Welby v. Consolidated Rail Corp., Civil No. 86-0582.

• Decision Date: 27 February 1987
• Docket Number: Civil No. 86-0582.
• Citation: 671 F. Supp. 1015
• Parties: John WELBY, Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

671 F. Supp. 1015

John WELBY, Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Defendant.

Civil No. 86-0582.

United States District Court, M.D. Pennsylvania.

February 27, 1987.

Michael J. Foley, Thomas J. Foley, Scranton, Pa., for plaintiff.

David C. Eaton, Harrisburg, Pa., for defendant.

MEMORANDUM AND ORDER

NEALON, Chief Judge.

Plaintiff filed a Complaint on April 23, 1986 pursuant to the Federal Employers' Liability Act (FELA), the Federal Safety Appliance Act and the Boiler Inspection Act. The gravamen of plaintiff's complaint is that on December 17, 1983, plaintiff suffered a myocardial infarction resulting from improper and unsafe working conditions imposed by defendant. In addition, plaintiff maintains that his condition resulted from defendant's failure to provide proper medical treatment during the course of his employment and from defendant's violation of the Hours of Service Act, 45 U.S.C. § 62(a).

Jury selection and trial in this matter were scheduled for Monday, February 23, 1987. Defendant filed a Motion for Summary Judgment and a brief in support thereof on February 12, 1987 and February 17, 1987, respectively. After jury selection on February 23, 1987, the court set trial in this matter for Monday, March 2, 1987, in order to provide the court with an opportunity to rule on defendant's motion. All briefs having been filed, the motion is ripe for disposition. For the reasons set forth below, defendant's Motion for Summary Judgment will be denied.

DISCUSSION

Defendant premises its motion on the contention that plaintiff's claim involves no "injury" within the meaning of the FELA, but rather involves a dispute concerning working conditions and as such is subject to mediation, arbitration or adjustment in conference under the provisions of the Railway Labor Act, 45 U.S.C. § 151 et seq. (Railway Act or RLA). Defendant avers that this court lacks subject matter jurisdiction over the claim asserted by plaintiff. See Document 30 of the Record at ¶¶ 6 and 7. Accordingly, as defendant summarizes, "the principal legal issue is whether the admitted factual background of the plaintiff's claim constitutes negligence on the part of Conrail which has resulted in injury to the plaintiff or whether it constitutes merely a minor labor dispute." Document 34 of the Record, Conrail Pre-Trial Memorandum at 7.

The Railway Act subjects disputes arising under collective bargaining agreements in the railroad industry to compulsory arbitration. See Lancaster v. Norfolk and W. Ry. Co., 773 F.2d 807, 812 (7th Cir.1985), cert. filed, 54 U.S.L.W. 3717 (1986). The stated purpose of the Railway Act is to provide for the prompt and orderly settlement of all disputes growing out of grievances or, out of the interpretation, or application of grievances covering rates of pay, rules, or working conditions. See 45 U.S.C. § 151a(5). This purpose was amplified by the United States Supreme Court:

The Adjustment Board was created as a tribunal consisting of workers and management to secure the prompt, orderly and final settlement of grievances that arise daily between employees and carriers regarding rates of pay, rules and working conditions. (citation omitted). Congress considered it essential to keep these so-called `minor' disputes within the Adjustment Board and out of the courts.

Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978).

On the other hand, the FELA provides, "every common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injury ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier...." See Taylor v. Burlington N. R.R. Co., 787 F.2d 1309, 1313 (9th Cir.1986) (citing 45 U.S.C. § 51). In Urie v. Thompson, 337 U.S. 163, 181, 69 S.Ct. 1018, 1030, 93 L.Ed. 1282 (1949), the United States Supreme Court acknowledged the all encompassing provisions of the FELA:

The language is as broad as could be framed.... On its face, every injury suffered by any employee while employed by reason of the carrier's negligence was made compensable. The wording was not restrictive as to the employees covered; the cause of injury, except that it must constitute negligence attributable to the carrier; or the particular kind of injury resulting.

In Yawn v. S. Ry. Co., 591 F.2d 312 (5th Cir.), cert. denied, 442 U.S. 934, 99 S.Ct. 2869, 61 L.Ed.2d 304 (1979), the claimants alleged that the railroad was negligent in failing to provide them with adequate help and adequate time with which to do their jobs thereby causing claimants to suffer, inter alia, physical and mental anguish. The railroad maintained that the claims were "minor" disputes subject to the Railway Act's grievance and arbitration procedures. The Fifth Circuit Court of Appeals disagreed stating, "as a corollary to this duty to maintain safe working conditions, the carrier is required to provide its employee with sufficient help in the performance of the work assigned to him." Id. at 315 (citations omitted). The court recognized a number of cases concerning employees who suffered some demonstrable physical injury as a result of insufficient help. Id. This court agrees with the rationale in Yawn that if an employee can establish physical injury caused by carrier negligence, he is entitled to damages under the FELA. Id. at 317. As the court in Yawn stated:

Any allegation of railroad negligence in failing to provide an employee with sufficient help could be characterized as a dispute over working conditions. However, the fact that an employee suffers injury because of unsafe working conditions does not preclude access to the FELA. Thus, if an employee engaged in repairing tracks is injured because he was furnished insufficient help to perform the task, the railroad will not be heard to argue that the employees' FELA suit is removable because it concerns a dispute over working conditions. (citation omitted).

Id. While the arbitration procedures set forth in the Railway Act are designed to settle "minor" disputes that arise from day to day matters in the railroad industry, they are not intended to serve the function of resolving personal injury claims. Id. The role of the arbitrators was identified in Lancaster v. Norfolk and W. Ry. Co., supra, as follows: "arbitrators have no particular competence to determine causality and assess damages in cases of serious personal injury, whether physical or mental." Id. at 816.

Cases where an employee is claiming some residual effect from his discharge from employment are distinguishable from this case where there is no claim of wrongful discharge. For example, in Magnuson v. Burlington N., Inc., 576 F.2d 1367 (9th Cir.), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978), plaintiff was discharged from his employment after the railroad determined that he was responsible for a railroad accident. The court noted, "if the basic injury was his wrongful discharge, the complaint involves a minor dispute which must be arbitrated following the procedures of the RLA. All of the damages which he claims to have suffered flowed from his wrongful dismissal from his employment." Id. at 1369. Thus, the court went on to state, "artful pleading cannot conceal the reality that the gravamen of the complaint is wrongful discharge." Id. See also Scales v. Nat'l R.R. Passenger Corp., 634 F.Supp. 1 (E.D. Pa. 1984) (complaint alluding to terms and conditions of employment subject to the RLA; court will not permit plaintiff's pleading to conceal essential nature of his claim, which is a labor dispute rather than a tort action); Mayon v. S. Pac. Transp. Co., 632 F.Supp. 944 (E.D.Tex.), aff'd, 805 F.2d 1250 (5th Cir.1986) (plaintiff's complaint inseparable from grievance machinery applicable; threat of interference with the judgment of the RLA is great as adjudication of claim would necessarily require interpretation of collective bargaining agreement); Evans v. Missouri Pac. R.R. Co., 618 F.Supp. 930 (E.D.Mo.1985) (slander action as a result of alleged remarks occurring during a proceeding to decide if plaintiff should obtain a work position subject to the Railway Act). In discussing the interrelationship between the Railway Act and the FELA, the court in Lancaster v. Norfolk and W. Ry. Co., supra, acknowledged that the FELA creates liability only for negligence and most of the tort cases brought by railway workers in which a defense based on the Railway Act is raised have charged wrongful discharge or intentional infliction of emotional distress, which are both intentional torts. Id. at 812.

As recognized in Yawn, defendant's position would require that virtually all claims resulting from insufficient help or improper working conditions be subject to the Railway Act to the exclusion of the FELA. It is inconceivable, given the liberal and humanitarian purpose and broad provisions of the FELA, that a railroad employee could never maintain an action based on improper working conditions under the FELA, but instead must proceed under the arbitration provisions of the Railway Act.

To the extent the decision of Simons v. Consolidated Rail Corp., No. 85-1747-S, slip op. (D.Mass. October 1, 1986)¹ is to the contrary, this court declines to follow it. In Simons, however, the court applied a breach of contract rationale in analyzing the facts of the case. The plaintiff claimed that he was ordered to fly to a Conrail training program notwithstanding his supervisor's awareness of his "deathly fear of flying." According to the analysis, if plaintiff refused to fly and was discharged, he would have no FELA cause of action and, even if he was terminated and suffered stress leading to heart disease, his action would still be for a violation of the contract under the RLA. The court concluded, "if a wrongful discharge claim can only be brought under the RLA, a claim resulting from a threat or...