                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit Rule 206
                                     File Name: 12a0223p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                                X
                                                 -
 MICHAEL R. EMSWILER,
                                                 -
                                Plaintiff-Appellant,
                                                 -
                                                 -
                                                     No. 11-3517
          v.
                                                 ,
                                                  >
 CSX TRANSPORTATION, INC., BROTHERHOOD -
                                                 -
                      Defendants-Appellees. -
 OF LOCOMOTIVE ENGINEERS AND TRAINMEN,

                                               N
                 Appeal from the United States District Court
                for the Southern District of Ohio at Columbus.
                               No. 2:09-cv-1004;
      Edmund A. Sargus, Jr., District Judge; Mark R. Abel, Magistrate Judge.
                                     Argued: June 7, 2012
                             Decided and Filed: July 20, 2012
            Before: SUTTON, McKEAGUE, and RIPPLE*, Circuit Judges.

                                     _________________

                                          COUNSEL
ARGUED: Gary A. Reeve, LAW OFFICES OF GARY A. REEVE, LLC, Columbus,
Ohio, for Appellant. Kristin Seifert Watson, CLOPPERT, LATANICK, SAUTER &
WASHBURN, Columbus, Ohio, John B. Lewis, BAKER & HOSTETLER LLP,
Cleveland, Ohio, for Appellees. ON BRIEF: Gary A. Reeve, LAW OFFICES OF
GARY A. REEVE, LLC, Columbus, Ohio, for Appellant. Kristin Seifert Watson,
Frederick G. Cloppert, CLOPPERT, LATANICK, SAUTER & WASHBURN,
Columbus, Ohio, Michael S. Wolly, ZWERDLING, PAUL, KAHN & WOLLY, P.C.,
Washington, D.C., John B. Lewis, BAKER & HOSTETLER LLP, Cleveland, Ohio, for
Appellees.




        *
         The Honorable Kenneth F. Ripple, United States Circuit Judge for the United States Court of
Appeals for the Seventh Circuit, sitting by designation.


                                                 1
No. 11-3517        Emswiler v. CSX Transp., et al.                                Page 2


                                 _________________

                                      OPINION
                                 _________________

       McKEAGUE, Circuit Judge. Plaintiff Michael Emswiler sued his employer,
CSX Transportation, Inc. (“CSX”), a railroad, and the Brotherhood of Locomotive
Engineers and Trainmen (“BLET”) after his seniority on the roster of train engineers was
adjusted in May 2009. Emswiler alleged breach of collective bargaining agreement
(“CBA”), breach of duty of fair representation, and disability discrimination under Ohio
law. The parties brought motions for summary judgment, and the district court granted
Defendants’ motions. Emswiler appeals. The district court correctly determined it
could not reach the merits of Emswiler’s claims for breach of CBA and disability
discrimination due to his failure to pursue arbitral mechanisms mandated by the Railway
Labor Act. Accordingly, we affirm the grant of summary judgment on those claims. As
for Emswiler’s claim for breach of duty of fair representation, we also affirm.

       The Railway Labor Act (“RLA”) governs disputes between management and
labor in the railroad industry. 45 U.S.C. §§ 151, 153. The RLA promotes stability in
labor-management relations by providing effective and efficient remedies for labor
disputes, thereby preventing interruptions in rail service. Union Pac. R.R. Co. v.
Sheehan, 439 U.S. 89, 94 (1978). The RLA divides such disputes into two categories:
major and minor. Major disputes concern the formation of collective bargaining
agreements, whereas minor disputes deal with the interpretation of existing CBAs. See
Consol. Rail Corp. v. Ry. Labor Execs. Ass’n., 491 U.S. 299, 302–303 (1989). This is
a minor dispute.

       The RLA “establishes a mandatory arbitral mechanism for ‘the prompt and
orderly settlement’ . . . of disputes.” Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246,
252 (1994) (quoting 45 U.S.C. § 151a). With regard to minor disputes, the RLA
provides initially for settlement through contractually agreed-upon grievance procedures;
these are sometimes referred to as “on the property” remedies. See 45 U.S.C. § 152
First, Second. Failure to resolve minor disputes “on the property” gives rise to
No. 11-3517         Emswiler v. CSX Transp., et al.                                  Page 3


compulsory and binding arbitration by one of the divisions of the National Railroad
Adjustment Board (“NRAB” or “the Board”) or a privately established arbitration panel.
45 U.S.C. § 153 First (i). After taking his or her dispute through these mechanisms, an
employee aggrieved by an NRAB decision may file his or her claim in the appropriate
district court. 45 U.S.C. § 153 First (q). “Judicial review of Adjustment Board orders
is limited to three specific grounds: (1) failure of the Adjustment Board to comply with
the requirements of the Railway Labor Act; (2) failure of the Adjustment Board to
conform, or confine, itself to matters within the scope of its jurisdiction; and (3) fraud
or corruption [by a member of the division making the order].” Sheehan, 439 U.S. at
93 (citing 45 U.S.C. § 153(q)). Our discussion of Emswiler’s claims for breach of CBA
and disability discrimination focuses on his failure to bring his claim to the NRAB
before coming to court.

                            I. FACTUAL BACKGROUND

        CSX operates a 23,000 mile railroad system in twenty-three states and two
Canadian provinces. CSX has both train-service workers and engine-service workers.
Locomotive engineers are engine-service workers, whereas conductors and brakemen
are train-service workers, also referred to as trainmen. BLET is the bargaining
representative for engine-service workers, and the United Transportation Union (“UTU”)
is the bargaining representative for train-service workers. As their job titles suggest, the
engineer controls the engine and operates the controls that move the train, whereas the
conductor is responsible for the crew in control of the body of the train. Where all other
factors are equal, engine-service workers earn more per day than train-service workers.
Shifts are assigned to all employees based on their seniority within the particular
category of service, such that an engineer with twenty years of engine-service seniority
will have priority for being assigned a shift over an engineer with only five years of
engine-service seniority.

        The terms of CSX engineers’ employment are governed by a collective
bargaining agreement (“CBA”) between BLET and CSX. At the time Emswiler began
No. 11-3517        Emswiler v. CSX Transp., et al.                                    Page 4


his engineer training, the applicable CBA from 1955 contained the following provisions
regarding how to establish and contest seniority:

       Seniority Date

       (a) The date of a promoted or hired engineer shall be the date of his first
       service as an engineer when there are no demoted or furloughed
       engineers, or when senior qualified man to be promoted is not available
       the man used as engineer will establish date for the senior man. When
       the date of a promoted or hired engineer has been established as specified
       herein, such date shall be posted and if not challenged in writing within
       sixty (60) days after such posting no protest against such date shall
       afterward be heard.
       ...
       Seniority Roster
       (d) A seniority roster of engineers will be compiled in order of their
       seniority. Rosters will be revised and posted under glass (showing actual
       date of posting) and in a conspicuous place at all engine terminals and
       when necessary, at other points agreed upon, in January and July of each
       year and two (2) copies furnished to each Local Chairman of the
       seniority district affected.
               Seniority rosters will be subject to correction on proof of error or
       omission if written protest was made within sixty (60) days from date of
       posting . . . .

(1955 CBA, Page ID # 1476–77.)

       It had been longstanding company practice to allow engineer trainees who had
been removed from training for medical reasons to retain their seniority dates, provided
they completed training at their earliest opportunity upon removal of the medical
restriction. That practice was memorialized in the 2007 CBA, which states:

       F.      It is also understood that employees who are unable to complete
       their scheduled engineer training class due to sickness, FMLA, military
       service or other reasonable circumstances, as determined by the BLET
       General Chairman of jurisdiction and CSXT’s Highest Designated
       Officer, will retain their proper position for promotion, if they return to
       service at their earliest opportunity.

(2007 CBA, Page ID # 1510.) The 2007 CBA provides for appeals to the seniority roster
within two years of posting.
No. 11-3517        Emswiler v. CSX Transp., et al.                                Page 5


       Emswiler was employed as a train-service worker by Chessie Systems, which
was subsequently purchased by CSX, from 1978–81. Emswiler began locomotive
engineer training in September 1980. He completed the in-class portion of the training,
but before he made his “qualifying ride” to complete training and become an engineer,
Emswiler was medically disqualified from train service altogether because he was
diagnosed with Type I diabetes. Emswiler left Chessie in February 1981. Despite the
fact that he did not complete engineer training prior to his medical removal, Emswiler’s
name was placed on the engineer seniority roster with a seniority date of May 27, 1980
(“the 1980 seniority date”) and remained there.

       In 1993, Emswiler returned to CSX after more than a decade of working other
jobs, including work with another railroad. Upon returning, Emswiler worked as a train-
service worker. Emswiler states he did not seek work as an engine-service worker at that
time because he was concerned that his diabetes would cause him to lose consciousness
or not be alert enough to perform well. In fact, Emswiler did lose consciousness while
working as a brakeman, and an accident resulted. In 1997, Emswiler began using an
insulin pump, which he describes as “crude and difficult to use.” (Emswiler Aff., Page
ID # 1055.) On March 10, 1997, CSX’s Chief Medical Officer deemed Emswiler
“qualified to perform railway service without restrictions . . . .” (Medical Letter, Page
ID # 1996.) But Emswiler still felt the insulin pump did not work well enough to allow
him to perform engine-service duties safely. So Emswiler did not begin inquiring about
completing his engineer service training to become an engine-service worker until mid-
2007, when he was told there would be a new insulin pump available to him that would
allow him to deliver insulin immediately when needed. Emswiler now uses the
improved pump, and feels that it allows him to control his insulin levels and more
effectively work as an engineer.

       Emswiler entered the engineer training class of April 2008 and completed
training in October 2008. Before he began training, he was advised by a CSX employee
that he would retain his existing seniority date upon becoming an engineer. Because
shifts are meted out based upon seniority, and the 1980 seniority date gave Emswiler
No. 11-3517         Emswiler v. CSX Transp., et al.                               Page 6


high seniority status, he was able to work as an engineer full time from October 30, 2008
through May 26, 2009.

       On February 6, 2009, BLET Regional Vice-General Chairman William Lyons
wrote to BLET General Chairman Rick Finamore stating that Lyons had received a
protest against Emswiler’s seniority from a local BLET Chairman named Bob Gibson.
Finamore consulted with CSX Director of Labor Relations Rick Heil concerning
Emswiler’s seniority. Based on the collective bargaining agreement, Finamore was
empowered to request seniority changes and Heil was empowered to make such changes
on behalf of CSX.

       On May 26, 2009, Heil responded by letter offering a settlement to Finamore that
would adjust Emswiler’s seniority date to April 7, 2008. Finamore signed that he agreed
to the settlement on the same day. The settlement letter reasoned:

                There is no evidence that Mr. Emswiler was medically restricted
       from returning to Engine service in 1993. He voluntarily chose to return
       to the trainman’s ranks where he remained for almost 15 years before he
       contacted anyone about returning to complete Engineer Training.
       Therefore, he should have been given a new seniority date consistent
       with the date he began Engineer training on April 7, 2008.

(Settlement Letter, Page ID # 1775.)

       On July 1, 2009, Emswiler wrote to Heil requesting that his seniority be restored
to the 1980 date. On August 10, 2009, Heil denied the request, noting that procedurally,
Emswiler’s appeal should have been handled by the BLET and Finamore. However,
Heil wrote that even if it was procedurally appropriate for the company to review the
adjustment, the adjustment was proper based on the same reasons Heil had set forth in
the original letter. Emswiler also filed numerous claims about the adjustment on the
CSX electronic system. UTU Chairman Lesniewski wrote a letter to Heil, dated
September 23, 2009, in which he requested that a claim be conferenced, i.e. that “on the
property” proceedings be initiated, regarding the adjustment in Emswiler’s seniority.
(Leniewski Email, Page ID # 1545.) Neither the UTU nor Emswiler processed his claim
before the NRAB.
No. 11-3517          Emswiler v. CSX Transp., et al.                               Page 7


          Instead, on November 6, 2009, Emswiler filed this lawsuit in the district court.
Emswiler alleged breach of the applicable CBAs, breach of the BLET’s duty of fair
representation, and disability discrimination under Ohio law. The parties each filed
motions for summary judgment, which the district court granted to Defendants. This
appeal followed.

                                     II. ANALYSIS

          The district court granted summary judgment to Defendants on all of Emswiler’s
claims. Because the RLA mandates an exclusive avenue to the federal courts for
Emswiler’s breach of CBA and discrimination claims, an avenue Emswiler neither
pursued nor is excused from pursuing, the district court correctly recognized that relief
was unavailable on these claims. Further, because the record does not substantiate
Emswiler’s claim for breach of duty of fair representation, the district court’s grant of
summary judgment on that claim was also proper.

          This Court reviews the district court’s grant of summary judgment de novo. CSX
Transp. Inc. v. United Transp. Union, 395 F.3d 365, 368 (6th Cir. 2005). Summary
judgment is appropriate where there is “no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Defendants bear the burden of showing the absence of a genuine dispute of material fact
as to at least one essential element of Emswiler’s claims. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Emswiler must then present sufficient evidence from which a jury
could reasonably find in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). This Court then considers whether, drawing all reasonable inferences in favor
of Emswiler, Defendants must prevail as a matter of law. CSX Transp. Inc., 395 F.3d
at 368.

A. The RLA Scheme for Resolving Minor Disputes

          Emswiler invoked the district court’s jurisdiction pursuant to 28 U.S.C. § 1331
because his claims “arise under” the RLA. Where, as here, an employee failed to utilize
the RLA-mandated arbitral process before bringing a minor dispute to court, the Sixth
No. 11-3517        Emswiler v. CSX Transp., et al.                                    Page 8


Circuit has previously held that the district court lacked jurisdiction over the claim and
it had to be dismissed. See, e.g., Kaschak v. Consol. Rail Corp., 707 F.2d 902, 905 (6th
Cir. 1983) (citing Andrews v. Louisville & Nashville R.R., 406 U.S. 320 (1972)). The
admonition against exercising jurisdiction in such cases was unequivocal: “an employee
may not forego resort to the Board and opt to have a dispute with a carrier considered,
in the first instance, by a federal court. Where such a choice is made, a motion to
dismiss pursuant to 12(b)(1) must be sustained.” Id. (citing McKinney v. Int’l Assoc. of
Machinists & Aerospace Workers, Dist. Lodge No. 1450, I.A.M., 624 F.2d 745 (6th Cir.
1980)). More recently, this Circuit has reiterated that “the district court cannot have
subject matter jurisdiction” over a minor dispute under the RLA. Stephens v. Ret.
Income Plan for Pilots of U.S. Air, Inc., 464 F.3d 606, 610 (6th Cir. 2006) (affirming
dismissal for lack of jurisdiction over a minor dispute that was subject to binding
arbitration by an established Retirement Board). If Emswiler’s failure to exhaust RLA
remedies deprived the district court of subject matter jurisdiction, then technically, its
grant of summary judgment in favor of the defendants would have been improper and
dismissal for lack of jurisdiction would have been the only appropriate ruling.

       However, in Arbaugh v. Y&H Corp., 546 U.S. 500, 503 (2006), the Supreme
Court endeavored to clarify the distinction between two frequently conflated concepts:
“federal-court ‘subject-matter’ jurisdiction over a controversy; and the essential
ingredients of a federal claim for relief.” The Court expressed concern about what it
called “drive-by jurisdictional rulings” and observed that such “less than meticulous”
rulings should not be accorded precedential effect. Id. at 511. The Court set forth a
“readily administrable bright line” test:

       If the Legislature clearly states that a threshold limitation on a statute’s
       scope shall count as jurisdictional, then courts and litigants will be duly
       instructed and will not be left to wrestle with the issue. . . . But when
       Congress does not rank a statutory limitation on coverage as
       jurisdictional, courts should treat the restriction as nonjurisdictional in
       character.

Id. at 515–16 (footnote, citation omitted). Specifically, Arbaugh held that the Title VII
threshold requirement that an employer have “fifteen or more employees,” 42 U.S.C.
No. 11-3517         Emswiler v. CSX Transp., et al.                                  Page 9


§ 2000e-2(a)(1), is an essential element of a plaintiff’s claim, but is a nonjurisdictional
restriction. Yet, the decision has broader implications. Justice Ginsburg, who authored
Arbaugh, later indicated that “the unanimous Arbaugh Court anticipated that all federal
courts would thereafter adhere to the ‘bright line’ held dispositive that day.” Reed
Elsevier, Inc. v. Muchnick, ___ U.S. ___, 130 S.Ct. 1237, 1250 (2010) (Ginsburg,
J., concurring).

        Since Arbaugh was decided, several statutory requirements that were previously
considered jurisdictional have been reconsidered. For example, the requirement to
register a copyright before suing for infringement, which was previously considered to
be jurisdictional, has, in the wake of Arbaugh, been held nonjurisdictional. Muchnick,
130 S.Ct. at 1248. Similarly, the Age Discrimination in Employment Act’s requirement
that a plaintiff file a charge with the Equal Employment Opportunity Commission prior
to bringing suit, previously considered a jurisdictional restriction, is now considered
mandatory but nonjurisdictional. Allen v. Highlands Hosp. Corp., 545 F.3d 387,
401–402 (6th Cir. 2008) (overruling prior precedent in light of Arbaugh). Further, a
taxpayer’s failure to exhaust IRS administrative remedies has been held not to deprive
the district court of subject matter jurisdiction over his claim for damages related to the
sale of his property, although the failure to exhaust still led to dismissal. Hoogerheide
v. I.R.S., 637 F.3d 634, 638 (6th Cir. 2011) (collecting and analyzing cases impacted by
Arbaugh). The Supreme Court has also applied the Arbaugh clear-statement test in the
context of the RLA. Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen
Gen. Com. of Adjustment, Cen. Reg., ___ U.S. ___, 130 S.Ct. 584, 597 (2009). In Union
Pacific, the Court decided that noncompliance with the RLA requirement that parties to
a minor dispute take part in a pre-arbitration settlement conference prior to bringing their
claim to the Adjustment Board was not jurisdictional. Id.

        While the RLA clearly precludes the federal courts from granting relief on minor
disputes that have not first been brought through the RLA arbitral process, such disputes
still raise a question “arising under” federal law, i.e. the RLA. See 45 U.S.C. § 153 First
(i), (p), (q); 28 U.S.C. § 1331. So, it is “less than meticulous” to say that failure to
No. 11-3517             Emswiler v. CSX Transp., et al.                                             Page 10


arbitrate under the RLA deprives the courts of subject matter jurisdiction. See Arbaugh,
546 U.S. at 511. Rather, the failure to arbitrate impacts the plaintiff’s “‘ability to prove
the defendant bound by the federal law asserted as the predicate for relief—a
merits-related determination.’” Arbaugh, 546 U.S. at 511 (quoting 2 J. Moore et al.,
Moore’s Federal Practice § 12.30[1], p. 12-36.1 (3d ed. 2005)). Thus, we find that this
Circuit’s cases stating that a failure to exhaust RLA remedies in a minor dispute deprives
the courts of subject matter jurisdiction “should be accorded no precedential effect.”
Arbaugh, 546 U.S. at 511.1

         The fact that courts have recognized exceptions to the RLA arbitral requirement
supports the        conclusion that the requirement is a nonjurisdictional restriction.
“‘[S]ubject-matter jurisdiction, because it involves a court’s power to hear a case, can
never be forfeited or waived.’” Arbaugh, 546 U.S. at 514 (quoting United States v.
Cotton, 535 U.S. 625, 630 (2002)). As described below, there are several recognized
exceptions to the RLA’s exhaustion requirement. One exception, which is relevant to
this case, exists when pursuing arbitral mechanisms would be futile due to collusion
between the union and employer. Glover v. St. Louis-S.F. Ry. Co., 393 U.S. 324, 331
(1969). If the failure to arbitrate were jurisdictional, then recognition of this futility
exception to create jurisdiction where it otherwise did not exist would make subject
matter jurisdiction hinge on the behavior of the parties—an impermissible result. See,
e.g., Kontrick v. Ryan, 540 U.S. 443, 456 (2004) (reasoning that “[c]haracteristically, a
court’s subject-matter jurisdiction cannot be expanded to account for the parties’
litigation conduct”).

         Accordingly, we hold that, in the “aftermath of Arbaugh,” completion of the
RLA-mandated arbitral process does not affect a district court’s subject matter



         1
          We note that although the Sixth Circuit’s decision in Stephens, 464 F3d at 610, was argued and
decided several months after Arbaugh’s clarification issued, Arbaugh is not cited in Stephens. While we
do not depart lightly from such prior controlling authority in the Circuit, we believe this result is dictated
by Arbaugh. See United States v. Lucido, 612 F.3d 871, 876 (6th Cir. 2010) (recognizing that “[a]lthough
a prior decision by a panel of this Court is controlling authority in subsequent cases, an inconsistent
decision of the United States Supreme Court requires modification of the earlier panel decision.” (internal
quotation marks omitted)); Rinard v. Luoma, 440 F.3d 361, 363 (6th Cir. 2006) (questions that lurk in the
record are not decided and do not form binding precedent).
No. 11-3517         Emswiler v. CSX Transp., et al.                                  Page 11


jurisdiction over a claim but instead goes to the court’s ability to reach the merits of a
dispute and grant relief—“mandatory though the exhaustion requirement . . . may be, it
is not jurisdictional.” Hoogerhide, 637 F.3d at 636. It follows that if Emswiler’s failure
to pursue RLA arbitration cannot be excused, the district court properly granted
summary judgment to Defendants.

B. Emswiler’s Claim for Breach of CBA

        There are several exceptions to the RLA exhaustion requirement that would
allow the courts to grant relief in spite of a failure to arbitrate. These exceptions include:
(1) where the union “has the ‘sole power’ under the contract to invoke the upper level
grievance procedures and yet prevents an employee from exhausting contractual
remedies by wrongfully refusing to process the employee’s grievance in violation of its
duty of fair representation;” (2) “when the employer’s conduct amounts to a repudiation
of the remedial procedures specified in the contract;” and (3) when resort to the
administrative procedures would be wholly futile. Atkins v. Louisville & Nashville R.R.
Co., 819 F.2d 644, 649–50 (6th Cir. 1987) (citing Glover, 393 U.S. at 324; Vaca v. Sipes,
386 U.S. 171, 185–86 (1967)).

        Emswiler contends that pursuit of RLA-mandated arbitral processes would have
been futile, invoking the exception set forth by the Supreme Court in Glover, 393 U.S.
at 324. In Glover, the Supreme Court held that, where black railroad employees claimed
that racial discrimination practiced by the railroad in concert with union officials was
preventing the plaintiffs from acquiring higher paying jobs, the plaintiffs did not need
to pursue RLA-mandated remedies before bringing suit. The Court said:

        Here the complaint alleges in the clearest possible terms that a formal
        effort to pursue contractual or administrative remedies would be
        absolutely futile. Under these circumstances, the attempt to exhaust
        contractual remedies . . . is easily satisfied by petitioners’ repeated
        complaints to company and union officials, and no time-consuming
        formalities should be demanded of them. The allegations are that the
        bargaining representatives of the car employees have been acting in
        concert with the railroad employer to set up schemes and contrivances to
        bar Negroes from promotion wholly because of race. If that is true,
No. 11-3517        Emswiler v. CSX Transp., et al.                                Page 12


        insistence that petitioners exhaust the remedies administered by the union
        and the railroad would only serve to prolong the deprivation of rights to
        which these petitioners according to their allegations are justly and
        legally entitled.

Id. at 331.

        Under Glover, alleged collusion between the carrier and union would make
pursuing RLA arbitration futile. Id.; see also Richins v. S. Pac. Co., 620 F.2d 761, 762
(10th Cir. 1980) (finding well-pled allegations of collusion where two companies
merged and one of the unions was allegedly aligned with the carrier against merged
company employees); Raus v. Bhd. Ry. Carmen of U.S. & Canada, 663 F.2d 791, 798
(8th Cir. 1981) (finding the critical question to be whether there was collusion, and
holding that collusion was not alleged).

        Emswiler claims that BLET and CSX were aligned against him and the NRAB
arbitration procedure would have been “perfunctory, at best.” (Appellant Br. at 22.)
But this allegation does not carry his burden to show futility. The Sixth Circuit requires
“a clear and positive showing of futility before excusing a failure to exhaust . . . .”
Miller v. Chrysler Corp., 748 F.2d 323, 326 (6th Cir. 1984) (internal quotation marks
omitted). It is insufficient to show that a party subjectively thought procedures would
be futile. Terwilliger v. Greyhound Lines, Inc., 882 F.2d 1033, 1039 (6th Cir. 1989).
Even if Emswiler had little chance of prevailing before the NRAB, that would not be
sufficient to show futility. Cf. Miller, 748 F.2d at 325–26 (finding a claim did not meet
the futility exception where the union and company agreed on the interpretation of the
CBA so the plaintiff was unlikely to prevail on a grievance decided by the union).

        Further, the cooperation between CSX and BLET alleged by Emswiler is not
comparable to the collusion between the union and company in Glover, 393 U.S. at 331.
There, the plaintiffs alleged “that the bargaining representatives of the car employees
have been acting in concert with the railroad employer to set up schemes and
contrivances to bar Negroes from promotion wholly because of race.” Id. By contrast,
Emswiler only points out that BLET and CSX agree about how the CBA should be
interpreted with regard to his seniority date. In an attempt to demonstrate collusion,
No. 11-3517        Emswiler v. CSX Transp., et al.                               Page 13


Emswiler has submitted a chain of emails between himself and some members of the
BLET. But the emails were not authored by the major decisionmakers in Emswiler’s
adjustment and do not evidence collusion.

       Emswiler’s claim of futility also lacks support under our case law discussing this
exception. In Kaschak, 707 F.2d at 902, this Court found futility where a plaintiff relied
on his union to file a grievance, the union had failed to do so, and the claim would have
been time barred by the time the plaintiff became aware of the union’s neglect. There
was no such reliance here. Moreover, the Kaschak panel took pains to “emphasize the
narrow scope” of its decision, noting that the “burden on the plaintiff remains extreme.”
Id. at 913. “He essentially must show that the Union breached its duty of fair
representation by not processing his grievance and that it was reasonable for him to rely
on the fact that they would not breach that duty.” Id. Similarly, in Nemitz v. Norfolk &
W. R.R. Co., 436 F.2d 841, 850 (6th Cir. 1971), this Court excused a failure to arbitrate
where the plaintiffs sought arbitration and were refused that remedy by their union. But
Emswiler did not attempt to arbitrate, so Nemitz is inapposite. Finally, in Atkins v.
Louisville & Nashville R.R. Co., 819 F.2d 644, 650 (6th Cir. 1987), this Court found that
a claim did not meet the futility exception where plaintiffs could have pursued a
grievance procedure on their own and were not limited in their ability to do so by any
action on the part of the union. Atkins is the most comparable futility case from this
Circuit to Emswiler’s situation, and there this Court did not find futility.

       Because Emswiler did not present facts satisfying the futility exception, his
failure to take his claim through the arbitral process mandated by the RLA before
coming to court means that he has failed to meet a predicate for relief under the RLA.
Thus, we affirm the district court’s decision to grant summary judgment in favor of
Defendants.

C. Emswiler’s Discrimination Claim

       Emswiler also claims that the decision to adjust his 1980 seniority date was made
because of his diabetes in violation of Ohio employment discrimination law. Emswiler
claims that, because the 2007 CBA allowed ill engine-service trainees to maintain
No. 11-3517         Emswiler v. CSX Transp., et al.                                 Page 14


seniority status if they returned at their earliest opportunity, Defendants acted in a
discriminatory manner by adjusting his seniority without inquiring whether, given his
condition, he had returned to engine-service training at his earliest opportunity.

        If Emswiler’s disability discrimination claim is preempted by the RLA, then he
is required to pursue the RLA-mandated arbitral process before bringing his claim to
court, and his failure to do so precludes consideration of the merits. The district court
correctly determined that, because Emswiler was asking the court to construe the CBA
in order to decide his discrimination claim, this claim was preempted by the RLA. This
Circuit’s two-step test for preemption requires a determination as to: (1) whether proof
of the state law claim would require interpretation of the CBA; and (2) whether the right
claimed by plaintiff is created by the collective bargaining agreement or by state law.
DeCoe v. Gen. Motors Corp., 32 F.3d 212, 216 (6th Cir. 1994). Likewise, in Norris,
512 U.S. at 261, the Supreme Court held that the RLA preempts state-law claims when
“the resolution of a state-law claim depends on an interpretation of the CBA.”

        To establish a prima facie case of disability discrimination under Ohio law, a
plaintiff must show that “(1) the [plaintiff] had a disability; (2) the defendant took an
adverse employment action, at least in part, because the plaintiff had the disability; and
(3) the [plaintiff], while having a disability, could safely and substantially perform the
essential functions of the job in question.”        Wallace v. Mantych Metalworking,
937 N.E.2d 177, 183 (Ohio Ct. App. 2010). The first and third elements are not at issue,
so Emswiler’s disability claim would turn on the second element, i.e., whether an
adverse employment action was taken because of Emswiler’s disability.

        The manner in which Emswiler styles his claim plays directly into the
preemption test. Emswiler claims that Finamore and Heil incorrectly interpreted the
requirement that an ill engine-service trainee return to training at his earliest opportunity
in order to maintain seniority. If the phrase “at [his] earliest opportunity” means when
he is deemed medically fit by a physician, then Defendant’s interpretation prevails, and
the decision was not based on Emswiler’s disability.             But if “at [his] earliest
opportunity” means whenever he feels physically able, then Emswiler’s view could
No. 11-3517        Emswiler v. CSX Transp., et al.                               Page 15


arguably prevail and the decision could have been at least partially based on his
disability. Because resolving those competing positions requires interpretation of the
collective bargaining agreement, the district court correctly found that the first part of
the preemption analysis applied here. See DeCoe, 32 F.3d at 216. This claim is not a
“purely factual question about . . . an employer’s conduct and motives” and cannot be
decided without interpretation of the CBA. Norris, 512 U.S. 246 (internal quotation
marks omitted).

       Because the RLA preempts Emswiler’s employment discrimination claim, he was
required to exhaust the RLA-mandated arbitral processes before coming to court. Thus,
we affirm the district court’s grant of summary judgment to Defendants as to this claim.

D. Emswiler’s Claim for Breach of Duty of Fair Representation

       Under the doctrine of fair representation, the union, as an exclusive agent of the
employees, is obliged to “serve the interests of all its members without hostility or
discrimination toward any, to exercise discretion with complete good faith and honesty,
and to avoid arbitrary conduct.” Vaca, 386 U.S. at 177. Emswiler claims that the BLET
breached this duty by initiating and allowing his change in seniority status.

       To prevail on a claim for breach of duty of fair representation, Emswiler must
show that (1) the action taken by the BLET was contrary to the CBA; and (2) that the
action was dishonest, in bad faith, or discriminatory. See Hines v. Anchor Motor
Freight, Inc., 424 U.S. 554, 570–71 (1976). Emswiler has not demonstrated that the
BLET’s decision to adjust his seniority was contrary to the CBA. In fact, the decision
was likely in the best interests of the majority of its members, who could have been
missing out on shifts due to Emswiler’s incorrect seniority status. Nor has Emswiler
created a factual dispute indicating that the BLET acted in bad faith. Again, Emswiler
points to a chain of emails between he and some members of the BLET to suggest bad
faith, but this communication did not involve the major decisionmakers in his adjustment
and does not evidence bad faith on their part.
No. 11-3517          Emswiler v. CSX Transp., et al.                          Page 16


       In sum, Emswiler’s claim for breach of duty of fair representation lacks merit.
Thus, we affirm the decision of the district court granting summary judgment to
Defendants in this regard.

                                  III. CONCLUSION

       Accordingly, we AFFIRM the district court’s grant of summary judgment in
Defendants’ favor.
