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Susan F. Gregory Plaintiff
vs.
Burlington Northern Railroad Company, a corporation, Defendant
 
Case:
Civil No. 4-85-720
 
Location:
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA, FOURTH DIVISION
 
Date:
May 15, 1986, Filed
 
Court:
MacLaughlin, Justice.
 
Author:
The Hon. Justice MacLaughlin
 

This matter is before Court on defendant's motion to dismiss or in the alternative for summary judgment. Defendant's motion to dismiss will be granted.

FACTS

Plaintiff is a Billings Montana resident and a former employee of defendant. Plaintiff applied for a position in defendant's Billings communication facility March 1 1985. Plaintiff's application for employment was approved and she accepted a job with defendant. The position acquired by plaintiff was a union position subject to a collective bargaining agreement.

Pursuant to the collective bargaining agreement to which defendant and plaintiff's union were parties plaintiff was required to take a pre-employment physical examination. The examination included mandatory drug testing. Plaintiff took the examination at a Billings clinic March 22 1985. Plaintiff began work April 1 1985 before the results of the examination had been received by defendant. Under such circumstances the collective bargaining agreement provided that plaintiff was a probationary employee subject to final approval by defendant's medical examiners. *fn1

On April 15 1985 plaintiff was notified that due to her failure to pass the mandated physical her employment with defendant was being terminated. Plaintiff was informed by company officials that a controlled substance had been detected in her urine. Plaintiff was permitted to speak to Burlington Northern physicians in Fort Worth Texas who informed plaintiff that the controlled substance which had been detected was THC -- the active substance in marijuana. Plaintiff admitted to company officials that the preceding January 1 1985 she had taken "a couple of hits of marijuana." Jean E. Corbett Aff. para. 8. *fn2

When plaintiff's attempts to gain reinstatement proved unsuccessful she brought this action alleging wrongful discharge negligent administration of the drug test and the intentional infliction of emotional distress.

Defendant now brings this motion to dismiss or alternatively for summary judgment on the ground that this action is within the exclusive jurisdiction of the National Railway Adjustment Board pursuant to the Railway Labor Act 45 U.S.C. SEC.(S)151-188.

DISCUSSION

Plaintiff was employed by a railway carrier and was therefore subject to the grievance procedure set forth in the Railway Labor Act (RLA) 45 U.S.C. SEC.(S) 151-188. Section 153 First (i) *fn3 of the RLA provides that so-called "minor disputes" that cannot be resolved by intra-company negotiation shall be referred to the National Railway Adjustment Board (NRAB) or one of the regional boards for arbitration. The provision for arbitration is not a voluntary undertaking but rather is compelled by the Act. Further administrative remedies provided by the RLA are primary and exclusive so that while Court have frequently referred to the "exhaustion of remedies" requirements of the RLA that is in fact a misnomer *fn4 in that the administrative remedy is exclusive and does not allow post-exhaustion review in Court with certain limited exceptions. *fn5

Thus the question before the Court is whether plaintiff's claims are "minor disputes" within the meaning of 45 U.S.C. SEC.153 First (i). If so plaintiff's remedies lie exclusively with the NRAB and Court is without jurisdiction.

In general a "minor dispute" within the meaning of the RLA is one which relates to the interpretation of an existing labor management contract. It is directed to rights already vested. A major dispute in contrast involves the formation of the collective bargaining agreement or the substantial alteration of an existing agreement. It involves the acquisition of rights. Brown v. American Airlines Inc. 593 F.2d 652 (5th Cir. 1979) citing Elgin Joliet and Eastern Railway Co. v. Burley 325 U.S. 711 89 L. Ed. 1886 65 S. Ct. 1282 (1945) modified 327 U.S. 661 66 S. Ct. 721 90 L. Ed. 2d 928 (1946). In Burley the Supreme Court defined a minor dispute as one which "relates either to the meaning or proper application of a particular collective bargaining agreement provision [in a] specific situation [or to] some incident of the employment relation independent of those covered by the collective agreement." Burley 325 U.S. at 723. A minor dispute has been said to be one which "arises out of the collective bargaining agreement " Tate 415 F. Supp. at 846 or which has a "not obviously insubstantial relationship to the collective bargaining agreement " Magnuson v. Burlington Northern Inc. 576 F.2d 1367 1369-70 (9th Cir. 1978) or the resolution of which requires the "interpretation of the applicable collective bargaining agreement " Landfried v. Terminal Railroad Association of St. Louis 721 F.2d 254 255 (8th Cir. 1983). A minor dispute has also been characterized as one which encompasses claims which "grow out of the employment relationship [and] involving attempts to impose rights which are incident to that relationship " Minehart v. Louisville and Nashville Railroad Co. 731 F.2d 342 344 (6th Cir. 1984); or stemming from a "normal incident of any employment relationship " Majors v. U.S. Air Inc 525 F. Supp. 853 855 (D.Md. 1981) or which "arises directly out of a labor dispute." Choate v. Louisville and Nashville Railroad Co. 715 F.2d 369 372 (7th Cir. 1983).

The United States Court of Appeals for the Eighth Circuit has had occasion to consider the scope of NRAB jurisdiction in two recent decisions Landfried v. Terminal Railroad Association of St. Louis 721 F.2d 254 (8th Cir. 1983) and Tello v. Soo Line Railroad Co. 772 F.2d 458 (8th Cir. 1985). In Landfried the Eighth Circuit determined that plaintiff's claims of retaliatory discharge were minor disputes where "it appears that resolution of plaintiffs' claims will depend at least in part on interpretation of the applicable collective bargaining agreement." Landfried 721 F.2d at 255. In Tello Court held that plaintiff's claims were not within the exclusive jurisdiction of the NRAB where the claims were not based "primarily" on the collective bargaining agreement although Court did recognize that exclusive NRAB jurisdiction does lie where the employee's claims are based exclusively upon the collective bargaining agreement. Tello 772 F.2d at 460. In addition in Allis-Chalmers Corp. v. Lueck 471 U.S. 202 105 S. Ct. 1904 85 L. Ed. 2d 206 (1985) Justice Blackmun writing for Court declared that "when resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract that claim is pre-empted by federal labor-contract law." Allis-Chalmers 105 S. Ct. at 1916. *fn6

Applying these precedents to the case at bar leads Court to conclude that resolution of each of plaintiff's claims would require interpretation of the applicable collective bargaining agreement and that accordingly plaintiff's claims are within the NRAB's exclusive jurisdiction.

Wrongful Discharge

Plaintiff's first claim is a wrongful discharge claim. Plaintiff alleges that "the termination of plaintiff's employment by defendant without just cause was wrongful illegal and unjustified." Complaint para. IX.

It is well established that a wrongful discharge claim is within the exclusive jurisdiction of the NRAB. See e.g. Jackson v. Consolidated Rail Corp. 717 F.2d 1045 (7th Cir. 1983). The sole source of plaintiff's right not to be discharged and of defendant's obligation to restore plaintiff's employment is the collective bargaining agreement between defendant and plaintiff's union. Absent that agreement plaintiff's employment would be terminable at defendant's will. Court have stated that under such circumstances the plaintiff's exclusive remedy lies with the grievance and arbitration procedures set forth in the RLA. Andrews v. Louisville and Nashville Railroad Co. 406 U.S. 320 32 L. Ed. 2d 95 92 S. Ct. 1562 (1972); *fn7 Davidson v. Long Island Railroad Co. 617 F. Supp. 67 (S.D.N.Y. 1985); Landfried 721 F.2d at 255; Stevens v. Braniff Airways Inc. 490 F. Supp. 231 (D.Minn. 1980). See also Carson v. Southern Railway Co. 494 F. Supp. 1104 (D.S.C. 1979) (plaintiff's wrongful discharge claim based on his failure to take a physical examination found to be within the NRAB's exclusive jurisdiction). Accordingly Court finds that plaintiff's wrongful discharge claim is a "minor dispute" within the exclusive jurisdiction of the NRAB.

Negligence

Plaintiff also brings causes of action sounding in negligence. In count two of her complaint plaintiff alleges that defendant failed to exercise reasonable care in administering the drug test. In count three of her complaint plaintiff alleges that defendant's failure to "reinstate or otherwise reevaluate plaintiff" was "contrary to the standard of care of a reasonable person" such that it "constitutes wilfull wanton and gross negligence." Complaint para. XIII. In count four plaintiff alleges that "defendant's acts and omissions were committed either so willfully and maliciously or so negligently" as to "make defendant liable to the plaintiff for exemplary and punitive damages." Complaint para. XV. Count five purports to be a negligence claim brought pursuant to the Federal Employers' Liability Act 45 U.S.C. SEC.(S)51-60.

Court finds that resolution of plaintiff's negligence claims would require interpretation of the applicable collective bargaining agreement and that accordingly these claims are within the exclusive jurisdiction of the NRAB. In essence plaintiff's negligence counts allege that defendant failed to adhere to a proper "standard of care" in carrying out the collective bargaining agreement-mandated drug test. Otherwise stated the standard of care which defendant allegedly contravened can be understood only with reference to the collective bargaining agreement -- it is the collective bargaining agreement which established the alleged duty to exercise reasonable care and the collective bargaining agreement which sets forth the scope of that alleged duty. In Choate v. Louisville and Nashville Railroad Co. 715 F.2d 369 (7th Cir. 1983) Court found that "[plaintiff's] characterization of the defendant's conduct as improper necessarily implies the existence of contractual standards in the collective bargaining agreement " and that accordingly it would be impossible to adjudicate plaintiff's claims without reference to the collective bargaining agreement. Choate 715 F.2d at 371-72. Here the alleged duty of care derives from the collective bargaining agreement. As such resolution of plaintiff's negligence claims would require interpretation of that agreement.

In addition the "right asserted by" the plaintiff "derives from the rights and obligations established by the contract." Allis-Chalmers 105 S. Ct. at 1914. Thus as in Allis-Chalmers resolution of plaintiff's negligence claims are "substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract " Allis-Chalmers 105 S. Ct. at 1916 and accordingly must be treated as exclusive NRAB claims. See also Minehart v. Louisville and Nashville Railroad Co. 731 F.2d 342 (6th Cir. 1984) (where the dispute grows out of the employment relationship and in the final analysis involves an attempt to impose a right which is incident to that relationship the statutory forum is the Adjustment Board absent a clear expression of legislative policy to the contrary); Brotherhood of Locomotive Engineers v. Burlington Northern Railroad Co. 620 F. Supp. 173 175 (D.Mont. 1985) (controversy between railroad and union over railroad's unilateral implementation of mandatory urine-testing policy was minor dispute within exclusive jurisdiction of NRAB).

Intentional Infliction of Emotional Distress

Many courts have considered the question whether an employee's intentional emotional distress claim is within the exclusive jurisdiction of the NRAB. With few exceptions *fn8 Court have found that such claims are "a normal incident of the employment relation" and thus are "minor disputes" within the meaning of the RLA. The clearest statement of this line of case law is the Ninth Circuit's decision in Magnuson v. Burlington Northern Inc. 576 F.2d 1367 (9th Cir. 1978) wherein it was stated:

If the basic injury was [plaintiff's] wrongful discharge the complaint involves a minor dispute which must be arbitrated following the procedures of the R.L.A. All of the damages which he claims to have suffered flowed from his wrongful dismissal from his employment. The alleged evil motivation of the defendants would have caused him no legal injury if he had either not been discharged or if his discharge was not wrongful. The injuries for which he sought compensation included not only his emotional distress but also his loss of income from his job from the time of his discharge until retirement age together with loss of his retirement benefits. His emotional distress was an incident of the wrongful discharge . . . . Every employee who believes he has a legitimate grievance will doubtless have some emotional anguish occasioned by his belief that he has been wronged. Artful pleading cannot conceal the reality that the gravamen of the complaint is wrongful discharge.

Magnuson 576 F.2d at 1369 (emphasis added). See also Jackson v. Consolidated Rail Corp. 717 F.2d 1045 (7th Cir. 1983); Beers v. Southern Pacific Transportation Co. 703 F.2d 425 (9th Cir. 1983); Carson v. Southern Railway Co. 494 F. Supp. 1104 (D.S.C. 1979); Choate v. Louisville and Nashville Railway Co. 715 F.2d 369 (7th Cir. 1983); Truex v. Garrett Freightlines 784 F.2d 1347 (9th Cir. 1986). *fn9 Court finds that plaintiff's emotional distress claims are minor disputes within the NRAB's exclusive jurisdiction.

Farmer Exception

Plaintiff argues that her intentional emotional distress claims are excepted from the NRAB's exclusive jurisdiction by Farmer v. Brotherhood of Carpenters Local 25 430 U.S. 290 51 L. Ed. 2d 338 97 S. Ct. 1056 (1977). In Farmer an NLRB case the Supreme Court found that a state law intentional emotional distress claim was not preempted by federal labor law. That case involved a local union officer's claim that as a result of disagreements with other union officials he was subjected to a campaign of ridicule and personal abuse and was discriminated against by the union hiring hall. After reviewing exceptions to the preemption doctrine recognized in earlier cases Court stated a two-part balancing test for delineating the scope of the preemption doctrine: Court must balance (1) the state interest in regulating the conduct in question against (2) the potential for interference with the federal regulatory scheme. Farmer 430 U.S. at 297.

Court finds that plaintiff's intentional emotional distress claim is not within the Farmer exception to preemption for two reasons.

First federal court litigation of these claims would raise a substantial threat of "interference with the federal regulatory scheme." In Sears Roebuck & Co. v. San Diego County District Council of Carpenters 436 U.S. 180 56 L. Ed. 2d 209 98 S. Ct. 1745 (1978) the Supreme Court explained the second part of the two-part Farmer balancing test in the following terms: The critical inquiry is not whether the State is enforcing a law relating specifically to labor relations or one of general application but whether the controversy presented to the state court is identical to (as in Garner v. Teamsters Local 776 346 U.S. 485 98 L. Ed. 228 74 S. Ct. 161 (1953)) or different from (as in Farmer) that which could have been but was not presented to the arbitration board. It is only in the former situation that a state court's exercise of jurisdiction necessarily involves a risk of interference with the federal regulatory scheme. Sears 436 U.S. at 197. Here the issues which would be presented to the federal court are identical or nearly identical to the issues which plaintiff would have raised before the NRAB had she elected to proceed before that forum.

Second plaintiff has made no showing that the conduct to which she was subjected was of a "substantial or enduring quality." In Farmer the Supreme Court stated that to avoid preemption the state interest must be "so deeply rooted in local feeling and responsibility that in the absence of compelling congressional direction we could not infer that Congress had deprived the States of the power to act." Farmer 430 U.S. at 296-97. Court went on to state that allegations of outrageous conduct would not be preempted where the conduct was "of such substantial or enduring quality that no reasonable man in a civilized society should be expected to endure it." Farmer 430 U.S. at 302. Here the conduct to which plaintiff was subjected is not of such substantial or enduring quality. *fn10 There have been no allegations of "violence or threats of violence " Majors v. U.S. Air Inc. 525 F. Supp. 853 (D.Md. 1981) nor have there been threats of discrimination and reprisal as in Farmer. It is also relevant to point out that in Farmer the plaintiff faced ongoing abuse whereas in the case at bar the "outrage" suffered by plaintiff was a discrete incident. In sum plaintiff's allegations of outrageous conduct fall short of the standard necessary to make out a Farmer exception to preemption. *fn11

Probationary Employee

Plaintiff also claims that her suit is not preempted because as a probationary employee at the time of her discharge she was not subject to the RLA process.

The collective bargaining agreement to which plaintiff was subject provides that new employees may begin work on a "probationary" basis pending final approval by defendant's medical department. Thus as stated above in plaintiff's case she took the physical examination March 22 1985 but was permitted to commence work on a probationary basis April 1 1985. Plaintiff argues that as a probationary employee she was not subject to the RLA arbitration procedures.

Plaintiff's position is not supported by the statute or the case law. Nothing in the statute provides for exemption from the Act's coverage in the case of new or probationary employees. To be covered by the RLA the employee must be in the service of a carrier and the work performed by the employee must bear a direct relationship to the transportation activities of the carrier. International Longshoremen's Association v. North Carolina State Ports Authority 370 F. Supp. 33 (E.D.N.C. 1974) affirmed 511 F.2d 1007 (4th Cir. 1975). Plaintiff was employed by a carrier and her work as a communications specialist bore a direct relationship to the transportation activities of the carrier. As stated in Hodges v. Atchison Topeka and Santa Fe Railway Co. 728 F.2d 414 (10th Cir. 1984): "Plaintiff's employment in the craft governed by the applicable collective bargaining agreement makes him subject to the terms and conditions of employment obtained in the agreement and the collective bargaining agent was obliged to represent him. Thus plaintiff's union membership is irrelevant to the applicability of the collective bargaining agreement. The existence of a comprehensive federal scheme for the settlement of employer-employee disputes in the railroad industry" mandates that all carrier employees be subject to RLA jurisdiction. 728 F.2d at 417 citing Vaca v. Sipes 386 U.S. 171 177 17 L. Ed. 2d 842 87 S. Ct. 903 (1967) Steele v. Louisville and Nashville Railroad Co. 323 U.S. 192 202-04 89 L. Ed. 173 65 S. Ct. 226 (1944).

Futility of Administrative Remedies

Plaintiff's final plea for exemption from the RLA's administrative requirements is her claim that resort to the NRAB would have been "wholly futile." In Glover v. St. Louis-San Francisco Railway Co. 393 U.S. 324 330 21 L. Ed. 2d 519 89 S. Ct. 548 (1969) the Supreme Court appeared to recognize an exception to the exhaustion requirement where it would be "wholly futile to go through arbitration." See Montgomery v. National Railroad Passenger Corp. 619 F. Supp. 1393 (D.Conn. 1985). In Glover the Supreme Court stated that requiring minority employees alleging discrimination on the part of their union and employer to comply with an arbitration procedure administered by those same parties would be an exercise in futility. Court have subsequently recognized that upon a demonstrable showing of "futility" railway workers may bypass the RLA arbitration process and proceed in federal court.

In this case plaintiff has made no showing whatsoever that proceedings before the NRAB would have been futile other than to allege in conclusory terms that this is the case. Accordingly Court finds that plaintiff's claims are not within the narrow "futility" exception to exclusive NRAB jurisdiction. See Montgomery 619 F. Supp. at 1396 ("plaintiff has not shown that resort to the appeal process which is required by the RLA would have been 'futile' in the specific circumstances of this case"); Kozina v. Baltimore & Ohio Chicago Terminal Railroad Co. 609 F. Supp. 53 (N.D.Ill. 1984) (court finds that resort to the NRAB would not be futile).

The purpose of the RLA *fn12 is to promote stability in labor-management relations in the national railroad industry. Landfried 721 F.2d at 254. In order to minimize interruptions in the nation's transportation services by strikes and labor disputes the RLA provides for the creation of adjustment boards to arbitrate disputes between employees and carriers "growing out of grievances or out of the interpretation or application of agreements concerning rates of pay rules or working conditions." 45 U.S.C. SEC.184.

To permit railroad employees to initiate discharge disputes in the federal courts thereby bypassing orderly arbitration procedures would frustrate congressional purpose and would precipitate interruptions in the nation's transportation industry. Concern for stability is particularly important where drug testing of railroad employees is involved -- given the public's reliance on the services of transportation carriers substance abuse by employees in the industry raises a potentially grave threat to public safety and welfare. A drug-testing policy designed to meet these concerns would be robbed of its efficacy if employees who tested positively were routinely permitted access to the federal courts. *fn13

Accordingly based on the foregoing IT IS ORDERED that defendant's motion to dismiss is granted.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Court Harry H. MacLaughlin

 
Notes:

*fn1 Plaintiff does not deny that she had full knowledge of her probationary status at the date she commenced employment with defendant.

*fn2 Plaintiff admitted to occasional use of marijuana and cocaine. Susan F.

Gregory Deposition 49 51 52 54.

*fn3 Section 153 First (i) of 45 U.S.C. provides:

The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay rules or working conditions including cases pending and unadjusted on June 21 1934 shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but failing to reach an adjustment in this manner the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.

*fn4 In Andrews v. Louisville and Nashville Railroad Co. 406 U.S. 320 32 L. Ed. 2d 95 92 S. Ct. 1562 (1972) the specific question presented was whether a discharged railroad employee had to exhaust his administrative remedy of NRAB arbitration before commencing a civil action for wrongful discharge. Court noted that "exhaustion of remedies" is a misnomer because the federal administrative remedy is exclusive and does not allow post-exhaustion actions in another forum:

The term "exhaustion of administrative remedies" in its broader sense may be an entirely appropriate description of the obligation of both the employee and carrier under the Railway Labor Act to resort to dispute settlement procedures provided by that Act. It is clear however that in at least some situations the Act makes the federal administrative remedy exclusive rather than merely requiring exhaustion of remedies in one forum before resorting to another. A party who has litigated an issue before the Adjustment Board on the merits may not relitigate that issue in an independent judicial proceeding. He is limited to the judicial review of the Board's proceedings that the Act itself provides. In such a case the proceedings afforded by 45 U.S.C. SEC.153 First (i) will be the only remedy available to the aggrieved party.

Andrews 406 U.S. at 325 (citations omitted).

*fn5 Judicial review of orders of the NRAB is limited to (1) failure of the Board to comply with the act (2) allegations of fraud or corruption on the part of the Board or (3) failure of the Board's order to conform or to confine itself to matters within the Board's jurisdiction. 45 U.S.C. SEC.153 First (p). Only upon one or more of these grounds may a court set an order of the Board aside. Tate v. Long Island Railroad Co. 415 F. Supp. 845 (E.D.N.Y. 1976).

*fn6 Allis-Chalmers is a case involving the preemptive effect of the National Labor Relations Act (NLRA). Court have recognized that cases construing the preemption doctrine in the context of the NLRA are of valid precedential authority in interpreting the RLA. Beers 703 F.2d at 428 citing Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co. 394 U.S. 369 383-84 22 L. Ed. 2d 344 89 S. Ct. 1109 (1969). However it has been stated that it is more difficult to find preemption in an NLRA case because "the scope of that Act is limited to certain specified labor practices. In contrast to the more limited scope of the NLRA the mandatory arbitration provisions of the RLA were created to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay rules or working conditions." Majors 525 F. Supp. At 856.

*fn7 The plaintiff in Andrews was a railroad employee who was unable to work for some time after he was involved in an automobile accident. When Andrews felt that he was able to resume work the railroad refused to allow him to return. Andrews severed his connection with the railroad treated its refusal to allow him to work as a wrongful discharge and sought damages in a Georgia state court. After the railroad removed the case to federal court both the district court and Court of appeals held that Andrews' wrongful discharge claim was barred because he had failed to exhaust his administrative remedies under the RLA. The Supreme Court affirmed the dismissal of Andrews' suit emphasizing that the only source of his right not to be discharged and therefore to treat the alleged discharge as wrongful was the collective bargaining agreement between the employer and the union. Reasoning that Andrews' claim and the railroad's disallowance of it stemmed from differing interpretations of the collective bargaining agreement Court held that such discharge grievances are subject to compulsory arbitration under the RLA. See Landfried 721 F.2d at 255 (summarizing Andrews).

*fn8 In Tello v. Soo Line Railroad Co. 772 F.2d 458 (8th Cir. 1985) the Eighth Circuit found that plaintiff's intentional emotional distress claim was federally cognizable. That case is distinguishable.

The plaintiff in Tello was discharged following his successful prosecution of a Federal Employers Liability Act (FELA) suit against his employer. As part of the terms of the FELA settlement agreement entered into in that case plaintiff agreed not to exercise his accrued seniority rights. Tello did not agree to surrender those seniority rights however. Tello thereafter attempted to represent Soo Line employees at grievance hearings and to act as local chairman of the union. When Soo Line attempted to prevent Tello from carrying on these activities Tello brought suit in federal court seeking an injunction and damages on the theory that Soo Line had breached the FELA settlement agreement intentionally inflicted emotional harm and violated the RLA by interfering with the rights of union members to choose their representatives. See Tello 772 F.2d at 459.

The Eighth Circuit determined that Tello's claims were federally cognizable. While recognizing that "interpretation of the collective bargaining agreement and the law of the shop" is within the NRAB's exclusive jurisdiction 772 F.2d at 460 Court found that "where the primary question is the interpretation of a FELA release and questions of interpretation of a railroad industry collective bargaining agreement are only incidental the district court should exercise its jurisdiction without requiring exhaustion of remedies before the NRAB." Id. (Emphasis added.) Court distinguished Landfried by saying that the rights claimed by the employee in that case "were exclusively based upon an applicable collective bargaining agreement." 772 F.2d at 460.

Court went on to hold that Tello's intentional emotional distress claim was federally cognizable. Court found that the emotional distress which Tello suffered was distress flowing from breach of the FELA settlement. As such Tello's distress was not an incident of wrongs committed by his employer in the context of the employment relationship per se but rather stemmed from wrongs committed in connection with a wholly separable contract (the FELA settlement). Adjudication of this claim therefore did not require interpretation and application of the collective bargaining agreement inasmuch as a court or jury could assess the depth of Tello's outrage without reference to the collective bargaining agreement.

This case is distinguishable from Tello in that in this case there is no FELA settlement the breach of which gave rise to plaintiff's emotional distress. Plaintiff's emotional distress stems from the fact of her discharge or from defendant's allegedly abusive handling of her drug test and subsequent requests for re-testing. Resolution of these disputes would require reference to the collective bargaining agreement.

*fn9 In the recent Choate decision the Seventh Circuit found that adjudication of plaintiff's emotional distress claim would be impossible without reference to the applicable collective bargaining agreement since "one of the necessary considerations in determining whether the defendant's conduct is sufficiently outrageous to be tortious is whether the defendant's conduct involved the exercise of a legal right." Choate 715 F.2d at 372. Thus Court found that it would be necessary in adjudicating plaintiff's claim to examine the collective bargaining agreement to ascertain whether defendant was exercising a legal right. Just such a resort to the collective bargaining agreement would be required in the case at bar. Of course where interpretation of the collective bargaining agreement is required to adjudicate a claim that claim is a "minor dispute" within the meaning of the RLA.

*fn10 The basis for plaintiff's outrage is the following conduct of defendant:

(1) Burlington Northern officials initially refused to disclose to plaintiff which controlled substance had been found in her urine claiming that the information was confidential;

(2) Burlington Northern officials met plaintiff's assertions that she had tested negatively for drugs in connection with her duties as a United States Naval Reservist with suspicion;

(3) after plaintiff presented to Burlington Northern officials proof that she had tested negatively in a voluntary urine test taken April 17 1985 and had submitted to them the negative results of her Naval Reserve tests the officials told her that Burlington Northern does not hire people who use illegal drugs;

(4) the "clear implication" of the positive drug test that plaintiff is chemically dependent or has abused illegal substances caused plaintiff to suffer shock anxiety and outrage and has caused her to suffer a stigma which will effect future career goals and choices.

Court notes that it is difficult to credit plaintiff's final allegation in that plaintiff admittedly was able to obtain alternative employment immediately following the termination of her employment with defendant.

*fn11 In vivid contrast to the "outrage" suffered by plaintiff in the case at bar is the conduct suffered by the plaintiff in Richardson v. Communications Workers of America 443 F.2d 974 (8th Cir. 1971). In Richardson the employee faced "1 000 'vile and derogatory' signs constant 'chanting jeering and gesturing ' a daily 'rain of nuts bolts and screws thrown at him ' intentional cigarette burns vandalism of his car and locker and vulgarities about his wife." Richardson 443 F.2d at 983 n.12. It is this sort of conduct to which the Farmer exception is directed.

*fn12 Because none of plaintiff's claims are premised on a specific federal statutory section the preemptive effects of the RLA have not been rebutted and plaintiff's FELA cause of action will be dismissed. See Jackson v. Consolidated Rail 717 F.2d at 1049-51 (thorough discussion); Hodges v. Tomberlin 510 F. Supp. 1280 (S.D.Ga. 1980).

*fn13 In Allis-Chalmers the Supreme Court recognized several policy concerns which underscore the preemption doctrine. Many of these concerns are applicable here:

(1) the federal interest in interpretive uniformity and predictability requires that collective bargaining agreements be interpreted in light of federal common law of labor relations and not by resort to multi-various state laws;

(2) preemption in the context of the NLRA or RLA preserves the central role of arbitration in our system of industrial self-governance;

(3) were state law allowed to determine the meaning of collective bargaining agreements the parties would be uncertain what they are binding themselves to as a result it would be more difficult to reach agreements and disputes as to the nature and meaning to be given to the agreements would proliferate;

(4) permitting direct resort to Court would eviscerate a central tenet of federal labor law viz. that it is the arbitrator not Court who has the responsibility to interpret the labor contract in the first instance. See Allis-Chalmers 105 S. Ct. at 1910-16.