Davies v. American Airlines, Inc.

• Decision Date: 13 July 1992
• Docket Number: No. 90-5231,90-5231
• Citation: 971 F.2d 463
• Parties: 140 L.R.R.M. (BNA) 2986, 61 USLW 2128, 122 Lab.Cas. P 10,272, 7 IER Cases 1071 Scott DAVIES, Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., a Delaware corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 463

971 F.2d 463

140 L.R.R.M. (BNA) 2986, 61 USLW 2128,

122 Lab.Cas. P 10,272,

7 IER Cases 1071

Scott DAVIES, Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., a Delaware corporation, Defendant-Appellee.

No. 90-5231.

United States Court of Appeals, Tenth Circuit.

July 13, 1992.

Gary G. Grisso (Joe L. White, with him, on the brief), Collinsville, Okl., for plaintiff-appellant.

Reuben Davis (Frederic N. Schneider, III and Kimberly A. Lambert, with him, on the brief), Boone, Smith, Davis, Hurst & Dickman, Tulsa, Okl., for defendant-appellee.

Before ANDERSON and EBEL, Circuit Judges, and ANDERSON, Senior District Judge. ^*

EBEL, Circuit Judge.

This appeal arises out of a claim, based upon Oklahoma law, for wrongful termination of employment in violation of public policy. See Burk v. K-Mart Corp., 770 P.2d 24, 28-29 (Okla.1989). Three issues are raised: First, is this state law action a "minor" dispute within the exclusive jurisdiction of an arbitral board under the Railway Labor Act ("RLA")? Second, does Oklahoma law provide a remedy for wrongful termination in violation of public policy where other remedies are available? Third, does Oklahoma law provide a remedy for wrongful termination in violation of public policy for employees who can only be terminated for "just cause"?

We conclude that this cause of action is not a "minor" dispute under the RLA and, hence, the district court had jurisdiction to decide the case. On the merits, we conclude that Oklahoma would recognize the tort of wrongful termination in violation of public policy even if other remedies are available to the employee and even if he can be terminated only for "just cause." Accordingly, we reverse the district court's grant of the Defendant's motion for judgment notwithstanding the verdict ("JNOV") and we remand to reinstate the jury verdict.

FACTS

The Plaintiff, Scott Davies, was employed as a mechanic by the Defendant, American Airlines ("American"), in Tulsa, Oklahoma. His employment was governed by the terms of a collective bargaining agreement ("CBA") between American and the Transport Workers Union ("TWU"), the exclusive bargaining agent for American's mechanics. Under the CBA, Davies could be discharged only for "just cause."

Davies sought to change the mechanics' representation to the Aircraft Mechanics Fraternal Association ("AMFA"), a rival of the TWU. To this end, he placed an advertisement in a local newspaper announcing a debate between representatives of the two unions. American approached Davies after the publication of the advertisement and reprimanded him for using the words "American Airlines" in the advertisement without permission from American. According to American, the use of its name in the advertisement erroneously made American appear to be a sponsor of the debate. American's position was that the advertisement was false, in violation of its Employment Rule 21, and harmful to the welfare of the company, in violation of its Employment Rule 24. When Davies refused to acknowledge his alleged wrongdoing and refused to promise that he would not repeat it, American terminated his employment. In arbitration, it was found that Davies had violated American's rules and that, therefore, American had "just cause" to discharge him. However, the arbitrator did not address the issue of whether the discharge violated clearly established public policy and therefore was actionable under Burk.

Prior to the disposition of the arbitration, Davies sued American based upon Burk, which provides a right of action to employees who are discharged in violation of public policy. Davies argues that even if he did violate American's rules, thereby giving American "just cause" to discharge him, American's actual motivation for the discharge was not to stop his violations of its rules, but rather to stop his unionizing activity. Because public policy supports the right to select union representation, Davies argues, his discharge violated public policy and entitled him to recover under Burk. The jury agreed that American was motivated by anti-union animus and returned a verdict in favor of Davies.

American moved for JNOV on three bases. First, American argued, Davies' Burk action is a "minor" dispute under the RLA. Because the RLA vests mandatory and exclusive jurisdiction over "minor" disputes in an arbitral board, American argued, the courts are preempted from hearing such disputes. Second, American argued, Burk does not provide a cause of action for violation of a public policy which already has a remedy available for enforcement. Third, American argued, Burk is limited to "at will" employees and does not provide a cause of action for employees like Davies who can only be discharged for "just cause." The district court granted JNOV for American based on its last two arguments. Davies appeals that decision.

I. RLA Preemption ¹

Although the district court's grant of JNOV was not based upon RLA preemption, American continues to urge this argument as a ground for affirmance. RLA preemption is jurisdictional. See Zimmerman v. Atchison, T. & S.F. Ry., 888 F.2d 660, 661 (10th Cir.1989) (per curiam). Accordingly, we address this argument first.

The RLA provides an arbitral forum for the resolution of "disputes between an employee ... and a carrier ... growing out of grievances, or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions." 45 U.S.C. §§ 153 First (i) & 184. ² Such disputes have been characterized as "minor" disputes. See Andrews v. Louisville & N. R.R., 406 U.S. 320, 321-22, 92 S.Ct. 1562, 1563-64, 32 L.Ed.2d 95 (1972).

In Andrews, the Supreme Court held that the arbitral remedy provided under section 153 of the RLA is mandatory and exclusive for "minor" disputes. Id. at 322, 325, 92 S.Ct. at 1564, 1565. Thus, if Davies' Burk action can be characterized as a "minor" dispute, then the courts generally lack jurisdiction to hear it. Barnett v. United Air Lines, 738 F.2d 358, 361 (10th Cir.) cert. denied, 469 U.S. 1087, 105 S.Ct. 594, 83 L.Ed.2d 703 (1984). ³

The distinction between "major" and "minor" disputes was elaborated upon in Consolidated Rail Corp. v. Railway Labor Executives' Association, 491 U.S. 299, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989) ("Conrail"). "The distinguishing feature of [a 'minor' dispute] is that the dispute may be conclusively resolved by interpreting the existing [collective bargaining] agreement." Id. at 305, 109 S.Ct. at 2481.

A. The Need for CBA Interpretation

American argues that Davies' Burk suit is a "minor" dispute because it requires interpretation of an existing CBA. Specifically, American argues that its defense to the suit--i.e., that Davies was fired for "just cause"--requires interpretation of the "just cause" provision of the CBA. Thus, American argues, this suit is preempted. See Andrews, 406 U.S. at 324 92 S.Ct. at 1565; Zimmerman, 888 F.2d at 662; Barnett, 738 F.2d at 361.

However, the Supreme Court rejected such an argument in Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Lingle involved a defense of preemption under section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. Under the LMRA, like the RLA, preemption occurs "if the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement." Lingle, 486 U.S. at 405-06, 108 S.Ct. at 1881. Lingle involved a plaintiff who alleged she was illegally discharged in retaliation for filing a workers compensation claim. The employer disagreed with that characterization and claimed that the plaintiff was fired for "just cause" under the CBA. Lingle held that the plaintiff's retaliatory discharge claim under the state workers compensation laws could be tried without interpreting the CBA. Accordingly, the Court held that the claim was not preempted notwithstanding the fact that "the state-law analysis might well involve attention to the same factual considerations as the contractual determination of whether [the employee] was fired for just cause." Id. at 408, 108 S.Ct. at 1883.

In Marshall v. TRW, Inc., Reda Pump Division, 900 F.2d 1517 (10th Cir.1990), we faced a similar situation where the plaintiff asserted he had been terminated for filing a workers compensation claim. The employer responded that the plaintiff was terminated for "just cause" under the CBA. The plaintiff responded that the "just cause" reason was pretextual. Applying Lingle, we held that a court could determine whether the plaintiff was terminated in retaliation for a workers compensation filing without interpreting the "just cause" provision of the CBA. Id. at 1521. Even if the employee violated the employer's rules, giving the employer "just cause" to discharge him, the question is whether the employer's motivation for the discharge was the rule violation or retaliation for an activity protected by the retaliatory discharge law. Accordingly, we held that the claim was not preempted by the LMRA. Id. Hence, interpretation of the "just cause" provision of a CBA is not necessary to resolve a retaliatory discharge suit.

Davies' Burk suit is essentially a retaliatory discharge suit. The gravamen of his action is that American's actual or primary motivation in firing him, irrespective of any "just cause" it may have had under the CBA, was to stop his unionizing activity. Thus, we hold, pursuant to Lingle and Marshall, that Davies' Burk action does not require interpretation of the CBA and is therefore not preempted by the RLA on that ground. ⁴

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 determining whether a dispute requires CBA interpretation is just as valid under the RLA as it is under the LMRA. At least four circuits have looked to LMRA cases such as Lingle to determine whether a claim involved CBA...