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November 28, 1994

SHARON E. MACK, individually and as mother and natural guardian of David G. Mack, Jr., a minor, Plaintiff, against METRO-NORTH COMMUTER RAILROAD, MAURICE J. KINIRY and JOE BAUMAN, individually and as employees of Metro-North, Defendants.

The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.



 Defendants move, pursuant to Fed.R.Civ.P. 12(b)(1), to dismiss this case for lack of subject matter jurisdiction and Plaintiff moves to remand the case to state court, pursuant to 28 U.S.C. § 1447.


 Plaintiff Sharon Mack initiated this action in the Supreme Court of New York County against Metro-North Commuter Railroad ("Metro-North"), and Maurice Kiniry and Joe Bauman, individually and as employees of Metro-North, alleging state law claims of defamation, assault, unlawful imprisonment and intentional infliction of mental anguish on behalf of herself and her ten-year-old son, David, Jr.

 From January 1, 1983 to June 10, 1993, Plaintiff was employed as a conductor by Metro-North. Plaintiff's husband, David G. Mack, is employed by Metro-North as a ticket seller.

 According to the complaint ("Complaint"), on January 17, 1994, Plaintiff and her son were passengers on the Metro-North train bound for New York's Grand Central Station on the New Haven line, riding on a "dependent pass" when Defendant Kiniry accused Ms. Mack of illegally riding on an employee pass after he had fired her. Plaintiff advised that she was not riding on an employee pass but rather on a dependent pass which she had already shown the conductor. Kiniry continued yelling accusations and transmitted over the radio system, "I have Sharon Mack. She is riding illegally," and when the train arrived at Grand Central Station, Plaintiff was taken into custody and questioned for one hour.

 On March 23, 1994, Defendants removed the case to federal court, claiming federal question jurisdiction. On April 21, 1994, Defendants filed this motion to dismiss. On May 27, 1994, Plaintiff cross-moved for remand to New York Supreme Court. The Defendants' motion argues that Plaintiff's claim is subject to arbitration under collective bargaining agreements between Metro-North and the United Transportation Union and the Transportation Communications International Union since employee and dependent passes are rights provided for by those collective bargaining agreements, and that, therefore, Plaintiff's state law tort claims are preempted by operation of the Railway Labor Act, 45 U.S.C. § 151, et seq. ("RLA").

 The RLA establishes a mandatory arbitral mechanism for settling "major disputes," involving rates of pay, rules or working conditions, and "minor disputes," growing out of grievances or out of interpretation or application of agreements covering rates of pay, rules or working conditions. Defendants argue that the right of Plaintiff to use the pass as well as the right of Defendants to question her use of the pass are governed by the UTU and the TCU collective bargaining agreements ("CBAs") between Metro-North and the unions, that Plaintiff's claims constitute minor disputes under the RLA, and must be arbitrated by the Railroad Adjustment Board.

 Plaintiff contends that the Complaint states legitimate state law claims that are not preempted by the RLA. She cross-moves to remand the case to state court.


 In passing the RLA, Congress intended to promote stability in labor-management relations by providing a comprehensive framework for resolving labor disputes. Atchison, Topeka, & Santa Fe R.R. Co. v. Buell, 480 U.S. 557, 562, 94 L. Ed. 2d 563, 107 S. Ct. 1410 (1987); 45 U.S.C. § 151a. To realize this goal, the RLA established a mandatory arbitral mechanism for "the prompt and orderly settlement" of two classes of disputes. 45 U.S.C. § 151a. The first class, those concerning "rates of pay, rules or working conditions" are deemed "major disputes". Major disputes relate to "'the formation of collective bargaining agreements or efforts to secure them.'" Consolidated Rail Corp. v. Ry. Labor Executives' Ass'n, 491 U.S. 299, 302, 105 L. Ed. 2d 250, 109 S. Ct. 2477 (1989) ("Conrail"), quoting Elgin, Joliet & Eastern Ry. Co. v. Burley, 325 U.S. 711, 723, 89 L. Ed. 1886, 65 S. Ct. 1282 (1945) ("Burley"). Minor disputes "involve controversies over the meaning of an existing collective bargaining agreement in a particular fact situation." Brotherhood of R.R. Trainmen v. Chicago River & Indiana R.R. Co., 353 U.S. 30, 33, 1 L. Ed. 2d 622, 77 S. Ct. 635 (1957). Thus "major disputes seek to create contractual rights, minor disputes to enforce them." Conrail, at 302, citing Burley at 723.

 Relying on language in Conrail and Burley, Defendants argue that a dispute is a "minor dispute" if it "relates . . . to the meaning or proper application of a particular provision [of a collective bargaining agreement]" or it is "founded upon some incident of the employment relation . . . independent of those covered by the collective agreement, e.g., claims on account of personal injuries" Burley at 723; or if it encompasses disputes that are "arguably governed" by a CBA or are "arguably justified by the terms of the parties' collective-bargaining agreement." Conrail, at 307.

 In Hawaiian Airlines, Inc. v. Norris, 129 L. Ed. 2d 203, 114 S. Ct. 2239 (1994) ("Hawaiian Airlines"), however, the Supreme Court unanimously held that the appropriate standard to determine if an individual's state-law claim is preempted by the RLA is whether the claim involves rights and obligations that exist independent of the CBA, the same standard it used in Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988), a case brought under § 301 of the Labor Management Relations Act ("LMRA"), Hawaiian Airlines at 2248-49. Under the Lingle standard, the LMRA preempts state law only if the state-law claim is dependent on the interpretation of a CBA, Lingle at 407.

 If the claim does not involve interpretation of the collective-bargaining agreement, but rather deals with purely factual questions about an employee's conduct or an employer's conduct and motives, the claim is not preempted. Id.; cf. Hawaiian Airlines at 2249. *fn1"

  In Hawaiian Airlines, a discharged airline mechanic brought an action in state court claiming retaliatory discharge in violation of public policy and a state whistleblower act. The airline argued that resort to the CBA was necessary to determine whether respondent was, in fact, discharged. The lower state court found that since these disputes "grew out of grievances or out of the interpretation and application of agreements concerning [pay rates], rules, or working conditions," 45 U.S.C.A. § 153 First (i), these tort claims were preempted by the RLA's mandatory arbitral mechanism for minor disputes. See Hawaiian Airlines at 2243. The Hawaii Supreme Court reversed holding that defendant's claims against Hawaiian Airlines were not preempted.

 A unanimous Court affirmed the decision of the Hawaii Supreme Court, holding that (1) a state-law cause of action is not preempted if it involves rights and obligations that exist independent of the CBA, id. at 2249; and (2) the existence of a potential CBA-based remedy does not deprive an employee of independent remedies available under state law, id. The Court specifically rejected defendant's argument that plaintiff's claims were preempted because resort to the CBA was necessary to determine whether Norris was discharged for insubordination.

 Hawaiian Airlines specifically addressed Burley's "incident of the employment relationship" and found it to be dicta, Hawaiian Airlines at 2250, and stated, "Nonetheless, to avoid any confusion, we expressly disavow any language in Burley suggesting that minor disputes encompass state-law claims that exist independent of the collective bargaining agreement." Hawaiian Airlines also clarified the "arguably justified" standard in Conrail, stating "this 'arguably justified' standard . . . was employed only for policing the line between major and minor disputes . . . obviously, this test said nothing about the threshold question whether the dispute was subject to the RLA in the first place." Hawaiian Airlines at 2250-51.

 In Harris v. Hirsh, 83 N.Y.2d 734, 613 N.Y.S.2d 842, 636 N.E.2d 1375 (Ct.App. 1994), a case decided eleven days before Hawaiian Airlines, the New York Court of Appeals, relying on the principles set forth in Burley and Magnuson v. Burlington Northern, Inc., 576 F.2d 1367 (9th Cir. 1978) held that the state trial court did not have subject matter jurisdiction over an employee's common-law defamation claim against Metro-North Commuter Railway because it constituted a "minor dispute" under the Federal Railway Labor Act, Harris at 845. Harris makes clear that "an employee should not be permitted to disguise or restate a genuine contract claim in terms of tort or to extract parasitic tort claims from an employment-related grievance to obtain remedies outside of those contemplated by the RLA." Id.

 In Harris, a defamation claim brought by a Metro-North employee who was also a member of the Brotherhood of Railway, Airline and Steamship Clerks (BRAC), Harris was called into the office of her supervisor for review of her work performance and was accused, in the presence of plaintiff's two immediate supervisors, of taking drugs. Harris requested that the BRAC district chair institute an "unjust treatment" hearing in accordance with the collective bargaining agreement between Metro-North and BRAC to determine whether defendant's conduct during the meeting violated company policy and procedure. Thereafter, Harris commenced an action for slander in state court. Defendants asserted that the comments were made in the context of a supervisor-employee interview, were subject to a qualified privilege, and that the defamation claim was preempted by the mandatory arbitration provisions set forth in the RLA. The Court of Appeals affirmed the Appellate Division's decision that the plaintiff's complaint was indeed a "minor dispute" within the meaning of the RLA since it "'was one growing out of a grievance and 'indisputably arose[] out of the employment relation between the plaintiff and . . . Metro-North'", Harris at 844 (citations omitted).

 The controversy between Ms. Mack and Metro-North is clearly distinguishable from the dispute in Harris. Ms. Harris had been called into the office of her supervisor for an evaluation of her work performance in the course of her employment. *fn2" Ms. Mack was not an employee of Metro-North, nor was she a member of a collective bargaining unit which had a collective bargaining agreement with Metro-North. She was riding as a passenger on a train with her son.

 The Court of Appeals in Harris points out that a state law claim may survive "if 'the alleged defamation becomes distanced from the work-place and is only "peripherally" concerned with federal labor law'", Harris at 845, quoting Lorenz v. CSX Transp., Inc., 980 F.2d 263, 267 (4th Cir. 1992). Ms. Mack's charges against Metro-North employees are not "minor disputes" that require interpretation of a collective bargaining agreement. Rather, Plaintiff, a non-employee, claims that she was the subject of defamatory statements that were announced over the loud-speaker of a train filled with strangers on a trip to New York; this type of claim does not constitute even a "peripheral concern" of the RLA. See, Lorenz v. CSX Transp., Inc., 980 F.2d 263, 267 (4th Cir. 1992) ("As the alleged defamation becomes distanced from the work-place and is only 'peripherally' concerned with federal labor law, it is excepted from preemption."); Cf. Rosemond v. National Railroad Passenger Corp., 1986 WL 10711 (S.D.N.Y. 1986) ("Plaintiff's allegations are not inseparable from any employment grievance between plaintiff and his employer. Plaintiff's claims did not arise from a discharge from employment; it is not a disciplinary proceeding or a company rule violation or theft investigation or an employment proceeding of any kind.") Ms. Mack's claims may not be preempted by any collective bargaining agreement.

 Ms. Mack's tort claims turn squarely on a question of fact: whether she had been defamed on the train, whether she was a victim of intentional infliction of emotional distress and whether she had been falsely imprisoned. These issues do not require interpretation of a CBA. Rather they are issues of fact to be decided by a jury.

 To rule that plaintiff's claims be sent to arbitration would legitimize a system which would frustrate tort victims seeking remedy in the judicial system. See, Jackson v. Consolidated Rail Corp., 717 F.2d 1045, 1060 (7th Cir. 1983) (Posner, J., dissenting) "It would be surprising if compulsory arbitration of contract disputes was intended to wipe out the employee's common law rights other than his right to enforce the very contracts that are subject to the scheme of compulsory arbitration."; see also, Lorenz v. CSX Transp., Inc., 980 F.2d 263, 269-72 (4th Cir. 1992) (Sprouse, J., dissenting). Hawaiian Airlines makes apparent that in defining the jurisdiction of state courts, care must be used not to infringe upon the jurisdiction of the states in settling state law claims. The Court held that the element of discharge under Hawaii law is a purely factual question and that under Lingle "'purely factual questions' do not 'require a court to interpret any term of a collective bargaining agreements.'" Hawaiian Airlines at 2248, quoting Lingle.3

 Accordingly, Defendants' motion to dismiss is denied because Plaintiff's tort claims are not preempted by operation of the Railway Labor Act, 45 U.S.C. § 151. Plaintiff's motion to remand this case to state court is denied even though the action was removed on improper grounds by Defendants since Plaintiff's motion was not made within thirty days of removal as is required under 28 U.S.C. § 1447(c), and it does appear that jurisdiction in this court is proper on diversity grounds, 28 U.S.C. § 1332.


 Dated: New York, New York

 November 28, 1994

 Robert P. Patterson, Jr.


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