Sirois v. Business Express, Inc. CV-95-136-SD 07/26/95 P UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Marion Sirois
v. Civil No. 95-136-SD
Business Express, Inc.
O R D E R
In this civil action, plaintiff Marion Sirois claims
defendant Business Express, Inc., acted in breach of both written
and oral employment contracts when it terminated her from the
positions of flight attendant and ground employee. Plaintiff
seeks recovery for (1) loss of employment; (2) loss of
compensation; (3) loss of seniority; (4) loss of standing in the
airline industry; and (5) loss of salary scale.
Presently before the court is plaintiff's motion for remand,
to which defendant objects.
Factual History
Sirois was employed as a flight attendant and ground
employee for Business Express until September 2, 1994, when her
position was terminated. Writ of Summons, Count I. Sirois v.
alleges that defendant breached a written employment contract by denying her "the opportunity to return to [her position as a
flight attendant] or apply to other jobs in the defendant's
service." Id. Plaintiff further asserts that defendant's
conduct was
in breach of the express written terms set forth in Business Express's employee manual which promised that employees will retain seniority for each position they hold during their tenure with defendants, and in breach of Business Express personnel procedure which mandates write-ups and warnings prior to dismissal and provides for a grievance procedure and investiaations under the rules of the Association of Flight Attendants; and in further breach of the employee manual's express written promise that all employment openings are open to any Business Express employee that wishes to apply . . . .
I d . (emphasis added).
Irrespective of whatever rights she may have held under a
written employment contract, Sirois additionally maintains that
certain oral promises of employment were made to her by, among
others,1 Townsend Sausville, Director of Operations at Business
Express. According to Sirois, all promises essentially provided
"that if she were willing to assume temporarily a ground position
and perform tasks and services necessary to defendant's business,
she would be allowed to return to work as a flight attendant
1Sirois asserts that similar oral promises were made by John O'Brien and Ed McGill, individuals who allegedly held "positions of authority" within Business Express. Writ of Summons, Count II.
2 should Business Express eliminate her ground job, without loss of
seniority or any other benefits . . . Writ of Summons, Count
II.
Procedural History
Plaintiff initiated the instant action by writ of summons
filed in Rockingham County (New Hampshire) Superior Court on
March 8, 1995. Thereafter defendant removed the action to this
court on March 20, 1995, pursuant to 28 U.S.C. § 1441(b), basing
the court's jurisdiction upon the federal guestions raised in
both Counts I and II. By motion filed March 23, 1995, plaintiff
reguests this court to remand the proceedings to Rockingham
County Superior Court.
Discussion
1. Motion to Remand Standard
"It is, of course, familiar law that the right of removal
being statutory, a suit commenced in a state court must remain
there until cause is shown for its transfer under some act of
Congress." Great N. Rv. Co. v. Alexander, 246 U.S. 276, 280
(1918) (citation omitted). Although Congress has created a
removal mechanism, such congressional acts are subject to strict
construction by the courts. See, e.g.. Shamrock Oil & Gas Corp.
3 v. Sheets, 313 U.S. 100, 108 (1941) ("the policy of the
successive acts of Congress regulating the jurisdiction of
federal courts is one calling for the strict construction of such
legislation") .
However, if a state court action is subseguently removed to
federal court,
the plaintiff may, by a motion to remand . . ., take issue with the statements in the petition. If he does, the issues so arising must be heard and determined by the District Court, and . . . the petitioning defendant must take and carry the burden of proof, he being the actor in the removal proceeding.
Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921)
(citations omitted). Thus, in order to withstand the instant
motion to remand, defendant must demonstrate that the asserted
basis for removal satisfies the statutory prereguisites.
2. Propriety of Removal
Defendant asserts that removal is appropriate under 28
U.S.C. § 1441(b)2 since plaintiff's claims either arise under the
2Section 1441 (b) provides, in relevant part.
Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.
4 Railway Labor Act (RLA), 45 U.S.C. §§ 151-164 (1986),3 or are
preempted thereby. As such, the court is vested with
jurisdiction pursuant to 28 U.S.C. §§ 13314 and 1337.5
Sirois, however, contends that "[t]he Complaint sounds only
in the common law of contracts, . . . [and] [a]ny references in
the Complaint to grievance procedures and other labor matters
were submitted not as claims, but only as parenthetical material
28 U.S.C. § 1441 (b) (1994) .
3Air carriers such as defendant are subject to the RLA, pursuant to 45 U.S.C. § 181, which provides:
All of the provisions of subchapter I of this chapter, except section 153 of this title, are extended to and shall cover every common carrier by air engaged in interstate or foreign commerce, and every carrier by air transporting mail for or under contract with the United States government, and every air pilot or other person who performs any work as an employee or subordinate official of such carrier or carriers, subject to its or their continuing authority to supervise and direct the manner of rendition of his service.
45 U.S.C. § 181 (1986) .
4Section 1331 provides, "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331 (1993) .
5Section 1337 provides, in relevant part, that "[t]he district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce . . . ." 28 U.S.C. § 1337(a) (1993).
5 to lend additional credence to plaintiff's claim that defendant's
stated reasons for discharging her were pretextual." Plaintiff's
Motion for Remand 55 2-3. Thus, although "plaintiff has no
objection to litigating this matter in federal court," remand to
the state court is appropriate as "no federal guestions, as
reguired by 28 U.S.C. §§ 1331 and 1337, are here presented
. . . ." LcL 5 5.6
a. "Well-Pleaded" Complaints and the Effect of Preemption
A case arises under the Constitution or laws of the United
States if "'its correct decision depends upon the construction of
either.'" Gold-Washing & Water Co. v. Keyes, 96 U.S. 199, 201
(1878) (guoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 379
(1821)). According to the "well-pleaded complaint" rule,
" ' [w]hether a case is one arising under the Constitution or a law
or treaty of the United States, in the sense of the
jurisdictional statute, . . . must be determined from what
necessarily appears in the plaintiff's statement of [her] own
6As the Supreme Court has noted, however, "'courts will not permit plaintiff to use artful pleading to close off defendant's right to a federal forum . . . [and] occasionally the removal court will seek to determine whether the real nature of the claim is federal, regardless of plaintiff's characterization.'" Federated P e p 't Stores, Inc. v. Moitie, 452 U.S. 394, 397 n.2 (1981) (guoting C h a r l e s A. W r i g h t , e t a l . , F e d e r a l P r a c t i c e a n d P r o c e d u r e : J u r i s d i c t i o n 2 d § 3722, at 266, 268-70 (1985)).
6 claim . . . unaided by anything alleged in anticipation or
avoidance of defenses which it is thought the defendant may
interpose.'" Franchise Tax Bd. v. Construction Laborers Vacation
Trust, 463 U.S. 1 , 10 (1983) (guoting Taylor v. Anderson, 234
U.S. 74, 75-76 (1914)); accord Caterpillar, Inc. v. Williams, 4 82
U.S. 386, 392 (1987).
Ordinarily a defense of preemption is insufficient to confer
removal jurisdiction. However, "[a]s an exception [to] the well-
pleaded complaint rule, there are circumstances where 'Congress
may so completely preempt a particular area' that any complaint
arising in that area is 'necessarily federal in character.'"
Fitzgerald v. Codex Corp., 882 F.2d 586, 587 (1st Cir. 1989)
(guoting Metropolitan Life Ins. Corp. v. Taylor, 481 U.S. 58, 63-
64 (1987)); see also Caterpillar, Inc., supra, 482 U.S. at 393
("Once an area of state law has been completely pre-empted, any
claim purportedly based on that pre-empted state law is
considered, from its inception, a federal claim, and therefore
arises under federal law."). "The purpose of this exception,
allowing a defense of federal pre-emption to serve as a basis for
removal, is to prohibit a plaintiff from defeating removal by
failing to plead necessary federal guestions in a complaint."
Cawthard v. Flagship Airlines, Inc., 863 F. Supp. 1567, 1572
(S.D. Fla. 1994) (citing Deford v. Soo L.R. Co . , 867 F.2d 1080,
7 1084 (8th Cir.),. cert, denied, 493 U.S. 927 (1989))
b. Complete Preemption by the RLA
"The RLA, which was extended in 1936 to cover the airline
industry, see Act of Apr. 10, 1936, ch. 166, 49 Stat. 1189; 45
U.S.C. §§ 181-188, sets up a mandatory arbitral mechanism to
handle disputes 'growing out of grievances or out of the
interpretation and application of agreements concerning rates of
pay, rules, or working conditions,'" Hawaiian Airlines, Inc. v.
Norris, 512 U.S. ___ , ___ , 114 S. C t . 2239, 2241 (1994) (guoting
45 U.S.C. § 153 First (i)); see also Westbrook v. Sky Chefs,
Inc., 35 F.3d 316, 317 (7th Cir. 1994) ("The RLA governs
relations between employers that are rail or air carriers . . .
and their union employees."); Anderson v. American Airlines,
Inc., 2 F.3d 590, 594 (5th Cir. 1993). In order to foster
stability in labor-management relations, "the Act establishes a
mandatory arbitral mechanism for 'the prompt and orderly
settlement' of two classes of disputes[--major and minor]."
Norris, supra, 512 U.S. at ___ , 114 S. C t . at 2243 (guoting 45
U.S.C. § 151a).
Whereas "[m]ajor disputes relate to '"the formation of
collective bargaining agreements or efforts to secure them,"'"
i d . at ___ , 114 S. C t . at 2244 (guoting Consolidated Rail Corp.
8 v. Railway Labor Executives' Ass'n, 491 U.S. 299, 302 (1989)
(Conrail) (quoting Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711,
723 (1945))), " [d]isputes between employees and Carriers arising
'out of the interpretation or application of the collective
bargaining agreement. . . [are] commonly referred to as "minor
disputes,"'" Stephens v. Norfolk & W. Rv. Co., 792 F.2d 576, 579-
580 (6th Cir. 1986) (quoting Kaschak v. Consolidated Rail Corp.,
707 F.2d 902, 904 (6th Cir. 1983)) (alteration in Stephens).7
All "minor disputes" must be settled pursuant to the arbitration
procedures established by the RLA. Andrews v. Louisville &
Nashville R.R. Co., 406 U.S. 320, 322 (1972); see also Maqnuson
v. Burlington Northern, Inc., 576 F.2d 1367 (9th Cir.), cert.
denied, 439 U.S. 930 (1978).
Although "[n]ot all individual agreements between an airline
and an employee raise a federal question under the RLA," Kidd v.
Southwest Airlines Co., 891 F.2d 540, 543 (5th Cir. 1990)
(citations omitted), "a state law claim can involve a minor
dispute and hence be pre-empted by the RLA if the state law claim
7"The distinguishing characteristic of a minor dispute is that it 'may be conclusively resolved by interpreting the existing [collective bargaining] agreement.'" Anderson, supra, 2 F.3d at 595 (quoting Conrail, supra, 491 U.S. at 305); see also Cawthard, supra, 863 F. Supp. at 1570 ("The RLA establishes a mandatory and comprehensive framework for the final and binding resolution of all grievances over the interpretation of existing collective bargaining agreements."). is '"inextricably intertwined" with the terms and conditions of
employment under the collective bargaining agreement,'" Anderson,
supra, 2 F.3d at 595 (guoting Morales v. Southern Pacific Transp.
C o ., 894 F.2d 743, 745 (5th Cir. 1990)); accord Andrews, supra,
406 U.S. at 323-24 (characterization of claim as state law cause
of action does not exclude it from the RLA's mandatory grievance
procedures). "However, states can provide workers with
substantive rights independent of the collective bargaining
agreement and causes of action to enforce such rights are not
pre-empted by the RLA." Taggart v. Trans World Airlines, Inc.,
40 F.3d 269, 272 (8th Cir. 1994) (citations omitted).
In Andrews v. Louisville & Nashville R.R., the plaintiff
brought a wrongful discharge action in state court against the
defendant railroad company. The action was subseguently removed
to federal court and dismissed on the grounds that the plaintiff
failed to exhaust administrative remedies. Andrews, supra, 406
U.S. at 321. In affirming the dismissal, the Supreme Court noted
that unless modified by "some sort of statutory or contractual
standard . . . the traditional common-law rule that a contract of
employment is terminable by either party at will [applies]." Id.
at 324. Accordingly, the Court reasoned that since plaintiff's
right not to be discharged arose from a collective bargaining
agreement, "petitioner's claim, and respondent's disallowance of
10 it, [stemmed] from differing interpretations of the collective-
bargaining agreement." Id. As such, the action was deemed a
"minor dispute" subject to compulsory administrative remedies
under the RLA. Id.
Revisiting the guestion, the Supreme Court recently narrowed
the scope of federal preemption under the RLA. See Norris,
supra, 512 U.S. at ___ , 114 S. C t . at 2239; accord Tagqart,
supra, 40 F.3d at 272 (Norris narrowed the scope of federal
preemption under the RLA); Westbrook, supra, 35 F.3d at 317-18
(Norris overrules prior preemption standard) . The Norris court
read Andrews, supra, 406 U.S. at 320, to hold state-law claims of
wrongful termination preempted by the RLA "not because the RLA
broadly pre-empts state law claims based on discharge or
discipline, but because the employee's claim was firmly rooted in
a breach of the [collective bargaining agreement] itself."
Norris, supra, 512 U.S. at ___ , 114 S. C t . at 2246. Thus, "a
state-law cause of action is not pre-empted by the RLA if it
involves rights and obligations that exist independent of the
collective-bargaining agreement." I d . at ___ , 114 S. C t . at
2247.8 The state-law claim is only preempted where its
8This preemption standard, the Court noted, is "virtually identical to the pre-emption standard the Court employs in cases involving § 301 of the [Labor Management Relations Act], 29 U.S.C. § 185." Norris, supra, 512 U.S. at ___ , 114 S. C t . at 2247 (footnote omitted). Under said standard, district courts
11 resolution "depends upon an interpretation of the collective
bargaining agreement." I d . at ___ , 114 S. C t . at 2248.
Examples of such "state-law substantive protections"
considered to be outside any RLA labor agreement include claims
based on:
[(!)] a state law prohibiting employers from firing employees "in violation of public policy or in retaliation for whistleblowing," . . . even if the CBA in guestion contained provisions that could be interpreted to justify the termination[; . . . (2)] a state law reguiring cabooses on all trains . . . even if the CBA reguired cabooses only on some trains[; . . . and (3)] a state law "regulating the number of workers reguired to operate certain [railroad] eguipment" . . . even if the railroad's agreement with the union allows it to employ a smaller crew.
Hirras v. National R.R. Passenger Corp., 44 F.3d 278, 282 (5th
are reguired to utilize the following two-part inguiry:
First, the district court must examine whether proof of the state law claim reguires interpretation of collective bargaining agreement terms. Second, the court must ascertain whether the right claimed by the plaintiff is created by the collective bargaining agreement or by state law. If the right both is borne of state law and does not invoke contract interpretation, then there is no preemption. However, if neither or only one criterion is satisfied, section 301 preemption is warranted.
DeCoe v. General Motors Corp., 32 F.3d 212, 216 (6th Cir. 1994) (citing Terwilliqer v. Greyhound Lines, Inc., 882 F.2d 1033, 1037 (6th Cir. 1989), cert, denied, 495 U.S. 946 (1990)) (other citations omitted).
12 Cir. 1995) (citations omitted).9 Thus, in answering the
preemption question--and by implication the propriety of remand--
"the critical question is one of characterization--does the state
law claim involve interpretation or application of the collective
bargaining agreement or, stated another way, is the state law
claim independent of the collective bargaining agreement." Id.
The court finds the instant action to be more akin to
Andrews than Norris and the examples cited therein. To begin,
under New Hampshire law, "the at-will status of an employment
relationship is 'one of prima facie construction' . . . ."
Butler v. Walker Power, Inc., 137 N.H. 432, 435, 629 A. 2d 91, 93
(1993) (quoting Panto v. Moore Business Forms, Inc., 130 N.H.
730, 739, 547 A.2d 260, 267 (1988)). That plaintiff presently
styles her complaint in state-law breach of contract terms does
not necessarily place this matter beyond the preemptive reach of
the RLA.10 The grievance procedures to which plaintiff refers
9The Court contrasted these examples with the situation in Andrews, indicated that the only source of the Andrews plaintiff's right not to be discharged was the terms of the CBA, and concluded that the provisions of the RLA were properly held to preempt any state law causes of action based on such discharge. Norris, supra, 512 U.S. at ___ , 114 S. C t . at 2246.
10The court pauses here to note that plaintiff brought a breach of contract claim in state court contending, inter alia, that defendant failed to follow the rules of the Association of Flight Attendants relating to grievance and investigatory procedures. Although plaintiff now contends that such language was mere surplusage, such a construction is seemingly belied by
13 bear a "not obviously insubstantial" relationship to the
collective bargaining agreement, Maqnuson, supra, 576 F.2d at
1369, interpretation of which the court finds will be necessary
in order to determine plaintiff's employment rights.
Because plaintiff's claims in Count I cannot be resolved
without interpreting the CBA, the court further finds and rules
that plaintiff's claim is a "minor dispute" under the RLA. E.g.,
i d . at 1370 ("Under these circumstances, the controversy is a
minor dispute within the exclusive province of the grievance
mechanisms established by the R.L.A.") (citations omitted). To
deny removal under these circumstances would be to ignore
Congressional intent--promotion of stability in transportation
industry labor relations. See, e.g., Schroeder v. Trans World
Airlines, Inc., 702 F.2d 189, 191 (9th Cir. 1983) ("The
application of [the RLA] and the necessity of its interpretation
establish the existence of a federal guestion as an essential
element of plaintiff[']s cause of action, providing the basis for
removal."); Hages v. Aliquippa & Southern R. Co., 42 7 F. Supp.
889, 894 (W.D. Pa. 1977) ("To deny removal would jeopardize
federal labor policies and encourage the proliferation of varying
plaintiff's prayer for relief, which includes claims for lost seniority, standing in the airline industry, and salary scale-- terms whose import and meaning, if any, can be ascertained only by reference to the CBA.
14 and inconsistent state court constructions of collective
bargaining agreements.")-
Accordingly, the court finds that it has federal guestion
jurisdiction over Count I of plaintiff's complaint as it arises
under the RLA and that removal, therefore, was appropriate.
3. "Minor Disputes" and Subject Matter Jurisdiction
Ordinarily, resolution of the motion sub judice would
completely discharge the court's current obligation. However,
"[i]t is too elementary to warrant citation of authority that a
court has [a further] obligation to inguire sua sponte into its
subject matter jurisdiction, and to proceed no further if such
jurisdiction is wanting." In re Recticel Foam Corp., 859 F.2d
1000, 1002 (1st Cir. 1988); Cf. Rule 12(h)(3), Fed. R. Civ. P.
("Whenever it appears . . . that the court lacks jurisdiction of
the subject matter, the court shall dismiss the action.").
In section 2.b., supra, plaintiff's breach of written
contract action was found to be a "minor dispute" as that term is
defined in the RLA and interpretive case law. Said finding has
the practical effect of: (1) conferring federal guestion
jurisdiction upon the court such that removal from state court is
appropriate, due to the RLA's complete preemption of state
contract law in this matter, yet thereafter (2) divesting the
15 court of subject matter jurisdiction on account of the RLA's
prescribed grievance mechanism for settlement of all "minor
disputes." See, e.g., Norris, supra, 512 U.S. at ___ , 114 S. C t .
at 2244 ("[A] determination that [an employee's] complaints
constitute a minor dispute would pre-empt his state law
actions."); Gay v. Carlson, ___ F.3d , , No. 93-9252, 872,
1995 WL 411996, at *3 (2d Cir. July 12, 1995) ("any state-law
claim determined to be a 'minor dispute' within the meaning of
the Railway Labor Act is preempted, and a court is without
subject matter jurisdiction to entertain a claim of that sort")
(citation omitted); Schroeder, supra, 702 F.2d at 192 (court
lacked subject matter jurisdiction because claim was a "minor
dispute" under the RL A ) .
Without subject matter jurisdiction, this court can proceed
no further. Accordingly, the entire matter before the court is
herewith dismissed without prejudice.11
^Although the allegations incorporated into Count I are "minor disputes" subject to arbitration under the RLA, such is not the case with the breach of oral contract allegations contained in Count II. Insofar as Count II raises a pure guestion of state law and does not reguire the court to construe the CBA, said claim, lacking the reguisites for federal adjudication, is not subject to compulsory arbitration under the RLA and thus may be raised properly in state court. See Cawthard, supra, 863 F. Supp. at 1570-71 (claims pertaining solely to an alleged oral employment contract do not involve interpretation of the collective bargaining agreement, thus such claims lack independent jurisdictional basis and court may decline supplemental jurisdiction over same).
16 Conclusion
For the reasons set forth herein, plaintiff's motion for
remand (document 5) is denied. Insofar as plaintiff's complaint
raises issues subject to compulsory arbitration under the Railway
Labor Act, the court is without jurisdiction to further
adjudicate the matter. Accordingly, this litigation is herewith
dismissed without prejudice.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
July 26, 1995
cc: James H. Gambrill, Esg. Susannah Colt, Esg. Peter Bennett, Esg.