834 F.2d 556 (6th Cir. 1987), 86-3059, Miller v. Norfolk and Western Ry. Co.

Docket Nº:86-3059.
Citation:834 F.2d 556
Party Name:Tony L. MILLER, Plaintiff-Appellant, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellee.
Case Date:November 24, 1987
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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834 F.2d 556 (6th Cir. 1987)

Tony L. MILLER, Plaintiff-Appellant,



No. 86-3059.

United States Court of Appeals, Sixth Circuit

November 24, 1987

Argued Dec. 9, 1986.

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Elmer I. Schwartz, Wallace R. Steffen (argued), Cleveland, Ohio, for plaintiff-appellant.

Forrest A. Norman, James M. Speros (argued), Gallagher, Sharp, Fulton & Norman, Cleveland, Ohio, for defendant-appellee.

Before ENGEL and JONES, Circuit Judges, and EDWARDS, Senior Circuit Judge.

ENGEL, Circuit Judge.

This appeal illustrates, in graphic form, how a relatively simple set of facts in a controversy can nonetheless implicate difficult and subtle issues extending over many areas of federal law. The general area of law at issue here is the extent to which the principles of federal preemption law impact, in an industrial setting, upon private state actions for defamation.

Plaintiff appeals from the dismissal of his defamation claim brought against his former employer. The claim was originally brought in Ohio state court and was removed to federal court under 28 U.S.C. Sec. 1441. Upon plaintiff's motion to reconsider the earlier grant of removal and defendant's motion to dismiss the complaint, the trial court denied the former and granted the latter on the ground that the facts of the defamation claim had already been litigated by a public law board, and that since truth was a defense to a defamation claim, the complaint would be dismissed because the public law board found that Miller had done that of which the defamatory statement had accused him.

The dispute in this case began in 1982, when Miller, then a supervisory employee for Norfolk and Western Railway Co. (N & W), was discharged on the ground that he had defrauded his employer. Although his job as a supervisor was not covered by a collective bargaining agreement, Miller had seniority bumping rights as a non-supervisory employee. After first unsuccessfully contesting his discharge as a supervisor, Miller asserted his rights under the CBA for reinstatement as an electrician. The reinstatement action was brought before the public law board under the terms of the Railway Labor Act, 45 U.S.C. Sec. 151 et seq. No one disputes that this was proper procedure. The public law board determined that Miller had indeed defrauded the company, and that his termination from N & W was proper under the CBA.

Miller's suit was filed in the Ohio state court in 1983. In paragraph 3 of his state court complaint Miller made his main contention:

In the middle and latter part of August, 1982, and thereafter, defendant through its officers and supervisory personnel, made slanderous and libelous statements about the plaintiff to the effect that plaintiff had procured from defendant's suppliers property for his own use and that such property was billed to the defendant and paid for by defendant. Such

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slanderous and libelous statements refer to the purchase of brooms and also automobile parts, allegedly for plaintiff's automobile. Plaintiff says that such statements did not come to his knowledge, and he had no reasonable way of knowing that such statements had been made, until August 13, 1982, and thereafter; and further says that such statements are completely untrue and amount to, and were intended for the purpose of, defamation of plaintiff's character.

In paragraph 5, he alleged:

Plaintiff was one of the persons to benefit from and be protected by the Employment Protection Conditions imposed by the Interstate Commerce Commission, pursuant to 49 U.S.C. Sec. 11347, and finance docket No. 29340, etc., resulting from a consolidation between the defendant, Norfolk & Western Railway Company and Southern Railway Company in July of 1982. Plaintiff says that defendants in falsely accusing plaintiff of dishonesty were acting deliberately, intentionally, and maliciously, and in accordance with a plan to reduce the number of its employees and supervisory personnel, including plaintiff, in order to relieve itself of the monetary allowances and benefits for which it would be liable.

Miller claimed lost earnings of $45,000 because of the "slanderous and maliciously false statements made by defendant," and because his earning capacity had been permanently impaired. He also alleged that he had suffered mental anguish, and asked for compensatory damages of $800,000 and punitive damages of $1,200,000.

N & W removed this case to the district court on the basis that the complaint's reference to 49 U.S.C. Sec. 11347, and an allegedly mandatory but omitted reference to the Railway Labor Act, 45 U.S.C. Sec. 153, provided jurisdiction under 28 U.S.C. Sec. 1336, and presumably under 28 U.S.C. Sec. 1331, the general federal question jurisdiction provision. 1

Plaintiff's petition for remand was premised on his claim that he had not sought recovery pursuant to either the Interstate Commerce Act or the Railway Labor Act. Rather, he claimed that his was a common law action for money damages only, and that no federal relief, such as a demand for job reinstatement, was sought. Miller asserted that 49 U.S.C. Sec. 11347 was cited "merely as one of the factors to consider in determining the damages which arose from the libel, slander, and defamation of plaintiff by defendant.... Paragraph 5 of the Complaint could even be treated as a surplusage; it refers only to damages, and an explanation for defendant's intentional and malicious acts."

The defendant's brief opposing remand asserted that some of its employees and a local auto parts supplier had created a scheme whereby individual employee purchases were paid for by N & W. The defendant claimed that investigation showed Miller had benefitted from this scheme and that, after a hearing, he had been removed. His union, the International Brotherhood of Electrical Workers (IBEW), had filed a grievance, which was arbitrated under 45 U.S.C. Sec. 153, resulting in an award in favor of the company. N & W argued that under the RLA, disputes between railroads and their employees over the application of existing agreements were committed to the exclusive and ultimate resolution of the National Railroad Adjustment Board. It then argued that any action which was brought in state court subject to section 153 was properly removed, even when there was no reference in the complaint to section 153. Miller opposed this memorandum with some of the same arguments he had raised earlier. The railroad responded that it did not matter

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that as a supervisor, Miller had not been covered by the collective bargaining agreement; in all events Miller had voluntarily invoked section 153 arbitration, whose only requirements were that it be between the employee and the carrier, and arise incidentally in the course of employment.

In granting N & W's petition for removal, United States District Judge Thomas Lambros held that although Miller had not invoked the RLA, he had in fact availed himself of the NRAB forum, and his claims in the present action were "predicated on a matrix of facts inextricably intertwined with the employment relationship and the procedures embodied in 45 U.S.C. Sec. 153." We are bound to observe at this point that nowhere in the complaint did Miller allege where the defamation allegedly occurred. When that question was posed to plaintiff's counsel at oral argument on appeal, counsel stated that it occurred in Bellevue, Ohio, but would not be more specific. Thus, it cannot be said on this record that the allegedly defamatory statements for which plaintiff seeks relief were made at the hearing before the public law board, or that they were inextricably intertwined with the Sec. 153 procedures.

Miller then filed a motion for reconsideration of the decision to remove. He once again stated that he had brought only a common law tort action which was not covered by the collective bargaining agreement. Miller further acknowledged that while he had reactivated his status as an employee covered by the collective bargaining agreement when appearing before the public law board, that matter was concluded and was no longer the issue. The defendant's rejoinder was that once plaintiff claimed the benefit of the Railway Labor Act, he was thereafter limited to the remedies provided by that Act, "which plainly exclude private defamation actions."

In denying reconsideration of its previous decision to uphold removal, and in granting N & W's motion to dismiss, the trial judge held that the statements were made "presumably while [Miller] retained status as an employee under the collective bargaining agreement. As such, this matter is subject to the exclusive remedies of the Railway Labor Act." He also referred to the "exclusivity and preemptive effect of the Act," so that even if Miller was not an employee at the time the defamatory statements were made, his claim still was preempted. The public law board's determination that Miller had not been wrongfully discharged precluded a finding that Miller was "somehow defamed in the course of his employment and subsequent discharge." Truth was a defense to defamation. In the trial judge's view, the public law board's previous adjudication that Miller had been dishonest was dispositive of his defamation claim. Thus, the trial judge's first opinion was predicated on federal question jurisdiction, and upon a finding that Miller's claims were inextricably intertwined with the RLA, even though he did not invoke it. In a second opinion, the trial judge found the defamation claim to be subject to the preemptive effect of the Act, so that a wrongful discharge claim that the public law board had rejected under section 153 provided a basis in collateral estoppel for dismissal of that claim on the merits.

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