Gregory v. Burlington Northern R. Co.

• Decision Date: 15 May 1986
• Docket Number: Civ. No. 4-85-720.
• Parties: Susan F. GREGORY, Plaintiff, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Defendant.
• Court: U.S. District Court — District of Minnesota

638 F. Supp. 538

Susan F. GREGORY, Plaintiff, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Defendant.

Civ. No. 4-85-720.

United States District Court, D. Minnesota, Fourth Division.

May 15, 1986.

John C. Boylan, Rerat Law Firm, and Gary W. Becker, Stone, Ribble, Bremseth, Meyer, Collins & Wood, Minneapolis, Minn., for plaintiff.

Barry McGrath, H.K. Bradford, Jr., St. Paul, Minn. (Richard J. Schreiber, Sr. Gen. Counsel, Ft. Worth, Tex., of counsel), for defendant.

MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This matter is before the Court on defendant's motion to dismiss or, in the alternative, for summary judgment. Defendant's motion to dismiss will be granted.

FACTS

Plaintiff is a Billings, Montana resident and a former employee of defendant. Plaintiff applied for a position in defendant's Billings communication facility March 1, 1985. Plaintiff's application for employment was approved and she accepted a job with defendant. The position acquired by plaintiff was a union position subject to a collective bargaining agreement.

Pursuant to the collective bargaining agreement to which defendant and plaintiff's union were parties, plaintiff was required to take a pre-employment physical examination. The examination included mandatory drug testing. Plaintiff took the examination at a Billings clinic March 22, 1985. Plaintiff began work April 1, 1985, before the results of the examination had been received by defendant. Under such circumstances, the collective bargaining agreement provided that plaintiff was a probationary employee subject to final approval by defendant's medical examiners.¹

On April 15, 1985, plaintiff was notified that due to her failure to pass the mandated physical her employment with defendant was being terminated. Plaintiff was informed by company officials that a controlled substance had been detected in her urine. Plaintiff was permitted to speak to Burlington Northern physicians in Fort Worth, Texas, who informed plaintiff that the controlled substance which had been detected was THC — the active substance in marijuana. Plaintiff admitted to company officials that the preceding January 1, 1985, she had taken "a couple of hits of marijuana." Jean E. Corbett Aff. ¶ 8.²

When plaintiff's attempts to gain reinstatement proved unsuccessful, she brought this action, alleging wrongful discharge, negligent administration of the drug test, and the intentional infliction of emotional distress.

Defendant now brings this motion to dismiss or, alternatively, for summary judgment on the ground that this action is within the exclusive jurisdiction of the National Railway Adjustment Board pursuant to the Railway Labor Act, 45 U.S.C. §§ 151-188.

DISCUSSION

Plaintiff was employed by a railway carrier and was therefore subject to the grievance procedure set forth in the Railway Labor Act (RLA), 45 U.S.C. §§ 151-188. Section 153 First (i)³ of the RLA provides that so-called "minor disputes" that cannot be resolved by intra-company negotiation shall be referred to the National Railway Adjustment Board (NRAB) or one of the regional boards for arbitration. The provision for arbitration is not a voluntary undertaking, but rather is compelled by the Act. Further, administrative remedies provided by the RLA are primary and exclusive, so that, while the courts have frequently referred to the "exhaustion of remedies" requirements of the RLA, that is in fact a misnomer⁴ in that the administrative remedy is exclusive and does not allow post-exhaustion review in the courts, with certain limited exceptions.⁵

Thus, the question before the Court is whether plaintiff's claims are "minor disputes" within the meaning of 45 U.S.C. § 153 First (i). If so, plaintiff's remedies lie exclusively with the NRAB and the Court is without jurisdiction.

In general, a "minor dispute" within the meaning of the RLA is one which relates to the interpretation of an existing labor management contract. It is directed to rights already vested. A major dispute, in contrast, involves the formation of the collective bargaining agreement or the substantial alteration of an existing agreement. It involves the acquisition of rights. Brown v. American Airlines, Inc., 593 F.2d 652 (5th Cir.1979), citing Elgin, Joliet and Eastern Railway Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945), modified, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928 (1946). In Burley the Supreme Court defined a minor dispute as one which "relates either to the meaning or proper application of a particular collective bargaining agreement provision in a specific situation or to ... some incident of the employment relation ... independent of those covered by the collective agreement...." Burley, 325 U.S. at 723, 65 S.Ct. at 1290. A minor dispute has been said to be one which "arises out of the collective bargaining agreement," Tate, 415 F.Supp. at 846, or which has a "not obviously insubstantial relationship to the collective bargaining agreement," Magnuson v. Burlington Northern, Inc., 576 F.2d 1367, 1369-70 (9th Cir.1978), or the resolution of which requires the "interpretation of the applicable collective bargaining agreement," Landfried v. Terminal Railroad Association of St. Louis, 721 F.2d 254, 255 (8th Cir.1983). A minor dispute has also been characterized as one which encompasses claims which "grow out of the employment relationship ... and involving attempts to impose rights which are incident to that relationship," Minehart v. Louisville and Nashville Railroad Co., 731 F.2d 342, 344 (6th Cir.1984); or stemming from a "normal incident of any employment relationship," Majors v. U.S. Air, Inc, 525 F.Supp. 853, 855 (D.Md.1981), or which "arises directly out of a labor dispute." Choate v. Louisville and Nashville Railroad Co., 715 F.2d 369, 372 (7th Cir. 1983).

The United States Court of Appeals for the Eighth Circuit has had occasion to consider the scope of NRAB jurisdiction in two recent decisions, Landfried v. Terminal Railroad Association of St. Louis, 721 F.2d 254 (8th Cir.1983), and Tello v. Soo Line Railroad Co., 772 F.2d 458 (8th Cir. 1985). In Landfried the Eighth Circuit determined that plaintiff's claims of retaliatory discharge were minor disputes where "it appears that resolution of plaintiffs' claims will depend at least in part on interpretation of the applicable collective bargaining agreement." Landfried, 721 F.2d at 255. In Tello the court held that plaintiff's claims were not within the exclusive jurisdiction of the NRAB where the claims were not based "primarily" on the collective bargaining agreement, although the court did recognize that exclusive NRAB jurisdiction does lie where the employee's claims are based exclusively upon the collective bargaining agreement. Tello, 772 F.2d at 460. In addition, in Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), Justice Blackmun writing for the Court declared that "when resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim ... is pre-empted by federal labor-contract law." Allis-Chalmers, 105 S.Ct. at 1916.⁶

Applying these precedents to the case at bar leads the Court to conclude that resolution of each of plaintiff's claims would require interpretation of the applicable collective bargaining agreement, and that accordingly, plaintiff's claims are within the NRAB's exclusive jurisdiction.

Wrongful Discharge

Plaintiff's first claim is a wrongful discharge claim. Plaintiff alleges that "the termination of plaintiff's employment by defendant without just cause was wrongful, illegal and unjustified." Complaint ¶ IX.

It is well established that a wrongful discharge claim is within the exclusive jurisdiction of the NRAB. See, e.g., Jackson v. Consolidated Rail Corp., 717 F.2d 1045 (7th Cir.1983). The sole source of plaintiff's right not to be discharged and of defendant's obligation to restore plaintiff's employment is the collective bargaining agreement between defendant and plaintiff's union. Absent that agreement, plaintiff's employment would be terminable at defendant's will. The courts have stated that under such circumstances the plaintiff's exclusive remedy lies with the grievance and arbitration procedures set forth in the RLA. Andrews v. Louisville and Nashville Railroad Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972);⁷ Davidson v. Long Island Railroad Co., 617 F.Supp. 67 (S.D.N.Y.1985); Landfried, 721 F.2d at 255; Stevens v. Braniff Airways, Inc., 490 F.Supp. 231 (D.Minn.1980). See also Carson v. Southern Railway Co., 494 F.Supp. 1104 (D.S.C.1979) (plaintiff's wrongful discharge claim based on his failure to take a physical examination found to be within the NRAB's exclusive jurisdiction). Accordingly, the Court finds that plaintiff's wrongful discharge claim is a "minor dispute" within the exclusive jurisdiction of the NRAB.

Negligence

Plaintiff also brings causes of action sounding in negligence. In count two of her complaint, plaintiff alleges that defendant failed to exercise reasonable care in administering the drug test. In count three of her complaint plaintiff alleges that defendant's failure to "reinstate or otherwise reevaluate plaintiff" was "contrary to the standard of care of a reasonable person" such that it "constitutes wilfull, wanton and gross negligence." Complaint ¶ XIII. In count four plaintiff alleges that "defendant's acts and omissions were committed either so willfully and maliciously or so negligently" as to "make defendant liable to the plaintiff for exemplary and punitive damages." Complaint ¶ XV. Count five purports to be a negligence claim brought pursuant to the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60.

The Court finds that resolution of plaintiff's negligence claims would require interpretation of the applicable collective bargaining agreement, and that accordingly,...