O'Brien v. Consolidated

• Court: Court of Appeals for the First Circuit
• Decided: August 5, 1992
• Docket: 92-1086
• Status: Published

Opinion

USCA1 Opinion

August 5, 1992      UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 92-1086

                                 WILLIAM J. O'BRIEN,

                                Plaintiff, Appellant,

                                          v.

                            CONSOLIDATED RAIL CORPORATION,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                             Lay,* Senior Circuit Judge,
                                   ____________________
                          and O'Scannlain,** Circuit Judge.
                                             _____________

                                 ____________________

            Philip G. Boyle for appellant.
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            Gary D.  Buseck with whom Robert  L. Farrell  and Parker, Coulter,
            _______________           __________________      ________________
        Daley & White were on brief for appellee.
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        _____________________

        *  Of the Eighth Circuit, sitting by designation.
        ** Of the Ninth Circuit, sitting by designation.

O'SCANNLAIN, Circuit Judge:   We must decide whether a state 
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         law providing for physical handicap discrimination claims against 

         employers is preempted by the Railway Labor Act ("RLA"), 45 U.S.C. 

            151-88.

                                         I

              In August 1985, William J. O'Brien was laid off by 

         Consolidated Rail Corporation ("Conrail") from his position as 

         yardmaster in the Boston area.  O'Brien declined Conrail's offer 

         of a position in Springfield, Massachusetts and instead applied 

         for a stevedore position with Conrail, also in the Boston area.  

         Although such position was already filled, O'Brien had eight and 

         one-half years of seniority with Conrail and under the collective 

         bargaining agreement he was entitled to "bump" the less senior 

         employee filling the position.

              O'Brien was born without a right hand.  The supervisor of the 

         stevedoring operation told O'Brien he was disqualified from being 

         a stevedore because he was physically incapable of performing the 

         duties of a stevedore.  O'Brien requested a field test to refute 

         the supervisor's contention.  Six Conrail employees conducted the 

         field test, and concluded that O'Brien could not safely perform 

         all of the duties of a stevedore.  In particular, the six-member 

         committee determined that O'Brien would not be able to climb 

         ladders safely in adverse weather, and would not be able to handle 

         safely the forty pound "bridge plates" used in the stevedoring 

         operation.

              O'Brien filed a grievance under the procedures provided by 

         the collective bargaining agreement, claiming that Conrail 

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violated the antidiscrimination provision of such agreement.  The 

         grievance was first denied by the Manager-Labor Relations at 

         Conrail, and later by Conrail's Senior Director-Labor Relations.  

         O'Brien then submitted the matter to the National Railroad 

         Adjustment Board ("NRAB"), which was created by the RLA to resolve 

         labor disputes in the railroad industry. The NRAB denied O'Brien's 

         grievance.

              O'Brien also filed a complaint with the Office of Federal 

         Contract Compliance Programs ("OFCCP"), which investigates 

         complaints of unlawful employment discrimination lodged against 

         federal contractors such as Conrail.  The OFCCP determined that 

         Conrail had not violated the antidiscrimination provisions of its 

         contract with the government.  O'Brien sought reconsideration by 

         the Director of the OFCCP, who affirmed the determination of the 

         OFCCP.

              Eventually, O'Brien was called back from lay off by Conrail 

         to his former yardmaster job.  In January 1988, however, O'Brien 

         was again laid off.  O'Brien wrote to the stevedoring supervisor 

         requesting to "bump" an employee in a stevedore position, and the 

         supervisor replied that "Conrail's prior determination still

         stands."

              On March 14, 1988, after he had requested the stevedore

         position but before his request was denied, O'Brien filed a

         complaint with the Massachusetts Commission Against Discrimination 

         ("MCAD"), a prerequisite to bringing an action in court for a 

         violation of the state antidiscrimination law.  O'Brien alleged 

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that Conrail had violated Massachusetts General Laws Chapter 151B 

         ("Chapter 151B"), which prohibits discrimination on the basis of 

         physical or mental handicap, if the handicapped person is "capable 

         of performing the essential functions of the position involved 

         with reasonable accommodation, unless the employer can demonstrate 

         that the accommodation required . . . would impose an undue 

         hardship to the employer's business."  Mass. Gen. L. ch. 151B,    

         4.  The MCAD permitted O'Brien to file suit in Massachusetts state 

         court, and he did so.1

              Conrail petitioned to remove the case to United States 

         district court, alleging that the district court had diversity 

         jurisdiction and jurisdiction under 28 U.S.C.   1337(a), which 

         grants federal jurisdiction over a "civil action . . . arising 

         under any Act of Congress regulating commerce."  The district 

         court granted the removal petition.     

              Conrail then moved for summary judgment on the following 

         grounds: (1) O'Brien's claims were preempted by the RLA, (2) 

         O'Brien's claims were preempted by Section 503 of the 

         Rehabilitation Act, (3) the adverse determinations of the NRAB and 

         the OFCCP had preclusive effect on O'Brien's claims, and (4) 

         O'Brien's claim under Chapter 151B was barred by a six month 

____________________

              In his state court complaint, O'Brien also alleged breach 
         of  the  covenant  of  good  faith  and  fair  dealing  in his 
         employment contract and violation  of  his  rights  under  the 
         Massachusetts  Constitution,  Amendment  Article  114.  On the 
         recommendation of the  magistrate  judge,  these  counts  were 
         dismissed   by  the  district  court,  and  O'Brien  does  not 
         challenge such dismissals on appeal.1

                                         -4-

statute of limitations.  A hearing on the motion was held before 

         U.S. Magistrate Judge Marianne Bowler.  

              The magistrate judge recommended that summary judgment be 

         granted for Conrail on all the grounds urged by Conrail except the 

         statute of limitations theory.  The district court adopted the 

         recommendations of the magistrate judge in whole and entered 

         summary judgment for Conrail.  O'Brien timely appealed.

                                        II  

              O'Brien argues that the district court erred in determining 

         that his claim was barred because his state statutory rights under 

         Chapter 151B are independent of and exceed his rights under the 

         RLA and the collective bargaining agreement with Conrail.  O'Brien 

         contends that  the resolution of his claim under Chapter 151B 

         "hinge[s] upon the meaning to be given the terms of the statute 

         involved, and not those within the collective bargaining 

         agreement," and thus that the RLA and the collective bargaining 

         agreement are simply not implicated, let alone preemptive.

                                         A

              Preemption doctrine is founded on Article VI, clause 2 of the 

         Constitution, which states that "the Laws of the United States . . 

         . shall be the supreme Law of the Land."  Under the Supremacy 

         Clause, "state laws that 'interfere with, or are contrary to the 

         laws of congress, made in pursuance of the constitution' are 

         invalid."  Wisconsin Pub. Intervenor v. Mortier, 111 S. Ct. 2476, 
                    ____________________________________

         2481 (1991) (quoting Gibbons v. Ogden, 22 U.S. 1, 71 (1824)).  
                              ________________

         Thus, the mere fact that O'Brien's cause of action under Chapter 

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151B is "independent" of the RLA says nothing about whether such 

         action is preempted by the RLA.  Indeed, in any case where 

         preemption doctrine is applied, there will be a state law cause of 

         action "independent" of federal law.  Rather, the critical issue 

         is whether the state law, Chapter 151B, "interfere[s] with" the 

         federal RLA.

              "'[P]reemption may be either express or implied, and is 

         compelled whether Congress' command is explicitly stated in the 

         statute's language or implicitly contained in its structure and 

         purpose.'"  Morales v. Trans World Airlines, Inc., 112 S. Ct. 
                     _______________________________

         2031, 2036 (1992) (quoting FMC Corp. v. Holliday, 111 S. Ct. 403, 
                                    _____________________

         407 (1990)).  Where, as here, express preemption is absent, 
                                       _______

                    the challenged state law must  yield  when 
                    it  "regulates  conduct  in  a  field that 
                    Congress intended the  Federal  Government 
                    to  occupy  exclusively"  . . . [or] where 
                    the state  law  "actually  conflicts  with 
                    federal law." . . . Such a conflict arises 
                    where  it  is  physically  impossible   to 
                    comply with both the federal and the state 
                    law or  where  "state  law  stands  as  an 
                    obstacle   to   the   accomplishment   and 
                    execution  of  the   full   purposes   and 
                    objectives of Congress."
                    
          Pedraza  v.  Shell  Oil  Co., 942 F.2d 48, 51 (1st Cir. 1991) 
          ____________________________

          (quoting English v. General Elec. Co., 110 S. Ct. 2270,  2275 
                   ____________________________

          (1990)),  cert.  denied,  112  S.  Ct. 993 (1992).  Hence, we 
                    _____________

          consider whether the RLA evinces a  congressional  intent  to 

          occupy  the  field  of  railroad  labor relations and whether 

          separate  state  causes  of  action  such  as  Chapter   151B 

          undermine  the  "full purposes and objectives of Congress" in 

          enacting the RLA.

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This court has not previously had occasion to  determine 

          the  scope  of  preemption  under the RLA.  We have, however, 

          examined preemption under the Labor Management Relations  Act 

          ("LMRA"),  29  U.S.C.      141-87.   See  Jackson  v. Liquid
                                               ___  __________________

          Carbonic Corp., 863 F.2d 111 (1st Cir. 1988),  cert.  denied, 
          ______________                                 _____________

          490  U.S.  1107  (1989).  The LMRA and the RLA are similar in 

          many respects:  "[a]lthough the preemptive effect of  .  .  . 

          the  Labor Management Relations Act . . . cannot be 'imported 

          wholesale into the railway labor arena,' courts may  look  to 

          the   construction   of  other  federal  labor  statutes  for 

          assistance in construing [the RLA]."  McCall v. Chesapeake  & 
                                                _______________________

          Ohio   Ry.  Co.,  844  F.2d  294,  299  (6th  Cir.)  (quoting 
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          Brotherhood of R.R. Trainmen v.  Jacksonville  Terminal  Co., 
          ____________________________________________________________

          394 U.S. 369, 383 (1969)), cert. denied, 488 U.S. 879 (1988).   
                                     ____________

               In  Jackson,  an employee challenged drug testing by his 

          employer under Massachusetts'  privacy  laws.   Jackson,  863 
                                                          _______

          F.2d  at  113.   The  employer  contended that the employee's 

          Massachusetts causes of action were barred, state law  having 

          been preempted by the federal LMRA.  Id.   The court observed 
                                               __

          that "under  state  law,  Massachusetts  would  look  to  the 

          [collective bargaining] Agreement to discern the scope of the 

          privacy right which [the employee] was attempting to assert."  

          Id.  at  120.  The court then held that "[b]ecause resolution 
          __

          of  [the   employee's]   state-law   claims   'requires   the 

          interpretation of a collective bargaining contract,' . . . it 

          follows inexorably,  as  night  unto  day,  that  [the  LMRA] 

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preempts  maintenance  of the suit in its present form."  Id. 

          at 122 (quoting Lingle v. Norge Division of Magic Chef, Inc., 
                          ____________________________________________

          108 S. Ct. 1877, 1883 n.8 (1988)).

               We  believe  that  the  holding  of  Jackson  is equally 

          applicable to asserted RLA  preemption.   The  Jackson  court 

          concluded  that  to allow state law claims arising out of the 

          employment  relationship  to  be  brought  in   court   would 

          undermine the scheme for labor dispute resolution established 

          by Congress.

                    We are mindful of the need to preserve  the 
                    central  role  of arbitration in our system 
                    of industrial self-government.  . .  .  The 
                    ordering   and   adjusting   of   competing 
                    interests through a  process  of  free  and 
                    voluntary   collective  bargaining  is  the 
                    keystone of the federal scheme  to  promote 
                    industrial     peace.      Grievance    and 
                    arbitration  are  important  cogs  in   the 
                    machinery.    A  plaintiff  should  not  be 
                    allowed to bypass the grievance  procedures 
                    established by the labor contract in a case 
                    where his claims are so  clearly  dependent 
                    on  interpretation  of  the  terms  of that 
                    contract.  Allowing such an end  run  would 
                    surely    undermine    the   structure   of 
                    industrial self-government.
                    
          Id. at 121-22 (quotations and citations omitted).
          __

               Such  concerns  are  equally  present  here.   The   RLA 

          established a comprehensive conflict resolution procedure for 

          railroad labor disputes.  The RLA divides disputes into major 

          disputes,  those  relating  to  the formation or existence of 

          collective bargaining agreements, and minor  disputes,  which 

          concern   rights  under  an  existing  collective  bargaining 

          agreement.  See Consolidated  Rail  Corp.  v.  Railway  Labor 
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Exec.  Ass'n, 109 S. Ct. 2477, 2480 (1989).  "In the event of 
          ____________

          a major dispute, the RLA requires the parties  to  undergo  a 

          lengthy  process  of  bargaining and mediation."  Id.  In the 
                                                            __

          event such mediation fails, the RLA provides for  arbitration 

          of major disputes.  Id. at 2480 n.3.  "A minor dispute in the 
                              __

          railroad  industry  is  subject  to  compulsory  and  binding 

          arbitration before the National Railroad Adjustment Board . . 

          . .  The Board . . . has exclusive  jurisdiction  over  minor 

          disputes."  Id. at 2480-81.
                      __

               Thus,   the   RLA  "envision[s]  binding  administrative 

          proceedings  into  which  virtually  all  individual   labor-

          management  disputes are directed."  McCall, 844 F.2d at 301.  
                                               ______

          The RLA's procedures were designed for  quick  and  efficient 

          dispute  resolution.  Union Pac. Ry. v. Sheehan, 439 U.S. 89, 
                                _________________________

          94 (1978) (per curiam).  "The federal  act  was  intended  to 

          serve  the  interests  of  railroad  employees  by creating a 

          statutory  scheme  providing  for  the  final  settlement  of 

          grievances  by  a  tribunal composed of people experienced in 

          the railroad industry."   McCall, 844 F.2d at 301.  
                                    ______

               As in the case of the  LMRA,  to  permit  litigation  in 

          court  of  state  law  claims  connected  with the collective 

          bargaining agreement would undermine the purposes behind  the 

          RLA.  "If the federal dispute resolution mechanism is to have 

          any force, juries  cannot  be  allowed  to  second-guess  the 

          decisions  of  arbitration  boards."  Id. at 302.   Congress' 
                                                __

          intent  that   industry-based   grievance   and   arbitration 

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proceedings  be  used to resolve labor-management disputes in 

          the railroad industry would be frustrated  if  employees  (or 

          employers)  could  bring  actions requiring interpretation of 

          the collective bargaining agreement in court, based on  state 

          law.  Costly litigation would replace efficient grievance and 

          arbitration procedures.

                                       B  

               Having concluded that the  preemption  rule  of  Jackson 
                                                                _______

          governs  here,  we  turn to applying it.  Would resolution of 

          O'Brien's  physical  handicap  discrimination   claim   under 

          Chapter   151B  "require[]  interpretation  of  a  collective 

          bargaining contract?"  We believe it would.2

               In order to determine  whether  Conrail  had  unlawfully 

          discriminated   against  O'Brien,  we  would  first  have  to 

          ascertain whether O'Brien  was  otherwise  eligible  for  the 

          stevedore  position  he  sought.   That  is,  aside  from his 

          handicap, would O'Brien be eligible?  To answer this question 

          we   would  have  to  resort  to  the  collective  bargaining 

          agreement.  O'Brien was laid off from his job  as  yardmaster 

          in  the Boston area, but Conrail offered him another position 

          in  Springfield,  Massachusetts,  where  O'Brien  had  worked 

          before.   Further,  no stevedore positions were vacant in the 

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             2
            O'Brien argues that  Chapter  151B  holds  Conrail  to  a 
         different and higher standard of conduct than Conrail's duties 
         under the collective bargaining agreement because Chapter 151B 
         contains  a "reasonable accommodation" requirement.  We do not 
         need to decide whether that is correct because we conclude  to 
         the   extent   that   O'Brien's   state   law  claim  requires 
         interpretation of the  collective  bargaining  agreement  such 
         claim is preempted under Jackson.
                                  _______

                                         -10-

Boston  area.   Thus,  as  a  threshold  issue  to  determine 

          O'Brien's  contractual eligibility for the job, we would need 

          to interpret the collective bargaining agreement to determine 

          whether   it   entitled   O'Brien  to  refuse  to  return  to 

          Springfield, and whether it entitled O'Brien  to  "bump"  the 

          present holder of the stevedore position.

               More  fundamentally,  addressing the merits of O'Brien's 

          claim of physical handicap discrimination would require us to  

          assess  O'Brien's  fitness  and ability to perform safely the 

          functions of a stevedore.   Yet  an  employee's  fitness  and 

          ability are governed by the rules and procedures contained in 

          the  collective  bargaining  agreement.   Rule  49   of   the 

          collective  bargaining  agreement  sets  forth  the method by 

          which an employee's physical fitness to perform  his  job  is 

          determined.   Rule  50  describes  Conrail's  obligations  to 

          accommodate disabled and  incapacitated  employees.   Perhaps 

          the  best indication that fitness and ability are the subject 

          of the collective bargaining agreement is the very  grievance 

          that   O'Brien   brought  under  this  collective  bargaining 

          agreement on the issue of his fitness and  ability  to  be  a 

          stevedore.   Chapter  151B  requires  a  court  to  determine 

          whether the plaintiff is a  "qualified  handicapped  person," 

          but  this  determination  would be impossible to make without 

          reference to the collective bargaining agreement.

               Hence, we hold, following Jackson, O'Brien's claim under 
                                         _______

          Chapter  151B is barred because resolution of his claim would 

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require   interpretation   of   the   collective   bargaining 

          agreement.3   This holding is not inconsistent with  Colorado 
                                                               ________

          Anti-Discrimination Comm'n v. Continental  Air  Lines,  Inc., 
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          372  U.S.  714  (1963),  which  held  that  a  state   racial 
                                                                 ______

          discrimination claim statute was not preempted  by  the  RLA.  

          Resolution of the question of whether an employer was engaged 

          in racial discrimination would not require interpretation  of 

          the  collective  bargaining  agreement.  As the Sixth Circuit 

          has noted, "racial discrimination [is] conduct that is not by 

          any  construction  a  subject  for  collective bargaining and 

          arbitration."   McCall, 844 F.2d at 302.   
                          ______

               "In enacting [the RLA], Congress endeavored  to  promote 

          stability  in  labor-management  relations  in this important 

          national  industry  by  providing  effective  and   efficient 

          remedies  for  the  resolution  of railroad-employee disputes 

____________________

             3
             The New Jersey  Supreme  Court  has  recently  held  that 
         "[a]llowing  [an  aggrieved  employee]  to  bring his claim of 
         handicap discrimination  before  the  courts  would  interfere 
         impermissibly  with  Congress's  intent  that  the  Adjustment 
         Boards be the sole  arbiter  of  claims  related  to  railroad 
         'rules  and working conditions.'"  Maher v. New Jersey Transit 
                                            ___________________________
         Rail Oper., Inc., 593 A.2d 750, 765 (N.J. 1991).    Similarly, 
         ________________
         the  California  Court  of  Appeal  has  stated  that "[i]f an 
         employee's  lack  of  fitness  to  perform  his  job  is  made 
         arbitrable under the parties' collective bargaining agreement, 
         the  present  action  is  preempted  insofar  as  it   alleges 
         discrimination based on physical handicap because it raises an 
         issue determinable solely under procedures established by  the 
         RLA."   Evans  v.  Southern Pacific Trans. Co., 262 Cal. Rptr. 
                 ______________________________________
         416, 420 (Cal. App.), review  denied,  1989  Cal.  LEXIS  5073 
                               ______________
         (Cal.  1989),  cert.  denied,  496  U.S. 936 (1990).  See also 
                        _____________                          ________
         Quinn v. Southern Pacific Trans. Co., 711 P.2d 139,  144  (Or. 
         ____________________________________
         App.  1985)  (because  neither  party  argued  that employee's 
         physical  handicap  discrimination  claim  under  Oregon   law 
         "implicate[d]   any   provision  of  a  collective  bargaining 
         agreement," Oregon law was not preempted by the  RLA),  review 
                                                                 ______
         denied, 715 P.2d 93 (Or. 1986).
         ______

                                         -12-

arising out of the  interpretation  of  collective-bargaining 

          agreements."   Union  Pacific  Ry.,  439  U.S.  at  94.   The 
                         ___________________

          procedures provided by the RLA were intended "to  secure  the 

          prompt,  orderly,  and  final  settlement  of grievances that 

          arise daily between employees and  carriers."   Id.   O'Brien 

          has  fully availed himself of such procedures.  To permit him 

          to relitigate the issue of his physical fitness by way  of  a 

          claim  under  a  state  physical  handicap discrimination law 

          would clearly conflict with the "prompt, orderly,  and  final 

          settlement  of grievances" sought by Congress in enacting the 

          RLA's dispute resolution procedures.

               Affirmed.
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