
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.                                 ____________________                     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.            _______________            Gary D.  Buseck with whom Robert  L. Farrell  and Parker, Coulter,            _______________           __________________      ________________        Daley & White were on brief for appellee.        _____________                                 ____________________                                 ____________________        _____________________        *  Of the Eighth Circuit, sitting by designation.        ** Of the Ninth Circuit, sitting by designation.              O'SCANNLAIN, Circuit Judge:   We must decide whether a state               ___________         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                                          -2-         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                                          -3-         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                                          -5-         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.                                         -6-               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           _______________          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]                                          -7-          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                           _____________________________________________                                         -8-          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                                          -9-          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                                               ____________________             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                                          -11-          require   interpretation   of   the   collective   bargaining           agreement.3   This holding is not inconsistent with  Colorado                                                                ________          Anti-Discrimination Comm'n v. Continental  Air  Lines,  Inc.,           ____________________________________________________________          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.               ________                                         -13-
