Richard Kaschak v. Consolidated Rail Corporation

willingness pro- or statements a ments in furtherance KASCHAK, it with information Plaintiff-Appellant,

vide Richard appellant, because dis- investigation an un- identity would constitute closure of CORPORATION, CONSOLIDATED RAIL privacy. Balancing invasion of warranted Defendant-Appellee. get of White to of interests as to the the interests of this information No. 81-3383. confidentially weighs others to be treated Milliken, Deering against disclosure. See of Appeals, United States Court Irving, Inc. v. Sixth Circuit. Cir.1977). Argued Oct. Exemption privileges 5 embodies May Decided

against discovery attorney-client such Banc En Rehearing NLRB v. work-product privileges. Rehearing and 22,1983. 132, 149, July Sears, Roebuck & Denied This case, apply, in this to materials re policymaking “deliberative flecting

processes,” including legal research which is

predecisional, prior such as that obtained pro the nature of future tax

determining

ceedings, any, against if White. E.P.A. Mink, 73, 89, 93

We are satisfied that the district court in

this case made a sufficient examination and

analysis supplied index and the affi- index, accompanying

davits

applied proper criteria in its determina-

tion that seriously impair disclosure would

federal tax in each administration instance.

We further affirm the decision not to dis-

close the to appel- documents and materials

lant because met its burden estab- IRS

lishing exemption under FOIA

reasons indicated. judgment of the district court is ac-

cordingly Affirmed.

MERRITT, Judge, concurring. Circuit

I agree with the that the materials question subject here are not to disclo-

sure under Title United Section

States Code. For set out in the the reasons

portion of the opinion Court’s entitled “Sec- Disclosure,”

tion 6103 Exemption From I

see questions no need to the other consider

in the case. (the Board)

Railroad Board had jurisdiction dispute exclusive over and, thus, gave which rise to this action that Kaschak’s resort to the federal courts that, was improper. although We find resolution of minor disputes generally lies within the exclusive Board, allegations in the instant com- plaint, true, are place if sufficient this particular within the bounds fed- jurisdiction. eral we Accordingly, necessary find it to re- mand this cause the district court for proceedings further not inconsistent with this opinion. The district court must deter- appellant’s mine failure to re- through sort to the Board occurred no fault of his own despite every good faith effort to first invoke all contractual and administrative remedies. If court finds that Kaschak was relying his union process grievance, his that such reliance was reasonable in the circumstanc- es and that it was that reliance which caused present his failure personally Board, claim against the action Con- rail cognizable would then be properly federal court.

I The appellant against filed this action Conrail in the United States District Court Ohio, for the Northern District of Eastern Appellant’s complaint Division. indicates employed by that he was for Conrail some Haines, Dennis Barry (argued), Laine time. He wrongfully claims he was Ohio, Youngstown, for plaintiff-appellant. July or discharged August 1977 and that denied him discharge employ- certain Skulina, Cleveland, Ohio, Thomas R. Den- benefits, ment rights and all in violation of nis (argued), A. Arouca David S. Fortney, the applicable bargaining agreement. Pa., Philadelphia, defendant-appellee. for The United Union Local EDWARDS, Before Judge, JONES, Chief (the Union) appellant’s was the collec- CELEBREZZE, Judge, Circuit Senior tive representative. The bargaining appel- Circuit Judge. timely request lant contends that he filed a for grievance procedures in connection with JONES, Judge. NATHANIEL R. Circuit his discharge, that the failed to but Union Kaschak, Plaintiff-appellant, ap- Richard in accordance with peals from order of district court requirements bargaining time complaint dismissing against his em- that, agreement. appellant as a asserts ployer, (Con- Rail Corporation Consolidated the duty result of the Union’s breach of rail) subject jurisdiction. for lack of matter representation, fair he lost the to have grievance processed district court found that National before Board. Accordingly, exclusive. tion remains impropriety charges Despite by the trial granted to dismiss was Conrail, motion this the Union and both find that the dis- disagree and judge. We against Conrail solely action was filed 12(b)(1) inap- to Rule pursuant missal bargaining violation alleged propriate.2 a motion to dis- filed Conrail agreement. subject of mat- for lack complaint miss the II Federal Rule of pursuant jurisdiction,

ter the mean- a rail carrier within The district court is 12(b)(1). Conrail Civil Procedure seq.3 et RLA, and, ing of the U.S.C. argument § after oral declined to hear relationship in this employer-employee de- The supporting papers, consideration governed by the necessarily case is thus The court held that motion. nied the of that Act. that (RLA) requirement Railway Labor Board for resort to the employees aggrieved a framework for provides RLA rather grievances, of the resolution em between an disputes settlement of courts, subject to certain than the federal which arise out of ployee and a carrier that one then noted The court exceptions. of the collec interpretation application or when an exception such exists commonly re bargaining agreement, tive prosecute griev- relies his union upon 2 of disputes.” “minor Section ferred to as relat- breaches its ance and the union prefer dictates a 45 U.S.C. § ing thereto. disputes the settlement of such ence for reconsider contractually agreed- a motion to Conrail filed accordance with the however, If, denial, upon certain premised upon grievance procedures.4 primarily resolved, 3, 45 of this Court.1 The district cannot be so § recent decisions that, provides an alter specifically even in the face court then concluded U.S.C. § doing so. U.S.C. representation of unfair on nate mechanism allegations of First, jurisdic- (i) provides: the Board’s part § otherwise, body, judicial McKinney or or Association of Ma 1. v. International chinists, (6th Cir.1980) any possession and Davis of in the of the business when River Terminal “carrier” .... such 17, 1981). Cir.1981), (April squarely reh. denied undisputed fits with- It is that Conrail “carrier” as it is defined in the in the term judge only disagree the trial 2. We with RLA. compelled extent he felt to retreat from that original position. The initial and memorandum begins follows: 4. 45 U.S.C. Section 152 carefully denying order the motion to dismiss Duty of Carri- Section General Duties— arguments now before this considered the Employees Disputes. to Settle ers and simply find that there was no rea- Court. We son, carriers, duty of FIRST. It shall be the all reconsideration, for the district court officers, agents employees to exert their every and changed. order to be make and maintain reasonable effort to defined, part, pertinent as fol- “Carrier” is rules, concerning pay, agreements rates of lows: conditions, working and to settle all dis- and putes, Section 151. Definitions. application arising out of the otherwise, chapter and section 225 of When used in this agreements or in order of such chapter purposes of said Title 28 and for the any interruption or to the avoid to commerce and section— any any growing operation of carrier out of any ex- FIRST—The term “carrier” includes employ- dispute the carrier and the between press company, sleeping-car company, carri- ees thereof. railroad, by subject er to the Interstate Com- by disputes representatives of Consideration Act, any company merce ly which is direct- and disputes carrier or All between a SECOND. by indirectly or owned or controlled or employees shall be carriers and its or their considered, and, any under with carrier common control decided, possible, all if operates any equipment railroad and which represent- expedition, in conference between any (other performs or facilities service or designated so to con- and authorized atives trucking service) than in connection with the fer, respectively, carrier or carriers elevation, delivery, transportation receipt, employees thereof interested and transit, refrigeration icing, transfer in age, or stor- dispute. transported by handling property of railroad, receiver, any trustee or other between or disputes Ill group of and a carrier or carri- While the appellant concedes that ers out of growing grievances out or principles regarding the above-stated RLA application agree- interpretation true, dispute resolution hold generally he rules, or concerning pay, ments rates of claims facts enumerated in his conditions, working pend- including cases fall complaint jurisdic outside the Board’s ing ap- on the unadjusted date disputes. tion over minor Kaschak con Act, proval of this shall be handled tends unfair allegations repre up including usual manner sentation the Union his case out take chief officer of the carrier des- operating portion scheme which ignated but, disputes; to handle such fail- argues commands resort to the Board. He ing adjustment to reach man- this to, he but attempted since was fore ner, by peti- referred from, resort procedures closed to the con tion to parties by party either 3 of templated Sections the Adjust- the appropriate division of the he now maintain a action may legal against ment Board with a full statement of the his wrongful discharge. Conrail for bearing facts supporting and all data upon disputes. the appellant largely argument The bases his The and this have Supreme Circuit Sipes, v. Vaca interpreted section as placing this exclusive 903, (1967), its progeny. minor dispute over resolution There, an action under the Labor Man- the hands of the Board. Andrews agement (LMRA), Relations Act 29 U.S.C. Railroad, Louisville & Nashville seq., Supreme et the Court estab- § rule lished the that: McKinney v. International Association of discharged ... the wrongfully employee Machinists, (6th Cir.1980); F.2d bring an may action employer Transportation Local United Union in the face of a based upon defense Baker, (6th Cir.1973). Accord- remedies, to failure exhaust contractual ingly, resort to forego provided prove can that the to have with a opt Board and a as bargaining agent union breached its considered, instance, carrier in the first fair representation handling made, such a court. Where choice is employee’s grievance. 12(b)(1) a motion pursuant to dismiss must be e.g. McKinney sustained. See (empha at 914 Machinists, International Association of su- added). appellant sis The contends that pra. can, be, principle this and should extended Any controversy meaning over the under Conrail actions the RLA. disa bargaining agreement collective a grees. particular fact situation will be deemed contends Faca Conrail line of purposes “minor for dispute” of RLA dis cases, establish, the principle they pute appellant specifi resolution. Id. The in the inapplicable RLA context. Conrail cally discharge claims that his was in viola that the points out LMRA and the RLA are tion of the bargaining agreement, statutory schemes, with distinct those cov- placing an interpretation agreement ered the latter being explicitly exempted complaint. at the heart of his The fact provisions from LMRA. More he the claim for characterizes as one specifically, (1) Conrail notes 301 of § “wrongful discharge” its sta does not alter a federal explicitly LMRA creates cause dispute. tus as a minor Louis Andrews v. disputes, for employer-employee action Railroad, ville It supra. ap & Nashville provision, RLA such while the contains no pears, is nec initially, that Kaschak’s claim (2) the National Labor Relations Board is a essarily subject requirement sub mission to review. body Board available for resort to arbi- voluntary even absent obligations, contractual waiving to first (thereby

tration 301) provision saying while the National Railroad so. 301-like invoke § § statutorily-created is a Board which are the question remaining The is forum, (3) unlike the arbitration means for the enforcement grievant per- LMRA, permits RLA created obligations which have been through that arbitra- seek redress sonally Conrail, the and Kaschak. between Union position is that to tion It Conrail’s process. of the means of Generally, propriety pursue grievance allow Kaschak on a case- is to be determined extend fed- impermissibly court would be N.W.R. by-case basis. Co. ignore mandatory jurisdiction, eral of the RLA and to blur features at 1735. Conrail contends that Acts. the difference between mechanism presence cause of that a federal argument in this dispute resolution is determinative within the four cor explicit action must be case, position that however. It is their courts may before federal ners of the RLA involved, dispute” whenever a “minor is with disputes arising resolve thereunder conclusively appropri- review is Board Court has re out merit. ate method of enforcement. This reads the issue and deter addressed peatedly requirement of resort to the Board too of the RLA are mined that broadly. the parties, more than mere exhortations to creating legal obligations jurisdiction of the Board has While the appropriate. whatever means See and exclu- carefully guarded been deemed Union, Transportation 402 & N.W.R. Co. v. situations,” sive “in at least some Andrews 570, 577,91 29 L.Ed.2d U.S. S.Ct. Co., 406 at v. Louisville & Nashville R. U.S. of Railroad (1970); 187 Brotherhood Train 325, 1570, clearly 92 it is not man- S.Ct. 768, 1022, Howard, 72 men v. S.Ct. datory employer-employee for all RLA dis- (1952); Virginian R. Co. v. 96 L.Ed. 1283 putes involving interpretation an of the col- 40, 515, No. 300 57 System Federation U.S. bargaining agreement. lective The Su- 592, (1937); Texas 81 L.Ed. 789 S.Ct. recognized ex- preme specifically Court has of N.O.R. Co. v. Brotherhood employ- that an ceptions requirement to the 427, Clerks, 548, 74 L.Ed. 281 50 U.S. S.Ct. present ee his claim to the Board personally Airlines (1930). 1034 also Summit See requirement prevent where that would 295, No. Teamsters Local Union an for the fashioning adequate remedy of 787, Cir.1980). (2d unique 789-90 The his O’Mara, aggrieved employee. See Czosek v. tory supports behind the RLA this conclu 25, 770, 90 25 L.Ed.2d 21 S.Ct. piece as a of fed Though sion. formulated (1970); Glover v. St. Louis-San Francisco was, acknowl legislation, eral “it and was Co., 548, 21 U.S. be, edged agreement to worked out be Gibson, (1969); Conley L.Ed.2d 519 labor, management tween and and ratified U.S. by the and the President.” Chica Congress v. Louisville & Nashville Railroad Steele go & N.W.R. v.Co. 89 L.Ed. 173 U.S. S.Ct. at 1735. also U.S. at S.Ct. See (1944).5 of Machinists v. International Association cases, Street, In each of these the Court was U.S. preserving purposes concerned with be- Act, are, thus, quasi- of the RLA enforceable as hind the formation of the and behind necessary ing to Conrail contends this line of cases is that a decision on it was We, however, distinguishable present holding. do not read and that over the employer only employee language is available of the various cited cases as nar- where alleged rowly Nothing in that the union and the as does the Court’s carrier have Conrail. deny employment holdings are to acted in concert to him discussions intimates representation rights. be so limited. Czosek, specifically not- reserved this issue dispute, clearly tlement of a it is not fulfill- arbitration of the Board the establishment Among general pur ing purpose making itself. mechanism whole, RLA are the avoid protecting against enumerated nor is it the dis- poses interrup with or any ance of interference Congress commerce which ruption commerce, preservation tion of cases, unquestioned feared. In such resort the promo employees’ right organize very review frustrates the reason to Board orderly settlements prompt tion of being.8 Obviously, for its this could not parties. 45 U.S.C. disputes among all have been the result intended. one of the funda Additionally, 151a. § Rather, appears it that there were certain RLA and all themes underlying mental surrounding employer-em factual scenarios importance is the policies labor ployee disputes contemplat which were not the individual compensating ed when the scheme was formu of his or her injuries caused a violation instance, in lated. For Glover v. St. Louis- Brotherhood of Elec rights. International Co., supra, Francisco R. the Court ex San Foust, 42 at trical Workers v. plicitly recognized exception ex 2126, 60 L.Ed.2d 698. 99 S.Ct. 2121 at haustion of administrative remedies re Service, Postal also Bowen v. United States quirement proceed when the effort to - -, 74 L.Ed.2d wholly those remedies would be futile. 393 at 551. In such situa It in an effort to best advance these statutorily-created clear that the tions interacting that the resolu- policies simply scheme is insufficient arbitration RLA was estab- tion mechanism of the accomplish very designed ends it was Congress recognized potential lished. further. transportation, for the disruption personally Were Kaschak have hence, commerce, where carriers and presented to the Board at the griev- are unable to settle filed, his time this action was efforts would likely sympathy ances.6 The for the uncom- futile: have been The Board have was viewed as pensated grievant Kaschak’s claim been free to refuse hear efficiency real threat of this very untimely, pow as and this Court would be important industry. The RLA arbitration review a dismissal on those created, therefore, a erless to provide scheme was to grounds. Union Pacific Railroad Shee peaceful for the settlement of framework han, 58 L.Ed.2d Where that disputes.7 these (1978).9 set- effectively prevents any scheme itself Cong. p. pra, govern representation See H.R.Rep. 69th 1st Sess. to an unfair suit 6. No. Price, compensatory damages for based on a un- 1. See also Union Pacific R.R. Co. v. grievance alleging ion’s refusal to 3 L.Ed.2d Lines, Inc., reject- wrongful discharge. Air The Court there Pratt v. United compelling (N.D.Cal.1978). F.Supp. ed the contention that an order only remedy, employee’s arbitration was the equitable 7. Id. damages and concluded that necessary when to relief could awarded prior particularly 8. The discussed Foust court compensation. full 386 U.S. at 196 ensure allowing judicial decisions resort to a forum 919], [87 remedy depended where the existence of a upon Sheehan, such a result: opted pursue plaintiff had In employer complaint against approving judicial in state In “resort to the usual claim, damages injunction The state court dismissed remedies of and award of court. Only relying appropriate,” then did the em- on Andrews. when Steele v. Louisville dispute. ployee of his at 207 seek Board resolution Nashville R. 323 U.S. [192] [65 dispute, (emphasis to consider The Board refused however, S.Ct. 226 at 89 L.Ed. 173] finding time added), emphasized that it had become relief Court awaiting disposition the state while fashioned to make the barred each case should be considering injured which that employee In the extent to Id. at 206-07 courts. [65 whole. reviewable, Supreme princi- compensation Court was S.Ct. at This decision 233-234]. Sipes, ple again as follows: in Vaca su- dealt with the issue invoked dispute not RLA ciple underlying only no that an there is doubt While mechanism, re- to have his minor labor rela- may opt resolution but all than before the a court rather solved before tions schemes.12 Board,10 is not the situation which distinguisha- us are the facts before Since to this Court. presents Kaschak’s claim give which would rise to ble from those he never had Kaschak contends are, jurisdiction, exclusive Board the Board and the chance choose between fact, incapable proper resolution in that Rather, he claims that he district court. forum, it is clear that resort to the Board is present griev- requested the Union en- not the mechanism Board and that the time for ance to the legal obligations forcement of Conrail’s passed resort to the Board while this context. We now must determine represent on the Union to relying he was obligation prop- is one which is only “choice” Kaschak claims to him. erly judiciary. The fac- than have made was for a collective rather tors to be considered in this determination of his claim. presentation an individual were delineated during counsel stated oral ar- Kaschak’s v. Transportation & N.W.R. Co. gument good that Kaschak had made Union, supra: attempt faith to invoke all contractual and imposes legal Given that 2 First obli- § procedures administrative on the gation parties, question re- reliance on the which that it was his Union obligation mains whether it is an enforce- ability alone resulted in his loss of the able the judiciary. We have often Taking resort Board. all Kaschak’s been questions confronted with similar true, we in the allegations as must con- connection with other duties under the motion,11 12(b)(1) appears text Railway Labor Act. cases Our reveal his claim does fall outside the normal statu- that where the statutory language and tory relegating solely scheme and that him legislative unclear, to a only history propri- Board-administered serve compensatory pre- ety judicial to undermine the turns on the judicial Buck, Adjustment review of Board orders L.Ed. specific grounds: (1) is limited to three fail- Adjustment comply ure of the Board Act; requirements Labor Foust, brought an action under the (2) Adjustment failure of the Board to con- length importance the Court discussed at form, confine, itself to matters within the compensating the individual in order scope jurisdiction; (3) of its fraud or preserve operation the smooth of the overall n corruption. (q). 45 U.S.C. Section 153 First Significantly, labor relations scheme. Only more one or of these bases Court noted: court set aside an order of the compensation principle is also reflected Board .... and the Board cer- representa- in Vaca’s refusal to hold unfair tainly acting jurisdiction within its and tion claims within the exclusive conformity requirements with the of the of the Labor National Relations Board. Be- by determining question the of whether “public effecting cause the interest the governing the time limitation of the collec- laws, policies of the federal labor not the tive-bargaining agreement was tolled the wrong employee, done the individual is al- filing respondent’s state-court of action. Re- ways principal the Board’s concern in fash- spondent does not contend otherwise. Ac- remedies,” ioning practice unfair labor we cordingly, agree we with the district court judicial feared that the denial of a forum respondent simply failed to demonstrate might purposes underly- “frustrate the basic any grounds of of the re- existence for ing duty representation.’’ of fair Vaca v. (q). view set forth in Section 153 First Sipes, 8, supra at 182 n. [386 U.S.] [87 See Andrews v. Louisville & Nashville R. 913], S.Ct. at 913 n. See also v. St. Glover Co., 406 U.S. 92 S.Ct. 32 L.Ed.2d 95 Louis-San Francisco R. (1972); McKinney v. International Ass’n. of 548, 550-551, 328-329 S.Ct. L.Ed.2d [89 etc., Machinists, Cir.1980). 519] 442 U.S. at 49 n. 99 S.Ct. at 2126 n. Rhodes, 11. See Scheuer v. added). (emphasis S.Ct. 40 L.Ed.2d 90 Gibbs Service, - U.S. in the of importance scheme United States Postal at -, Act, at 595. of the courts to capacity necessity and the effectively, enforce capacity The courts to enforce this judicial right if the obligation unquestionable. Section 301 of prove is not to illuso- aggrieved party Management spe- the Labor Relations Act ry- cifically requires federal courts to resolve at 1736. We are disputes arising employ- U.S. between noncarrier factors is satis- convinced that each of these There is employees. ers and no reason us, that before courts are any fied cases such as to believe that less particu- capable making resolution is therefore the same determinations judicial larly appropriate.13 they in the one context than Chicago other. Accord N.W.R. & Co. v. to act in accordance employer’s duty The bargaining with the terms of the collective at 1736. heart of the agreement very lies at duty, such a statutory scheme. Absent Finally, rights under the virtually Act’s would be unen- may very prove RLA well illusory were we forceable, making the entire collective bar- to reach different result here. To limit than a series of gaining process no more employee’s right an resolution to Moreover, meaningless closely exercises. terms expressed those and time limits in the obligation employer’s connected bargaining agreement may very paramount impor- employee, grant well be to him her no or “[o]f tance, right is the who has employee, contemplates at all. The RLA injured by employer’s presence been both the and the of three the employer, entities: breach, (as union’s to be made whole.” Bowen the individual and the union Ash, in the limited we have Cort situation defined. The (1974), L.Ed.2d formulation of the RLA and of all labor detailed a number of factors to be con- Court schemes has occurred with these ends con- remedy determining sidered whether satisfy stantly in mind. These facts the consid- expressly provided in a statute can be deemed implicit therein. These include: analysis readily erations relevant to as the Cort (1) they justify through the result we reach right in the statute creates a federal favor of application & N. W. R. Co. v. Trans- plaintiff; (2) any whether there is indica- portation Union. intent, legislative explicit implicit, tion of feel, however, remedy We do not that a need one; deny either to create such a (3) or to case; implied unique in this nature of underlying whether it is consistent with the having go RLA relieves us from that far. the. remedy; (4) imply scheme to such a noted, quasi-contractual in na- As ture, the RLA is traditionally whether the cause of action is one obligations creating legally enforceable implied left to state law so that an cause of appropriate. means whatever inappro- action based on federal law would be priate. jurisdiction only inquiry regarding Board Our recently reaffirmed the requires what extent the that we ask to statute practice implying under the Cort itself has defined the enforcing means for Merrill, analysis Pierce, appropriate. Lynch, where obligations. a limited class of these Curran, Fenner Smith only question under the RLA is where In Mer- existing remedy may be enforced. rill, Lynch, reemphasized impor- the Court Merrill, Lynch contrary require a does not looking congressional tance of intent via an First, perception result. new, to the extent it defines a “Congress’ examination of exacting determining shaping reshaping.” law 378, more test for when it was 456 U.S. at exists, nonexpress remedy 102 S.Ct. at 1839. it does so with modem, legislation spe- that, relegated We no reference cifically detailed have doubt were we — analysis remedy prior dealing distinguishing a cases under implied appellant schemes, RLA in could be favor of the with broad such as older situated, similarly we would find RLA, which, nature, and those by their left the deter- such a in the case before us. As dis- mination of the enforcement meth- body opinion, congres- cussed in the of this Second, noted, as ods to the federal courts. compensate injured employees sional desire to Merrill, Lynch if were to command a dif- even disrup- protect commerce from needless and to tion analysis, in this case would be ferent the result virtually growing disputes out of labor same, change. only the semantics would commands a for individual 910 Co., 31 n. Chicago River & I.R. U.S. employees). of the

representative employee 636 n. the individual rights are not coextensive similarly refused employer (1957), and this Court against union; under party each with those the two analogies between to draw blanket right maintains distinct the statute Fire Acts, of Locomotive see Brotherhood two. of the other obligations enforce the Transporta Enginemen v. United men and exer- rights separate Absent Cir.1972), the tion 471 F.2d there employee, the individual cisable looked to the Court has often Supreme collusion be- possible check on be no Labor Relations the National LMRA and to the and the union employer tween construing interpreting or (NLRA) all of the individuals. of some or detriment Train Brotherhood of R.R. the RLA. See R. Louisville & Nashville e.g. See Steele Co., supra; Jacksonville Terminal men v. addition, of collec- the terms Co., In supra. Co., Nashville R. v. Louisville & Steele have been the agreements bargaining tive 192, 200-201, U.S. union between the subject negotiation Trainmen v. To (1944); Railroad L.Ed. gener- employee with the employer, and the ledo, Co., 61 n. P. & W.R. formulation from their ally removed 413, 419 L.Ed. 534 Cf. n. Often, will administration. of Ma International Association Duggan v. expertise neces- knowledge or not have the chinists, (9th Cir. F.2d 1087-88 the sub- comply sary interpret where the 1975). is true particularly This requirements procedural stantive and capa to be considered general principles Buffalo v. So. such contracts. See Schum impor application. ble of consistent Cir.1974); Co., (2d principle under compensation tance of the Service, 542 Postal Dent v. United States schemes and labor relations lies all federal 1982). Where (S.D.Ohio, F.Supp. in the applied has been often discussed resort personally failure employee’s LMRA and the RLA. of both the on context out of reliance solely Board arises to the Postal Compare a function of his Bowen United States and is expertise the union’s same, to Service, failure International Brother supra or her own lack remedy is judicial Foust, supra. afford of Electrical Workers hood to be to a denial tantamount fact, applying Vaca v. though collective bar- party legally to a it, the the facts before Sipes on all fours to counte- We cannot gaining agreement. discussed specifically Supreme Court has result. nance such a support its rationale the case and finding that to our In addition employees access granting carrier decisions disputes such can be jurisdiction over of the federal courts. to the itself, unper we are in the RLA grounded Elec Brotherhood of International e.g. analogy to the result suaded that an Foust, Glover v. supra; trical Workers inappropriate. Sipes, supra, Vaca v. Co., supra. Francisco R. Louis-San St. has warned While the Court im- reject appellee’s Accordingly, we importation of the the wholesale ignore the this should plication LMRA into the see provisions of the merely v. Sipes result in Vaca teaching and Jackson Brotherhood of R.R. Trainmen v. em- because, facts, it dealt with an on its 369, 383-84, ville Terminal relationship under ployer-employee 1109, 1117-1118, 1124, 22 395, 89 S.Ct. LMRA.14 Trainmen v. Railroad by going properly be- resolved any attempt bright issues line find to draw a We any applicable yond statuto- four comers of particularly distinction the two Acts between Moreover, ry to the extent troubling light extent scheme. the fact that exists, policy corpus we are to exists, labor of national that a federal law it exists common during developed law it first in the policy. look for v. United the area of labor Bowen - interpretation at --, of the Na- Service, administration States Postal Brotherhood of Thus, Act. appropriate, tional Labor Relations labor S.Ct. at 592. where O’Mara, IV sek v. supra; Harrison v. United Transportation Union, 530 F.2d at 564-67 recognize We that the circuits are appar (dissenting opinion). Though the precise ently agreement on the issue we question of a potential union’s liability for today.15 address The Fourth Circuit has damages caused solely by the underlying held that Board’s over mi breach of the collective bargaining agree- disputes exclusive, nor is always with no court,17 ment was not before the the broad possible exception. That court has chosen language in the Supreme Court’s most to read the jurisdiction” “exclusive lan recent statement on the relative liability guage in literally, Andrews under all circ parties in these dispositive cases seems umstances.16 Dorsey Chesapeake & Bowen, of the issue. In the Court held that Co., Ohio (4th 476 F.2d 243 Cir. wrongful discharge case where the 1973). Having conclusion, reached such a employee claims that the union violated its however, that placed court was in the posi duty fair representation, damages having tion of to fashion a awarded apportioned must be between the injured employees whose resort employer and the union according to the Board has been time barred while relying each, relative fault of with the union bear- on the union. ing the responsibility for the increase in lost In Harrison v. Transportation United Un compensation damages and other caused ion, (4th Cir.1975), that prob its refusal process the grievance. Even lem was resolved in favor of allowing the were the issue still legally arguable, we also aggrieved employee compensato to recover that, do not believe from a policy viewpoint, ry damages from the union for both the a union should be accountable for damages incremental resulting loss from the union’s not in any way caused its own breach. handling and for the harm many The result in instances would be to caused employer’s initial breach of immunize an admittedly wrongful employer bargaining agreement. from liability for own actions. Such a however,

It does not appear, that a union rule would also effectively remove from a could ever legally be held accountable for union much of its discretion over the deci- damages caused solely by employer’s ac- sion of whether or not to griev- tions. e.g. Bowen v. United Postal ance. The threat of such total liability for Service, supra; International employer’s Brotherhood wrongs push would likely Foust, of Electrical supra; Workers v. Czo- union into processing grievances all out of Co., Railroad Trainmen v. Terminal 394 U.S. at situations where the had chosen to (applying princi- 89 S.Ct. at 1117 pursue NLRA present in-court remedies rather than to ples context). to resolve issues in RLA language their claims to the Board. The explicit broad, those cases is so ever, and so how- Compare Co., Schum v. Buffalo appear compelled accept that we them (2d 1974); F.2d 328 Cir. Otero International espousing position directly which is con- (IUE), U. of Elec. R. & M. Wkrs. 474 F.2d 3 trary to the one we now take. 1973); Lines, Inc., Cir. Conrad Delta Air (7th Cir.1974); F.2d 914 Pratt v. United Air precise 17. The issue before the court was lines, Inc., F.Supp. (N.D.Calif.1978); whether the union could be held liable for the Hennenbury Transport v. United Workers Un compensation accruing America, amount of lost after the F.Supp. ion of (Mass. 1980) Local decision, hypothetical date Transpor arbitration and Harrison v. United tation, (4th Cir.1975); Haney 530 F.2d 558 which decision would have resulted in rein- Chesapeake Ry., (D.C.Cir. properly processed & Ohio 498 F.2d 987 statement had the union 1974); Ry., F.Supp. Hill v. employee’s Southern grievance. The court held that the (W.D.N.C.1975); Goclowski v. Penn Central liability union was not immune from for in- (3rd Cir. curred losses caused its breach of the 1978). representation merely of fair because those compensation losses took the form of lost arguable It is that the Fourth Circuit cases wages. distinguishable the instant from case on There, discussing their facts. the court was of caution.18 we Accordingly, abundance Andrews v. Louisville & Nashville R. find supra, the Fourth Circuit’s resolution of the at Further, issue untenable. expanded the Court on finding that in “some situations” the administrative Railway Co., In Buffalo Schum v. remedy provided is an “exclusive” one (2d Cir.1974), F.2d 328 the Circuit Second noting: stance we take adopted the exact here. At A party litigated who has an issue before least courts have expressly two district fol Board on the merits may in pronouncement lowed the Schum in simi relitigate that issue in an independent lar cases under the Pratt v. United judicial proceeding. He is limited to the Airlines, Inc., supra Hennenbury judicial review of the proceeding Board’s Transport United Workers Union of Ameri provides. that the Act In such a case the ca, F.Supp. (Mass.1980), Local proceedings afforded U.S.C. § and several circuits have impliedly agreed (i), only remedy First will be the with its available reasoning. See Otero v. Interna to the Elec., aggrieved party. (IUE), tional U. of R. & M. Wkrs. (9th Cir.1973); F.2d 3 Conrad v. Delta Air (emphasis added) Id. at at 1565 Lines, Inc., (7th Cir.1974). In Thus, (citations omitted). it is clear that fact, supplied primary Schum basis for precise already issues addressed and original deny trial court’s decision to Supreme resolved Court are not the 12(b)(1) motion in the instant case. Ob same as those we now consider. it is the

viously, result reached these Similarly, in McKinney v. International persuasive. courts which we find most Machinists, supra, Association of plain- Supreme Neither the holding Court’s tiff before the Court had also chosen not to Andrews, prior nor decisions of this Court go this, before the Beyond Board. how- require Andrews, contrary result. In ever, the posture McKinney further dis- plaintiffs had chosen specifically forego tinguishes There, from the instant case. personal resort to the Board for apparent the court was considering the lower court’s tactical reasons. The precise holding of An- grant decision to a summary judgment drews states: such, favor carrier-employer. As Thus, the notion and, panel was able to consider signif- more procedures provided arbitration for minor icantly, reject plain- the merits of the disputes in the Railway Labor Act are against tiff's claim the union. Where it is optional, to be availed of as the clear from the outset that there is no bond chooses, or carrier good history union, was never fide claim rationale and is longer good no law. upon which we base our decision regarding In proper International Brotherhood of Electrical Union discretion is essential Foust, Workers v. sys- U.S. at functioning bargaining impact Court addressed the supervision tem. Union com- places liability of a rule which settlements, additional on the plaints promotes process- avoids unions: claims, ing strengthens of frivolous large punitive employer’s ... threat of confidence the Union. [T]he sanctions likely willingness protect against puni- affect the ... Union’s order to a future pursue However, complaints. magnitude, off- tive award of unforeseeable un- setting any potential possibili- might compelled benefits is the ions feel frivo- ty punitive impair awards could the fi- lous or resist fair settlements claims .... stability nancial of unions and unsettle the congressional guidance, Absent clear we de- careful balance of individual and collective inject uncertainty cline to such an element of previously interests which this Court has ar- regarding repre- into union decisions representation ticulated unfair sentative functions. area.... stability with the effect on concerns union Additionally, prospect punitive dam- proper functioning precisely the same ages in cases would curtail the broad discre- considering when the Fourth Circuit’s stance handling tion that Vaca afforded unions in Harrison. grievances.... rely they would for him to on the fact that jurisdiction in these cases access to duty. Only not breach that once such an longer no control.19 important showing initial is made can the V plaintiff proceed pursue against his claim employer, where he will then bear the the nar point emphasize We must at this that his showing discharge burden of The rule re scope of our decision.20 row contrary bargaining agree- to the collective continues, the Board one resort to quiring ment. shop still not forum between the Board importing are not

and the courts. We and Remanded. Reversed wholesale into the RLA con LMRA cases text; re statutory clearly the two schemes CELEBREZZE, Judge, Senior Circuit extent that main distinct. To the limited concurring. we do look to cases decided under court, I that the district Although believe LMRA, borrowing the ration simply we are court, grant power and thus this limited circum ale of those cases this seeks, majori- Mr. Kaschak the relief he the statutorily-established stance where the source from ty clearly fails to indicate have

grievance procedures and arbitration derived. Mr. power which this Kaschak Brother failed to function as intended. Cf. based 28 jurisdiction asserts U.S.C. hood Railroad Trainmen v. Jacksonville 1337,1 and thus his action Secs. Co., supra, Terminal 394 U.S. at only if it “arises may be maintained under” we here in at 1118. We decide as do majori- laws United States. purposes preserve an effort however, jurisdic- ty, fails to address this ignore not to them. Instead, the majority tional basis. states remains ex- plaintiff quasi-contractual The burden on the that “the RLA is in na- ture, that creating legally obliga- treme. First Kaschak must establish personally request appro- his failure to arbitration tions enforceable whatever means justifiable.21 priate,” before the Board was He es- and concludes that a need implied must show that the Union breach- not be in this instance. Whatever sentially prefer the merits of I duty representation by process- analysis, rely ed its not this ing concerning and that it was reasonable federal grievance principles on less novel unpublished distinctions are 19. This Court’s order Davis 496 F.2d at 332. These well Co., (6th likely River Terminal Cir.1981), 652 F.2d 57 taken and would affect the outcome of denied, April present well. reh. 1981 is distin- case as McKinney guishable same reasons that Motel, Apartment, 21. Retana v. Hotel & controlling. is not Union, Operators Local No. AFL- Elevator CIO, (9th 1972); F.2d Cir. holding in 20. The Second Circuit Schum is it Co., Schum v. So. Buffalo extremely specifically self narrow. That court prior noted that its decision O’Mara v. Erie (2d Lackawanna R.R. 407 F.2d 674 Cir. provides: Sec. 1331 nom., O’Mara, 28 U.S.C. 1969), aff’d. sub Czosek (1970) did original juris- The district courts shall have contrary distinguished require result. It arising diction of all civil actions under the case, jurisdiction which refused court Constitution, laws, or treaties of the United allegedly aggrieved employees who had also States. union, made a claim as follows: 1337(a) provides, part: Sec. U.S.C. original juris- have The district courts shall appeared plaintiffs There it were any proceeding diction of civil action or aris- fully cognizant proceed on of their any Congress regulating ing machinery Act of through under their own commerce ... when the union had refused to grievance. Moreover, “arising allega- mean The term under” has the same no there was ing statutory provisions. E.g., duty under both tion that the union’s breach of its representation of fair Francis, operative Michigan League was the cause of the Sav. & Loan 1982); plaintiffs Maritime contractual rem- F.2d n. 6 Cir. failure to exhaust Brokerage markedly Corp. de Puerto Service v. Sweet edies. These factual distinctions distinguish Rico, Inc., Cir.1976). (1st from the case at bar. O’Mara Merrill, Pierce, view, jurisdiction,2 e.g. Lynch, implication of a my jurisdiction. Curran, of Fenner & Smith is the most means (1982); L.Ed.2d establishing question federal Ash, relief not Cort v. party requests expressly when a (1975); Chicago I & N.W.R.R. v. Because believe L.Ed.2d 26 by Congress. provided 570, 577, 91 facts of this case warrant I concur remedy, implication through dis- must be enforceable majority’s conclusion remedy. Kasc- some to hear Mr. federal power trict court has the as he is able to complaint long so hak’s notes, admin- majority As the federal the duty the of union breached establish by Con- remedy expressly provided istrative he on the relied representation, fair Railway frustrated. The gress has been grievance, process union to admin- comprehensive Labor a provides Act was reasonable. such reliance of for the resolution minor istrative scheme First, proce- the Act a disputes. specifies under” federal law A “arises question parties' remedy whereby representatives a federal to dure the party asserts when a see, resolve 45 U.S.C. right, e.g., may voluntarily disputes. a T.B. vindicate federal 823, Second, (2nd 152, Eliscu, F.2d 836 Sixth. When minor v. 339 Sec. Harms Co. 915, such a fash- denied, dispute 85 cannot be resolved in Cir.), 381 U.S. S.Ct. cert. ion, the the 1534, (1964); requires federal the Act submission 14 L.Ed.2d 435 of dispute the division the express implied. be either remedy may 45 153 Adjustment Named Board. Sec. First Bivens v. Unknown U.S.C. Compare Six 388, 1999, (i). See, e.g., 91 29 Andrews v. Louisville & 403 U.S. S.Ct. Agents, Railroad, 320, (federal 406 92 S.Ct. (1971) 619 constitutional Nashville U.S. L.Ed.2d 1562, (1972). 32 95 Judicial review implied remedy), federal with L.Ed.2d right and I.C.R., limited by 395 U.S. Board orders is Rapids v. Cedar & Crane 1708, 166-67, 1706, (q). alleges 23 First Kaschak that he 164, 89 L.Ed.2d Sec. 153 S.Ct. action). cause relied the union to right and state on (federal 176 remedy on and the administrative normal- imposes duty Labor the un- every ly “. exert reasonable available was foreclosed because all carriers to ... agreements duty representation. ion breached its of fair to make and maintain effort working brought Kaschak his minor concerning pay, Consequently, rates of rules disputes to the federal district conditions, directly and to settle all [which not agree remedy expressly provided by the such court —a application out of arise] Congress. remedy provided 152 the sole 45 First. When ments....” U.S.C. Sec. duty, by unanticipated is Congress without frustrated mere existence of a events, however, more, establish federal a federal court must consider does not obligation Chicago imposes legal parties, majority R.R. on the the on & N.W. 2. The relies obligation Union, 570, question Transportation remains whether it is 402 v. Second, judiciary.”) (1970) support the L.Ed.2d 187 29 ap- Supreme Congress’ proposition relieved considered intent court is from Court that this remedy. deny particular implication either or to plying & afford doctrine. (“the legislative attempt by Id. at a carrier to N.W. R.R. involved unclear.”) Third, First, history con- enjoin is Court union strike. a threatened remedy Supreme such a was consistent that 45 Sec. sidered whether determined U.S.C. Court underlying obligations purposes imposed legal and that 152 First 574-78, (“the propriety of obligations Labor Act. Id. mutual. Id. at these were unions, importance judicial (carriers, turns 91 S.Ct. at 1733-1735 Act.”) subject responsi- Not owed a in the scheme the Act essentially coincidentally, obligations these factors are bility observe to each other to See, Supreme First). Court imposed by same factors listed Note infra. Sec. 152 Ash, indicated, however, 422 U.S. Supreme Cort v. S.Ct. As the Court (1975) obligations if courts did determine mutual mere existence of these expressly provided imply subject-matter jurisdiction. Con- remedies Id. not establish gress. (“given that Sec. 2 First 91 S.Ct. at 1735 implication auxiliary underlying purposes legislative of an whether appropriate. Ash, 66, 78, 84, Cort v. scheme? 422 U.S. 2080, 2087, 2090, (1975). 45 L.Ed.2d 26 S.Ct. refined the Supreme In Merrill, See, Pierce, eg., Lynch, Fenner & a more provide doctrine to implied Curran, supra, v. at 1836- Smith S.Ct. whether a determining efficient means (1982); Chicago n. 51 & N.W. R.R. v. right of private statute includes a 570, 580, 91 Ash, Cort S.Ct. action.3 (1971). 29 L.Ed.2d 187 S.Ct. Cort, 45 L.Ed.2d fourth, would an of a rem implication And Court listed factors which it four inappropriate the cause of edy relevant to the because recognized had previously Congress pro relegated intended action is one to state question traditionally First, Ash, 66, 78, 84, a federal cause of is the vide action. law? Cort requesting “one of the class 2080, 2087, 2090, relief 45 L.Ed.2d 26 special for whose benefit the statute Merrill, Pierce, See, Lynch, Fenner e.g., 66, 78, 80, Ash, enacted?” Cort Curran, supra, at 1836- Smith 2080, 2087, 2089, Wheeler, n. 51 Wheeldin v. is, (1975) (“that does create a the statute 652, 647, 1441, 1445, 10 83 U.S. S.Ct. L.Ed.2d in favor plaintiff?”), of the (1963). 605 Rigsby, v. 241 quoting Texas & Pacific R.R. part The first of the test concerns Cort 33, 482, (1916). 874 U.S. 36 S.Ct. 60 L.Ed. 152 question 45 U.S.C. Sec. Merrill, Pierce, See, Lynch, Fenner & e.g., Railway First of Labor Act was enacted Curran, supra, 102 at 1836- Smith S.Ct. the benefit of employees.4 for Su 37, (1982); R.R. v. Chicago n. 51 & N.W. has preme Court characterized 45 U.S.C. Union, 570, 578, 91 Transportation 402 U.S. as the Railway 152 First “heart of the Sec. 1731, 1735, (1971). 29 187 S.Ct. L.Ed.2d Labor Act.” Railroad Trainmen v. Termi Second, Congress implicitly has or expressly 369, 377-78, 1109, nal 394 U.S. 89 S.Ct. provide an intent or indicated to either See, 1114-1115, (1969). e.g., 22 L.Ed.2d 344 Ash, sought? 422 remedy Cort deny 89, Sheehan, Pacific R.R. v. 439 Union U.S. 2089, 66, 78, 82, 2080, 2087, 95 45 U.S. S.Ct. 402, 94, 399, (1978). 99 58 L.Ed.2d 354 S.Ct. Merrill, (1975). See, Lynch, 26 e.g, L.Ed.2d 153 First Congress enacted Sec. U.S.C. Pierce, Smith, supra, Fenner S.Ct. (i), remedy, administrative to enforce 1836-37, 2, 1982); Rail (May n. 51 National imposed obligations by 45 U.S.C. Sec. Passenger Corp. Assn. of road v. National fact Congress 152 First. The created 458, 460, Passengers, Railroad 414 U.S. obligations reveals remedy such a that the (1974); 38 L.Ed.2d 646 S.Ct. First were imposed on carriers Sec. R.R. Un Chicago & N.W. Thus, this 570, 580, 1731, 1736, 29 employees. to benefit ion, intended 91 S.Ct. implication a federal Third, supports the of (1971). impli would the factor L.Ed.2d with the remedy remedy. of a cation consistent court exacting appropri- majority apply test to asserts more determine the 3. The that “the Cort determining non-express implying remedy Rail- for reme a under the test when ateness of dy apply way should not “older broad Act. exists” to Labor Railway statutory Labor schemes” such as the agree that Act. I the reason the imposes question whether a statute 4. The implied remedy doctrine in refined legal obligation question whether a provide a means of 1975 was to more efficient especial enacted for benefit of a statute is legislation. interpreting increasingly complex litigants particular class of distinct. The Pierce, Merrill, Lynch, Fenner & Smith v. Cur question. the threshold A court must former is ran, agree supra, 102 I S.Ct. 1837-39. also determine whether the statute first complexity legislation is relevant that the obligation imposes legal it entertains before deny Congress’ provide intent to either concerning questions beneficiaries the intended reason, remedy. particular I no a however, can discern obligations. part of the The first Cort refusing accept the benefits question: to whom is concerns the second test accompany a means of which more refined obligation owed? legislative Consequently, determining I intent. legislative history See, e.g., Sheehan, A review Union Pacific R.R. v. 89, 94, 399, 402, Act indicates that Congress Labor U.S. L.Ed.2d 354 anticipate (1978); Chicago did not the frustration of the & N. W. R.R. v. Transporta which tion remedy pro federal administrative 1736, 29 L.Ed.2d 187 Consequently, analysis Although

vided. must fo Supreme Court has concluded implicit Congress. cus intent of that the man datory construction, administrative general statutory As a rule Railway Labor Act are evidence of enacts “a Con Congress comprehensive when intent gress’ keep minor disputes be legislative scheme an inte [which includes] tween carriers and their employees out of grated system procedures for enforce courts, the federal e.g., Union Pacific R.R. duties, ment” of we assume that Sheehan, Congress deliberately intended to omit rem Trainmen v. provided. edies not expressly Northwest R., R. & I.R. Airlines, Workers, Transport Inc. v. 635, 640, 1 (1957), 77, 97, 101 67 L.Ed.2d administrative scheme established Con The courts also assume gress the underlying purposes serves Congress consequences intends which only to the extent it functions underlying purposes are consistent with the effectively. deny To a substitute remedy Act, of the Act. Under the Labor to value the administrative scheme more Congress provided for the primary purpose. Further, than its the im statutory duty a carrier’s plication in the narrow circum abide the terms of a bargain stances outlined the majority will not notes, ing agreement. majority As the result in undue interference with the ad however, if is not permitted Kaschak ministrative scheme which Congress has ena action, proceed with this he would be with Thus, cted.5 I believe that the policies remedy out an adequate result inconsist —a underlying Railway Labor support underlying purposes ent with the the implication of a remedy. See, Act. e.g., v. Louisville & Nash Steel R.R., ville Finally, we must consider whether (1944). light 89 L.Ed. 173 In implication of a federal remedy would be general conflict between the rule of the inappropriate wrongful because a discharge policies construction and the Railway claim under the Labor Act is a Act, Congress’ intent to afford relief of matter traditionally left to state law. Con this nature is unclear. gress pre-empted right has of states to provide a remedy compensate employees The implication remedy in this in- wrongfully discharged. E.g., who are An stance is policies consistent under- R.R., drews v. Louisville & Nashville lying the Labor Act. The primary 320, 323, 1562, 1564, 32 L.Ed.2d purpose Labor Act is the (1972). Thus, implication of a feder protection of interstate commerce from the remedy represent al court does not an un disruption accompanies which labor instabil- intrusion warranted into an area of law ity. E.g., Sheehan, Union Pacific R.R. v. traditionally relegated to the states. 399, 402, 58 L.Ed.2d The administrative scheme In summary, Kaschak asserts Congress which enacted provide for the based on U.S.C. Secs. 1337. A fair and efficient resolution of minor dis- question arises under federal law when a putes between carriers and their employees party remedy asserts federal to vindicate is central to the Act’s primary purpose. right. Although a federal 45 U.S.C. Sec. determining remedy, imply underlying pur- 5. tion is not consistent with the implying poses courts must consider the effect that of the federal statute. See Northwest Airlines, Workers, Transport existing will have on the administrative Inc. v. implication disturbing scheme. If will result in carefully implica- legislation, considered then in favor of 152 First creates

Kaschak, the concomitant federal adminis- This

trative been frustrated. however, if jurisdiction, exercise

court federal court rem- imply auxiliary

it can the facts of Because I believe that

edy. a feder- implication

this case warrant the judgment. I concur in the remedy,

al court ANNESS, Plaintiff-Appellant,

Frank OF

UNITED STEELWORKERS

AMERICA, Defendant-Appellee.

No. 81-3618. of Appeals,

United States Court Circuit.

Sixth Jan.

Argued May

Decided

Case Details

Case Name: Richard Kaschak v. Consolidated Rail Corporation

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 26, 1983

Citation: 707 F.2d 902

Docket Number: 81-3383

Court Abbreviation: 6th Cir.