUNT V1 - BREACH OF CONTRACT
(AGAINST MCDONNELL, HENRY, and WILLIAMS)
115. Plaintiff re-alleges paragraphs 1 through 81 and further
alleges:
116. Plaintiff was fired without the required investigation stated
on page 105 (Appendix 14) of the "Agreement" between the
LAMAW and Plaintiff's employer.
117. Plaintiff was fired without a complete review of prior
performance and work history.
118. The letters issued by Defendant MCDONNELL to the
Plaintiff on April 14, 1986 and on October 23, 1986; and the letter
issued by HENRY on November 27, 1984, were direct violations of
Article 18 of the "Agreement" between the [AMAW and EAL which
states that no employee shall be disciplined without first being
advised in writing of the charge, not later than five days from the
time of the incident. _
119. The placing of a disciplinary letter in the Plaintiff's
personnel file, by HENRY (see ¥ 10), without notice to the Plaintiff,
violated Plaintiff's right to due process guaranteed under Article 17
et. seq. of the "Agreement."
120. The reference by MCDONNELL ({ 19) to the "memo"
placed in the Plaintiff's personnel file without notice to the Plaintiff,
violated Plaintiff's right to due process guaranteed under Article 17
et. seq. of the "Agreement."
121. Defendants MCDONNELL, HENRY, and WILLIAMS
have violated the preamble of the "Agreement" between the AMAW
and EAL which states, "No employee covered by this Agreement will
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be interfered with, restrained, coerced, or discriminated against by
the Company, its officers or agent, because of membership in or
lawful activity permitted under the Railway Labor Act...on behalf of
the Union."
122. Plaintiff was threatened by Defendants MCDONNELL,
HENRY and WILLIAMS for filing PDORs and making other safety
complaints and/or attempting to fix equipment properly instead of
"rigging" it. .
123. The threats above were in direct violation of numerous
missives sent by EAL to its employees concerning "quality work",
and Eastern Air Line Standard Practice § 52-1501.
124. Where an employer commits violations of its own firing
policies and/or fails to review prior performance and work history of
an employee targeted for termination, negligence lies.
WHEREFORE, Plaintiff demands judgment against Defendants
MCDONNELL, HENRY, and WILLIAMS for all the wages that he
would have received but for their intentional and malicious actions,
including pension benefits, welfare and health benefits, perquisites
of employment and interest, and punitive damages.
COUNT VII
FAILURE TO PROTECT EVIDENCE.
FOR PLAINTIFF'S BENEFIT
(AGAINST MCDONNELL and HENRY)
125. Plaintiff re-alleges paragraphs | through 81 and further
alleges:
126. When Plaintiff filed grievances, Defendant's were under a
duty to retain and protect any evidence pertaining to said grievance
which would foreseeably involve facts under dispute.
127. Defendants have failed to retain and protect evidence
which would have benefited the grievant-Plaintiff. For example the
Defendants stated that they no longer had in their possession the
GEARS for forklift #4649 at the SBA arbitration on April 12, 1988.
18a
128. As a proximate result of Defendants’ intentional and
malicious actions the Plaintiff's prospective bargaining advantage
was severely hampered.
WHEREFORE Plaintiff requests that this Court grant relief and
damages for any instances herein alleged or any instances which may
occur during ensuing discovery proceedings, where the Defendants
have withheld or failed to protect evidence beneficial to the Plainti‘f.
COUNT VII - MALICIOUS PROSECUTION
(AGAINST MCDONNELL, HENRY AND WILLIAMS)
129. Plaintiff re-alleges paragraphs 1 through 81 and further
alleges:
130. MCDONNELL harassed the Plaintiff and singled him out for
discipline. (An affidavit from R.D. Wellbaum is incorporated by
reference as Exhibit "G".)
131. Defendants MCDONNELL, HENRY and WILLIAMS have
subjected the Plaintiff to malicious prosecution in that:
a) HENRY has commenced several disciplinary letters against the
Plaintiff, MCDONNELL has commenced several disciplinary letters
against the Plaintiff and given the Plaintiff time off, and WILLIAMS
terminated the Plaintiff;
b) the majority of these disciplinary actions have been or will be
terminated and adjudicated in favor of the Plaintiff;
c) all disciplinary actions metered to the Plaintiff by the
Defendants were devoid of probable cause;
d) all three of the Defendants, through their actions and their
words, have demonstrated malice toward the Plaintiff; and
e) the Plaintiff has been damaged physically, monetarily, and
mentally by the prosecutions of the defendants.
WHEREFORE the Plaintiff demands judgment against
Defendants MCDONNELL, HENRY and WILLIAMS, jointly and
severally, for all damages suffered by the Plaintiff including pain and
suffering for his physical injuries, the value of wages lost, and future
wages lost, interest, legal and attorneys’ fees.
19a
COUNT IX - CONSPIRACY
(AGAINST MCDONNELL, HENRY and WILLIAMS)
132. Plaintiff re-alleges paragraphs 1 through 81 and further
alleges:
133. Defendants MCDONNELL, HENRY, and WILLIAMS
conspired between them to deprive Plaintiff of his employment and
to cause him physical injury and emotional distress.
134. The Defendants are jointly and severally liable for the
Plaintiff's injuries and damages.
WHEREFORE the Plaintiff demands judgment against
Defendants MCDONNELL, HENRY and WILLIAMS, jointly and
severally, for all damages suffered by the Plaintiff including pain and
suffering for his physical injuries, the value of wages lost, and future
wages lost, interest, legal and attorneys’ fees.
20 a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
BRUCE RICHARD TOSKI,
Plaintiff,
CASE NO. 91-112-CIV-DAVIS
v. MAGISTRATE TURNOFF
WILLIAM J. McCDONNELL ORDER ADOPTING
JEFF HENRY, AND MAGISTRATE’S REPORT
KEN WILLIAMS, & RECOMMENDATION
Defendants.
l
Before the Court is Defendants’ Motion for Summary Judgment
(DE. 97). This matter was referred to Magistrate Judge William C.
Turnoff for report and recommendation.
The Court adopts the Report and Recommendation of the
Magistrate Judge in its entirety. For the reasons stated by the
Magistrate Judge, and after independent review of the record, the
Objections of the Plaintiff and the Defendants’ response to the
Objections, it is
ORDERED AND ADJUDGED that the Defendants’ Motion for
Summary Judgment is GRANTED. All pending motions not
otherwise ruled upon are DENIED as MOOT. The case is CLOSED.
DONE AND ORDERED in Chambers at Miami, Florida, this 31st
day of January, 1994.
EDWARD B. DAVIS
UNITED STATES DISTRICT JUDGE
cc: Bruce Richard Toski
Donald Blackwell
2la
22a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
BRUCE RICHARD TOSKI,
Plaintiff, Case No. 91-0112-CIV-DAVIS
JEFFERSON H. HENRY, and
KENDALL G. WILLIAMS,
Defendants.
Notice is hereby given that BRUCE RICHARD TOSKI, plaintiff
above named, pro-se and forma pauperis, appeals to the United
States Court of Appeals for the 11th Circuit, from the ORDER
granting the defendants’ Motion for Summary Judgment, entered in
this action on the 31st day of January, 1994.
Respectfully submitted,
/s/
Bruce Toski - Plaintiff, pro se
2361 S.W. 36 Terrace
Fort Lauderdale, FL 33312-4291
Tel: (954) 583-4191
23a
24a
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 94-4246
Non-Argument Calendar
D.C. Docket No. 91-112-CIV-EBD
[DO NOT PUBLISH]
BRUCE RICHARD TOSKI,
Plaintiff,-Appellant,
versus
WILLIAM J. McDONNELL,
JEFF HENRY,
KEN WILLIAMS,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Florida
(December 10, 1996)
Before BIRCH, DUBINA, and CARNES, Circuit Judges
PER CURIAM:
Appellant Bruce Richard Toski (“Toski”) appeals from the
district court’s grant of summary judgment in favor of the defendants
and against Toski regarding his pro se claims brought under the
25a
Railway Labor Act (“RLA”), 45 U.S.C. §§ 151-163, 181-88, and his
supplemental state common law claims, 28 U.S.C. § 1367, arising out
of his employment with and discharge by Eastern Airlines.
Our review of the record persuades us that each of the arguments
Toski makes concerning his procedural challenges to various orders
of the district court and his arguments relative to the district court’s
grant of summary judgment for the defendants are meritless.
Accordingly, we affirm the district court’s procedural orders and the
grant of summary judgment in favor of the defendants and against
Toski.
AFFIRMED. '
We also deny all pending motions in this case
26a
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
CASE NO. 94-4246
BRUCE RICHARD TOSKI,
Petitioner / Appellant,
Vv.
WILLIAM J. MCDONNELL,
JEFFERSON H. HENRY and
KENDALL G. WILLIAMS,
Defendants / Appellees
On Appeal from an Order (December 10th, 1996) of the Eleventh
Circuit affirming a Final Order from the U.S. District Court for the
Southern District of Florida granting Summary Judgment in a Civil
Case
SUGGESTION OF REHEARING EN BANC
Jonathan S. Friedman, P.A.
Counsel pro hac vice for Plaintiff / Appellant
One East Broward-Suite 700
Fort Lauderdale, FL 33301
Telephone: (954) 713-2820
27a
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record for appellant
Bruce Richard Toski, certifies that the following
isacomplete list of the trial judges, all attorneys,
persons, associations of person, firms,
partnerships, or corporations that have an interest
in the outcome of this case, including
subsidiaries, conglomerates, affiliates and parent
corporations, and other identifiable legal entities
related to a party:
l. Anania, Bandklayder & Blackwell -
attorneys for the appellees
2. Anania, Francis A. - attorney / appellees
a. Blackwell, Donald A. - attorney for
appellees
4. Davis, Edward B. - United States District
Court Judge
>. Eastern Air Lines - Assisting defense
counsel
6. Friedman, Jonathan S. - Counsel pro hac
vice for Appellant
P Henry, Jefferson H. - Defendant
8. Hite, M. Catherine - attorney for
appellees
9. McDonnell, William J. - Defendant
10. O’Brien, Richard F. - attorney for
appellees
ll. Toski, Bruce Richard - Plaintiff
12. Turnoff, William C. - United States
District Court Magistrate
13. Williams, Kendall G. - Defendant
28a
VERIFIED STATEMENT
I express a belief, based on a reasoned and
studied professional judgment, that the panel
decision is contrary to the following unanimous
decision of the Supreme Court of the United States
and that consideration by the full court is
necessary to secure and maintain uniformity of
decisions in this court.
See: H -. Riri I G TN :
(No. 92-2058), 512 U.S.____ , 129 L.Ed.2d 203,
114 S.Ct. 2239 (1994).
Attorney pro hac vice for appellant
Jonathan S. Friedman, Esq.
One East Broward - Suite 700
Barnett Bank Plaza
Fort Lauderdale, FL 33301
Telephone:(954) 713-2820
Facsimile: (954) 713-2894
Florida Bar No.973297
29 a
TABLE OF CONTENTS
ARGUMENT AND AUTHORITY........ 5,6,7,8
CERTIFICATE OF INTERESTED PERSONS.C1
CERTIFICATE OF SERVICE... .ccccccccccccceces 9
CE ie PO oc ccbenccccsesescccescoessoonscsnesses 9
FRO ES OE EES OE vecicccccsecccccdescess 3,4
ISSUB, STATEMENT OF 2... .cccccccccccccccssccece l
PROCEDURAL HISTORY.............c.cccceccees 2
VERIFIED STATEMENT FROM COUNSEL..V1
CITATIONS
CASES
Hawaiian Airlines, Inc. v. Grant T. Norris
Coe. Fete OO) 6 Se We cncicestesdeensbode V-1,5-9
Hawaiian Airlines, Inc. v. Grant T. Norris
74 Haw 648, 847 P.2d 634(1993)............ 7
Lingle v. Norge Div. of Magic Chef, Inc.
COG BO BE PEG POS iii dv ivtsenasievseconvancsasann 6,7,8
STATUTES
S35 U.8.6.. $051, OF C68. CRB deccevncsevecver 2,6,7
30a
STATEMENT OF THE ISSUE
THE DISTRICT COURT ERRED IN APPLYING THE LAW AND
THE FACTS WHEN IT RULED THAT PLAINTIFF’S FAILURE
TO EXHAUST HIS ADMINISTRATIVE REMEDIES UNDER
THE COLLECTIVE BARGAINING AGREEMENT BARRED
ALL OF HIS CLAIMS. IN FACT, THE PLAINTIFF HAD
EXHAUSTED HIS ADMINISTRATIVE REMEDIES,
NOTWITHSTANDING THAT NEITHER EXHAUSTION NOR
COMMENCEMENT WAS REQUIRED PRIOR TO FILING A
LAWSUIT AGAINST THE DEFENDANTS FOR EIGHT (8)
COUNTS OF VARIOUS CLAIMS BASED, IN PRINCIPAL, ON
STATE LAW.
PROCEDURAL HISTORY
Appellant, acting pro-se, filed suit against the defendants’ in
Dade County Circuit Court under Case #90-51972-CA-01 on
October 23, 1990. The case was removed to federal court based on
partial reference to federal labor law in Count IV. Plaintiff's nine
(9) count complaint survived a Motion to Dismiss with the court
only striking Count VIII and part of Count I. After denying the
appellant an opportunity to amend his initial complaint, the district
court granted the defendants’ motion for summary judgment on
January 31, 1994. The court found that the plaintiff failed to
exhaust available administrative remedies and that his claims were
pre-empted by the Railway Labor Act (RLA) 45 U.S.C. §151, ef
seq.
Appellant filed a timely appeal to the Eleventh Circuit Court of
' The defendants were acting as plaintiff's supervisors at Eastern
Air Lines (EAL). EAL was sued separately in the Bankruptcy
Court of New York and is not a party herein.
3la
Appeals, which, on December 10th, 1996, affirmed the district
court’s granting of summary judgment in favor of the defendants.
On December 30, 1996, appellant retained counsel pro hac vice
in order to assert his suggestion for a rehearing en banc.
STATEMENT OF NECESSARY FACTS
When defendant Williams issued a termination letter to the
plaintiff on November 7th, 1986, the plaintiff was forced to leave
his role as a mechanic and Shop Steward at Eastern Air Lines.
Plaintiff's meritorious ten (10) years of service at Eastern Air
Lines came to an abrupt end. Defendant Williams, who was acting
as the plaintiffs manager, terminated the plaintiff for alleged
insubordination and for filing a worker’s compensation claim
documenting a battery on the plaintiff by defendant McDonnell.
On October 24th, 1986 Defendant McDonnell, while acting as
plaintiff's supervisor, attacked the plaintiff in the men’s room of the
Ground Service Equipment (GSE) shop at EAL in an attempt to
serve a disciplinary letter on the plaintiff. Said letter stemmed from
plaintiff's refusal to perform an unsafe repair - ordered by
defendant McDonnell - on ground equipment owned by EAL.
Defendant Henry, in his capacity as a GSE foreman at EAL,
conspired with defendants Williams and McDonnell to deprive the
plaintiff of his gainful employment at EAL. But for the tortious
actions of the defendants, plaintiff would have been employed for
approximately three (3) more years at EAL.
Plaintiff, in compliance with the procedures set forth in the
Collective Bargaining Agreement (CBA) agreed upon between the
International Association of Machinist (IAM) and EAL, filed a
timely grievance to appeal disciplinary letters and his termination
to the System Board of Adjustment. The termination grievance
never went before an arbitration tribunal due to a huge backlog of
pending grievances, lengthy delays in the arbitral process, appeals,
32a
and the stay on litigation placed by EAL’ bankruptcy petition filing
in 1989.
ARGUMENT AND AUTHORITY
The decision of the Eleventh Circuit Court of Appeals in the
case sub-judice is in direct conflict with precedent of the Supreme
Court of the United States as expressed in Hawaiian Airlines, Inc,
y. Grant T. Norris (No. 92-2058), 512 U.S.___, 129 L.Ed.2d 203,
114 S.Ct. 2239 (1994). Unfortunately, in the case at bar, the
district court did not have the benefit of the U.S. Supreme Court’s
ruling in Norris which was decided subsequent to the district court
granting summary judgment. This important case should be
considered and applied by this court to prevent a breach of the
appellant’s substantive right to a trial by jury.
In Norris, an airline mechanic working at Hawaiian Air Lines
(HAL) was also terminated for alleged insubordination and refusing
to perform an unsafe repair. Norris appealed his termination
according to CBA procedures, but abandoned the grievance
procedures after HAL offered to return Norris to work without
backpay. Norris subsequently filed suit against HAL in Hawaii
circuit court, alleging two wrongful discharge torts - discharge in
violation of public policy and discharge in violation of Hawaii’s
Whistleblower Protection Act. Id at 3. Norris also alleged that
HAL had breached the CBA. As in the case at bar, Norris’s action
was removed to federal district court. Norris’s claim for breach of
the CBA and his claim for discharge in violation of public policy
were subsequently dismissed, as being pre-empted by the RLA. In
the meantime Norris had filed a second lawsuit in state court
against three (3) of HAL’s officers who allegedly directed,
confirmed or ratified the retaliatory discharge. He again sought
relief for discharge in violation of public policy and the
Whitleblower’s Act. The Hawaii trial court dismissed the two
33 a
-_——-— —-+-— — —_—_—_ +--+ - rl
counts as pre-empted by the RLA. Jd at 4. The Supreme Court of
Hawaii reversed in both cases, concluding that the RLA did not pre-
empt respondent’s state tort claims. Jd at 4. The court pointed to
Lingle vy. Norge Div, of Magic Chef. Inc, 486 US 399, 108
S.Ct.1877 (1988), which held that a claim of wrongful termination
in retaliation for filing a state worker’s compensation claim did not
require interpretation of a collective-bargaining agreement, but
depended upon purely factual questions concerning the employee’s
conduct and the employer’s motive. Norris at 4. The Supreme
Court adopted the Lingle standard, Norris at 14, and held:
“|. (W)e agree with the Supreme Court of Hawaii that
(Norris’s) claims for discharge in violation of public policy
and in violation of the Hawaii Whistleblower Protection Act
are not pre-empted by the RLA, and we affirm that court’s
judgment.” Jd at 17.
In the case at bar the district court granted summary the
defendants’ motion for summary judgment based on the alleged
failure of the plaintiff to exhaust his administrative remedies. (R6-
174, p.5). These issues are addressed in Nomis , which is
controlling and on point, factually and legally, with the case sub
judice. Grant T. Norris, like the appellant herein, was a mechanic
for a major airline and terminated for alleged insubordination in
violation of a collective bargaining agreement (CBA). Norris, like
the appellant herein, appealed his termination under the CBA
grievance procedures, and subsequent to his arbitration hearing,
filed separate actions in state court against the airline carrier and its
officers. As in the case sub judice, the trial court ruled that
mechanic Norris’s claims were pre-empted by the Railway Labor
Act (RLA). On appeal the Supreme Court of Hawaii, reversing ,
expressed the view that mechanic Norris’s state tort claims were
not pre-empted by the RLA. See Norris 74 Haw 648, 847 P.2d 634
(1993). On certiorari, the United States Supreme Court
34a
affirmed. In an opinion by Blackmun, J., expressing the
unanimous view of the court, it was held that the RLA did not pre-
empt Norris’s state law causes of action, and thus Norris was not
required to seek redress solely through the RLA’s arbitral
mechanism. Like Norris, the appellant’s claims are based
primarily upon state law. Further, the appellant’s claims, e.g.
Battery, Negligent Retention, etc., do not require interpretation of
a collective bargaining agreemrent, but instead depend upon purely
factual questions concerning the appellant’s conduct and the
defendants’ motives.
In Norris the Supreme Court relied on Lingle v, Norge Div, of
Magic Chef, Inc, 486 US 399, 108 S.Ct.1877 (1988). Lingle, also,
is on point and relevant. In Lingle, the plaintiff - as in the case
sub-judice - was terminated for allegedly filing a false worker’
compensation claim. In Lingle , the plaintiff - as in the case sub-
judice - filed a grievance to contest her discharge. In Lingle , the
plaintiff's claims, as in the case sub-judice, were filed in state
court while her grievance was pending. Her complaint was also
dismissed under the same pre-emption argument asserted by the
defendants herein. The Supreme Court stated that state claims are
pre-empted only if the plaintiffs claims can be decided solely
through interpretation of the CBA. Id at 1885. In the case at bar,
most, if not all, of appellant’s claims can be decided independent
of interpretation of the collective bargaining agreement. Thus, as
Stated in Lingle and Norris, appellant’s claims are not pre-empted
by failure to exhaust any administrative remedy or the RLA.
—— SaaS
CONCLUSION
It is proper for this court to review its Order filed on December
10th, 1996, wherein this court affirmed the district court’s granting
of summary judgment in favor of the defendants. Remand to the
district court would prevent a precedent setting error which would
directly conflict with Norris.
Respectfully submitted this 31st day of December, 1996.
Jonathan S. Friedman, Esq.
One East Broward - Suite 700
Barnett Bank Plaza
Fort Lauderdale, FL 33301
Tel: (954) 713-2820
Fax: (954) 713-2894
By:
Jonathan S. Friedman
Florida Bar No. 973297
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 94-4246
BRUCE RICHARD TOSKI,
Plaintiff,-Appellant,
versus
[Stamped 02/26/97 by Clerk]
WILLIAM J. McDONNELL,
JEFF HENRY, KEN WILLIAMS,
Defendants-Appellees.
On Appeal from the United States District Court
for the Southern District of Florida
ON PETITION(S) FOR REHEARING AND SUGGESTION(S)
OF REHEARING EN BANC
Before BIRCH, DUBINA, and CARNES, Circuit Judges
PER CURIAM:
The Petition(s) for Rehearing are DENIED and no member of this
panel nor other Judge in regular active service on the Court having
requested that the Court be polled on rehearing en banc (Rule 35,
Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5),
the Suggestions(s) of Rehearing En Banc are DENIED.
ENTERED FOR THE COURT:
—/s/ ioe] F, Dubina)
UNITED STATES CIRCUIT JUDGE
~—
37a
38a
TITLE 45 - RAILROADS
CHAPTER 8. RAILWAY LABOR
GENERAL PROVISIONS
45 USCS @ 152 (1990)
*** THIS SECTION IS CURRENT THROUGH 101 P.L. 507,
APPROVED 11/05/90 ***
@ 152. General duties
First. Duty of carriers and employees to settle disputes. It shall
be the duty of all carriers, their officers, agents, and employees to
exert every reasonable effort to make and maintain agreements
concerning rates of pay, rules, and working conditions, and to settle
all disputes, whether arising out of the application of such
agreements or otherwise, in order to avoid any interruption to
commerce or to the operation of any carrier growing out of any
dispute between the carrier and the employees thereof.
Second. Consideration of disputes by representatives. All disputes
between a carrier or carriers and its or their employees shall be
considered, and, if possible, decided, with all expedition, in
conference between representatives designated and authorized so to
confer, respectively, by the carrier or carriers and by the employees
thereof interested in the dispute.
Third. Designation of representatives. Representatives, for the
purposes of this Act shall be designated by the respective parties
without interference, influence, or coercion by either party over the
39 a
designation of representatives by the other and neither party shall
in any way interfere with, influence, or coerce the other in its
choice of representatives. Representatives of employees for the
purposes of this Act need not be persons in the employ of the
carrier, and no carrier shall, by interference, influence, or coercion
seek in any manner to prevent the designation by its employees as
their representatives of those who or which are not employees of
the carrier.
Fourth. Organization and collective bargaining freedom from
interference by carrier assistance in organizing or maintaining
organization by carrier forbidden deduction of dues from wages
forbidden. Employees shall have the right to organize and bargain
collectively through representatives of their own choosing. The
majority of any craft or class of employees shall have the right to
determine who shall be the representative of the craft or class for
the purposes of this Act. No carrier, its officers or agents, 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 it shall be unlawful for any carrier to interfere in any
way with the organization of its employees, or to use the funds of
the carrier in maintaining or assisting or contributing to any labor
organization, labor representative, or other agency of collective
bargaining, or in performing any work therefor, or 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, or to
deduct from the wages of employees any dues, fees, assessments,
or other contributions payable to labor organizations, or to collect
or to assist in the collection of any such dues, fees, assessments, or
other contributions: Provided, That nothing in this Act shall be
construed to prohibit a carrier from permitting an employee,
individually, or local representatives of employees from conferring
40 a_ aa er oe
with management during working hours without loss of time, or to
prohibit a carrier from furnishing free transportation to its
employees while engaged in the business of a labor
organization.
Fifth. Agreements to join or not to join labor organizations
forbidden. No carrier, its officers, or agents shall require any person
seeking employment to sign any contract or agreement promising
to join or not to join a labor organization and if any such contract
has been enforced prior to the effective date of this Act [enacted
May 20, 1926], then such carrier shall notify the employees by an
appropriate order that such contract has been discarded and is no
longer binding on them in any way.
Sixth. Conference of representatives time place private
agreements. In case of a dispute between a carrier or carriers and
its or their employees, arising out of grievances or out of the
interpretation or application of agreements concerning rates of pay,
rules, or working conditions, it shall be the duty of the designated
representative or representatives of such carrier or carriers and of
such employees, within ten days after the receipt of notice of a
desire on the part of either party to confer in respect to such
dispute, to specify a time and place at which such conference shall
be held: Provided, (1) That the place so specified shall be situated
upon the line of the carrier involved or as otherwise mutually
agreed upon and (2) that the time so specified shall allow the
designated conferees reasonable opportunity to reach such place of
conference, but shall not exceed twenty days from the receipt of
such notice: And provided further, That nothing in this Act shall be
construed to supersede the provisions of any agreement (as to
conferences) then in effect between the parties.
a ner | 4la
Seventh. Change in pay, rules or working conditions contrary to
agreement or to section 156 forbidden. No carrier, its officers or
agents shall change the rates of pay, rules, or working conditions of
its employees, as a class as embodied in agreements except in the
manner prescribed in such agreements or in section 6 of this Act
[45 USCS @ 156].
Eighth. Notices of manner of settlement of disputes posting.
Every carrier shall notify its employees by printed notices in such
form and posted at such times and places as shall be specified by
the Mediation Board that all disputes between the carrier and its
employees will be handled in accordance with the requirements of
this Act, and in such notices there shall be printed verbatim, in
large type, the third, fourth, and fifth paragraphs of this section.
The provisions of said paragraphs are hereby made a part of the
contract of employment between the carrier and each employee, and
shall be held binding upon the parties, regardless of any other
express or implied agreements between them.
Ninth. Disputes as to identity of representatives designation by
Mediation Board secret elections. If any dispute shall arise among
a carrier's employees as to who are the representatives of such
employees designated and authorized in accordance with the
requirements of this Act, it shall be the duty of the Mediation
Board, upon request of either party to the dispute, to investigate
such dispute and to certify to both parties, in writing, within thirty
days after the receipt of the invocation of its services, the name or
names of the individuals or organizations that have been designated
and authorized to represent the employees involved in the dispute,
and certify the same to the carrier. Upon receipt of such
certification the carrier shall treat with the representative so
certified as the representative of the craft or class for the purposes
42a
ems ow
of this Act. In such an investigation, the Mediation Board shall be
authorized to take a secret ballot of the employees involved, or to
utilize any other appropriate method of ascertaining the names of
their duly designated and authorized representatives in such manner
as shall insure the choice of representatives by the employees
Without interference, influence, or coercion exercised by the carrier.
In the conduct of any election for the purposes herein indicated the
Board shall designate who- may participate in the election and
establish the rules to govern the election, or may appoint a
committee of three neutral persons who after hearing shall within
ten days designate the employees who may participate in the
election. The Board shall have access to and have power to make
copies of the books and records of the carriers to obtain and utilize
such information as may be deemed necessary by it to carry out the
purposes and provisions of this paragraph.
Tenth, Violations prosecutions and penalties. The willful failure
or refusal of any carrier, its officers or agents to comply with the
terms of the third, fourth, fifth, seventh, or eighth paragraph of this
section shall be a misdemeanor, and upon conviction thereof the
carrier, officer, or agent offending shall be subject to a fine of not
less than $ 1,000 nor more than $ 20,000 or imprisonment for not
more than six months, or both fine and imprisonment, for each
offense, and each day during which such carrier, officer, or agent
shall willfully fail or refuse to comply with the terms of the said
paragraphs of this section shall constitute a separate offense. It shall
be the duty of any district attorney of the United States [United
States attorney] to whom any duly designated representative of a
carrier's employees may apply to institute in the proper court and
to prosecute under the direction of the Attorney General of the
United States, all necessary proceedings for the enforcement of the
provisions of this section, and for the punishment of all violations
43 a
thereof and the costs and expenses of such prosecution shall be paid
out of the appropriation for the expenses of the courts of the United
States: Provided, That nothing in this Act shall be construed to
require an individual employee to render labor or service without
his consent, nor shall anything in this Act be construed to make the
quitting of his labor by an individual employee an illegal act nor
shall any court issue any process to compel the performance by an
individual employee of such labor or service, without his consent.
Eleventh. Union security agreements check-off. Notwithstanding
any other provisions of this Act, or of any other statute or law of
the United States, or Territory thereof, or any State, any carrier or
carriers as defined in this Act and a labor organization or labor
organizations duly designated and authorized to represent
employees in accordance with the requirements of this Act shall be
permitted-
(a) to make agreements, requiring, as a condition of continued
employment, that within sixty days following the beginning of such
employment, or the effective date of such agreements, whichever is
the later, all employees shall become members of the labor
organization representing their craft or class: Provided, That no
such agreement shall require such condition of employment with
respect to employees to whom membership is not available upon
the same terms and conditions as are generally applicable to any
other member or with respect to employees to whom membership
was denied or terminated for any reason other than the failure of
the employee to tender the periodic dues, initiation fees, and
assessments (not including fines and penalties) uniformly required
as a condition of acquiring or retaining membership,
(b) to make agreements providing for the deduction by such carrier
or carriers from the wages of its or their employees in a craft or
class and payment to the labor organization representing the craft
44 a
|
or class of such employees, of any periodic dues, initiation fees,
and assessments (not including fines and penalties), uniformly
revocable in writing after the expiration of one year or upon the
termination date of the applicable collective agreement, whichever
occurs sooner.
(c) The requirement of membership in a labor organization in an
agreement made pursuant to subparagraph (a) shall be satisfied, as
to both a present or future employee in engine, train, yard, or
hostling service, that is, an employee engaged in any of the services
Or capacities covered in section 3, first (h) of this act [45 USCS @
153(h), First division] defining the jurisdictional scope of the first
division of the National Railroad Adjustment Board, if said
employee shall hold or acquire membership in any one of the labor
organizations, national in scope, organized in accordance with this
act and admitting to membership employees of a craft or class in
any of said services and no agreement made pursuant to
subparagraph (b) shall provide for deductions from his wages for
Periodic dues, initiation fees, or assessments payable to any labor
Organization other than that in which he holds membership:
Provided, however, That as to an employee in any of said services
on a particular carrier at the effective date of any such agreement
on a carrier, who is not a member of any one of the labor
organizations, national in scope, organized in accordance with this
act and admitting to membership employees of a craft or class in
any of said services, such employee, as a condition of continuing
his employment, may be required to become a member of the
Organization representing the craft in which he is employed on the
45 a
effective date of the first agreement applicable to him: Provided,
further, That nothing herein or in any such agreement or agreements
shall prevent an employee from changing membership from one
organization to another organization admitting to membership
employees of a craft or class in any of said services.
(d) Any provisions in paragraphs fourth and fifth of section 2 of
this act [this section] in conflict herewith are to the extent of such
conflict amended.
HISTORY: (May 20, 1926, ch 347, Title I, @ 2, in part, 44 Stat.
577 June 21, 1934, ch 691, @ 2, in part, 48 Stat. 1186 Apr. 10,
1936, ch 166, 49 Stat. 1189 Jan. 10, 1951, ch 1220, 64 Stat. 1238.)
HISTORY ANCILLARY LAWS AND DIRECTIVES
"This Act", referred to in this section, is Act May 20, 1926, ch 347,
44 Stat. 577, as amended, popularly known as the Railway Labor
Act, which appears generally at 45 USCS @@ 151 et seq. For full
classification of this Act, consult USCS Tables volumes.
Explanatory notes:
The bracketed words "United States attorney" are inserted in this
section on authority of Act June 25, 1948, ch 646, @ 1, 62 Stat.
909, which in essence changed the name of district attorneys to
United States attorneys. For explanation, see Prior law and revision
note to 28 USCS @ 541.
Amendments:
1934. Act June 21, 1934, substituted "by the carrier or carriers" for
"by the carriers" in para. "Second", reworded paras. "Third",
"Fourth" and "Fifth" generally, and added paras. "Sixth" to "Tenth".
1951. Act Jan. 10, 1951, added para. "Eleventh".
Redesignation:
This section, enacted as @ 2 of Act May 20, 1926, was
redesignated as Title I, @ 152, of such Act by Act Apr. 10, 1936,
ch 166, 49 Stat. 1189.
46 a
SUPREME COURT OF THE UNITED STATES
No. 92-2058
HAWAIIAN AIRLINES, INC.,
PETITIONER
v
GRANT T. NORRIS
PAUL J. FINAZZO, HOWARD OGDEN, HATSUO HONMA,
PETITIONERS
v
GRANT T. NORRIS
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF HAWAII
[June 20, 1994]
JUSTICE BLACKMUN delivered the opinion of the Court.
This case involves the scope of federal pre-emption under the
Railway Labor Act (RLA), 45 U. S. C. §151 ef seq. The RLA,
which was extended in 1936 to cover the airline industry, see Act
of Apr. 10, 1936, ch. 66, 49 Stat. 1189; 49 U.S. C. §§181-188,
sets up a mandatory arbitral mechanism to handle disputes
“growing out of grievances or out of the interpretation and
application of agreements concerning rates of pay, rules, or
working conditions,” 45 U. S. C. §153 First (i). The question in
this case is whether an aircraft mechanic who claims that he was
discharged for refusing to certify the safety of a plane that he
47a
considered unsafe and for reporting his safety concerns to the
Federal Aviation Administration may pursue available state law
remedies for wrongful discharge, or whether he may seek redress
only through the RLA's arbitral mechanism. We hold that the RLA
does not pre-empt his state law causes of action.
I
Respondent Grant Norris is an aircraft mechanic licensed by the
Federal Aviation Administration (FAA). His aircraft mechanic's
license authorizes him to approve an airplane and return it to
service after he has made, supervised, or inspected certain repairs
performed on that plane. See Certification: Airmen Other Than
Flight Crewmembers, 14 CFR §§65.85 and 65.87 (1987). If he
were to approve any aircraft on which the repairs did not conform
to FAA safety regulations, the FAA could suspend or revoke his
license. See Maintenance, Preventive Maintenance, Rebuilding and
Alteration, 14 CFR §43.12 (1992).
On February 2, 1987, respondent was hired by petitioner
Hawaiian Airlines, Inc. (HAL). Many of the terms of his employ-
ment were governed by a collective-bargaining agreement (CBA)
negotiated between the carrier and the International Association of
Machinists and Aerospace Workers. Under the CBA, respondent's
duties included inspecting and repairing all parts of a plane and its
engine. On July 15, 1987, during a routine preflight inspection of
a DC-9 plane, he noticed that one of the tires was worn. When he
removed the wheel, respondent discovered that the axle sleeve,
which should have been mirror-smooth, was scarred and grooved.
This damaged sleeve could cause the landing gear to fail. Respon-
dent recommended that the sleeve be replaced, but his supervisor
ordered that it be sanded and returned to the plane. This was done,
and the plane flew as scheduled. At the end of the shift, respon-
dent refused to sign the maintenance record to certify that the
fit to fly. See 14 CFR 43.9(a) (1992). The supervisor immediately
suspended him pending a termination hearing. Respondent
48a
sane ME Nit Ayia t Nim VME GUA om ry
Me A TaN Sy
PREERI ESI MSR NNER RINE RG RI ow
hein ZAG dee
immediately went home and called the FAA to report the problem
with the sleeve.'
Respondent then invoked the grievance procedure outlined in the
CBA, and a “Step 1” grievance hearing was held on July 31, 1987.
Petitioner HAL accused respondent of insubordination, claiming
that his refusal to sign the record violated the CBA's provision that
an aircraft mechanic “may be required to sign work records in
connection with the work he performs.” Kespondent relied on the
CBA's guarantees that an employee may not be discharged without
just cause and may not be disciplined for refusing to perform work
that is in violation of health or safety laws. The hearing officer
Still conforming to the CBA procedures, respondent appealed his
termination, seeking a “Step 3” grievance hearing. Before this
hearing took place, HAL offered to reduce respondent's punishment
to suspension without pay, but warned him that “any further
instance of failure to perform [his] duties in a responsible manner”
could result in discharge. Respondent did not respond to this offer,
nor, apparently, did he take further steps to pursue his grievance
through the CBA procedures.
On December 18, 1987, respondent filed suit against HAL in
Hawaii circuit court. His complaint included two wrongful
discharge torts - discharge in violation of the public policy
expressed in the Federal Aviation Act and implementing regula-
tions, and discharge in violation of Hawaii's Whistleblower
Protection Act, Haw. Rev. Stat. §§378-61 to 378-69 (1988).? He
substantial fine.
"The Hawaii Whistleblower Protection Act forbids an employer to “discharge,
threaten, or otherwise discriminate against an emp hiv
because . . . [t]he employee . . . reports or is about to report to a public body .. . a
violation or a suspected violation of a law or rule adopted pursuant to law of this
State, a political subdivision of this State, or the United States, unless the employee
49a
also alleged that HAL had breached the collective-bargaining
agreement. HAL removed the action to the United States District
Court for the District of Hawaii, which dismissed the breach of
contract claim as pre-empted by the RLA, and remanded the other
claims to the state trial court. The trial court then dismissed
respondent's claim of discharge in violation of public policy,
holding that it, too, was pre-empted by the RLA's provision of
exclusive arbitral procedures. The state court certified its order as
final to permit respondent to take an immediate appeal.
In the meantime, respondent had filed a second lawsuit in state
court, naming as defendants three of HAL's officers who allegedly
directed, confirmed, or ratified the claimed retaliatory discharge.’
He again sought relief for, among other things, discharge in
violation of public policy and of the Hawaii Whistleblower's
Protection Act. The Hawaii trial court dismissed these two counts
as pre-empted by the RLA and certified the case for immediate
appeal.
The Supreme Court of Hawaii reversed in both cases, concluding
that the RLA did not pre-empt respondent's state tort actions.
Norris v. Finazzo, 74 Haw. 235, 842 P. 2d 634 (1992); Norris v.
Hawaiian Airlines, Inc., 74 Haw. 648, 847 P. 2d 634 (1993). That
court concluded that the plain language of §153 First (i) does not
support pre-emption of disputes independent of a labor agreement,
74 Haw., at 251, 842 P. 2d, at 642, and interpreted the opinion in
Consolidated Rail Corp. v. Railway Labor Executives’ Assn., 491
U. S. 299 (1989), to limit RLA pre-emption to “disputes involving
contractually defined rights.” 74 Haw., at 250, 842 P. 2d, at 642.
The court rejected petitioners’ argument that the retaliatory
discharge claims were pre-empted because determining whether
HAL discharged respondent for insubordination, and thus for just
knows that the report is false.” §378-62(1). The Act authorizes an employee to file
a civil action secking injunctive relief and actual damages. §378-63(a).
*These managerial officers, petitioners here, are Paul J. Finazzo, Howard E. Ogden,
and Hatsuo Honma.
50a
cause, required construing the CBA. The court pointed to Lingle
v. Norge Division of Magic Chef, Inc., 486 U. S. 399 (1988), a
case involving § 301 of the Labor Management Relations Act, 1947
(LMRA), 29 U. S. C. §185, in which the Court held that a claim
of wrongful termination in retaliation for filing a state worker's
compensation claim did not require interpretation of a collective-
bargaining agreement, but depended upon purely factual questions
concerning the employee's conduct and the employer's motive.
Because the same was true in this case, said the Supreme Court of
Hawaii, respondent's state tort claims were not pre-empted.
; We granted certiorari in these consolidated cases, _~-U.S.__
: (1994).
I
A
Whether federal law pre-empts a state law establishing a cause
3 of action is a question of congressional intent. See Allis-Chalmers
v. Lueck, 471 U. S. 202, 208 (1985). Pre-emption of employment
: standards “within the traditional police power of the State” “should
f not be lightly inferred.” Fort Halifax Packing Co. v. Coyne, 482
. U. S. 1, 21 (1987); see also Hillsborough County v. Automated
i Medical Laboratories, Inc., 471 U. S. 707, 715 (1985) (a federal
4 Statute will be read to supersede a State's historic powers only if
this is “the clear and manifest purpose of Congress”).
Congress’ purpose in passing the RLA was to promote stability
in labor-management relations by providing a comprehensive
j framework for resolving labor disputes. Atchison, T & SF. R
‘ Co. v. Buell, 480 U. S. 557, 562 (1987); see also 45 U. S. C.
§15la. To realize this goal, the Act establishes a mandatory
arbitral mechanism for “the prompt and orderly settlement” of two
classes of disputes. 45 U. S. C. §15la. The first class, those
concerning “rates of pay, rules or working conditions,” ibid., are
deemed “major” disputes. Major disputes relate to “ ‘the formation
Sla
of collective bargaining agreements or efforts to secure them.'”
Consolidated Rail Corp. v. Railway Labor Executives’ Assn., 491
U. S. 299, 302 (1989) (“Conrail”), quoting Elgin, J. & E. R. Co.
v. Burley, 325 U. S. 711, 723 (1945). The second class of
disputes, known as “minor” disputes, “gro[w] out of grievances or
out of the interpretation or application of agreements covering rates
of pay, rules, or working conditions.” 45 U.S. C. §15la. Minor
disputes “involve controversies over the meaning of an existing
collective bargaining agreement in a particular fact situation.”
Trainmen v. Chicago R. & I. R. Co., 353 U. S. 30, 33 (1957).
Thus, “major disputes seek to create contractual rights, minor
disputes to enforce them.” Conrail, 491 U. S., at 302, citing
Burley, 325 U. S., at 723.
Petitioners contend that the conflict over respondent's firing is a
minor dispute. If so, it must be resolved only through the RLA
mechanisms, including the carrier's internal dispute-resolution
processes and an adjustment board established by the employer and
the unions. See 45 U. S. C. §184; Buell, 480 U. S., at 563;
Conrail, 491 U. S., at 302. Thus, a determination that respondent's
complaints constitute a minor dispute would pre-empt his state law
actions.
B
The Court's inquiry into the scope of minor disputes begins, of
course, with the text of the statute. Petitioners point out that the
statute defines minor disputes to include “disputes growing out of
grievances or out of the interpretation or application of [CBAsj.”
Petitioners argue that this disjunctive language must indicate that
“grievances” means something other than labor-contract disputes,
else the term “grievances” would be superfluous. Accordingly,
petitioners suggest that “grievances” should be read to mean all
employment-related disputes, including those based on statutory or
common law. Even if we were persuaded that the word “or”
carried this weight, but cf. United States v. Olano,___'-U. S.__-
(1993) (slip op. 6-7) (reading “error or defect” to create one
52a
category of “error”), citing United States v. Young, 470 U.S. 1, 15,
| n. 12 (1985); McNally v. United States, 483 U. S. 350, 358-359
(1987) (second phrase in disjunctive added simply to make the
meaning of the first phrase “unmistakable”), petitioners’ interpre-
tation produces an overlap not unlike the one it purports to avoid.
Their expansive definition of “grievances” necessarily encompasses
. disputes growing out of “the interpretation or application” of
CBAs. Thus, in attempting to save the term “grievances” from
. superfluity, petitioners would make the phrase after the “or” mere
surplusage.
We think it more likely that “grievances,” like disputes over “the
interpretation or application” of CBAs, refers to disagreements over
. how to give effect to the bargained-for agreement. The use of
“grievance” to refer to a claim arising out of a CBA is common in
the labor-law context in general, see, ¢.g., United Paperworkers
Int'l Union v. Misco, Inc., 484 U. S. 29, 36 (1987), and it has been
understood in this way in the RLA context. See H.R. Rep. No.
1944, 73d Cong., 2d Sess., 2-3 (1934) (referring to RLA 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”). Significantly, the adjustment boards
charged with administration of the minor-dispute provisions have
understood these provisions as pertaining only to disputes invoking
contract-based rights. See, e.g, NRAB Fourth Div. Award No.
4548 (1987) (function of the National Rail Adjustment Board is to
decide disputes in accordance with the controlling CBA); NRAB
Third Div. Award No. 24348 (1983) (issues not related to the
interpretation or application of contracts are outside the Board's
authority); NRAB Third Div. Award No. 19790 (1973) (“this
Board lacks jurisdiction to enforce rights created by State or
Federal Statutes and is limited to questions arising out of interpre-
tations and application of Railway Labor Agreement”); Northwest
Airlines/Airline Pilots Assn., Int'l System Bd. of Adjustment,
Decision of June 28, 1972, p. 13 (“both the traditional role of the
VE ER NR HEI LEN allt, a i
2 ON ORR
53 a
arbitrator and admonitions of the courts require the Board to refrain
from attempting to construe any of the provisions of the [RLA]”);
United Airlines, Inc., 48 LA 727, 733 (BNA) (1967) (“The
jurisdiction of this System Board does not extend to interpreting
and applying the Civil Rights Act”).
Accordingly, we believe that the most natural reading of the term
“srievances” in this context is as a synonym for disputes involving
the application or interpretation of a CBA. See Webster's Third
New International Dictionary 1585 (1986) (the word “or” may be
used to indicate “the synonymous, equivalent, or substitutive
character of two words or phrases”). Nothing in the legislative
history of the RLA‘ or other sections of the statite undermines
this conclusion. But even accepting that §151(a) is susceptible of
more than one interpretation, no proposed interpretation demon-
strates a clear and manifest congressional purpose to create a
“During the debates surrounding the RLA's enactment in 1926, floor statements
that, in isolation, could support a broader interpretation of “grievances” were
counterbalanced by other statements—some even by the same legislators—that
equated grievances with contract interpretation. Compare 67 Cong. Rec. 4517, 8807
(1926), with id., at 4510, 8808. This inconclusive debate hardly calls for fashioning
a broad rule of pre-emption. Moreover, in 1934 when Congress amended the RLA
to make arbitration mandatory for minor disputes, the accompanying House Report
stated that the bill was intended “to provide 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.” H.R. Rep. No. 1944, 73d Cong., 2d
Sess., 2-3 (1934).
‘Petitioners cite the statute's reference to the parties’ general duties as including
“settl[ing] all disputes, whether arising out of the application of [collective
bargaining] agreements or otherwise.” 45 U. S. C. §152 First. This provision, which
is phrased more broadly than the operative language of §153 First (i), does not clearly
refer only to minor disputes. But even if this provision is read to require parties to
try to settle certain issues arising out of the employment relationship but not
specifically addressed by the CBA, this does not compel the conclusion that all i issues
touching on the employment relationship must be resolved through arbitration or that
all claims involving rights and duties that exist independent of the CBA are thereby
pre-empted. Our precedents squarely reject this pervasive pre-emption.
54a
regime that broadly pre-empts substantive protections extended by
the States, independent of any negotiated labor agreement.
C
Our case law confirms that the category of minor disputes
contemplated by §151(a) are those that are grounded in the
collective-bargaining agreement. We have defined minor disputes
as those involving the interpretation or application of existing labor
agreements. See, e.g., Consolidated Rail Corp. v. Railway Labor
Exec. Assn., 491 U. S. 299, 305 (1989) (“The distinguishing feature
of [a minor dispute] is that the dispute may be conclusively
resolved by interpreting the existing [CBA]”); Pittsburgh & Lake
Erie R. Co. v. Railway Labor Executives’ Assn., 491 U. S. 490,
496, n. 12 (1989) (“Minor disputes are those involving the
interpretation or application of existing contracts”); Brotherhood of
RR. Trainmen, 353 U. S., at 33 (minor disputes are “controversies
over the meaning of an existing collective bargaining agreement”);
Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239, 243 (1950)
(RLA arbitral mechanism is meant to provide remedies for
“adjustment of railroad-employee disputes growing out of the
interpretation of existing agreements”).
Moreover, we have held that the RLA's mechanism for resolving
minor disputes does not pre-empt causes of action to enforce rights
that are independent of the CBA. More than 60 years ago, the
Court rejected a railroad's argument that the existence of the RLA
arbitration scheme pre-empted a state statute regulating the number
of workers required to operate certain equipment. Missouri Pacific
R. Co. v. Norwood, 283 U. S. 249, 258 (1931) (“No analysis or
discussion of the provisions of the Railway Labor Act of 1926 is
necessary to show that it does not conflict with the Arkansas
Statutes under consideration”). Not long thereafter, the Court
rejected a claim that the RLA pre-empted an order by the Illinois
Commerce Commission requiring cabooses on all trains; the
operative collective-bargaining agreement required cabooses only
on some of the trains. Terminal Railroad Assn. of St. Louis v.
55a
Brotherhood of Railroad Trainmen, 318 U. S. 1 (1943). Although
the Court assumed that a railroad adjustment board would have
jurisdiction under the RLA over this dispute, id., at 6, it concluded
that the state law was enforceable nonetheless:
“State laws have long regulated a great variety of conditions
in transportation and industry, such as sanitary facilities and
conditions, safety devices and protections, purity of water
supply, fire protection, and innumerable others. Any of these
matters might, we suppose, be the subject of a demand by
work[ers] for better protection and upon refusal might, we
suppose, be the subject of a labor dispute which would have
such effect on interstate commerce that federal agencies might
be invoked to deal with some phase of it... . But it cannot
be said that the minimum requirements laid down by state
authority are all set aside. We hold that the enactment by
Congress of the [RLA] was not a preémption of the field of
regulating working conditions themselves ....” Jd., at 6-7.
Thus, under Norwood, substantive protections provided by state
law, independent of whatever labor agreement might govern, are
not pre-empted under the RLA.
Although Norwood and Terminal Railroad involved state
workplace safety laws, the Court has taken a consistent approach
in the context of state actions for wrongful discharge. In Andrews
v. Louisville & N. R. Co., 406 U. S. 320 (1972), the Court held that
a state law claim of wrongful termination was pre-empted, not
because the RLA broadly pre-empts state law claims based on
discharge or discipline, but because the employee's claim was
firmly rooted in a breach of the CBA itself. He asserted no right
independent of that agreement:
“Here it is conceded by all that the only source of [Andrews']
right not to be discharged, and therefore to treat an alleged
discharge as a “wrongful” one that entitled him to damages,
is the [CBA]. ... [T]he disagreement turns on the extent of
56a
(the railroad's] obligation to restore [Andrews] to his regular
duties following injury in an automobile accident. The
existence and extent of such an obligation in a case such as
this will depend on the interpretation of the [CBA]. Thus,
[Andrews'] claim, and the [railroad's] disallowance of it, stem
from differing interpretations of the [CBA]... . His claim is
therefore subject to the Act's requirement that it be submitted
to the Board for adjustment.” /d., at 324 (emphasis added).
Here, in contrast, the CBA is not the “only source” of respon-
dent's right not to be discharged wrongfully. In fact, the “only
source” of the right respondent asserts in this action is state tort
law. Wholly apart from any provision of the CBA, petitioners had
a state-law obligation not to fire respondent in violation of public
policy or in retaliation for whistleblowing. The parties’ obligation
under the RLA to arbitrate disputes arising out of the application
or interpretation of the CBA did not relieve petitioners of this duty.
Atchison, T. & S. F. R. Co. v. Buell, 480 U. S. 557 (1987),
confirms that “minor disputes” subject to RLA arbitration are those
that involve duties and rights created or defined by the collective-
bargaining agreement. In Buell, a railroad employee sought
damages for workplace injuries under the Federal Employers’
Liability Act (FELA), 45 U. S. C. §51 ef seq., which provides a
remedy for a railroad worker injured through an employer's or
coworker's negligence. The railroad argued that, because the
alleged injury resulted from conduct that was subject to the
collective-bargaining agreement, the employee's sole remedy was
through RLA arbitration. The Court unanimously rejected this
argument, emphasizing that the rights derived from the FELA were
independent of the CBA:
“The fact that an injury otherwise compensable under the
FELA was caused by conduct that may have been subject to
arbitration under the RLA does not deprive an employee of
his opportunity to bring an FELA action for damages. . . .
The FELA not only provides railroad workers with substantive
57a
protection against negligent conduct that is independent of the
employer's obligations under its collective-bargaining agree-
ment, but also affords injured workers a remedy suited to their
needs, unlike the limited relief that seems to be available
through the Adjustment Board. It is inconceivable that
Congress intended that a worker who suffered a disabling
injury would be denied recovery under the FELA simply
because he might also be able to process a narrow labor
grievance under the RLA to a successful conclusion.” 480
U. S., at 564-565.
It likened Buell to other cases in which the Court had concluded
that “notwithstanding the strong policies encouraging arbitration,
‘different considerations apply where the employee's claim is based
on rights arising out of a statute designed to provide minimum
substantive guarantees to individual workers,'” id., at 565, quoting
Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728,
737 (1981), and distinguished it from Andrews, which involved a
State wrongful-discharge claim “based squarely” on an alleged
breach of a CBA, 480 U. S., at 566.°
D
The pre-emption standard that emerges from the line of cases
leading to Buell—that a state-law cause of action is not pre-empted
by the RLA if it involves rights and obligations that exist inde-
pendent of the collective-bargaining agreement—is virtually
“Buell, of course, involved possible RLA preclusion of a cause of action arising out
of a federal statute, while this case involves RLA preemption of a cause of action
arising out of state law and existing entirely independent of the collective bargaining
agreement. That distinction does not rob Buell of its force in this context. See Lingle
v. Norge Div. of Magic Chef, 486 U. S. 399, 412 (1988) (Buell principles applicable
to determine whether federal labor law pre-cmpts a state statute). Principles of
federalism demand no less caution in finding that a federal statute pre-empts state
law. See Fort Halifax Packing Co. v. Coyne, 482 U. S., at 21 (pre-emption of state
statute “should not be lightly inferred in this [labor] area, since the establishment of
labor standards falls within the traditional police powers of the State”).
58a
identical to the pre-emption standard the Court employs in cases
involving §301 of the LMRA, 29 U. S. C. §185.’ In Allis-Chal-
mers V. Lueck, 471 U. S. 202 (1985), the Court applied §301 pre-
emption to a state-law claim for bad-faith handling of a worker's
compensation claim because the duties the employer owed the
employee, including the duty of good faith, were rooted firmly in
the collective-bargaining agreement. Its pre-emption findinz was
based on the fact that “the right asserted not only derives from the
contract, but is defined by the contractual obligation of good faith,
[so that] any attempt to assess liability here inevitably will involve
contract interpretation.” Jd, at 218.
It cautioned, however, that other state-law rights, those that
existed independent of the contract, would not be similarly pre-
empted:
“Of course, not every dispute concerning emp'oyment, or
tangentially involving a provision of a collective-bargaining
agreement, is preempted by §301 or other provisions of the
federal labor law... . Nor is there any suggestion that
Congress, in adopting §301, wished to give the substantive
provisions of private agreements the force of federal law,
ousting any inconsistent state regulation. . . . Clearly, §301
does not grant the parties to a collective-bargaining agreement
the ability to contract for what is illegal under state law. In
extending the preemptive effect of §301 beyond suits for
breach of contract, it would be inconsistent with congressional
intent under that section to preempt state rules that proscribe
conduct, or establish rights and obligations, independent of a
labor contract.” Jd, at 211-212.
’Section 301(a) provides federal-court jurisdiction over controversies involving
j ini agreements and “authorizes federal courts to fashion a body of
federal law for the enforcement of these collective bargaining
Workers v. Lincoln Mills, 353 U. S. 448, 451 (1957).
"The Court applies these principles in Livadas v. Aubry, ante, at ____, in which we
reject the claim that an employee's state-law right to receive a penalty payment from
59a
In a case remarkably similar to the case before us now, this
Court made clear that the existence of a potential CBA-based
remedy did not deprive an employee of independent remedies
available under state law. In Lingle v. Norge Division of Magic
Chef, Inc., 486 U. S. 399 (1988), an employee covered by a labor
agreement was fired for filing an allegedly false worker's
compensation claim. After filing a grievance pursuant to her
collective-bargaining agreement, which protected employees against
discharge except for “proper” or “just” cause, she filed a complaint
in state court, alleging that she had been discharged for exercising
her rights under Illinois worker's compensation laws. The state
court had held her state-law claim pre-empted because “the same
analysis of the facts” was required in both the grievance proceeding
and the state-court action. This Court reversed.
It recognized that where the resolution of a state-law claim
depends on an interpretation of the collective-bargaining agreement,
the claim is pre-empted. Jd, at 405-406, citing Lueck, supra;
Teamsters v. Lucas Flour Co., 369 U. S. 95 (1962). It observed,
however, that “purely factual questions” about an employee's
conduct or an employer's conduct and motives do not “requir[e] a
court to interpret any term of a collective-bargaining agreement.”
Id., at 407. The state-law retaliatory discharge claim turned on just
this sort of purely factual question: whether the employee was
discharged or threatened with discharge, and, if so, whether the
employer's motive in discharging him was to deter or interfere with
his exercise of rights under Illinois worker's compensation law.
her employer was pre-empted under §301 because the penalty was pegged to her
wages, which were determined by the governing CBA. The Court states that “when
the meaning of contract terms is not the subject of dispute, the bare fact that a
collective-bargaining agreement will be consulted in the course of state-law litigation
plainly does not require the claim to be extinguished.” Ante, at _, citing Lingle v.
Norge Division of Magic Chef, 486 U. S. 399, 413, n. 12 (1988). In addition, it
reaffirms that Ҥ301 cannot be read broadly to pre-empt non-negotiable rights
conferred on individual employees as as matter of state law.” Ante, at__.
60 a
While recognizing that “the state-law analysis might well involve
attention to the same factual considerations as the contractual
determination whether Lingle was fired for just cause,” id., at 408,
the Court disagreed that
“such parallelism render[ed] the state-law analysis dependent
upon the contractual analysis. For while there may be
instances in which the National Labor Relations Act pre-empts
State law on the basis of the subject matter of the law in
question, §301 pre-emption merely ensures that federal law
will be the basis for interpreting collective-bargaining agree-
ments, and says nothing about the substantive rights a State
may provide to workers when adjudication of those rights
does not depend upon the interpretation of such agreements.
In other words, even if dispute resolution pursuant to a
collective-bargaining agreement, on the one hand, and state
law, on the other, would require addressing precisely the same
set of facts, as long as the state-law claim can be resolved
without interpreting the agreement itself, the claim is ‘inde-
pendent’ of the agreement for §301 pre-emption purposes.”
Id., at 408-409.
The Court's ruling in Lingle that the LMRA pre-empts state law
only if a state-law claim is dependent on the interpretation of a
collective-bargaining agreement is fully consistent with the holding
in Buell, 480 U. S., at 564~565, that the RLA does not pre-empt
“substantive protections . . . independent of the [CBA],” with the
holding in Terminal Railroad, 318 U. S., at 7, that the RLA does
not pre-empt basic “protections . . . laid down by state authority,”
with the conclusion in Andrews, 406 U. S., at 324, that a state-law
claim is pre-empted where it “depend{s] on the interpretation” of
the CBA, and with the description in Conrail, 491 U. S., at 305, of
a minor dispute as one that can be “conclusively resolved” by
reference to an existing collective-bargaining agreement. Lingle,
in fact, expressly relied on Buell, see 486 U. S., at 41 1-412, just
as earlier RLA cases have drawn analogies to LMRA principles,
6la
see, e.g., International Assn. of Machinists v. Central Airlines, Inc.,
372 U. S. 682, 692 (1963). Given this convergence in the pre-
emption standards under the two statutes, we conclude that Lingle
provides an appropriate frame-work for addressing pre-emption
under the RLA, andwe adopt the Lingle standard to resolve claims
of RLA pre-emption.’
E
In reaching this conclusion, we reject petitioners’ suggestion that
this contract-dependent standard for minor disputes is inconsistent
with two of our prior cases, Elgin, J. & E. R. Co. v. Burley, 325
U. S. 711 (1945), and Consolidated Rail Corp. v. Railway Labor
Exec. Assn., 491 U. S. 299, 302 (1989). Burley was not a pre-
emption case. Rather, it concerned the authority of union officials
to settle railroad workers’ individual claims for damages for alleged
violations of the collective-bargaining agreement. The railroad
urged that the union representative, who had the authority to
negotiate collective agreements in major disputes, enjoyed similar
*It is true, as petitioners observe, that the RLA and the LMRA are not identical in
language, history, and purpose. The LMRA, unlike the RLA, does not mandate
arbitration, nor does it prescribe the types of disputes to be submitted to arbitration
under bargaining agreements. Nonetheless, the common purposes of the two statutes,
the parallel development of RLA and LMRA pre-emption law, see, e.g., International
Assn. of Machinists v. Central Airlines, 372 U. S. 682, 691-692 (1963); Allis-
Chalmers v. Lueck, 471 U. S. 202, 210 (1985), and the desirability of having a
uniform common law of labor law pre-emption, cf. Brotherhood of R.R. Trainmen v.
Jacksonville Terminal Co., 394 U. S. 369, 383-384
(1969), support the application of the Lingle standard in RLA cases as well.
Lower courts, too, have recognized the appropriateness of the Lingle standard to
RLA pre-emption analysis. See, e.g., Anderson v. American Airlines, Inc., 2 F.3d
590, 595 (CAS 1993) (applying Lingle to analyze RLA pre-emption); Davies v.
American Airlines, Inc., 971 F.2d 463, 466-467 (CA10 1992) (same), cert. denied,
___U.S.___ (1993); O'Brien v. Consolidated Rail Corp., 972 F.2d 1,4 (CAI 1992)
(same), cert. denied, _ U.S.__ (1993); Maher v. New Jersey Transit Rail Opera-
tions, Inc., 125 N.J. 455, 472-473, 593 A. 2d 750, 758 (1991) (same). But see, e.g.,
Hubbard v. United Airlines, Inc., 927 F.2d 1094, 1097 (CA9 1991) (Lingle does not
govern in RLA cases); Lorenz v. CSX Transp., Inc., 980 F. 2d 263, 268 (CA4 1992)
(same).
62a
authority to settle individual claims in minor disputes. In the
course of rejecting this claim, the Court described minor disputes
as including the “omitted case,” that is, one “founded upon some
incident of the employment relationship, or asserted one, independ-
ent of those covered by the collective bargaining agreement, e.z.,
claims on account of personal injury.” 325 U. S., at 723.
This language is sweeping, but its effect is limited. The conflict
in Burley, which the parties agreed was a minor dispute, concerned
the terms of a collective-bargaining agreement, and not some other
“incident of the employment relationship,” or any “omitied case.”
These references, therefore, are dicta. Moreover, even the “omitted
case” dictum logically can refer to a norm that the parties have
created but have omitted from the collective-bargaining agreement's
explicit language, rather than to a norm established by a legislature
or a court.” Finally, Burley’s one specific example of an “omitted
case”—claims for personal injury that do not depend on the
contract—was found in Buell to be outside the RLA's exclusive
jurisdiction. Nonetheless, to avoid any confusion, we expressly
disavow any language in Burley Suggesting that minor disputes
encompass state-law claims that exist independent of the collective-
bargaining agreement.
Conrail, like Burley, involved no pre-emption analysis. The
parties agreed that the dispute—a workers’ challenge to the
railroad's drug testing policies—was governed by the RLA, because
Conrail's policy of conducting physical examinations was an
implied term of the collective-bargaining agreement. 491 U. S., at
"See Detroit & Toledo Shore Line RCo. v. United Transportation Union, 396
U. S. 142, 154-155 (1969) (“Where a condition is satisfactorily tolerable to both
Sides, it is often omitted from the agreement, and it has been suggested that this
Practice is more frequent in the railroad industry than in most others”) (emphasis
added); Conrail, 491 U. S., at 311-312 (recognizing that CBAs include implied terms
arising from “practice, usage and custom”); see also United Steelworkers v. Warrior
& Gulf Navigation Co., 363 U. S. 574, 578-579 (1960) (a CBA is “more than a
contract; it is a generalized code to govern myriad of cases which the draft{ers]
cannot wholly anticipate”).
63a
301. The only question before the Court was whether the
employer's drug-testing policy constituted an attempt to add a new
term to the existing agreement, making it a major dispute subject
to a “protracted process” of bargaining and mediation, id., at 303,
or whether the testing reflected the employer's interpretation and
application of an implied term of the existing contract, producing
a minor dispute subject to a less onerous process of arbitration.
We concluded that the dispute was minor, stating that “([t]he
distinguishing feature of [a minor dispute] is that the dispute may
be conclusively resolved by interpreting the existing [CBA].” Jd.,
at 305, citing Garrison, The National Railroad Adjustment Board:
A Unique Administrative Agency, 46 Yale L. J. 567, 568, 576
(1937). Obviously, to say that a minor dispute can be “conclu-
sively resolved” by interpreting the CBA is another way of saying
that the dispute does not involve rights that exist independent of
the CBA.
Petitioners, however, pin their hopes on the observation that
“[w]here an employer asserts a contractual right to take the
contested action, the ensuing dispute is minor if the action is
arguably justified by the terms of the parties’ collective-bargaining
agreement.” Jd., at 307 (emphasis added). They argue that this
case involves a minor dispute because the termination of respon-
dent was “arguably justified” by the CBA's provision permitting
termination for “just cause.” This “arguably justified” standard,
however, was employed only for policing the line between major
and minor disputes. Recognizing that accepting a party's character-
ization of a dispute as “minor” ran the risk of undercutting the
RLA's prohibition “against unilateral imposition of new contractual
terms,” id., at 306, the Court held that a dispute would be deemed
minor only if there was a sincere, nonfrivolous argument that it
turned on the application of the existing agreement, that is, if it
was “arguably justified” by that agreement. Obviously, this test
said nothing about the threshold question whether the dispute was
subject to the RLA in the first place.
64a
Il
Returning to the case before us, the question under Lingle is
whether respondent's state-law wrongful discharge claims are
independent of the collective- bargaining agreement. Petitioners
argue that resort to the agreement is necessary to determine
whether respondent, in fact, was discharged. This argument is
foreclosed by Lingle itself. Lingle teaches that the issue to be
decided in this case—whether the employer's actions make out the
element of discharge under Hawaii law—is a “purely factual
question.” 486 U. S., at 407.
Nor are we persuaded by petitioners’ contention that the state tort
claims require a determination whether the discharge, if any, was
justified by respondent's failure to sign the maintenance record, as
the agreement required him to do. Although such a determination
would be required with regard to respondent's separate allegation
of discharge in violation of the agreement, the District Court
dismissed that count as pre-empted by the RLA, and respondent
does not challenge that dismissal. The state tort claims, by
contrast, require only the purely factual inquiry into any retaliatory
motive of the employer.
Accordingly, we agree with the Supreme Court of Hawaii that
respondent's claims for discharge in violation of public policy and
in violation of the Hawaii Whistleblower Protection Act are not
pre-empted by the RLA, and we affirm that court's judgment.
It is so ordered.
Accordingly, we agree with the Supreme Court of Hawaii that
respondent's claims for discharge in violation of public policy and
in violation of the Hawaii Whistleblower Protection Act are not
pre-empted by the RLA, and we affirm that court's judgment.
It is so ordered.
66 a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 91-0112-CIV-DAVIS
BRUCE RICHARD TOSKI,
Plaintiff,
vs. REPORT and RECOMMENDATION
WILLIAM J. MCDONNELL,
JEFF HENRY, and KEN
WILLIAMS,
Defendants.
l
This Cause is before the undersigned upon an order of reference by
United States District Judge Edward B. Davis. Presently pending before the
Court is Defendants’ Motion for Summary Judgment (D.E. 97). Plaintiff has
filed a response (D.E. 162)' and Defendants have replied (undocketed) .
FACTUAL AND PROCEDURAL BACKGROUND
' On October 6, 1993 Judge Davis denied Plaintiff's
motion to file a response brief in excess of ten pages (D.E. 158).
Nevertheless, Plaintiff's brief, while reaching exactly ten pages, is
printed in a typeface so small that it strains the eye to read. This
creative word processing violates the spirit, if not the letter, of both
the Local Rules and Judge Davis's order. Much as this Court is
inclined to strike the excess portion of Plaintiff's pleading, because
of the interminable delays encountered in this case the undersigned
has instead read and considered it in its minuscule entirety. Plaintiff
is warned that his status as a non-attorney does not give him carte
blanche to disobey court orders and that such actions in the future
shall not be excused.
67a
Plaintiff brings this action alleging a wide variety of misconduct on
the part of Defendants, his former supervisors at the late Eastern Air Lines
[EAL] . Plaintiff was hired by EAL as a shop laborer at the Miami airport
beginning in June, 1976. Plaintiff remained in EAL's employ (except for a
leave of absence between August and November of 1983) until November
7, 1986 when he was dismissed. During his employment at EAL Plaintiff
worked both as a stock clerk and as a mechanic. At his termination, and at
the time of all the alleged wrongful acts, Plaintiff was working as a
mechanic in the Ground Support Equipment Auto Shop where EAL's
airport vehicles were repaired and maintained.
Each of the Defendants, at various times, supervised Plaintiff's
work at EAL. Plaintiffs complaint names Defendant McDonnell as his
"supervisor," Defendant Henry as his "foreman" and later as "general
foreman," and Defendant Williains as his "manager."
A full recitation of the allegations detailed in Plaintiff's complaint
is unnecessary for the resolution of the instant motion. Generally, however,
the complaint involves a series of disciplinary actions by various of
Plaintiff's supervisors beginning in 1984 and ending in Plaintiff's eventual
dismissal. These disciplinary actions concern Plaintiff's job performance
and certain actions deemed by his supervisors to be in violation of EAL
policy and procedure.’
In summary, Plaintiff was accused of performing unnecessary and
unauthorized work and of disobeying directives from his supervisors. In the
most colorful incident, Plaintiff was asked, and refused, to remove a button
from his uniform which stated "Frank is a weenie." Plaintiff later
commandeered a microphone in the shop office and yelled "Frank is a
weenie" over the public address system.’ Plaintiff also alleges that
Defendant McDonnell, on two occasions, physically assaulted Plaintiff.
2 These actions are detailed in memos attached to the
complaint and Defendants’ motion.
3 The “Frank” referred to is presumably Frank Lorenzo
who was, at the time of these incidents, running EAL.
68 a
Plaintiff's original complaint contained nine counts. Count VIII was
dismissed by Judge Davis on November 18, 1991. See Order of Judge
Davis (D.E. 21) . Also dismissed in that order was that part of Count I
involving the April 11, 1986 assault because the statute of limitations
run as to the alleged incident. See Report and Recommendation of
Magistrate Judge Tumoff (D.E. 20).* Therefore, the Complaint now
contains the following eight counts:
Count I: Battery (Defendant McDonnell) (October 24, 1986
incident only);
Count Il: Negligent Retention (Defendants Henry and Williams);
Count III: Wrongful Discharge (Defendant Williams);
Count IV: Negligence Per Se Unfair Labor Practice - Railway
Labor Act (all defendants);
Count V: Breach of Implied Covenant of Good Faith and Fair
Dealing (all defendants);
Count VI: Breach of Contract (all defendants);
Count VII: Failure to Protect Evidence (all defendants);
Count IX: Conspiracy (all defendants).
4
Defendants state in their motion that Count I was
dismissed. This is a misstatement of Judge Davis's order which
merely ratified the Report and Recommendation issued by the
undersigned. That Report recommended dismissal only as outlined
above, not of the entire count. Any other reading of Judge Davis's
order is erroneous. Therefore, Count I as it involves the later
alleged incident is still a viable claim.
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I. Railway Labor Act
A. Ss | Limitat
Defendants first argue that Plaintiff's claims under the Railway
Labor Act [RLA] are time-barred. In Count IV, Plaintiff alleges several
violations of the Railway Labor Act: 1) failing to "make and maintain" the
collective bargaining agreement; 2) failing to settle disputes in an
expeditious manner, 3) refusing to allow Plaintiff access to shop employees
after his termination; and 4) attempting to coerce and influence shop
mechanics prior to Plaintiff's election as shop steward.
Although the RLA does not contain a specific statute of limitations,
Sees ANG ND ee ee tes cate dad
462 US. 151 (1983), have "borrowed" Sn shanenth Meinttuhh carted
found in § 10(b) of the National Labor Relations Act. 29 U.S.C. § 160(b)
. See, e.g., Robinson v, Pan American World Airways, Inc. 777 F.2d 84 (2d
Cir. 1985); Brock v. Republic Airlines, Inc., 776 F.2d 523 (Sth Cir. 1985).
If the six-month limitations period is applied, each of Plaintiff's claims
under the RLA are time-barred as they indisputably arose more than six-
months prior to the bringing of this suit.
The parties have not cited, and the undersigned is unaware of, any
cases directly on point in this Circuit. Although the undersigned finds
Defendants’ arguments persuasive, this issue need not be resolved at this
time. As will be discussed below, Plaintiff's failure to exhaust his remedies
under the collective bargaining agreement in effect at his termination
operates to bar his entire suit.
B. Fail Ext Administrative Remedi
Defendants next argue that summary judgment is mandated as to
Plaintiff's claims under the RLA because he has failed to exhaust the
70 a
a
ate ey nana ae
administrative remedies provided under the collective bargaining agreement
in effect at Plaintiff's termination.
All parties agree that Plaintiff was subject to the collective
bargaining agreement in effect between the union and EAL. This
agreement contained procedures to be followed in the event of a dispute and
Plaintiff has demonstrated that he was familiar with and, on previous
occasions, availed himself of these procedures. See Toski Deposition at 172
3, 383. Furthermore, Plaintiff concedes that he filed a grievance in
relation to the acts alleged in this suit, but that he voluntarily abandoned his
grievance for strategic reasons. Jd. at 510-11, 5155.5 Defendants cite this
failure as case-dispositive and urge summary judgment in their favor.
; At his deposition Plaintiff testified that he filed a
grievance as to his discharge on November 12, 1986. He stated that
no hearing was ever held on his termination grievance because he
was instead pursuing an appeal from an arbitrators' decision on
another grievance related to the individual letters issued prior to his
discharge. Plaintiff stated that this appeal was still pending at the
time EAL filed for bankruptcy. Plaintiff testified as follows:
Q: So you made a strategy decision to have the System Board
of Adjustment consider you grievances on the individual
letters before they considered your grievance [relating
to termination], correct?
Exactly.
And it was during the course of your appeal from the
System Board of Adjustment's ruling on those earlier
grievances that Eastern Air Lines filed bankruptcy?
Yes.
Was there anything in the grievance procedure which
prevented you from having the System Board of
Adjustment consider the [termination] grievance at the
same time that it considered the other grievances?
A: I don't believe so.
Q>
Q>
7la
Plaintiff argues in response that he did not abandon his grievance,
but that the procedure was "rendered moot" by EAL's eventual bankruptcy.°
This argument, however, is unconvincing in light of the two years and four
months between Plaintiff's filing of the termination grievance (November
) 12, 1986) and the date on which EAL declared bankruptcy (March 9, 1989)
| particularly given. Plaintiffs own admission that nothing prevented him
from pursuing his grievance and his arbitration appeal simultaneously. Id.
The undersigned agrees with Defendants that Plaintiff failed to
pursue the grievance procedure outlined by the collective bargaining
agreement. This failure to exhaust the administrative remedies available to
him prevents him from prevailing in this forum. The RLA promotes stability
in labor-management relations by providing effective and efficient remedies
for labor disputes, thereby protecting the transportation industry from
disruption. Union P. R. Co. v. Sheehan, 439 U.S. 89 (1978). Disputes
between employees and carriers arising "out of interpretation orapplication
of the collective bargaining agreement [are] commonly referred to as ‘minor
disputes." Kaschak v, Consolidated Rail Corp., 707 F.2d 902, 904 (6th Cir.
1983).
When a minor dispute arises, the RLA provides initially for
settlement through the contractually agreed upon grievance procedures. 45
U.S.C. ~ 152 First. The Supreme Court has held that adjustment boards
have primary and exclusive jurisdiction over minor disputes. Sheehan 439
U.S. at 93-94. A party's claims of futility in following the procedure
outlined by the collective bargaining agreement are insufficient to avoid this
jurisdictional rule. Le Boutilier v, Air Line Pilots Association Intemational,
778 F.2d 883 (D.C. Cir. 1985). Thus, Plaintiff's claims under the RLA and
the collective bargaining agreement (Counts IV and VI) are barred by his
failure to proceed with the grievance he filed at his termination.
Il. State common law claims
* Plaintiff's assertion that exhaustion is not required is
rejected. The cases cited are questionable at best and are
nevertheless distinguished on their facts.
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Plaintiff's remaining claims are al! brought pursuant to state law.
Defendants contend that RLA preemption, coupled with Plaintiff's failure
to exhaust his administrative remedies, entitles them to summary judgment
on each of these separate claims as well. Plaintiff's only response to this
argument is that he did not fail to exhaust, which argument has now been
rejected.
In passing the RLA, as noted above, Congress intended to minimize
potential disruption to the transportation industry caused by labor disputes.
This goal is accomplished by establishing arbitration procedures rather than
allowing disputes to be brought initially to the courts. The arbitration
provisions are mandatory, and preempt state remedies. Andrews vy.
Louisville & NLR. Co., 406 U.S. 320 (1972). Accordingly, it has been held
that any complaint “based on a matrix of facts which are inextricably
intertwined with the grievance machinery of the collective bargaining
agreement and of the RLA" should be dismissed on grounds of preemption.
Magnuson v, Burlington Northern, Inc. 576 F.2d 1367, 1369 (9th Cir.) cert.
denied, 439 U.S. 930 (1978). The undersigned finds that the claims alleged
by Plaintiff meet this test and are, therefore, preempted.
In the words of one Georgia District Court which considered the
same issue, RLA preemption "does not appear to be one which has been
frequently dealt with" by courts in the Eleventh Circuit. Fox vy. Southem R.
Co.,, 764 F. Supp. 644 (N.D. Ga. 1991). Nevertheless, instruction can be
drawn from courts in other jurisdictions which have considered cases
involving facts similar to those presented by the instant case.
In Fox, the court concluded that the plaintiff's libel claim was
preempted by the RLA because the allegedly libelous letter was issued as
part of the process mandated by the collective bargaining agreement. [d, at
650. Other courts have come to similar decisions for a wide variety of
disputes which are, in varying degrees, related to the procedures under
collective bargaining agreements. See, e.g, Carson v. Southern Railway Co,
494 F. Supp. 1104 (D.S.C. 1979) (defamation action dismissed because
claim fell within sole jurisdiction of adjustment board and "plaintiff is
without an independent judicial remedy.”); Majors v. US. Air, Inc, 525 F.
Supp. 853 (D. Md. 1981) (false imprisonment and defamation claims
73 a
dismissed as preempted by RLA) ; Barchers v, Missouri P, R. Co, 669
S.W.2d 235 (Mo. Ct. App. 1984) (libel claims relating to letter submitted
during investigation dismissed as preempted by RLA) .
Furthermore, it is clear that the claims alleged need not be directly
related to the collective bargaining agreement process in order to be
preempted. n Majors, for example, the court held tortious conduct
committed in the course of a company investigation to be preempted stating:
"[s]o long as his claim is founded on some incident of the employment
relation, it is immaterial, for purposes of coverage by the Railway Labor
Act, whether the claim is expressly covered by the collective bargaining
agreement, or is independent of that agreement." Majors, 525 F. Supp. at
857.
Plaintiff's complaint alleges various state law causes of action. It
is clear from the facts alleged, that Plaintiff's claims are all related to the
letters of reprimand, Plaintiff's interactions with his supervisors, and his
eventual dismissal from his job. Each of plaintiff's state law claims arises
out of the employment relationship and each is “based on a matrix of facts
which are inextricably intertwined" with the procedures of the collective
bargaining agreement and the RLA. As such, these claims are preempted by
the RLA and Defendants are entitled to summary judgment as a matter of
law.’
RECOMMENDATION
Therefore, based on the foregoing, it is the RECOMMENDATION
of the undersigned that Defendants’ Motion for Summary Judgment (D.E.
162) be GRANTED.
Pursuant to 28 U.S.C. §636(b)(1)(B) and (C), the parties may serve
and file written objections with the Honorable Edward B. Davis, United
States District Judge, within ten (10) days after being served with a copy of
” Therefore, it is unnecessary to address the separate
arguments promoted by Defendants in favor of summary judgment
on the separate state law claims.
74a
this Report and Recommendation. See Nettles v. Wainwright, 677 F.2d
404 (Sth Cir. 1982) . RESPECTFULLY RECOMMENDED, in Chambers,
at Miami, Florida, this 9th day of November, 1993.
William C. Turnoff
United States Magistrate Judge
cS
Honorable Edward B. Davis
Bruce Richard Toski, pro se
Donald Blackwell, Esquire
75a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.