Bailey v. Norfolk & Western Ry. Co.

• Citation: 842 F. Supp. 218
• Decision Date: 24 January 1994
• Docket Number: Civ. A. No. 1:93-0649.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Joe W. BAILEY, et al., Plaintiffs, v. NORFOLK & WESTERN RAILWAY COMPANY, a statutory corporation, Defendant.

842 F. Supp. 218

Joe W. BAILEY, et al., Plaintiffs, v. NORFOLK & WESTERN RAILWAY COMPANY, a statutory corporation, Defendant.

Civ. A. No. 1:93-0649.

United States District Court, S.D. West Virginia, Bluefield Division.

January 24, 1994.

Lane O. Austin and William Flanigan, Sanders, Austin, Swope & Flanigan, Princeton, WV, for plaintiffs.

Jeffrey S. Berlin and Mark E. Martin, Richardson, Berlin & Morvillo, Washington, DC, Wade T. Watson, Sanders, Watson & White, Bluefield, WV, William P. Stallsmith, Jr., Norfolk, VA, for defendant.

OPINION

FABER, District Judge.

This civil action was originally filed in the Circuit Court of McDowell County, West Virginia, by some fifty-two individual employees of the Norfolk & Western Railway Company ("N & W"), all of whom are over forty years of age. Plaintiffs contend that the N & W's rules, practices and procedures concerning seniority for conductors constitute a direct and purposeful violation of that portion of the West Virginia Human Rights Act which prohibits age discrimination. West Virginia Code, § 5-11-9.

The N & W, plaintiffs allege, devised and implemented rules relating to placement of brakemen on the conductor seniority list in such a way as to adversely impact the seniority rights of a class of workers, eighty percent of whom are over the age of forty, in favor of a class of workers whose membership is comprised of workers predominantly under the age of forty. The N & W's motivation, plaintiffs say, was to rid itself of costly benefit packages earned and vested by employees hired before November 1, 1985, in favor of younger workers whose benefit packages are less expensive for the railroad.¹

The N & W removed this action to this court and promptly moved to dismiss, claiming that plaintiffs' claims of discrimination on the basis of age in violation of the West Virginia Human Rights Act are preempted by section 3 of the Railway Labor Act, 45 U.S.C. § 153, which commits the claims to resolution exclusively by means of arbitration before a Railroad Adjustment Board. The sole basis of federal jurisdiction claimed by the N & W is a federal question under 28 U.S.C. §§ 1441(a) and (b) because this case is said to arise under the Railway Labor Act, 45 U.S.C. § 151, et seq., ("RLA"). In its removal petition, defendant points out that it is a carrier under the RLA and that plaintiffs are members of the United Transportation Union ("UTU"). The UTU is the collective bargaining representative for N & W employees and numerous crafts or classes of employees, including trainmen and conductors, under national collective bargaining agreements to which the N & W is a party. Plaintiffs' purported age discrimination claims, the N & W argues, are, in reality, "minor disputes" over interpretation and application of these collective bargaining agreements, and are subject to mandatory arbitration thereunder.

Plaintiffs have moved to remand to state court, contending that the Complaint relies exclusively on state law and state causes of action and, therefore, does not present a federal question entitling defendant to remove. The rights of the plaintiffs at issue in this case, it is argued, are grounded on West Virginia law, not in a collective bargaining agreement with defendant and, at any rate, are not such as could be bargained away by plaintiffs' union representatives.

It is a familiar proposition that a plaintiff is "master of his own action" and, as such, is free to choose the legal theory upon which his case will proceed. The Fair v. Kohler Dye & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913). Normally, the plaintiffs selection of a theory will control for the purpose of determining whether federal question jurisdiction exists. For, under the "well-pleaded complaint" rule of Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908), an action does not arise under federal law unless an assertion based thereon is an essential part of the plaintiff's complaint. Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936).

Claims of federal preemption typically arise as defenses to actions based on state law; since the defense does not appear on the face of the complaint, it normally does not authorize removal. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987). A narrow exception to the well-pleaded complaint rule of the Mottley and Gully cases has been carved out by the United States Supreme Court. This exception, referred to as the "complete preemption doctrine," stems from Avco Corp. v. Aero Lodge No. 735, IAM, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126, reh'g denied, 391 U.S. 929, 88 S.Ct. 1801, 20 L.Ed.2d 670 (1968). Avco was an action by an employer to enjoin a union from breaking a no strike clause contained in a collective bargaining agreement. Apparently in order to avoid a provision of the Norris-LaGuardia Act forbidding federal courts to issue injunctions in labor disputes, the plaintiff had sued in state court and pleaded his claim as a breach of contract under Tennessee law. The respondents removed the case to federal court arguing that it presented a federal question because the action was, in reality, one arising under section 301 of the Labor Management Relations Act ("LMRA"). The Supreme Court agreed, relying upon Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), for the proposition that the LMRA "absorbed state law" which would no longer be "an independent source of private rights." Avco, 390 U.S. at 560, 88 S.Ct. at 1237.

The scope of this "complete preemption doctrine" has been narrowly circumscribed in Supreme Court cases subsequent to Avco. The first of these cases was Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). The plaintiff in Franchise Tax was a California state agency charged with collecting unpaid state income taxes. The defendant trust was established under a labor agreement for the purpose of administering provisions of the agreement granting construction workers a yearly paid vacation. The plaintiff levied against funds held by the defendant in order to collect delinquent taxes owed by members of the construction workers' union. The complaint stated two causes of action, the first based upon a California statute authorizing plaintiff to levy against funds in the hands of third parties for collection of delinquent taxes, and the second under the California Declaratory Judgments Act seeking a ruling that the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et. seq., did not preempt the provisions of state law allowing plaintiff to collect delinquent taxes. Defendant removed the action to federal court on the basis of a federal question, relying on the "complete preemption doctrine" of Avco. The Supreme Court declined to reach the merits of the preemption issue and held there was no federal question jurisdiction. After reviewing the history of the "well-pleaded complaint rule," the court indicated that if state law creates the cause of action, original federal jurisdiction is absent "unless it appears that some substantial, disputed question of federal law is a necessary element of the well-pleaded state claims" or that the claim is really one of federal law. Id. at 13, 103 S.Ct. at 2848.

The difficulty of separating the jurisdictional question from the merits of the preemption issue is apparent in many of these cases. However, it seems obvious that the court's inquiry upon a motion to remand should turn on the question of congressional intent to create removal jurisdiction and not on congressional intent to preempt state law. For, if there is no jurisdiction, the court would be powerless to decide the merits of the preemption issue. The preemption issue should accordingly be left for resolution after the court decides whether it has jurisdiction. If the federal court determines it has jurisdiction, it proceeds to resolution of the preemption issue on its merits; if it decides it lacks jurisdiction, it properly leaves the merits of the preemption issue to the state court to decide, returning the case to that court. Therefore, following the procedure adopted by the Supreme Court in Franchise Tax, this court's inquiry will concentrate on the narrow issue of whether or not it has jurisdiction.

Subsequent to the Franchise Tax case, the Supreme Court, in Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987), dealt with a question it had left open in Franchise Tax. It reviewed the legislative history of ERISA and found there a congressional intent for the civil enforcement provisions contained in section 502 of ERISA to preempt state law to the same extent as section 301 of the LMRA. The narrow scope of the court's ruling is made abundantly clear by the following passage from Justice Brennan's concurring opinion:

Our decision should not be interpreted as adopting a broad rule that any defense premised on congressional intent to preempt state law is sufficient to establish removal jurisdiction. The Court holds only that removal jurisdiction exists when, as here, `Congress has clearly manifested an intent to make causes of action ... removable to federal court'.... In future cases involving other statutes, the prudent course for a federal court that does not find a clear congressional intent to create removal jurisdiction will be to remand the case to the state court.

Metropolitan Life, 481 U.S. at 67-68, 107 S.Ct. at 1548 (emphasis supplied).

Two weeks after the Metropolitan Life decision was announced, Justice Brennan delivered the opinion of a unanimous court in Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). In that case, the plaintiff's complaint was based upon alleged breaches of individual employment contracts with the defendant....