Beers v. Southern Pacific Transp. Co., No. 82-4114

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before MERRILL and FERGUSON; GRANT
• Citation: 703 F.2d 425
• Parties: 113 L.R.R.M. (BNA) 2499, 96 Lab.Cas. P 14,197 Leon BEERS, Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, et al., Defendants-Appellees.
• Docket Number: No. 82-4114
• Decision Date: 08 April 1983

Page 425

703 F.2d 425 113 L.R.R.M. (BNA) 2499, 96 Lab.Cas. P 14,197 Leon BEERS, Plaintiff-Appellant,
v.
SOUTHERN PACIFIC TRANSPORTATION COMPANY, et al., Defendants-Appellees. No. 82-4114. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Dec. 16, 1982.
Decided April 8, 1983.

Page 426

Robert S. Bogason, San Francisco, Cal., for defendants-appellees.

Gerald Needle, Redondo Beach, Cal., for plaintiff-appellant.

Appeal from the United States District Court for the Northern District of California.

Before MERRILL and FERGUSON, Circuit Judges, and GRANT, ^* Senior District Judge.

GRANT, Senior District Judge:

The plaintiff-appellant Leon Beers (hereinafter "Beers") was employed by defendant-appellee Southern Pacific Transportation Company (hereinafter "Southern Pacific") in various capacities since 1963. From November 1979 to the time of this dispute, Beers was an engineer for Southern Pacific and a local chairman for the Brotherhood of Locomotive Engineers (BLE). As local chairman, Beers was responsible for processing the various grievances with Southern Pacific filed by the local members of BLE. The local chairman also represents a local member at any investigatory hearing which must be held before Southern Pacific could discipline an engineer. As a locomotive engineer, Beers' position was covered by a collective bargaining agreement between Southern Pacific and BLE governed by the Railway Labor Act (RLA), 45 U.S.C. Sec. 151 et seq.

On October 30, 1980, Beers was representing a fellow engineer under charge at an investigatory hearing. Prior to the hearing, Beers had a confrontation with defendant W.J. Gould, a supervisory employee of Southern Pacific. Heated words were exchanged and Beers engaged in name-calling. Thereafter, Beers twice refused to apologize when asked to do so. A charge was filed by the supervisor and an investigatory hearing was held regarding Beers' insubordination during this confrontation. After the hearing, Beers was notified of his termination of employment with Southern Pacific. A claim for wrongful discharge was filed by Beers with the National Railroad Adjustment Board (NRAB). During the pendency of this suit and shortly before oral arguments before this court, the NRAB reinstated Beers without pay for the time lost and with his seniority rights unimpaired.

In February 1981, Beers filed a state tort claim in the Superior Court of California against Southern Pacific and several of Southern Pacific's supervisory employees for intentional infliction of emotional distress and violation of his rights under the Railway Labor Act to represent his union members. The state court action was removed to the United States District Court, Northern District of California, pursuant to 28 U.S.C. Sec. 1441(b) on the grounds that Beers' claim arose under the laws of the

Page 427

United States, specifically the RLA. Southern Pacific then moved for partial Summary Judgment arguing that the tort claim was intertwined with the grievance procedures of the collective bargaining agreement and, therefore, within the exclusive jurisdiction of the NRAB.

The district court in its Findings of Fact found that each of Beers' harassment complaints were grievances "inextricably intertwined with the collective bargaining agreement, management-labor relations and the grievance process set forth in the collective bargaining agreement." (R. 41, p. 8). The district court also found that the claimed violations of the RLA were matters within the jurisdiction of the NRAB and not the district court, Id. The district court then granted Summary Judgment to Southern Pacific as to the claims, finding that it lacked subject matter jurisdiction. Appeal from that judgment was taken in February 1982. This court has jurisdiction pursuant to 28 U.S.C. Sec. 1291.

The issues raised upon appeal are:

1. Was the removal of the action from state court proper?

2. Was there a genuine issue of fact requiring a jury trial rather than Summary Judgment disposition?

3. Did the district court correctly conclude that the complaint raised matters within the jurisdiction of the NRAB and, therefore, it lacked subject matter jurisdiction?

I.

Beers argues on appeal that removal to federal court was improper because federal preemption, taken alone, is not a basis for removal. State of Washington v. American League of Professional Baseball Clubs, 460 F.2d 654, 660 (9th Cir.1972). A review of the record, however, fails to indicate any objection by the plaintiff to the removal to federal court or the raising of the issue now before this court whether preemption conferred jurisdiction. It has been held by the Supreme Court that when a removed case has been tried by a federal court without objection and judgment has been entered:

[t]he issue in subsequent proceedings on appeal is not whether the case was properly removed but whether the federal district court would have had original jurisdiction of the case had it been filed in that court.

Grubbs v. General Electric Credit Corp., 405 U.S. 699, 702, 92 S.Ct. 1344, 1347, 31 L.Ed.2d 612 (1972). Grubbs is applicable to determinations on Summary Judgment motions. Stone v....