# Petition for Writ of Certiorari — Pennsylvania Federation of the Brotherhood of Maintenance of Way Employes v. National Railroad Passenger Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 824

## Text

Bupreme Court, U.

992-1984 |"

JUN 15 1993

IN THE
Sigwenw Cuet of the United States

OCTOBER TERM, 1992

PENNSYLVANIA FEDERATION OF THE BROTHERHOOD OF
MAINTENANCE OF Way EMPLOYES and VINCENT

BENNETT, individually and on behalf of all others

similarly situated, Petitioners,

Vv.

NATIONAL RAILROAD PASSENGER CORPORATION,
Respondents.

Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

JOEL MYRON

865 Summit Avenue

Jersey City, New Jersey 07307
(201) 420-0021

Counsel for Petitioners

WILSON - EPES PRINTING CO Inc. - 789-0096 - WASHINGTON, D.C. 20001

Q) veer 6O

QUESTIONS PRESENTED

Are the Pennsylvania Minimum Wage Act, 43 PS.
333.104(c), as codified at 34 Pa. Code 231.1, and
the Pennsylvania Wage Payment and Collection Law,
43 P.S. 260.1, et seq., preempted by the Railway
Labor Act, 45 U.S.C. 151, et seq., with respect to
Petitioner Pennsylvania Federation of the Brother-
hood of Maintenance of Way Employes, as found
by the United States Court of Appeals for the Third
Circuit?

Are the Pennsylvania Minimum Wage Act, 43 PS.
333.104(c), as codified at 34 Pa. Code 231.1, and
the Pennsylvania Wage Payment and Collection Law,
43 PS. 260.1, et seq. preempted by the Railway
Labor Act, 45 U.S.C. 151, et seq., with respect to
individual rights conferred on Petitioners Vincent
Bennett and all others similarly situated by those
Pennsylvania laws and regulations, as found by the
United States Court of Appeals for the Third Circuit?

Does the Railway Labor Act, 45 U.S.C. 151, et seq.,
have greater preemptive force than the National Labor
Relations Act, 29 U.S.C. 151, et seq., and the Labor
Management Relations Act, 29 U.S.C. 185 as found
by the United States Court of Appeals for the Third
Circuit?

(i)

ii
LIST OF PARTIES

The parties to the proceedings below and to this Peti-
tion are petitioners Pennsylvania Federation of the
Brotherhood of Maintenance of Way Employes (herein-
after referred to as “Pennsylvania Federation’), a rail-
road union, and Vincent Bennett, individually and on be-
half of all others similarly situated, a resident of the state
of Pennsylvania employed by the National Railroad Pas-
senger Corporation and a member of the Pennsylvania
Federation.

The respondent to the proceedings below and to this
Petition is the National Railroad Passenger Corporation
(hereinafter referred to as ‘““Amtrak’’).

Petitioners have no parent companies, subsidiaries or
affiliates to list pursuant to Rule 28.1.

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED i
LIST OF PARTIES ii
TABLE OF AUTHORITIES Vv
OPINIONS BELOW l
JURISDICTION 2
STATUTES INVOLVED | 2
STATEMENT OF THE CASE 2
REASONS FOR GRANTING THE WRIT 10

I. THERE IS A CONFLICT BETWEEN THE
CIRCUITS AS TO WHETHER THE RAIL-
WAY LABOR ACT HAS GREATER PRE-
EMPTIVE FORCE THAN THE LABOR MAN-
AGEMENT RELATIONS ACT AND THE NA-
TIONAL LABOR RELATIONS ACT AND
WHETHER THIS COURT’S DECISIONS IN
LINGLE v. NORGE DIVISION OF MAGIC
CHEF, INC., METROPOLITAN LIFE INSUR-
ANCE CO. v. MASSACHUSETTS, ALLIS-
CHALMERS v. LUECK AND FORT HALI-
FAX v. COYNE, 107 S.Ct. 2211 (1987) ARE
APPLICABLE IN A RAILWAY LABOR ACT
SETTING . a intiacsabeaiaiseececicitions 10

Il. THE DECISION OF THE THIRD CIRCUIT
IN THE INSTANT CASE SANCTIONS A DE-
PARTURE BY THE DISTRICT COURT FROM
THE ACCEPTED AND USUAL COURSE OF
JUDICIAL PROCEEDINGS AND REQUIRES
AN EXERCISE OF THIS COURT’S POWER
OF SUPERVISION aceaesiaaadtates 16

CONCLUSION .............. Riese 2. SRE Ee ae 19

iv
TABLE OF CONTENTS—Continued

APPENDIX

United States Court of Appeals for the Third Cir-
cuit, Decision No. 92-1577, Pennsylvania Fed-
eration, et al. v. AMTRAK, Decided March 18,
NIRS SE ei 22 ae at tes eee aes

United States District Court for the Eastern Dis-
trict of Pennsylvania, Memorandum Decision
and Order, Pennsylvania Federation, et al. v.
AMTRAK, Decided June 11, 1992 ........

United States District Court for the Eastern Dis-
trict of Pennsylvania, Stipulation of Facts, Dated
I Tai I lke einai osceecatndn Coacmontdneress

Page

la

10a

Vv
TABLE OF AUTHORITIES

Federal Cases: Page
Allis Chalmers v. Lueck, 105 S.Ct. 1904 (1985)... 10, 11,
16, 17

Andrews v. Louisville & Nashville Ry. Co., 406 U.S.

I pe 5,7
Barrentine v. Arkansas-Best Freight System, Inc.,

101 S.Ct. 1487 (1981) ............ ng ay 10, 18
Beard v. Carrollton R.R., 893 F.2d 117 (6th Cir.

RRR era arreccnc bce earer sues ne lee SRI ALS RR oe SA 14
Braxton v. U.S., 111 S.Ct. 185 (1991) ..................... 16
Conrail v. RLEA, 491 U.S. 299 (1989) -.......0.... 5
Davies v. American Airlines, 140 LRRM 2983

Ca: nS I a et 14
De Canas v. Bica, 424 U.S. 351 (1976) .............. 15, 16, 17
Deford v. Soo Line, 867 F.2d 1080 (8th Cir. 1989) .. 15
Elgin, J & E Ry. v. Burley, 325 U.S. 711 (1945)... 12
Fort Halifax v. Coyne, 482 U.S. 1 .............00000.... 10, 11, 16
Grote v. Transworld Airlines, 905 F.2d 1307 (9th

as IE Gocsesat Se i oe ee ae 7, 8, 12, 18, 14
Hubbard v. United Airlines, 927 F.2d 1094 (9th

RN IRD Saccchcthnicacinceta te er eke Doe as: 12
Leu v. Norfolk & W. Ry., 820 F.2d 830 (7th Cir.

fA ROR SER tebe ean nM Sagay Okan eee Dt A. hs 14
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

| CRORE rete RAM AND se thi feban tes t2 passim
Lorenz v. CSX, 141 LRRM 2921 (4th Cir. 1992). 12, 13,

14
Malone v. White Motor Corp., 435 U.S. 497 (1985)... 8,11
Metropolitan Life Ins. Co. v. Massachusetts, 471

U.S. 724 (1985) ........... RO ROMs A ERA EE So passim
O’Brien v. Conrail, 140 LRRM 3014 (1st Cir.

|__| SPEER rane PERMIT LLIN SADT Boe Bid th Ea 6, 14
Smolarek v. Chrysler Corp., 879 F.2d 1326 (6th

GH TDD mccishasdadeinciactsce ns ea EEE SSE 12
Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962).. 13
Terminal Railway Association v. Trainmen, 63

fy A BR yr ne eliotn oper a IO 10, 15, 17

State Cases:

B & O v. Comm. of Pa. Dep’t of Labor & Industry,
Re Be COI svcacncctebaceecessestnsemsmerctmisdcasadcaaes 16, 17

vi
TABLE OF AUTHORITIES—Continued

STATUTES AND REGULATIONS: Page

Federal Statutes:

Labor Management Relations Act, 29 U.S.C. 185....passim
National Labor Relations Act, 29 U.S.C. 161, et

Taree oD) lo, Do a taasgahsamcesnamnaad passim
Railway Labor Act, 45 U.S.C. 151, et seq. ..............passim
| ESTES Seine meme oRe ae teen een neem eo een 2
sa cenenen : 2
26 U.S.C. 1264(1) ................ Rae 2

State Statutes and Regulations:
Pennsylvania Minimum Wage Act, 43 PS.

333.104 (c) . sassy 0, 4, 8, 9
Pennsylvania Wage Collection & Payment Law, 43

P.S. 260.1, et seq. .......... s..ssdbyp BO» 4, 7, 8, 9
Pennsylvania Public Law 909, No. Oy
NF rE

IN THE
Supreue Cmut of the United States

OcTOBER TERM, 1992

PENNSYLVANIA FEDERATION OF THE BROTHERHOOD OF
MAINTENANCE OF Way EMPLOYES and VINCENT
BENNETT, individually and on behalf of all others
similarly situated,

a Petitioners,

NATIONAL RAIi. ROAD PASSENGER CORPORATION,
Respondents.

Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

The petitioners, Pennsylvania Federation of _ the
Brotherhood of Maintenance of Way Employes and Vin-
cent Bennett, individually and on behalf of all others
similarly situated, respectfully prays that a writ of cer-
tiorari issue to review the judgment and opinion of the
United States Court of Appeals for the Third Circuit,
entered in the above-entitled proceeding on March 18,

1993.
OPINIONS BELOW

The opinion of the Court of Appeals for the Third Cir-
cuit is reported at 142 LRRM 2861 and is reprinted in

the appendix hereto, pp. 1a-9a, infra.

2

The memorandum decision and order of the United
States District Court for the Eastern District of Pennsy]l- |
vania (Yohn, D.J.) has not been reported. It is reprinted
in the appendix hereto, pp. 10a-17a, infra.

JURISDICTION

Petitioners filed this case in the Philadelphia County
Court of Common Pleas. Amtrak removed the case to
the United States District Court for the Eastern District
of Pennsylvania pursuant to 28 U.S.C. 1349 and 1441.
On June 15, 1992 the Eastern District granted Amtrak’s
motion to dismiss and denied petitioners’ motion for
summary judgment as moot.

On petitioners’ appeal, the Third Circuit on March 18,
1993, entered a judgment and an opinion affirming the
Eastern District’s order. No petition for rehearing was
sought.

The jurisdiction of this Court to review the judgment
of the Third Circuit is invoked under 28 U.S.C. 1254(1).

STATUTES INVOLVED

The status involved in this appeal include the Railway
Labor Act, 45 U.S.C. 151, et seqg., the National Labor
Relations Act, 29 U.S.C. 151, et seq., the Labor Man-
agement Relations Act, 29 U.S.C. 185, the Pennsylvania
Minimum Wage Law, 43 P.S. 333.104(c), the Pennsyl-
vania Wage Payment and Collection Law, 43 P.S. 260.1,
et seq., Pennsylvania Public Law 909 No. 173 and the
regulation interpreting the Pennsylvania Minimum Wage
Law, 34 Pa. Code 231.1.

STATEMENT OF THE CASE

Petitioner Pennsylvania Federation of the Brotherhood
of Maintenance of Way Employes (hereinafter referred
to as “Pennsylvania Federation”) is a railroad union rep-
resenting, among others, members of the maintenance of
way department of respondent National Railroad Passen-

a

3

ger Corporation (hereinafter referred to as “Amtrak” )
who reside and work in Pennsylvania. Petitioner Vincent
Bennett (hereinafter referred to as “VB”) is a mainte-
nance of way employee of Amtrak who resides and works
in Pennsylvania. The part of the maintenance of way
department over which the Pennsylvania Federation has
jurisdiction constructs and maintains the track, bridges
and buildings on Amtrak. They also repair track equip- ‘
ment and construct and maintain Amtrak’s electric cate-
nary system. Respondent Amtrak is a intercity passenger
railroad partially funded by the government of the United
States.

The state of Pennsylvania has a minimum wage law
which guarantees workers in Pennsylvania a minimum of
time and one half pay for all time they work beyond 40
hours. 43 P.S. 333.104(c). The Pennsylvania Depart-
ment of Labor’s duly promulgated regulations define this.
At 34 Pa. Code 231.1 the defining regulation states:

Hours worked—Including all time during which an
employee is required by the employer to be on the
premises of the employer, to be on duty, or to be at
the prescribed work place, all time spent in traveling
as part of the duties of the employee during normal
working hours, and all time during which an em-
ployee is employed or permitted to work: provided,
however, that time spent on the premises of the em-
ployer for the convenience of the employee shall be
excluded.

The parties stipulated that under the terms of the collec-
tive bargaining agreement, employees of Amtrak who are
required to travel to their headquarters or camp car
lodging facilities from the work site on company supplied
vehicles after 40 hours are paid at straight time rate for
the time they travel from the jobsite to their headquarters
or camp car lodging facilities, not at time and one half.
Under both the Pennsylvania Minimum Wage Act, 43
P.S. 333.104(c), et seg. and the Pennsylvania Wage
Payment and Collection Law, 43 P.S. 260.1, et seq., pri-

4

vate agreements which waive any of the rights guaranteed
by the laws are proscribed. The Pennsylvania Wage
Payment and Collection Law at 260.7 states:

. no provisions of this Act shall in any way be
contravened or set aside by private agreement.”

And the Pennsylvania Minimum Wage Act, at 333.16
states:

“Any agreement between the employer and the
worker to work for less than such minmium wage
shall be no defense to [such] action.”

Prior to 1978 railroad workers were exempt from the
provisions of the Pennsylvania Minimum Wage Act. 43
P.S. 331(p), Public Law 917 16. In 1978, this was re-
pealed and the Pennsylvania State Legislature brought
railroad employees under the coverage of the Pennsyl-
vania Minimum Wage Act. Public Law 909, No. 173.

During negotiations the Pennsylvania Federation, pur-
suant to a provision of the Pennsylvania Wage Payment
and Collection Law, brought suit against Amtrak in
Philadelphia County Common Court of Pleas to recover
half time pay plus other damages for all residents of
Pennsylvania working in the portion of Amtrak’s main-
tenance of way department over which the Pennsylvania
Federation had jurisdiction who were paid straight time
pay for required work-related travel based upon the two
Pennsylvania wage laws and the Pennsylvania Code.
Specifically 260.9(a) of the Pennsylvania Wage Payment
and Collection Law permits the union to sue an employer
in behalf of its members to enforce members’ rights under
the Pennsylvania Minimum Wage Act. Petitioner Vin-
cent Bennett joined the suit and sued in his behalf and
behalf of all others similarly situated pursuant to
260.9(b) of the Pennsylvania Wage Payment and Coi-
lection Law which permits such causes of action.

Respondent Amtrak removed the case to the United
States District Court for the Eastern District of Pennsyl-

5

vania. The parties stipulated to the facts. See Appendix,
pp. 18a-2la. Respondent Amtrak moved to dismiss and
Petitioners moved for summary judgment. Judge Yohn
ruled that the Pennsylvania Federation’s cause of action
was preempted by the Railway Labor Act because it was
necessary to interpret the collective bargaining agreement
in order determine what the terms “hours worked” and
“travel time” mean and was, therefore, a “minor dispute”.
Judge Yohn stated:

Stated simply, whether the employees on behalf of
whom this suit has been commenced are entitled to
overtime compensation for time spent traveling back
to their base camps or headquarters locations upon
completion of their tours of duty requires an inter-
pretation of the terms of the collective bargaining
agreement. By relying on the plain language of the
state regulation for a definition of “hours worked” for
purposes of determining eligibility for overtime,
plaintiffs apparently failed to note that travel time is
included within that definition only if it is “part of
the dutics of the employee during normal working
hours.” 34 Pa. Code 231.1. Surely plaintiffs do not
mean to suggest that the question of whether travel
time at issue in this case qualifies as part of the duties
of the employee or whether such travel is undertaken
during the established normal working hours can be
determined without reference to the terms of the
collective bargaining agreement.

And as “minor disputes” are under the exclusive jurisdic-
tion of an arbitration panel pursuant to the Railway
Labor Act, Andrews v. Louisville & Nashville Ry. Co.,
406 U.S. 320 (1972); Consolidated Rail Corporation v.
Railway Labor Executives’ Association, 491 U.S. 299
(1989), Judge Yohn reasoned that plaintiffs’ causes of
action were preempted by the Railway Labor Act.

The Third Circuit agreed with Judge Yohn and even
went further, as pointed out by Judge Lewis in his con-
curring opinion. The Third Circuit stated, at 142 LRRM
2863:

6

In the district court, BMWE and Bennett appar-
ently argued that the time spent traveling back to
the campcars or headquarters fell under the “all time
spent in traveling as part of the duties of the em-
ploye[e] during normal working hours” provision of
the Pennsylvania regulation. However, as the district
court correctly noted, it is impossible to determine
whether this travel time is “part of the duties of the
employe[e]” without interpreting the collective bar- ;
gaining agreemnt to see exactly what the duties of |
the employees are. Cf. O’Brien v. Consolidated Rail |
Corporation, 972 F.2d 1, 5 [140 LRRM 3014] (Ist
Cir. 1992) (holding that state law antidiscrimination
claim was preempted by Railway Labor Act because
claim required interpretation of the collective bar-
gaining agreement to determine whether employee
could perform duties of position he was seeking),
cert. denied, 113 S. Ct. 980 [142 LRRM 2864]
(1993). Similarly, as the district court also noted, it
is impossible to determine whether the travel is un-
dertaken “during normal working hours” without in-
terpreting the collective bargaining agreement.

On appeal, BMWE and Bennett also argue that
the first clause of the regulation covers their situation.
Yet, once again, in order to determine whether the
workers are “required by the employer to be on the
premises of the employer, to be on duty, or to be at
the prescribed work place” during time spent travel-
ing, we would have to interpret the collective bar-
gaining agreement. For example, a worker living
near a job site might be able to go directly home in-
stead of going on an AMTRAK vehicle back to head-
quarters. Similarly, if a job site were near the place
of employment of a worker’s spouse, the spouse might
be able to pick up the worker on the way home. The
only way to determine whether such arrangements
would be permissible is to look to the collective bar-
saining agreement. In other words, only an interpre-
tation of the collective bargaining agreement can tell
us if these AMTRAK employees are required to
travel on the AMTRAK vehicles after their work

ee |

7

shifts are done. Thus, contrary to the assertions of
BMWE and Bennett, their dispute with AMTRAK
cannot be resolved solely by reference to state law.
Rather, resolution of their state-law claims requires
that we ascertain the meaning of the collective bar-
gaining agreement. Accordingly, arbitration of the
appellants’ claims is mandatory, and the courts are
without jurisdiction to hear the dispute. In conclud-
ing, we stress that our decision does not address the
merits of the dispute between BMWE and AMTRAK;
rather, it only states which forum can hear the dis-
pute.*

* Appellants argue that their claims should be treated sep-
arately because BMWE is suing on behalf of its members,
while Bennett is suing as an individual. We see no merit
to this contention which in any event may not be factually
accurate as Bennett has sought to sue as a representative
“of himself and all other similarly situated employees.” While
it is true that the Pennsylvania Wage Payment and Collection
Law gives both unions and individual employees the right to
institute a suit for wages, see Pa. Stat. Ann. tit. 43 § 260.9a,
this fact is not significant because both are bound by the
collective bargaining agreement and both could escape the
confines of mandatory arbitration only if their state-law
claims can be proven without resorting to an interpretation
of the collective bargaining agreement.

Additionally, the Third Circuit, in applying this Court's
doctrine set forth in Lingle v. Norge Division of Magic
Chef, Inc., 486 U.S. 399 (1988) (state-law claims that
can be resolved without interpreting a collective bargain-
ing agreement are not preempted by the Labor Manage-
ment Relations Act even when those state-law claims in-
volve identical facts to those upon which a collective
bargaining agreement grievance or claim can be based)
noted in footnote 7 of the opinion:

We realize that Lingle involved a claim of preemp-
tion under the Labor Management Relations Act,
and not the Railway Labor Act; however, this dif-
ference is not significant in our case because if any-
thing preemption is broader under the Railway Labor
Act. See Andrews, 406 U.S. at 323; Grote v. Trans

8

World Airline, Inc., 905 F.2d 1307, 1309-1310
(9th Cir.), cert. denied, 111 S.Ct. 386.

This was challenged by Judge Lewis in his concurring
opinion. Judge Lewis stated:

I join the court’s opinion except insofar as its anal-
ysis does not expressly distinguish between interpret-
ing or construing a collective bargaining agreement,
on the one hand, and merely referring to it on the
other, in the context of the appropriateness of Rail-
way Labor Act preemption.

To give meaning to the terms “interpret” or “con-
strue,” the court broadens beyond necessity the pa-
rameters of RLA preemption. While the court cor-
rectly concludes that Rule 63 and other provisions of
the collective bargaining agreement must be inter-
preted to determine what was intended by “part of
the duties” of the employee, I do not believe that any
construction or interpretation is necessary with re-
gard to the question of whether an employee’s travel
is undertaken “during normal working hours;” I think
that is made abundantly clear by a quick reference
to Rule 63. Accordingly, I would have taken the op-
portunity in this case to clarify that a need merely
to refer to the collective bargaining agreement should
not necessarily invoke Lingle v. Norge Division,
Magic Chef, Inc., 486 U.S. 399 [128 LRRM 2521]
(1988), and invite preemption.

In my view, the distinction is significant. For ex-
ample, if mere reference were enough to invalidate a
state law, then all state minimum labor standards
could be rendered invalid as applied to union situa-
tions. This, of course is contrary to established prec-
edent. At a minimum, in fact, the Supreme Court

has recognized that an exception to bargaining agree-
ment preemption exists for state minimum labor
standards. See Metropolitan Life Ins. v. Massachu-
setts, 471 U.S. [724], 741, 755-56 [119 LRRM
2569] (1985); Malone v. White Motor Corp., 435
U.S. 497 [97 LRRM 3147] (1978). Indeed, an em-

9

ployer or union could exempt itself from any state
law by including contrary terms in a collective bar-
gaining agreement. Thus, my concern is that the
majority’s analysis might lend itself to insulating en-
tirely from judicial review the contents of a collec-
tive bargaining agreement.

Petitioners contend that under Pennsylvania state law,
the parties are proscribed from entering into a collective
bargaining (or any) agreement which in any way dimin-
ishes the protections of the Pennsylvania Minimum Wage
Act. Petitioners further contend that no interpretation of
the collective bargaining agreement is necessary in order
to determine if respondent violated the Pennsylvania
Minimum Wage Act. All that is necessary is for the
parties to review the pay records of the members of the
Pennsylvania Federation who live and/or worked in
Pennsylvania to determine how many were paid straight
time rate beyond 40 hours in any work week. If Amtrak
paid any employee who is represented by the Pennsy]l-
vania Federation more than 40 hours at straight time rate
in a work week, it violated the Pennsylvania Minimum
Wage Act and must pay the appropriate damages. Peti-
tioners contend that the question is not how the collective
bargaining agreement defines “travel time” or “normal
working hours” or “required to work”. The question is
whether Amtrak complied with Pennsylvania law. All
that is necessary is to look at the wage rates Amtrak em-
ployees were paid in order to determine the appropriate
amount of damages for each employee. If the em-
ployee(s) continued to receive his/her (their) straight
time rate after 40 hours, s/he (they are) is entitled to
recovery.

Additionally, with respect to petitioner VB and all
other similarly situated, petitioners contend that the rights
conferred upon them by the Pennsylvania Minimum Wage
Act and the Pennsylvania Wage Payment and Collection
Law are individual rights which the Union and AMTRAK
have no right to waive, not only under Pennsylvania law,
but also under well established Supreme Court prece-

10

dent. Such rights are a legitimate exercise of state police
powers and are independent of the collective bargaining
process. Metropolitan Life Ins. Co. v. Massachusetts,
105 S.Ct. 2380, 2387 (1985); Barrentine v. Arkansas-
Best Freight System, Inc., 101 S.Ct. 1437, at 1447
(1981); Terminal Railroad Association v. Railroad
Trainmen, 63 S.Ct. 420, at 423 (1943).’ And in Allis-
Chalmers v. Lueck, 105 S.Ct. 1904 (1985), this Court
held that unions and employers do not have the power to
exempt themselves from whatever state labor standards
they disfavor. This Court found that it would be incon-
sistent with congressional intent to preempt state rules
that proscribe conduct, or establish rights and obligations
independent of a labor contract.

REASONS FOR GRANTING THE WRIT

I. THERE IS A CONFLICT BETWEEN THE CIR-
CUITS AS TO WHETHER THE RAILWAY LABOR
ACT HAS GREATER PREEMPTIVE FORCE THAN
THE LABOR MANAGEMENT RELATIONS ACT
AND THE NATIONAL LABOR RELATIONS ACT
AND WHETHER THIS COURTS DECISIONS IN
LINGLE v. NORGE DIVISION OF MAGIC CHEF,
INC., METROPOLITAN LIFE INSURANCE CO. v.
MASSACHUSETTS, ALLIS-CHALMERS v. LUECK
AND FORT HALIFAX v. COYNE, 107 S.Ct. 2211
(1987) ARE APPLICABLE IN A RAILWAY LABOR
ACT SETTING.

Over the past decade, this Court has issued several
major decisions regarding the interplay of the preemption
doctrine and state law in a labor setting culminating in
Lingle. In Metropolitan Life Insurance Co. v. Massachu-
setts, this Court held that the National Labor Relations
Act did not preempt a Massachusetts law that required
certain minimum health care benefits be provided a Massa-

1 Terminal Railroad Association v. Railroad Trainmen is a Rail-
way Labor Act case and is favorably cited by this Court in Metro-
politan Life v. Massachusetts. It is cited for the proposition that
the Railway Labor Act does not preempt all state law.

1]

chusetts resident who is insured under a general health
insurance policy or employee health-care plan that covers
hospital and surgical expenses, even though the health
care plan resulted from collective bargaining. The Court
found that states have, under their broad police powers,
the right to pass statutes that confer rights on employees
that go beyond a collective bargaining agreement and that
such statutes were not preempted by the National Labor
Relations Act. (Among the examples of such rights were
Minimum and other wage laws. Met. Life, at 2398.)

In Allis-Chalmers v. Lueck this Court found that
unions and employers do not have the right ot waive
rights conferred upon employees by state law. And in
Fort Halifax v. Coyne this Court found at 2223:

—Thus, the mere fact that a state statute pertains
to matters over which the parties are free to bargain
cannot support a claim of preemption, for “there is
nothing in the NLRA . . . which expressly forecloses
all state regulatory power with respect to those is-
sues . . . that may be the subject of collective bar-
gaining.” Malone v. White Motor Corp., 435 U.S.
497, 504-505 (1978).

This Court then stated:

We therefore find that Maine’s severance payment
law is “a valid and unexceptional exercise of the
[State] police power.” Metropolitan Life, 105 S.Ct.
at 2398-2399. Since “Congress developed the frame-
work for self-organization and collective bargaining
of the NLRA within the larger body of state law
promoting public health and safety,” id., at 2398, the
Maine statute is not preempted by the NLRA.

In Lingle this Court found that so long as interpreta-
tion of a collective bargaining agreement is not necessary
to resolve a state-law claim, that state-law claim is not
preempted by the Labor Management Relations Act, even
when a collective bargaining grievance can be based upon
the identical facts upon which the state-law claim is based.

Despite these decisions, two Circuit Courts of Appeals,
the Fourth Circuit and the Ninth Circuit, have found that

12

the Railway Labor Act has greater preemptive force than
the National Labor Relations Act and the Labor Man-
agement Relations Act and that this Court’s decision in
Lingle is inapplicable in a Railway Labor Act setting.
Additionally, the Third Circuit, as noted supra, appears
to have adopted a position in the instant case that the
Railway Labor Act has greater preemptive force than the
National Labor Relations Act and the Labor Manage-
ment Relations Act. In Lorenz v. CSX, 141 LRRM
2921 (4th Cir. 1992) the Fourth Circuit, at 2924, states:

The dissent cites, and relies heavily on, Lingle v.
Norge Division of Magic Chef, Inc., 486 U.S. 399
(1988), for the proposition that a state-law suit is
preempted only if the action requires interpretation
of the collective bargaining agreement. The Lingle
decision, however, was based upon preemption under
the National Labor Relations Act (NLRA). At least
since Elgin, Joliet & Eastern R. Co. v. Burley, 325
U.S. 711 (1945), the Court has clearly recognized
that preemption under the RLA is more pervasive.—
The circuit courts that have considered Lingle in
light of the RLA declined to extend its analysis
beyond the NLRA context. Hubbard v. United Air-
lines, Inc., 927 F.2d 1094, 1097 (9th Cir. 1991);
Smolarek v. Chrysler Corp. 879 F.2d 1326, 1335
n.4, cert. denied., 493 U.S. 992 (1989).

The Ninth Circuit, in Grote v. Transworld Airlines,
05 F.2d 1307 [134 LRRM 2583] (9th Cir. 1990) held
that the legislative differences between the LMRA and
the RLA mean that the RLA has greater preemptive force
than the LMRA. As in the Lorenz case the Ninth Cir-
cuit found that Lingle analysis cannot be applied to a
Railway Labor Act setting. The Ninth Circuit states at
134 LRRM 2584:

Grote cites Lingle v. Norge Div. of Magic Chef,
Inc., 486 U.S. 399 [128 LRRM 2521 (1988), in
support of his argument that he can seek a state law
remedy as long as it is “independent of the collective

13

bargaining agreement.” /d. at 407. The Court in
Lingle held that, even though § 301 of the Labor
Management Relations Act (LMRA) preempts state
law claims arising under collective bargaining agree-
ments, a state claim independent of the agreement
could be made. Lingle, 486 U.S. at 407. Lingle,
however, is inapposite because it deals with pre-
emption under § 301 of the LMRA, 29 U.S.C. 185.

The preemption created under the RLA and that
arising under § 301 of the LMRA are not analogous.
The RLA dispute resolution provisions were enacted
specifically “to avoid any interruption to commerce
or to the operation of any carrier engaged therein;
.. . to provide for the prompt and orderly settlement
of all disputes growing out of grievances or out of
the interpretation or application of agreements cov-
ering rates of pay, rules, or working conditions. 45
U.S.C. 15la (emphasis added). In drafting this sec-
tion of the RLA, Congress made clear its interest
in keeping railroad labor disputes simple and out of
the often lengthy court process.

Section 301 of the LMRA, on the other hand,
merely states that “suits for violation of contracts
between an employer and a labor organization .. .
may be brought in any district court of the United
States.” 29 U.S.C. 185(a) (1982). On its face,
301 creates concurrent state and federal jurisdiction
over specified labor disputes.—It was not until the
Supreme Court’s decision in Teamsters v. Lucas
Flour Co., 369 U.S. 95 (1962), that § 301 was inter-
preted as barring state law claims. /d. at 103. There-
fore, because the RLA’s preemptive force appears on
the face of the statute and § 301 preemption is judi-
cially imposed, we conclude that preemption under
the RLA is broader than § 301. Grote’s analogy to
Lingle, which discusses an exception to § 301 pre-
emption, is therefore unpersuasive.

The decisions of the Fourth and Ninth Circuits in
Lorenz and Grote respectively conflict with the decisions

14

of most of the other circuits that have considered hte
matter. In some instances the circuits apply the Lingle
doctrine. And in Davies v. American Airlines, 140 LRRM
2893 (10th Cir. 1992), the Tenth Circuit, in note 5
specifically rejected the reasoning of the Ninth Circuit in
Grote. Although Lorenz had not been decided at the
time the Tenth Circuit issued its decision in Davies, it is
clear there is a conflict between the line of reasoning set
forth in Lorenz and the line of reasoning set forth in
Davies. In Davies, the Tenth Circuit stated in n.7, 140
LRRM 2983, 2989:

Although the Ninth Circuit held that the statutory,
as opposed to contractual, origin of the RLA affects
the inquiry into whether a claim requires CBA inter-
pretation, Grote v. Transworld Airlines, 905 F.2d
1307, 1309-1310 (9th Cir.) cert. denied, 111 S.Ct.
386 (1990), we respectfully disagree with the rea-
soning of that case.

And at 2988-2989 the Tenth Circuit states:

American urges that Lingle, which dealt with the |
LMRA, is inapposite in the RLA context. However,
we believe that the test articulated by Lingle for de- |
termining whether a dispute requires CBA interpre-
tation is just as valid under the RLA as it is under
the LMRA.

Other circuits which have applied the Lingle doctrine
to Railway Labor Act cases include: (a) the First Cir-
cuit, O’Brien vy. Consolidated Rail Corporation, 140
LRRM 3014 (Ist Cir. 1992) (state law against dis-
crimination against handicapped preempted by RLA be-
cause collective bargaining agreement must be interpreted
in order to determine who is physically qualified to per-
form duties of job): (b) the Third Circuit in the instant
case; (c) the Sixth Circuit, Beard v. Carrollton R.R., 893
F.2d 117, 122 (6th Cir. 1989) (distinguishing Lingle);
(d) the Seventh Circuit, Leu v. Norfolk & W. Ry., 820
F.2d 825, 830 (7th Cir. 1987) (the “reasoning [of a
pre-Lingle LMRA case] is equally applicable to the de-

es

15

termination of whether a claim couched in terms of a
State tort law actually arises under an RLA collective
bargaining agreement.’); and (e) the Eighth Circuit,
Deford v. Soo Line R.R., 867 F.2d 1080, 1087 (8th
Cir.), cert. denied, 492 U.S. 927 (1989) (distinguishing
Lingle).

This conflict in circuits has created a lack of uniform-
ity in the application of Lingle to Railway Labor Act
cases. In the instant case, despite the facts that: (a) state
wage laws are involved; (b) these laws specifically forbid
private agreements that lessen the rights conferred upon
workers under those wage laws; (c) railroad workers were
specifically included under the scope of the applicable
Pennsylvania wage laws; (d) this court’s decisions in Met-
ropolitan Life v. Massachusetts, 105 S.Ct. 2380, 2398 and
De Canas v. Bica, 96 S.Ct. 933, 937 (1976) exempt wage
laws and other minimum labor standards from preemption
under the NLRA; and (e) Metropolitan Life, in support
of its reasoning that certain minimal labor standards were
not preempted, quoted a Railway Labor Act case, Terminal
Railroad Association v. Railroad Trainmen, 63 S.Ct. 420,
423 (1943) at 2399 which stated: ‘“—We hold that the
enactment by Congress of the Railway Labor Act was
not a preemption of the field of regulating working condi-
tions themselves and did not preclude the State . . . from
making the order in question.”’; the district court and the
Third Circuit found the Pennsylvania wage laws to be
preempted because they required an interpretation of the
collective bargaining agreement. The collective bargain-
ing agreement is a private agreement which, in the instant
case, diminishes rights of petitioners to time and one half
pay for hours worked and paid for after 40 hours if peti-
tioners are traveling from the work site to their head-
quarters or camp cars. It is clear from the Third Circuit
decision that at least one of its suppositions in rendering
this opinion implicates directly the precise area where the
conflict in circuits exists—that the RLA has greater pre-
emptive force than the LMRA or NLRA.

16

A principal purpose for which the United States Su-
preme Court uses certiorari jurisdiction is to resolve con-
flicts among Circuit Courts of Appeals and state courts
concerning the meaning of provisions of federal law.
Braxton v. U.S., 111 S.Ct. 1854, 1857 (1991). Since
this Court’s decisions in Metropolitan Life, Fort Halifax,
Allis-Chalmers and Lingle, conflict has developed among
the lower courts in the application of the preemption doc-
trine to Railway Labor Act settings. This conflict re-
sulted in a decision in the instant case which petitioners
believe to be at odds with the decisions of this court and
which has served to deny petitioners rights to which they
are entitled under Pennsylvania law. It is critical that
this conflict between the circuits be resolved.

II. THE DECISION OF THE THIRD CIRCUIT IN THE
INSTANT CASE SANCTIONS A DEPARTURE BY
THE DISTRICT COURT FROM THE ACCEPTED
AND USUAL COURSE OF JUDICIAL PROCEED-
INGS AND REQUIRES AN EXERCISE OF THIS
COURT’S POWER OF SUPERVISION.

As noted supra, the decisions of this Court regarding
preemption give clear guidance as to the application of
Lingle to state wage laws. And the Pennsylvania wage
laws and regulations are clear as to what employers must
do in order to remain in compliance with them. It is
clear that Metropolitan Life and De Canas exempt state
wage laws from preemption, even under the Railway
Labor Act and those cases, together with Fort Halifax,
grant states the authority, under their broad police pow-
ers, to pass laws such as the Pennsylvania wage laws re-
quiring even Railway Labor Act-covered railroads to pay
time and one half after 40 hours so long as employees |
are working and still under pay by the railroad. Addi- |
tionally, the Pennsylvania Supreme Court in B & O Rail- |
road Company v. Commonwealth Department of Labor
and Industry, 334 A.2d 636 (1975) found that Pennsyl-
vania minimal employment standards are not preempted

ar eisai, eiiiel eli eet

17

by the Railway Labor Act. In B & O, a Pennsylvania
statute requiring employers to pay their employees every
week was challenged by the B & O as preempted by the
RLA. In rejecting the B & O’s position, the Pennsylvania
Supreme Court adopted the reasoning of Terminal Rail-
road at 641, stating: “the principal that the Railway
Labor Act does not preclude a state from regulating the
working conditions of railway employees was established
in the first case to consider the preemptive effect of that
Act.”

The decision of the Third Circuit in the instant case
directs the lower courts to ignore state minimum labor
protections and wage laws in direct contradiction to Met-
ropolitan Life and De Canas. The Pennsylvania statutes
and regulations establish definitions of the terms involved
and the Pennsylvania courts are where those definitions
need to be interpreted. It is the State of Pennsylvania
which should enforce its minimum labor protections and
those protections, according to the decisions of this Court
and according to the Pennsylvania courts and the applica-
ble statutes, cannot be altered by private agreements.
Otherwise, as this Court opined in Allis-Chalmers, unions
and companies could make agreements choosing which
minimal protections to honor and which to ignore. As
this Court stated in Allis Chalmers, 105 S.Ct. 1904, 1911-
1912 (1985):

“Clearly § 301 does not grant the parties to a collec-
tive-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.”

Additionally, this Court stated in Metropolitan Life,
105 S.Ct. 2380, 2397:

“It would turn the policy that animated the Wagner
Act on its head to understand it to have penalized

18

workers who have chosen to join a union by pre-
venting them from benefiting from state labor regu-
lations imposing minimal standards on nonunion
employees.”

The rights of petitioners Bennett and all others sim-
ilarly situated were abridged separate and apart from the
rights of petitioner Pennsylvania Federation. The rights
which flow to them under the Pennsylvania wage statutes
are individual in nature, separate and apart from the col-
lective bargaining process. As this Court noted in Metro-
politan Life at 2397:

Unlike the NLRA, mandated-benefit laws are not
laws designed to encourage or discourage employees
in the promotion of their interests collectively; rather,
they are in part “designed to give specific minimum
protection to individual workers and to ensure that
each employee covered by the Act would receive”
the mandated health insurance coverage. Barren-
tine, 459 U.S. at 739 (emphasis in original). Nor
do these laws even inadvertently affect these interests
implicated in the NLRA. Rather, they are minimum
standards “independent of the collective-bargaining
process [that] devolve on [employees] as individual
workers, not as members of a collective organiza-
tion.” Id., at 745.

The decision of the Third Circuit in the instant case
simultaneously permits the union and the company to
“contract for what is illegal under state law”, prevents
unionized employees of railroads “from benefiting from
state labor regulations imposing minimal standards on
nonunion employees”, and specifically holds that the in-
dividual rights of petitioners Vincen Bennett and all oth-
ers similarly situated arise from the collective bargaining
agreement. If this decision of the Third Circuit is per-
mitted to stand, it sanctions a departure by the district
court from the accepted and usual course of judicial pro-
ceedings. Therefore it requires an exercise of this Court’s
power of supervision.

19
CONCLUSION

For these various reasons, petitioners respectfully sub-
mit that this petition for certiorari should be granted.

Respectfully submitted,

JOEL MYRON

865 Summit Avenue

Jersey City, New Jersey 07307
(201) 420-0021

Counsel for Petitioners

APPENDIX

la
APPENDIX

Filed March 18, 1993

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 92-1577

PENNSYLVANIA FEDERATION OF THE BROTHERHOOD OF
MAINTENANCE OF Way EMPLOYEES, by its Trustee
ad litem TED Dopp; VINCENT BENNETT, on behalf of
himself and all other similarly situated employees

¥.

NATIONAL RAILROAD PASSENGER
CORPORATION (“AMTRAK”)

PENNSYLVANIA FEDERATION of the
BROTHERHOOD OF MAINTENANCE OF
Way EMPLOYEES and VINCENT BENNETT,
Appellants

On Appeal from the United States
District Court for the
Eastern District of Pennsylvania
(D.C. Civ. No. 91-2776)

Argued January 26, 1993

BEFORE: GREENBERG, ROTH, and
LEWIS, Circuit Judges

(Filed: March 18, 1993)

2a

Joel Myron (argued)
865 Summit Avenue
Jersey City, NJ 07307
Louis Agre

1218 Chestnut Street
Philadelphia, PA 19107

Attorneys for Appellants

Joanna L. Moorhead

Jonathan I. Saperstein (argued )
National Railroad Passenger
Corporation (“AMTRAK”)

60 Massachusetts Avenue, NE
Washington, DC 20002
Kenneth D. Kleinman
Kleinbard, Bell & Brecker

1900 Market Street, Suite 700
Philadelphia, PA 19103

Attorneys for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. BACKGROUND

Appellants Pennsylvania Federation of the Brotherhood
of Maintenance of Way Employees (BMWE) and Vin-
cent Bennett, a member of BMWE, initiated this action
pursuant to the Pennsylvania Minimum Wage Act, Pa.
Stat. Ann. tit. 43, §§ 333.101 to .115 (1992), against
appellee National Railroad Passenger Corporation
AMTRAK) in the Philadelphia County Court of Com-
mon Pleas.. AMTRAK removed the case to the United

1 We note that the same union unsuccessfully brought a similar
action in New Jersey state court against Conrail. See Brotherhood
of Maintenance of Way Employees v. Consolidated Rail Corp.,

3a

States District Court for the Eastern District of Pennsyl-
vania pursuant to 28 U.S.C. §$§ 1349° and 1441. The
parties then stipulated to the facts and filed dispositive
motions. AMTRAK moved to dismiss the case, arguing
that the district court lacked subject matter jurisdiction
because this case was a “minor dispute” requiring an
interpretation of its collective bargaining agreement with
BMWE, and therefore the National Railroad Adjustment
Board had exclusive jurisdiction pursuant to the Rail-
way Labor Act. 45 U.S.C. § 153 First (i). By an order
entered June 15, 1992, the district court granted
AMTRAK’s motion to dismiss and denied appellants’
motion for summary judgment as moot. Because we agree
with the district court’s reasoning and result, we will
affirm.*

BMWE and AMTRAK are parties to a currently ef-
fective collective bargaining agreement. BMWE repre-
sents, among others, AMTRAK employees who construct
and maintain AMTRAK’s tracks, bridges, and facilities.
According to the collective bargaining agreement,
AMTRAK may assign certain workers in its Track and
Bridge and Building Department to camp cars‘ or head-

Docket L-1902-89 (N.J. Super. Jan. 25, 1991), aff’d, No. A-3255-
90T5 (N.J. App. Div. Jan. 28, 1992).

2? AMTRAK was created by an Act of Congress, and the United
States government owns more than 50% of AMTRAK’s capital
stock.

8Inasmuch as we are reviewing an order granting a motion
to dismiss, we exercise plenary review. We note, however, that
the district court considered the parties’ stipulation of facts in
granting AMTRAK’s motion to dismiss. While this procedure
may in effect have converted the motion to dismiss into a motion
for summary judgment, this possibility would not change our
scope of review. Of course, the parties do not suggest that there
were any facts in dispute which required resolution at an evi-
dentiary hearing.

*Camp cars are railroad cars that have sleeping, eating, and
sanitary facilities,

4a

quarters and transport these workers on AMTRAK ve-
hicles from these bases to job sites and back. Pursuant
to Rule 63 of the collective bargaining agreement.°
AMTRAK pays these employees straight-time pay for
travel time falling outside the normal 40-hour work
week.°

BMWE and Bennett contend that this travel compen-
sation scheme violates Pennsylvania’s minimum wage
law, Pa. Stat. Ann. tit. 43, § 333.104(c), because it does
not provide for overtime pay for the return travel time.
Under Pennsylvania law employers are required to pay
employees overtime (not less than time and a half) for all
hours worked in excess of 40 hours per week. A Penn-
sylvania regulation, codified at 34 Pa. Code § 231.1,
defines “hours worked” as:

all time during which an employe[e] is required by
the employer to be on the premises of the employer,
to be on duty, or to be at the prescribed work place,
all time spent in traveling as part of the duties of
the employe[e] during normal working hours, and all
time during which an employe[e] is employed or

5 Rule 63 provides in pertinent part:

An employe[e] waiting, or traveling by direction of
AMTRAK by passenger train, motor car, or any other method
of transportation, will be allowed straight time for actual
time waiting and/or traveling during or outside of the regu-
larly assigned hours, except:

(a) When employe[e]s regularly assigned to camp cars, travel
in such cars, they shall be allowed straight time.

6 An example annexed to Rule 63 demonstrates the application
of the agreement. If an employee’s normal shift were from 7 a.m.
to 4 p.m. (8 hours excluding lunch), and he got on an AMTRAK
train to go to the job site at 7 a.m. (arriving at 8 a.m.) and re-
turned to headquarters on an AMTRAK train at 6 p.m. (leaving
at 5 p.m.) the collective bargaining agreement would require that
the employee be paid 8 hours of straight-time pay for the normal
work day, 7 a.m. to 4 p.m.; 1 hour of time-and-half pay for 4 p.m.
to 5 p.m. and 1 hour of straight-time pay for 5 p.m. to 6 p.m.
(the time traveling).

en

Sa

permitted to work; provided, however, that time al-
lowed for meals shall be excluded unless the em-
ploye[e] is required or permitted to work during that
time, and provided further, that time spent on the
premises of the employer for the convenience of the
employe[e] shall be excluded.

According to BMWE and Bennett, a simple construc-
tion of the Pennsylvania statute and regulation will vin-
dicate their right to overtime pay. Therefore, they did
not feel bound to submit their claims to the grievance
process outlined in the collective bargaining agreement.

II. DISCUSSION

In enacting the Railway Labor Act, Congress sought
“to promote stability in labor-management relations in
this important national industry by providing effective
and efficient remedies for the resolution of railroad-
employee disputes arising out of the interpretation of
collective-bargaining agreements.” Union Pacific R.R.
v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402 (1978).
Accordingly, Congress created the National Railroad Ad-
justment Board to hear disputes regarding rates of pay,
essential to keep so-called “minor disputes” out of the
courts and in arbitration. 7d. Therefore, the Railway
Labor Act requires submission of minor disputes to
arbitration. Consolidated Rail Corp. v. Railway Labor
Executives’ Ass'n, 491 U.S. 299, 303, 109 S.Ct. 2477,
2480 (1989); Andrews v. Louisville & N.R.R., 406
U.S. 320, 322, 92 S.Ct. 1562, 1564 (1992).

However, at the same time, Congress in enacting the
Railway Labor Act did not intend to preempt states from
exercising their police powers to regulate minimum work-
ing conditions. Metropolitan Life Ins. Co. v. Massachu-
setts, 471 U.S. 724, 757 n.32, 105 S.Ct. 2380, 2398
n.32 (1985) (citing Terminal R.R. Ass’n v. Railroad
Trainmen, 318 U.S. 1, 6-7, 63 S.Ct. 420, 423 (1943)).
Thus, BMWE and Bennett seek to avoid mandatory ar-
bitration by bringing their claims under state law. Yet,

6a

the mere assertion of an independent state-law claim does
not enable a party to avoid arbitration, otherwise com-
pelled by the Railway Labor Act, because “if the resolu-
tion of [that] state-law claim depends upon the meaning
of a collective-bargaining agreement, the application of
state law . . . is pre-empted.” Lingle v. Norge Div. of
Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877,
1881, (1988) (relying on Local 174, Teamsters v. Lucas
Flour Co., 369 U.S. 95, 82 S.Ct. 571 (1962) and Allis-
Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904
(1985)).’ Aware of this case law, BMWE and Bennett
argue that we can resolve this dispute merely by con-
struing Pennsylvania law, particularly the term “hours
worked” as defined in 34 Pa. Code § 231.1.

In the district court, BMWE and Bennett apparently
argued that the time spent traveling back to the camp
cars or headquarters fell under the “all time spent in
traveling as part of the duties of the employe[e] during
normal working hours” provision of the Pennsylvania
regulation. However, as the district court correctly noted,
it is impossible to determine whether this travel time is
“part of the duties of the employe[e]” without interpreting
the collective bargaining agreement to see exactly what
the duties of the employees are. Cf. O’Brien v. Consoli-
dated Rail Corp., 972 F.2d 1, 5 (1st Cir. 1992) (holding
that state law antidiscrimination claim was preempted by
Railway Labor Act because claim required interpretation
of the collective bargaining agreement to determine
whether employee could perform duties of position he
was seeking), cert. denied, 113 S.Ct. 980 (1993). Sim-
ilarly, as the district court also noted, it is impossible to
determine whether the travel is undertaken “during nor-

7 We realize that Lingle involved a claim preemption under the
Labor Management Relations Act, and not the Railway Labor Act;
however, this difference is not significant in our case because if
anything preemption is broader under the Railway Labor Act. See
Andrews, 406 U.S. at 323, 92 S.Ct. at 1565; Grote v. Trans World
Airlines, Inc., 905 F.2d 1307, 1809-10 (9th Cir.), cert. denied, 111
S.Ct. 386 (1990).

— aa

7a

mal working hours” without interpreting the collective
bargaining agreement to ascertain the normal working
hours.

On appeal, BMWE and Bennett also argue that the
first clause of the regulation covers their situation. Yet,
once again, in order to determine whether the workers
are “required by the employer to be on the premises of
the employer, to be on duty, or to be at the prescribed
work place” during the time spent traveling, we would
have to interpret the collective bargaining agreement.
For example, a worker living near a job site might be
able to go directly home instead of going on an AMTRAK
vehicle back to headquarters. Similarly, if a job site
were near the place of employment of a worker’s spouse,
the spouse might be able to pick up the worker on the
way home. The only way to determine whether such
arrangements would be permissible is to look to the
collective bargaining agreement. In other words, only an
interpretation of the collective bargaining agreement can
tell us if these AMTRAK employees are required to travel
on the AMTRAK vehicles after their work shifts are
done. Thus, contrary to the assertions of BMWE and
Bennett, their dispute with AMTRAK cannot be resolved
solely by reference to state law. Rather, resolution of
their state-law claims requires that we ascertain the mean-
ing of the collective bargaining agreement. Accordingly,
arbitration of the appellants’ claims is mandatory, and
the courts are without jurisdiction to hear the dispute.
In concluding, we stress that our decision does not ad-
dress the merits of the dispute between BMWE. and
AMTRAK; rather, it only states which forum can hear
the dispute.*®

The order of June 15, 1992, will be affirmed.

8 Appellants argue that their claims should be treated separately
because BMWE is suing on behalf of its members, while Bennett
is suing as an individual. We see no merit to this contention which
in any event may not be factually accurate as Bennett has sought

8a

LEWIS, Circuit Judge, concurring.

I join the court’s opinion except insofar as its analysis
does not expressly distinguish between interpreting or con-
struing a collective bargaining agreement, on the one
hand, and merely referring to it on the other, in the
context of the appropriateness of Railway Labor Act pre-
emption.

To give meaning to the terms “interpret” or “construe,”
the court broadens beyond necessity the parameters of
RLA preemption. While the court correctly concludes
that Rule 63 and other provisions of the collective bar-
gaining agreement must be interpreted to determine what
was intended by “part of the duties” of the employee, I
do not believe that any construction or interpretation is
necessary with regard to the question of whether an em-
ployee’s travel is undertaken “during normal working
hours;” I think that is made abundantly clear by a quick
reference to Rule 63. Accordingly, I would have taken
the opportunity in this case to clarify that a need merely
to refer to the collective bargaining agreement should not
necessarily invoke Lingle v. Norge Division, Magic Chef,
Inc., 486 U.S. 399 (1988), and invite preemption.

In my view, the distinction is significant. For example,
if mere reference were enough to invalidate a state law,
then all state minimum labor standards could be rendered
invalid as applied to union situations. This, of course,
is contrary to established precedent. At a minimum, in
fact, the Supreme Court has recognized that an exception
to bargaining agreement preemption exists for state min-

to sue as a representative “of himself and all other similarly situ-
ated employees.” While it is true that the Pennsylvania Wage
Payment and Collection Law gives both unions and individual
employees the right to institute a suit for wages due, see Pa. Stat.
Ann. tit. 43, § 260.9a, this fact is not significant because both are
bound by the collective bargaining agreeemnt and both could
escape the confines of mandatory arbitration only if their state-law
claims can be proven without resorting to an interpretation of the
collective bargaining agreement.

9a

imum labor standards. See Metropolitan Life Ins. v. Mas-
sachusetts, 471 U.S. 741, 755-56 (1985); Malone vy.
White Motor Corp., 435 U.S. 497 (1978). Indeed, an
employer or union could exempt itself from any state law
by including contrary terms in a collective bargaining
agreement. Thus, my concern is that the majority’s anal-
ysis might lend itself to insulating entirely from judicial
review the contents of a collective bargaining agreement.

My concerns aside, however, I believe the majority is
correct in that resolution of the state-law claim pertaining
to the duties of the employee does depend upon the mean-
ing of the collective bargaining agreement and, accord-
ingly, “the application of state law... . is preempted.”
Lingle, 486 U.S. at 405-06.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

10a

IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action 91-2776

PENNSYLVANIA FEDERATION OF THE BROTHERHOOD OF
MAINTENANCE OF WAY EMPLOYEES
and VINCENT BENNFTT

V.

NATIONAL RAILROAD PASSENGER CORPORATION
(“AMTRAK”)

MEMORANDUM AND ORDER
[Filed June 15, 1992]
YOHN, J. June 11, 1992

Plaintiffs commenced this action on behalf of certain
employees in the defendant’s Bridge and Building and
Track Departments seeking payment of overtime compen-
sation they allege is due pursuant to the provisions of
Pennsylvania’s Minimum Wage Act of 1968, 43 Pa. Cons.
Stat. Ann. § 333.101 et seq.’ Defendant takes the posi-

1 The matter presently before this court bears a striking resem-
blance to an action recently decided by the Superior Court of New
Jersey. In Brotherhood of Maintenance of Way v. Consolidated
Rail Corp., Docket L-1902-89 (N.J. Super. Jan. 25, 1991), the
Brotherhood asserted that under New Jersey’s minimum wage law
camp cooks and camp car attendants should be paid time and one-
half for hours worked in excess of forty hours per week as well as
for time spent commuting to and from housing facilities provided
by Conrail.

After hearing argument on the parties’ cross-motions, the ccurt
determined that the RLA preempted the New Jersey statute and that

lla

tion that the matter at issue in this case qualifies as a
“minor dispute” under the terms of the collective bargain-
ing agreement between the parties, a dispute over which
the National Railroad Adjustment Board has exclusive
jurisdiction by virtue of the Railway Labor Act [“RLA”
or “the Act”], 45 U.S.C. § 153 First (i).

Now before the court are plaintiffs’ motion for sum-
mary judgment and defendant’s motion to dismiss or
alternatively for summary judgment.” The parties agree
that there exist no genuine issues of material fact and
invite the court to dispose of this action based upon the
motions. For the reasons stated herein, defendant’s mo-
tion to dismiss will be granted and plaintiff’s motion for
summary judgment will be denied as moot.

FACTUAL BACKGROUND

Plaintiffs [“the Brotherhood”] and defendant [“AM-
TRAK”] are parties to a collective bargaining agreement.
See Stipulation of Facts, Ex. A. The agreement, which
establishes rates of pay, rules and working conditions,
became effective on May 19, 1976. Neither party dis-
putes that the agreement, as updated on October 1, 1987,
is presently in effect.

Pursuant to the terms of the agreement, AMTRAK
may assign certain employees in its Track and Bridge and
Building Departments to camp cars * or headquarters and

resolution of the matter in dispute required an interpretation of
the collective bargaining agreement between the parties. Therefore,
the court concluded, the dispute should be resolved by the National
Railroad Adjustment Board.

* Plaintiffs did not respond to defendant's motion to dismiss or
alternatively for summary judgment.

’Camp cars, which serve as portable housing, are converted
freight cars equipped with sleeping, eating and Sanitary facilities.
The cars serve as portable housing for employees assigned to work
on tracks or a right of way,

12a

transport the workers on a daily basis from those bases
to job sites at which their services are required for work
on tracks or the abutting rights of way. The work week
for such employees is established in the agreement as
follows:

Except as otherwise provided in this Agreement,
AMTRAK will establish for all employe[e]s a work
week of 40 hours, consisting of five (5) days of
eight (8) hours each, with two consecutive days off
in seven (7).

Rule 32. All time within an employee’s forty hour work
week is counted as “hours worked” for purposes of com-
puting overtime pay, regardless of whether the employee
is working or traveling during that time.

Employees assigned to travel to work sites from camp
cars or headquarters are presently paid for time spent in
transit at their regular hourly rate. Rule 63 of the agree-
ment, which sets forth the terms governing compensation
for travel time states in relevant part:

An employe[e] waiting, or traveling by direction
of AMTRAK by passenger train, motor car, or any
other method of transportation, will be allowed
straight time for actual time waiting and/or traveling
during or outside of the regularly assigned hours,
except:

(a) When employe[e]s regularly assigned to camp
cars, travel in such cars, they shall be allowed
straight time.

(Emphasis added). Under the present agreement, time
spent by an employee traveling back to the base location
upon completion of his eight hour tour of duty is not
included within the forty hour work week and, therefore,
is not considered “hours worked” for purposes of com-
puting eligibility for overtime.

|

13a

The Brotherhood asserts that irrespective of the travel
compensation scheme established in rule 63, a provision
to which it agreed, if an employee is required to travel
back to a camp car or headquarters location after comple-
tion of his tour of duty, the time spent in transit should
be considered as “hours worked” for purposes of com-
puting overtime. In fact, the Brotherhood claims, rule
63 is illegal in that it contravenes state regulations promul-
gated pursuant to Pennsylvania’s Minimum Wage Law.

Under Pennsylvania law, an employer is required to
compensate employees for overtime at a rate not less
than one and one-half times the employee’s regular rate.
43 Pa. Cons. Stat. Ann. § 333.104(c). Overtime is de-
fined as “hours in excess of forty hours in a workweek.”
ld. The regulation codified at 34 Pa. Code § 231.1, de-
fines the term “hours worked” as

all time during which an employe[e] is required by
the employer to be on the premises of the employer,
to be on duty, or to be at the prescribed work place,
all time spent traveling as part of the duties of the
employe[e] during normal working hours, and all
time during which an employe[e] is employed or per-
mitted to work;

(emphasis added).

Based upon the plain language of the regulation, plain-
tiffs assert, it is clear that time spent traveling as part of
an employee’s duties constitutes “hours worked.” Conse-
quently, they reason, the facts of this case establish that
time spent traveling back to camp cars or headquarters
should be included in the computation of an employee’s
eligibility for overtime.

In addition to establishing a comprehensive scheme
regulating the rates of pay, rules and working conditions,
the collective bargaining agreement also provides a griev-
ance procedure pursuant to which an employee or his

=

l4a

designated representative may bring a claim concerning
compensation. It is undisputed that plaintiffs have not
submitted the claim at issue in this case to the grievance
process.

DISCUSSION

The Railway Labor Act, enacted in 1926, is designed
to avoid interruption in the operation of the railroad
industry and to provide for the prompt and orderly set-
tlement of all disputes concerning rates of pay, rules or
working conditions. 45 U.S.C. § 15la. Under the terms
of the Act, “minor disputes” respecting such matters as
compensation under the terms of a collective bargaining
agreement are subject to mandatory arbitration. 45 U.S.C.
§ 153 First (i).

Tribunals established by the Act and known as Ad-
justment Boards have exclusive jurisdiction over the arbi-
tration of “minor disputes.” 45 U.S.C. § 153 First (h);
Andrews v. Leuisville & Nashville R.R. Co., 406 U.S.
320, 322 (1972). Consequently, if plaintiffs’ claim can
be characterized as a “minor dispute” arising under the
terms of a collective bargaining agreement, the provisions
of the RLA preempt state wage law and plaintiffs must
look to the arbitration process as the exclusive means by
which to seek redress. Under such a regime, the courts
must dismiss a claim raising a “minor dispute” for lack
of subject matter jurisdiction.

In Consolidated Rail Corp. v. Railway Labor Exec.
Ass'n, 491 U.S. 299 (1989), the Supreme Court an-
nounced that a “minor dispute” is one which grows “out
of grievances or out of the interpretation or application
of agreements concerning the rates of pay, rules, or work-
ing conditions.” Conrail, 491 U.S. at 303. A “minor
dispute,” the Court opined, arises when a collective bar-
gaining agreement is in place and one of the parties is
merely seeking to enforce its provisions. /d. The Court
also noted that the burden the railroad bears in establish-

15a

ing that arbitration is required under the RLA is rela-
tively light and is satisfied if the dispute is minor and the
action is arguably justified by the terms of the collective
bargaining agreement. Conrail, 491 U.S. at 307.

Plaintiffs attempt to avoid characterization of their
claim as a “minor dispute” and the resulting preemptive
effect of the RLA by fashioning the complaint as an ac-
tion for damages under state wage law. Even a cursory
examination of the claim, however, reveals that this dis-
pute is clearly incidental to the employment relationship
between the parties and is inextricably intertwined with
the collective bargaining agreement. As several courts
have noted, plaintiffs cannot be permitted to employ
artful pleading as a means to disguise as a state law claim
what is truly a “minor dispute” under a collective bar-
gaining agreement. Conrail, 491 U.S. at 306: Boggs v.
Consolidated Rail Corp., 112 L.R.R.M. 2295 (E.D. Pa.
1982). Based upon the factual allegations set forth in
the complaint, the court concludes that plaintiffs’ claim
qualifies as a “minor dispute” and is, therefore, subject
to the arbitration process set forth in the RLA.

Stated simply, whether the employees on behalf. of
whom this suit has been commenced are entitled to over-
time compensation for time spent traveling back to their
base camps or headquarters locations upon completion of
their tours of duty requires an interpretation of the terms
of the collective bargaining agreement. By relying on the
plain language of the state regulation for a definition of
“hours worked” for purposes of determining eligibility
for overtime, plaintiffs apparently failed to note that travel
time is included within that definition only if it is “part
of the duties of the employefe] during normal working
hours.” 34 Pa. Code § 231.1. Surely plaintiffs do not
mean to suggest that the question of whether the travel
time at issue in this case qualifies as part of the duties
of the employee or whether such travel is undertaken
during the established normal working hours can be deter-

l6a

mined without reference to the terms of the collective
bargaining agreement.

Moreover, despite plaintiffs’ assertions to the contrary,
the facts of this case do not establish that the employees
are entitled to relief as a result of conduct that is inde-
pendent of the employer’s obligations under a collective
bargaining agreement. Consequently, the matter now be-
fore this court is readily distinguishable from such cases
as Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480
U.S. 557, 565 (1987) (action commenced under the
FELA to recover for injuries resulting from negligence
of the employer occurring independently of the collective
bargaining agreement not preempted by the RLA) and
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399,
407 (1988) (none of the elements plaintiff must estab-
lish to make out the tort of retaliatory discharge impli-
cates any term of the collective bargaining agreement,
therefore, the claim is not preempted by federal labor
law) wherein the Court recognized an independent state
law claim, the resolution of which did not require an
interpretation of the collective bargaining agreement.
Plaintiffs cannot reasonably contend that the dispute in
this case can be resolved absent reference to the collec-
tive bargaining agreement.

By enacting the RLA, Congress established a compre-
hensive scheme aimed at promoting stability in labor-
management relations in the railway industry and foster-
ing uniform adjudication of disputes arising in the con-
text of a collective bargaining agreement. The Act also
evinces Congress’ intent to keep “minor disputes,” such
as the one at issue in this case, within the exclusive juris-
diction of the Adjustment Board and out of the courts.
Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 94
(1978). Moreover, by channeling arbitrable matters to
the National Railroad Adjustment Board, Congress at-
tempted to assure that collective bargaining agreements
will be enforced by arbitrators who are experts in “the

17a

common law of [the] particular industry. Conrail, 491
U.S. at 310.

CONCLUSION

Upon consideration of the undisputed facts of this case,
the court is left with the firm conviction that plaintiffs’
claim has no independent basis in state law. Rather, the
claim constitutes a “minor dispute” under the RLA that
is inextricably intertwined with the collective bargaining
agreement and that cannot be resolved absent an interpre-
tation of that agreement. Consequently, the Adjustment
Board has exclusive jurisdiction over this matter. The
complaint before this court is, therefore, dismissed for
lack of jurisdiction. An appropriate order follows.

18a

THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA

C.A. No. 91 CV 2776

PENNSYLVANIA FEDERATION OF THE BROTHERHOOD
MAINTENANCE OF WAY EMPLOYEES, et al.

¥.

NATIONAL RAILROAD PASSENGER CORPORATION
(“AMTRAK”)

STIPULATION OF FACTS

1. The Brotherhood Maintenance of Way Employees
(“BMWE”) is an unincorporated association organized
for the usual purposes of a labor union. The BMWE is
the designated representative, pursuant to the Railway
Labor Act, of National Railroad Passenger Corporation’s
(“AMTRAK”) employees working in its Track and
Bridge and Building Departments. The Pennsylvania
Federation is a local affiliate of the BMWE.

2. Jed Dodd is General Chairman and Trustee ad
litem of the BMWE.

3. Vincent Bennett is an adult citzen of the Common-
wealth of Pennsylvania. He is a member of the BMWE
and employed by AMTRAK in Pennsylvania.

4. AMTRAK is a common carrier railroad engaged
in interstate commerce. It operates intercity passenger
trains in Pennsylvania, forty-four other states, the Dis-
trict of Columbia and Canada. AMTRAK owns and
maintains railroad tracks and corresponding rights of way
in D.C., Pennsylvania, New Jersey, New York, Delaware,
Connecticut and Massachusetts.

5. BMWE and AMTRAK are parties to a collective
bargaining agreement (“Agreement”), which is currently
in effect. The Agreement is atached hereto as Exhibit A.

~~ a

19a

6. Articles I and II of the Agreement sets forth those
job classifications in AMTRAK’s Track Department and
Bridge and Building Department coming under the rep-
resentational jurisdiction of the BMWE. The employees
holding these positions are responsible for maintaining
the track and rights of way owned by Amtrak.

7. Some BMWE-represented employees working in
AMTRAK’s Track and Bridge and Building Departments
in Pennsylvania are assigned to “camp cars”. Camp cars
are railroad cars outfitted with sleeping, eating and sani-
tary facilities. Employees assigned to the camp cars live
in the camp cars for the entire work week, if they so
choose.

8. At all times relevant to this action, many track De-
partment and Bridge and Building Department employees
assigned to camp car gangs in Pennsylvania were trans-
ported to and from the camp cars on AMTRAK vehicles
operated by AMTRAK employees to the actual job site
where the work was performed.

9. At all times relevant to this action, many Track
Department and Bridge and Building Department em-
ployees of AMTRAK who were assigned to permanent
headquarters in Pennsylvania were transported to and
from the permanent headquarters on AMTRAK vehicles
operated by AMTRAK employees to the actual job site
where the work was performed.

10. At all times relevant to this action, the employees
assigned to camp cars and permanent headquarters re-
ferred to above, worked at the job site until work was
concluded for the day and then were usually required to
use AMTRAK vehicles in order to return to the camp
cars or headquarters.

11. Each employee is assigned a tour of duty, which
specifies the regular work period for the day. Under the
Agreement, all time falling within the tour of duty period,
whether spent working or traveling to or from the job

20a

site, is included within hours worked, for purposes of
computing overtime pay.

12. Under Rule 53 of the Agreement, when an em-
ployee ts called to work outside his tour of duty period,
the time spent traveling to the job site, as well as the time
spent working outside the tour of duty period, is paid at
a rate one and one-half times the regular rate, regardless
of the number of hours worked that week.

13. Track Department and Bridge and Building De-
partment employees are paid at a straight time hourly
rate as “travel time” pursuant to Rule 63 of the Agree-
ment when they return to the camp cars or headquarters
outside their tour of duty period, regardless of the number
of hours worked that week.

14. At all times relevant to this action, pursuant to
Rule 63 of the Agreement, with the exception of certain
circumstances enumerated therein, the time spent by em-
ployees traveling outside and after their tour of duty
period was not considered as time worked for the pur-
poses of computing overtime, or for the purpose of com-
puting whether an employee worked forty hours in a
work week.

15 The Agreement, which includes Rules 53 and 63,
as well as various letters of understanding appended
thereto, all of which are attached as Exhibit A, sets forth
the system routinely utilized by AMTRAK in paying its
employees employed in the Track and Bridge and Build-
ing Departments for actual time waiting and/or traveling
outside of their regularly advertised hours of duty.

16. The provisions of the Agreement relating to the
treatment of travel time are the product of collective bar-
gaining negotiations between BMWE and AMTRAK.
These or similar provisions were contained in prior col-
lective bargaining agreements between BMWE and
AMTRAK’s predecessor railroads, and are consistent with
industry practice.

iene

21a

17. BMWE has not submitted this matter to the dis-
put: resolution procedures that exist between the parties.

/8/ Louis Agre /8/ Jonathan I. Saperstein
LouIs AGRE, ESQUIRE JONATHAN I. SAPERSTEIN,
924 Cherry Street ESQUIRE
Philadelphia, PA 19107 National Railroad Passenger
Attorneys for Plaintiffs Corporation (“‘Amtrak’’)

60 Massachusetts Avenue, NE
Washington, DC 20002
(202) 906-2855

SALLY D. GARR, ESQUIRE
PILLSBURY, MADISON & SUTRO
1667 K Street, N.W.

Suite 1100

Washington, DS 20006-1676
(202) 463-2362

KENNETH D. KLEINMAN,
ESQUIRE

KLEINBARD, BELL & BRECKER

1900 Market Street, Suite 700

Philadelphia, PA 19103

215/568-2000

Attorneys for Defendant

National Railroad Passenger
Corporation (“Amtrak”)

Dated: 1/29/92

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1007%3A1. Public record. Not legal advice.