The defendants Dr. John Herrlin ("Herrlin") Rose Tulli ("Tulli") and Metro-North Commuter Railroad ("Metro-North") (collectively the "Defendants") have moved pursuant to Rule 12(b)(1) and (6) Fed. R. Civ. P. for an order dismissing the Complaint of plaintiffs John V. Milam ("Milam") and Vivian Milam (collectively the "Plaintiffs") for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted.

The Plaintiffs have moved pursuant to 28 U.S.C. SEC. 1447 for an order remanding this action to the New York State Supreme Court from which it was removed.

For the reasons set forth below the Plaintiffs' motion to remand is denied and the Defendants' motion to dismiss the Plaintiffs' Complaint is granted.

The Parties

Milam is and was at the time of the drug test about which he complains an employee of Metro-North working as a tower operator as defined by 45 U.S.C. SEC. 51.

Plaintiff Vivian Milam is Milam's wife.

Metro-North is a corporation duly organized created and existing under the laws of the State of New York and is a common carrier in interstate transportation and commerce by railroad.

Herrlin is an employee of Metro-North serving as its Medical Director and designated Medical Review Officer pursuant to 49 C.F.R. part 40 and 49 C.F.R. SEC. 219.707. Herrlin is sued in his official capacity as an agent of Metro-North.

Tulli is an employee of the Metro-North. She serves as Manager of Metro-North's Random Testing Program and is sued in her official capacity as an agent of Metro-North.

Prior Proceedings

This action originally was brought by the Plaintiffs in the New York State Supreme Court New York County seeking damages pursuant to the Federal Employers' Liability Act 45 U.S.C. SEC.(s) 51 et seq. (the "FELA"). On July 17 1992 the Defendants removed this action pursuant to 28 U.S.C. SEC.(s) 1441 et seq. from that court to the United States District Court for the Southern District of New York with the alleged original and removal jurisdiction of this Court being premised on a claim of right under the Constitution treatise or laws of the United States pursuant to 28 U.S.C. SEC.(s) 1331 1337 and 1441 et seq.

The Defendants filed their motion on July 27 1992 and the Plaintiffs submitted their motion to this Court on August 6 1992. Oral argument was heard on both motions on November 25 1992 and they are considered fully submitted as of that date.

Facts

On a Rule 12(b)(6) motion to dismiss the factual allegations of the complaint are presumed to be true and all factual inferences must be drawn in their favor and against the defendants. See Scheuer v. Rhodes 416 U.S. 232 236 40 L. Ed. 2d 90 94 S. Ct. 1683 (1974); Cosmas v. Hassett 886 F.2d 8 11 (2d Cir. 1989); Dwyer v. Regan 777 F.2d 825 828-29 (2d Cir. 1985). Accordingly the factual allegations considered here and set forth below are taken from the Plaintiffs' Complaint and do not constitute findings of fact by Court. They are presumed to be true only for the purpose of deciding the present motions. *fn1

In his capacity as a tower operator for Metro-North Milam is responsible for performing duties involving the movement of freight in interstate and foreign commerce. He is subject to the Hours of Service Act 45 U.S.C. SEC.(s) 61 et seq. which regulates the hours of service of employees "actually engaged in or connected with the movement of any train including hostlers." 45 U.S.C. SEC. 61(2). The rates of pay rules and working conditions of his employment are governed by the collective bargaining agreement (the "Agreement") entered into between Metro-North and the Transportation Communications International Union which was formed according to and is governed by the provisions of the Railway Labor Act 45 U.S.C. SEC.(s) 151 et seq. (the "RLA"). Metro-North's Substance Abuse Policy and Rule G *fn2 of the Rules of the Operating Department (the "Department") which restrict an employee's use of alcohol and controlled substances are deemed by past practice to be part of Metro-North's collective bargaining agreements. See Railway Labor Executives' Ass'n v. Metro-North Commuter R.R. Co. 759 F. Supp. 1019 1023 (S.D.N.Y. 1990); see also Consolidated Rail Corp. v. Railway Labor Executives' Ass'n 491 U.S. 299 314-15 105 L. Ed. 2d 250 109 S. Ct. 2477 (1989) (Rule G has industry-wide application) ("Conrail").

Milam is required pursuant to the Federal Railroad Administration ("FRA") 49 C.F.R. part 219 (1991) ("Part 219") and the Agreement to participate in Metro-North's random drug testing program and must supply a urine sample when ordered to do so by Metro-North. The FRA regulations define the "Hours of Service" employees' use of alcohol an legal controlled substances and prohibit the use of illegal drugs. See 49 C.F.R. SEC.(s) 219.101-219.103. The regulations also set forth the carriers' duties with regard to alcohol and drugs providing that when "a positive test result [is] reported by the railroad's Medical Review Officer " the railroad has "reason to believe that an employee has violated" the alcohol or drug prohibition and "the railroad shall immediately remove the employee from covered service." 49 C.F.R. SEC. 219.104(a). Finally the FRA regulations provide a hearing procedure in the event an employee contests the validity of a test result. 49 C.F.R. SEC. 219.104(c).

On January 16 1990 pursuant to 49 C.F.R. SEC. 219.601(d)(2) Metro-North commenced random testing of employees covered under the FRA and the Agreement. Milam's drug test which constitutes the source of this action was conducted on August 9 1990. On August 17 1990 Herrlin notified Milam that the laboratory report showed positive for opiates and Tulli ordered Milam to be taken out of service as of that date. The Department then formally charged Milam with a violation of Rule G on August 20 1990.

Milam requested that Metro-North and its medical department submit his urine sample to a further test which was available and would have revealed that the positive reading on the sample in question was a false positive. *fn3

Milam also requested that the formal disciplinary investigation scheduled pursuant to Rule 50 of the Agreement *fn4 be postponed from August 28 1990 to September 10 1990. On September 10 however instead of proceeding with the disciplinary investigation Milam signed a "Waiver Letter: Substance Abuse " waiving his right to an investigation within the contractual time limits and agreeing to follow a treatment program prescribed by Metro-North's Employee Assistance Program ("EAP"). *fn5

On September 21 1990 Herrlin notified the Department that a further test of Milam's urine sample revealed it to be negative and accordingly Tulli authorized Milam's return to service that same day. On September 24 1990 the Department formally notified Milam that the disciplinary investigation was cancelled and that he would be compensated for his time out of service pursuant to the Agreement. Milam was reinstated with pay for all time last and has continued to work for Metro-North without incident since that time.

Milam alleges that the urinalysis was "negligently and improperly performed " resulting in a "false positive" reading Compl. at PP 7 8 and in Milam's removal from service id. at P 11. In his first cause of action Milam contends that the Defendants violated the FELA by negligently causing him "to suffer mental anguish depression [and] emotional distress and . . . to seek psychiatric treatment." Id. Milam also contends in the second cause of action that the Defendants owed him a duty to keep the result of the urine test confidential and that the Defendants breached this duty when they "negligently removed him from his job and negligently exposed him to public ridicule and humiliation." Id. at P 20. Again Milam asserts as his injury resulting from the Defendants' negligence mental anguish emotional distress and depression which required him to seek psychiatric treatment.

In the third cause of action Vivian Milam sues derivatively under the common law theory of loss of consortium. She allege that as a result of the Defendants' negligent actions she:

has been deprived of the aid companionship company society comfort and services of her husband . . . has suffered loss of consortium . . . [; and] has also incurred medical and hospital bills as a result of the treatment being rendered to her husband . . . .

Id. at PP 23-24.

Discussion

I. The Plaintiffs' Claims Arise Under the RLA and Not the FELA

In order to determine whether this action was properly removed from the New York Supreme Court to this Court and whether this Court has subject matter jurisdiction it first must be determined whether the Plaintiffs' claims are accurately characterized as claims arising under the FELA or whether they are actually misidentified RLA claims. Despite the preemptive nature of the RLA over all claims that fall within its scope the FELA is a free-standing statute that was left entirely intact at the time the RLA was enacted. See Atchison Topeka & Santa Fe Ry. Co. v. Buell 480 U.S. 557 566-67 94 L. Ed. 2d 563 107 S. Ct. 1410 (1987). Thus a genuine FELA claim brought in any state court "may not be removed to any district court of the United States." 28 U.S.C. SEC. 1445(a).

Nonetheless "Congress enacted the RLA to promote stability in labor-management relations by providing a framework for resolving labor disputes in the railroad industry." Melanson v. United Air Lines Inc. 931 F.2d 558 561 (9th Cir.) cert. denied 116 L. Ed. 2d 150 __U.S. __ 112 S. Ct. 189 (1991); accord Buell 480 U.S. at 562. In order to facilitate the quick resolution of disputes between employees and employers the RLA establishes an arbitration system that preempts other avenues of securing relief arising from an employee's grievance. See Andrews v. Louisville & Nashville R.R. 406 U.S. 320 322-26 32 L. Ed. 2d 95 92 S. Ct. 1562 (1972) (expressly overruling Moore v. Illinois Central R.R. 312 U.S. 630 85 L. Ed. 1089 61 S. Ct. 754 (1941)).

In the event that a claim has been mislabeled as a FELA claim when it is actually an RLA claim however that claim may be so removed. See Hammond v. Terminal R.R. Ass'n 848 F.2d 95 97 (7th Cir. 1988) cert. denied 489 U.S. 1032 103 L. Ed. 2d 229 109 S. Ct. 1170 (1989). Any attempt to avoid the exclusive remedies of the RLA by "artful pleading" will not be tolerated. Magnuson v. Burlington Northern Inc. 576 F.2d 1367 1369 (9th Cir.) cert. denied 439 U.S. 930 58 L. Ed. 2d 323 99 S. Ct. 318 (1978). An RLA-covered employee cannot choose between a remedy provided in the collective bargaining agreement and one under common law; his exclusive forum and remedy is that provided by the RLA's mandatory dispute resolution procedures. See Andrews 406 U.S. at 325-26; see also Grote v. Trans World Airlines Inc. 905 F.2d 1307 1310 (9th Cir.) cert. denied 498 U.S. 958 112 L. Ed. 2d 397 111 S. Ct. 386 (1990) (emotional distress and defamation claims preempted by RLA); Edelman v. Western Airlines Inc. 892 F.2d 839 844-45 (9th Cir. 1989) (breach of implied contract emotional distress and defamation claims preempted); Hannah v. Metro-North Commuter R.R. Co. 753 F. Supp. 1169 1175 (S.D.N.Y. 1990) (wrongful discharge and libel claims preempted).

A plaintiff has engaged in the prohibited "artful pleading " in two situations: first if it is necessary for a plaintiff to make reference to the collective bargaining agreement in order to establish his claim then the claim is not a free-standing FELA claim see Melanson 931 F.2d at 562-63; and second even if explicit reference to the collective bargaining agreement can be avoided by the plaintiff if his claim is founded on some incident of the employment relation then the claim arises under the RLA and not the FELA see Majors v. U.S. Air Inc. 525 F. Supp. 853 857 (D. Md. 1981) (citing Elgin J. & E.R. Co. v. Burley 325 U.S. 711 723 89 L. Ed. 1886 65 S. Ct. 1282 (1945)).

In support of their contention that removal was inappropriate the Plaintiffs contend that their "claims do not rest on the contents of the collective bargaining agreement nor is any reference to that agreement necessary to illustrate the defendants negligence." Pls.' Mem. at 10. This assertion however does not survive an analysis of the nature and content of these claims.

When an employee challenges a positive test result the regulations afford him the right to a "prompt post-suspension hearing before a presiding officer other than the charging officer." 49 C.F.R. SEC. 219.104(c)(1). Further "this hearing may be consolidated with any disciplinary hearing arising from the same accident or incident (of conduct directly related thereto) but the presiding officer shall make separate findings as to compliance with SEC.(s) 219.101 and 219.102 of this part." 49 C.F.R. SEC. 219.104(c)(1). In all other respects the hearing procedure set forth in the regulations is the same as that available under the RLA.

Thus the regulations provide that "the hearing shall be convened within the period specified in the applicable collective bargaining agreement " 49 C.F.R. SEC. 219.104 (c)(2) and that "[a] post-suspension proceeding conforming to the requirements of an applicable collective bargaining agreement together with the provisions for adjustment of disputes under section 3 of the [RLA] shall be deemed to satisfy the procedural requirements of this paragraph " 49 C.F.R. SEC. 219.104(c)(3).

The regulations neither diminish nor enhance an employee's exiting rights under an RLA collective bargaining agreement. Thus they specifically provide that they are not to be:

deemed to abridge any additional procedural rights or remedies . . . that are available to the employee under a collective bargaining agreement . . [or] the [RLA] . . . with respect to the removal [from service] or other adverse action taken as a consequence of a positive test result in a test authorized or required by this part.

49 C.F.R. SEC. 219.104(c)(4). Nor do the regulations require disciplinary action and specifically provide that they do not:

restrict the discretion of the railroad to treat an employee's denial of prohibited alcohol or drug use as a waiver of any privilege the employee would otherwise enjoy to have such prohibited alcohol or drug use treated as a non-disciplinary matter or to have discipline held in abeyance.

49 C.F.R. SEC. 219.104(c)(5).

With regard to Milam's first claim in order to prove that the Defendants breached a duty of care owed to him in taking him out of service Milam would necessarily refer to SEC. 219.104 which specifically incorporates the grievance-to-arbitration procedure of the RLA previously described. Furthermore Milam would have to establish this claim within the context of his various actions in response to the test result including signing a "waiver letter" -- an established past practice of the Defendants and an industry-wide practice recognized by the FRA see 49 C.F.R. SEC. 219.104(c)(5) electing to undergo treatment and postponing the disciplinary investigation. Finally Milam would have to refer to those provisions of the Agreement setting forth the terms and conditions governing the procedures of the random testing program which impose certain duties on both the Defendants and Milam and create certain rights in Milam.

To prove the elements of his second claim Milam would have to show that as a result of the allegedly negligent reporting of the "false positive" result Metro-North wrongfully held him out of service and charged him with a violation of Rule G which caused the alleged emotional distress. To demonstrate that aspect of the claim Milam would be required to refer to the Substance Abuse Policy and to the procedure for disciplinary investigations set forth in Rule 50 of the Agreement. It is not the case that Milam could prove the negligence and the resultant emotional distress he alleges without referring to the terms and conditions of his employment as they are set forth in Part 219 and the Agreement. See Andrews 406 U.S. at 323-24.

Therefore Milam's claims are not free-standing FELA claims but are rather disguised RLA claims that necessarily involve reference to the RLA and the Agreement and are founded on the employment relation between Milam and Metro-North.

II. The Plaintiffs Fail to State a Claim Under the FELA

Although Milam must refer to the Agreement and the RLA in proving his claims in light of the holding in Buell that the rights of railroad workers secured by the FELA remain unaffected by the RLA it is necessary to assess Milam's claims and determine whether they can be sustained under the FELA.

A. Emotional and Mental Distress

While the FELA does allow claims for damages arising from injury while working for a railroad see 45 U.S.C. SEC. 51 damages may not be recovered under the FELA for emotional injuries that are not accompanied by physical injury but are the result of "emotional anguish" caused by accusations against the employee "falsely or otherwise of a serious workplace offense." See Feldleit v. Long Island R.R. 723 F. Supp. 892 900-01 (E.D.N.Y. 1989)

In Feldleit the plaintiff had been suspended with pay pending an investigation of charges that he had sexually harassed his supervisor. After a six-week suspension the charges were dropped and the plaintiff was returned to service in a different department with no reduction in his pay. He worked in this new position for several months and then resigned. The plaintiff brought numerous state-law claims against the defendant railroad including claims for the intentional infliction of emotional harm and conspiracy to defame and his wife brought a derivative claim for loss of consortium.

After assessing these various claims within the context of the relationship between the RLA and the FELA the Honorable Jack B. Weinstein dismissed them on the ground that:

to allow recovery under FELA under the circumstances of the instant case would undermine the comprehensive administrative procedures established by the RLA.

Neither the RLA or the FELA suggest that employers who in good faith comply with the national policy aimed at eradicating employment discrimination against women should risk incurring liability for tort damages for the emotional distress suffered by a worker accused of sexual harassment by a fellow employee. Whatever emotion distress was experienced by plaintiff was an unavoidable effect of the nature of the employer-employee dispute.

Particularly where the RLA is involved there is good reason to construe the FELA to exclude non-physical injuries of the kind claimed here as a predicate for recovery for emotional harm. In this case not only has there been no showing of negligence bur there is also no basis to conclude that plaintiff was subject to the type of unconscionable abuse which is a prerequisite to recovery for a purely emotional injury.

Id. at 901 (citations and internal quotations omitted); see also Cohen v. Metro-North Commuter R.R. No. 89 Civ. 7498 (RJW) 1991 U.S. Dist. 317 1991 WL 4699 (S.D.N.Y. Jan. 11 1991) (holding no FELA claim for emotion distress arising from charges of disciplinary violations).

The reasoning in Feldleit is equally applicable to the matter at hand. First Milam's alleged injuries arise out of conduct which is subject to the grievance-to-arbitration procedures set forth in the Agreement and in Section 3 of the RLA. See 49 C.F.R. SEC. 219.104. Second the record on these motions supports the conclusion that Metro-North and Defendants Herrlin and Tulli were complying in good faith with the national policy to eliminate railroad accidents attributable to employees' use of drugs and alcohol. See 49 C.F.R. SEC. 219.1(a) ("The purpose of this part is to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs."). Third Milam pleads no facts that would raise even the possibility that he was subject to the "unconscionable abuse which is a prerequisite to recovery" for a purely emotional injury. Buell 480 U.S. at 566 n.13 (1987). *fn6

B. Prima Facie Tort *fn7

In his Second Cause of Action Milam alleges that the Defendants breached their obligation to keep the results of the drug test confidential. However even if the Complaint is read in the most generous light and it is assumed that Milam has plead the requisite elements of such a claim the claim fails because statements made in the employment context concerning the qualifications and actions of employees are qualifiedly privileged. See McManus v. McCarthy 586 F. Supp. 302 305-06 (S.D.N.Y. 1984); Stukuls v. New York 42 N.Y.2d 272 397 N.Y.S.2d 740 744 366 N.E.2d 829 (1977); Murphy v. Herfort 140 A.D.2d 415 528 N.Y.S.2d 117 118-19 (2d Dep't 1988); Pappalardo v. Meisel 112 A.D.2d 277 491 N.Y.S.2d 723 723 (2d Dep't 1985).

This privilege is destroyed only by the plaintiff showing that the defendant acted with "actual malice " see McManus 586 F. Supp. at 305-06; Trails West Inc. v. Wolff 32 N.Y.2d 207 344 N.Y.S.2d 863 873 298 N.E.2d 52 (1973) and to defeat the Defendants' present motion the Plaintiffs must offer more than a mere showing of surmise conjecture and suspicion see Trails West 344 N.Y.S.2d at 873; Shapiro v. Health Ins. Plan of Greater N.Y. 7 N.Y.2d 56 194 N.Y.S.2d 509 516 163 N.E.2d 333 (1959); Pappalardo 491 N.Y.S.2d at 723.

Metro-North has a duty and a right to investigate the alleged misconduct or poor performance of its employees see Part 219 and Metro-North's communications concerning the results of such investigations to the affected employee and other interested employees are qualifiedly privileged. See Missick v. Big V Supermarkets Inc. 115 A.D.2d 808 495 N.Y.S.2d 994 997 (3d Dep't 1985); La Scala v. D'Angelo 104 A.D.2d 930 480 N.Y.S.2d 546 547 (2d Dep't 1984).

In his Second Cause of Action Milam asserts that the Defendants owed him a duty to keep the result of his drug test "strictly confidential " regardless of the whether the result was negative or positive. Compl. at P 17. Milam claims this duty is grounded both in New York's common law and statutory law but he makes no attempt in any of his pleadings either to identify the source or to describe the scope of this alleged duty. He offers nothing more than conjecture and surmise regarding this duty and the Defendants alleged breach of it. Therefore Milam has failed to state a claim for prima facie tort that defeats the Defendants qualified privilege and arises under the FELA with respect to his removal from service following the publication of his drug test result to the appropriate interested employees of Metro-North.

III. The Plaintiffs' Claims Are Preempted By the RLA

In light of the conclusions that Milam's claims arise under the RLA and fail to state of cause of action under the FELA it remains to be determined whether these claims and this Court's jurisdiction are preempted by the grievance-to-arbitration mechanism of the RLA. If they are preempted RLA the adjustment board would have exclusive jurisdiction and this Court would have to dismiss the Complaint for lack of subject matter jurisdiction. The resolution of this issue turns on whether Milam's dispute with Metro-North is "minor" in nature and triggers the preemptive mechanism of the RLA.

A. The Plaintiffs' Claims Are "Minor" Disputes

Claims involving the interpretation or application of RLA collective bargaining agreements which define rights of the parties are "minor" disputes subject to the exclusive jurisdiction of the adjustment board and they stand in contrast to "major" disputes which involve the formation of collective bargaining agreements or their modification. See Baylis v. Marriott Corp. 843 F.2d 658 662-63 (2d Cir. 1988); Independent Union of Flight Attendants v. Pan Am. World Airways Inc. 789 F.2d 139 140 (2d Cir. 1986) ("Flight Attendants"); Air Cargo Inc. v. Local Union 851 Int'l Bhd. Of Teamsters 733 F.2d 241 245 (2d Cir. 1984); Air Line Pilots Ass'n v. Texas Int'l Airlines Inc. 656 F.2d 16 20 n.6 (2d Cir. 1981).

The term "minor dispute" refers to a wide range of employee-employer disputes. It encompasses the "grievances that arise daily between employees and carriers regarding rates of pay rules and working conditions." Union Pac. R.R. v. Sheehan 439 U.S. 89 94 58 L. Ed. 2d 354 99 S. Ct. 399 (1978) (per curiam). The term also refers to disputes that are "arguably governed" by the collective bargaining agreement or have a "not obviously insubstantial" relationship to it such that these disputes are "inextricably intertwined with the grievance machinery of the collective bargaining agreement and of the R.L.A." Magnuson 576 F.2d at 1369-70 (citations and internal quotation marks omitted).

"Where an employer asserts a contractual right to take [a] contested action the ensuing dispute is minor if the action is arguably justified by the terms of the parties' collective bargaining agreement." Conrail 491 U.S. at 307. This includes a dispute arising from a railroad's unilateral imposition of a urinalysis program to screen its employees for drug use when the employees' union had given the railroad unilateral authority in the past to determine the appropriate tests to conduct during employee medical examinations. See Railway Labor Executives Ass'n v. Norfolk & W. Ry. Co. 833 F.2d 700 706-07 (7th Cir. 1987). Such disputes are "minor" in nature because they can be resolved by an interpretation of existing agreements.

Finally "the labor management adjustment boards created pursuant to [RLA SEC.204 ] 45 U.S.C. SEC. 184 have exclusive jurisdiction over 'minor disputes ' which include disciplinary disputes even if involving employee discharge." Flight Attendants 789 F.2d at 141; see also Andrews 406 U.S. at 323-24 (allegation of "wrongful discharge" does not save plaintiff's action from RLA's mandatory provision for the processing of grievances); Zimmerman v. Atchison Topeka & Santa Fe Ry. Co. 888 F.2d 660 662 (10th Cir. 1989) (dispute between railroad and former employee who claimed he was demoted in violation of protective agreements contained in collective bargaining agreement and in bad faith and with malicious motive was "minor dispute" under exclusive jurisdiction of adjustment board) *fn8; Carson v. Southern Ry. Co. 494 F. Supp. 1104 (D.S.C. 1979) (dispute between railroad and employee over supervisor's action of taking employee out of service and charging him with a violation of Rule G because he appeared to be drunk on duty was a "minor dispute" arising under the collective bargaining agreement and thus claim was in exclusive jurisdiction of the adjustment board).

Milam's claims constituted a "minor" dispute under the RLA. Ultimately they could have been resolved through the interpretation of the existing Agreement by arbitration before the adjustment board. See id. at 1112. In fact this dispute was resolved through one of the dispute-resolution avenues available to an employee through the RLA and the Agreement namely the mechanism involving the waiver letter and voluntary treatment.

B. Preemption

Claims arising out of "minor" disputes are preempted by the RLA even when it appears that no specific provision of the collective bargaining agreement is directly applicable. See generally Conrail 491 U.S. at 312 ("In this case Conrail's contractual claim rests solely upon implied contractual terms as interpreted in light of past practice. Because we agree with Conrail that its contractual claim is neither frivolous nor obviously insubstantial we conclude that this controversy is properly deemed a minor dispute within the exclusive jurisdiction of the [Adjustment] Board.") *fn9 Andrews 406 U.S. at 323 ("the compulsory character of the administrative remedy provided by the [RLA] . . . stems not from any contractual undertaking between the parties but from the Act itself"); Majors 525 F. Supp. at 857 ("So long as [plaintiff's] claim is founded on some incident of the employment relation it is immaterial for purposes of coverage by the [RLA] whether the claim is expressly covered by the collective bargaining agreement or is independent of that agreement."). The question then is whether the Plaintiffs' claims constitute an attempt to enforce the Agreement and thereby fall under the preemptive scope of the RLA. See Hammond 848 F.2d at 97.

In Farmer v. United Bhd. of Carpenters & Joiners Local 25 430 U.S. 290 51 L. Ed. 2d 338 97 S. Ct. 1056 (1977) the Supreme Court set forth the two-pronged test by which the preemptive power of the RLA is triggered: first the state interest in the claim must be limited; and second state action creates the potential for interference with the federal regulatory scheme. Id. at 197

With regard to the first prong of the Farmer test even if the State of New York has an interest in protecting its citizens from the possibility of false positive results in random urinalysis tests that interest is not "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." Id. at 296-97 (quoting San Diego Building Trades Council v. Garmon 359 U.S. 236 243-44 3 L. Ed. 2d 775 79 S. Ct. 773 (1959)). Furthermore the legitimate concerns that the State of New York has in this area are necessarily tempered by the fact that the issue of random testing is an explicit issue addressed in the collective bargaining process between the railroad and the union. Thus the worker is not left to his own devices to assert his rights in negotiating with his employer. Rather the worker's union protects his interest in the area of drug testing through its power and ability to bargain behalf of him and other union members.

With regard to the second prong the urinalysis test about which the Plaintiffs' complain was a random test conducted pursuant to regulations promulgated by the FRA in Part 219. Part 219 is a critical feature of the federal regulatory scheme governing the actions and condition of railway workers. The method of testing is also a critical issue addressed in the collective bargaining process and a key feature of the Agreement. To permit Milam to bring state claims arising from the federally mandated and defined test that was an item explicitly addressed in the Agreement would seriously undermine the effectiveness of the mandatory arbitration provisions of the RLA and it is this provision that was intended to facilitate timely resolution of all disputes between employees and employers in the railroad industry.

Therefore Milam's dispute with Metro-North is a minor dispute and is of such a character that it triggers the preemptive force of the RLA. While this action was appropriately removed from the Supreme Court of the State of New York to this federal court see Boggs v. Consolidated Rail Corp. 112 LRRM (BNA) 2295 93 Lab. Cas. (CCH) P13 353 (E.D. Pa. 1982); Carson 494 F. Supp. At 1105 this Court does not have subject matter jurisdiction to reach the merits of the Plaintiffs' claims under the RLA. Jurisdiction over the subject matter of this action and its underlying dispute rests exclusively with the adjustment board.

IV. The Claim for Loss of Consortium is Derivative and Must Be Dismissed

Under New York common law a claim for loss of consortium or services is a derivative action and does not exist "independent of the injured spouse's right to maintain an action for injuries sustained." Jordan v. Lipsig Sullivan Mollen & Liapakis P.C. 689 F. Supp. 192 196 (S.D.N.Y. 1988) (quoting Liff v. Schildkrout 49 N.Y.2d 622 427 N.Y.S.2d 746 749 404 N.E.2d 1288 (1980)). Although a wife has a right to recover for loss of consortium when "the husband's cause of action has been terminated wither by judgment settlement or otherwise that should operate to bar the wife's cause of action for consortium." Jordan 689 F. Supp. at 197 (quoting Millington v. Southeastern Elevator Co. 22 N.Y.2d 498 507-08 293 N.Y.S.2d 305 312 239 N.E.2d 897 (1968)); see also Wittrock v. Maimonides Medical Ctr. 119 A.D.2d 748 501 N.Y.S.2d 684 685 (2d Dep't 1986) (dismissal of wife's main action for medical malpractice required dismissal of husband's derivative claim for loss of consortium).

Therefore because Milam's claims are dismissed the derivative claim of Vivian Milam for loss of consortium is also dismissed. See Feldleit 723 F. Supp. at 902; Bloss v. United States 545 F. Supp. 102 105 (N.D.N.Y. 1982).

Conclusion

For the foregoing reasons the Plaintiffs' motion to remand this action to the New York Supreme Court is denied and the Defendants' motion to dismiss the Plaintiffs' Complaint for failure to state a cause of action for which relief may be granted and for lack of subject matter jurisdiction is granted.