*1 and distin- is a nonexistent account account open having in- account

guishable from deposit a check on to cover

sufficient funds presented payment.

when

III. reasoning summary, adhere we á payments and hold Rothberg calculating

guarantor are to be included Therefore,

loss under U.S.S.G. 2F1.1. § judgment of the district court is af- $125,000

firmed to the inclusion of the

calculating the loss. We also conclude writing a on a closed

the offense of check properly deter-

account was included when

mining Catego- History Criminal Wilson’s However,

ry. we vacate the sentence resentencing

remand for after a determina- made with this loss is consistent

opinion. PART, IN IN

AFFIRMED VACATED

PART, AND REMANDED. Jr., LORENZ,

Joseph T.

Plaintiff-Appellant, TRANSPORTATION,

INCORPORATED, Defendant-Appellee.

No. 91-1876. Appeals,

United States Court of

Fourth Circuit.

Argued June 1992. Nov.

Decided 1992. Amended Jan.

As 1993. *2 Norman, Mason, Joseph Ketter-

David Baltimore, P.A., Md., ar- Morgan, man & (David Jr., Ben- gued Albright, F. Horn & nett, Md., brief), P.A., Baltimore, on for plaintiff-appellant. Whiteford, Tay-

Stephen Caplis, Bennett Md.,. (H. Preston, Baltimore, argued lor & Allen, Smouse, Nancy S. White- Russell Baltimore, Md., Preston, ford, Taylor & Counsel, Tomola, Sr. CSX James D. brief), Fla., Inc., Jacksonville, on Transp., defendant-appellee. HAMILTON, Judge, investigator, CSX went to the Before Circuit scene and SPROUSE, Judge, and Senior Circuit found the materials an area covered with TILLEY, Judge District United States alleged tall weeds and grass. Carolina, District of North the Middle Lorenz and a were neither autho- coworker *3 sitting by designation. part job assign- rized nor was it of their ment to remove materials from these box-

OPINION cars, they and that had removed the mate- allowing rials with the intent of another HAMILTON, Judge: Circuit party to steal them. disciplinary action case arises out of This by employ- his against Joseph Lorenz taken by CSX is bound a collective ' (CSX). er, Transportation, Inc. Lor- CSX agreement, Baltimore and Rail- Ohio through action the' enz contested CSX’s road Co. and Brotherhood of Maintenance mandatory grievance procedures of Way Employee’s Working Rules and (RLA), Railway Labor Act 45 U.S.C. (BMWE). Agreement Conditions Under of CSX’s accusa- 151-88. As a result §§ 48(a) BMWE, Rule him, against and while his tions writing specific must be notified of the board, pending public a law was before charges against him and must have hear- a. filed a defamation action Lorenz ing disciplinary before action can be taken. City. re- for Baltimore CSX Circuit Court hearing required a is to Such be held within district court moved the action to federal twenty days giving of the infraction rise to question jur- diversity on and federal based action, disciplinary and notice of the un- and then moved for dismissal isdiction hearing given must be not later than five 12(b)(1) ground on the der Fed.R.Civ.Proc. (BMWE days hearing. Agree- before the by preempted claim was that Lorenz’s ment, 68-75). (J.A.) Appendix Joint Pend- granted mo- RLA. The district court ing .hearing, suspended Lorenz this Because we find that Lorenz’s state tion. service, permitted by Rule 48 of preempted by law claim for defamation BMWE, charges on insubordination RLA, we affirm the decision of the theft of and unauthorized removal and/or district court. company- CSX sent Lorenz the property. notice, 13, 1990, in- July required dated I forming charges him and that a operator a locomotive crane Lorenz was hearing company investigatory would be 9, 1990, super- July Lorenz’s for CSX. On Friday, July 1990. To accom- held on pick up gave him instructions to a visor rep- request from Lorenz’s union modate a tieplates load of and deliver them to boxcar arrange more time to resentative for project site Camden Yards a CSX witnesses, until hearing postponed was Baltimore, Maryland. Lorenz claims therefore, CSX, Monday, July 1990. tieplates was access to blocked because com- a notice to Lorenz and all issued new boxcars, and because he had to other witnesses, indicating the pany and union them, he while other cleared wait crews stated hearing date. Lorenz rescheduled job assignment of previous resumed his of CSX’s that some unidentified member clearing from boxcars in the Cur- materials posted copy of this management staff yard adjoining spur and lines. Bay tis rail board. new notice on the office bulletin adjoining went to the Seawall Lorenz Lorenz, According someone from CSX to spur he unloaded branch line where switch posting the intention stated sitting points from boxcars ties and switch process notifying in the notice was to aid belong- placed property them on there and hearing date witnesses of the rescheduled July ing the Delta Chemical Co. On to stated, time to do so. The letter with little Delta employees of the Chemical Co. part: were removed that materials informed CSX charged insubordination You are the Seawall with railway Car on from CSX and/or theft A unauthorized removal property. its spur and on placed branch you failed effect some tort claims when on property company instructions- right significantly restricts an follow to resort to state law. Peterson Air 31). July hearing, based on (J.A. At the Int’l., (4th Line Pilots Ass’n 759 F.2d 1161 testimony, Lorenz was the witnesses’ Cir.), charged and his services guilty as found preemp August Lor- 1990. on were terminated usually tive effect of the RLA is cast subsequent appeal of this decision to enz’s terms whether or is a Relations de- Director of Labor CSX’s was “major” dispute. “minor” or Both minor exhausting these internal After nied. subject major man disputes appealed Lorenz grievance procedures, *4 datory grievance mechanisms of resolution designated by Lorenz's public board law dispute the RLA. A minor arises out of disputes such in to union and CSX arbitrate interpretation or of the col the RLA, of the provisions with the accordance bargaining agreement. Major dis lective (First)(i). public The law 45 153 U.S.C. § negoti putes involving to efforts those Lorenz ultimately determined that board agree bargaining or ate alter collective subject discipline, to but appropriately was See, e.g., Corp. Ry. ment. Conrail v. La forty-five day discipline to a it that reduced Ass’n., 299, 491 109 bor Executives pay. While this dis- suspension without 2477, (1989); arbitration, Elgin, L.Ed.2d 250 filed S.Ct. 105 Lorenz pute awaited 711, 723, Burley, E.R. v. 325 U.S. defamation action in the J. & Co. common law state 1282, 1289, 6,May based on the 65 S.Ct. 89 L.Ed.1886 adhered on 1991 state court 721, to, 661, July accu- 928 23 letter and the 327 U.S. 66 S.Ct. 90 L.Ed. posting of (1946). parties agree The that this therein. case sations major dispute. does not involve General case, on federal based CSX removed ly disputes arising discharge, from a such diversity, the United States question and one, disputes this are minor and are Maryland. for the District District Court Sarno, preempted. Railway Labor Act oppose removal. Thereaf- did not Lorenz Pre-emption, 104 A.L.R.Fed. 548 3§ ter, filed a motion to dismiss case must disputes Such minor be han jurisdiction subject matter on lack of pro through grievance dled the contractual mandatory the RLA’s arbi- ground that cedures, with differences sub unresolved procedures provided sole and tration contractually public mitted to the created resolving remedy for “minor dis- exclusive (First)(i); boards. 45 U.S.C. 153 An law § one, and that the feder- putes” as this such Co., drews v. Louisville & Nashville R.R. precludes juris- doctrine preemption al 325, 1565, 32 406 U.S. court, or any whether federal diction of (1972); L.Ed.2d 95 see also In Union Pac. 12(b)(1). appeal This Fed.R.Civ.P. state. Sheehan, R.R. 439 U.S. Co. followed. 399, 402, (1978),reh’g hearing held a on the The court district denied, 439 U.S. 99 S.Ct. dispute ruled that was matter and (1979) (noting “Congress that L.Ed.2d 98 compulsory arbitration preempted by the keep it essential to the so-called considered was, the RLA and that it requirement of Adjustment disputes minor within jurisdiction therefore, to hear Lor- without courts.”). ques The Board and out enz’s claim. decided, therefore, is whether be claim a mi Lorenz’s defamation constitutes II dispute. nor created, part, “to The RLA was point considering orderly starting prompt settle provide for the of the RLA disputes growing griev scope effect out ment all Supreme ances, applica is the Court's decision An- or out Andrews, covering pay, the Court reconsid- agreements rates of drews. tion of holding in the case of Moore rules, working ered its earlier conditions.” U.S.C. Co., 312 U.S. 151a(5). R.R. Consequently, the RLA has a v. Illinois Central § (1941), L.Ed. 1089 in which a 61 S.Ct. serious train collision. To avoid preemp tion, the employee argued it ruled that the RLA’s resolution that his action was not voluntary. wrongful con- one for discharge, mechanism was The Court but tort,, and thus erroneously that it had decided one was not a cluded minor dispute. rejected The court Moore, noting argument the view “the because the employee’s action was “inextri grievance procedures pro- and arbitration cably intertwined” with the pro disputes Railway for minor vided cess and the Magnuson, RLA.. 576 F.2d at optional, Labor Act are availed of as jurisdictions 1369. Other Mag- follow the chooses, or carrier was never holding finding nuson state law tort good history good longer no law.” See, claims e.g., preempted. Morales v. Andrews 92 S.Ct. at 1564. Transp. Co., Southern Pac. 894 F.2d 743 Court, Andrews, found that (5th Cir.1990); General Comm. Adjust right discharged not to be arose ment, Transp. United Union v. CSX R.R. from the terms of the collective (3d Corp., Cir.1990); 584: F.2d Jackson 323-24, agreement. 92 S.Ct. at Rail Corp., Consolidated F.2d The claim .in 1564-65. Andrews was for (7th Cir.1983), 465 U.S. par- of contract and concerned the breach (1984); 79 L.Ed.2d Gray *5 differing interpretations ties’ of the obli- (D.Md. v. Sys., F.Supp. Chessie 588 1334 gation under the collective 1984); Majors Air, Inc., v. U.S. 525 agreement for the reinstatement of the em- F.Supp. (D.Md.1981). 853 ployee following an automobile accident. The district court relied heavily on the 324, 92 S.Ct. at 1565. Since the Majors support decision in holding. of its dispute arose out of regarding differences In Majors, Maryland the district court dis- application interpretation the or of the col- missed, preempted, an defa- employee’s bargaining agreement, employ- lective the' imprisonment mation and false claims. His remedy griev- ee’s exclusive was the RLA’s employer allegedly caught stealing him and procedure, ance which barred his state law during interrogation an manager’s the 324-26, cause of action. Id. at 92 S.Ct. office to let employee refused the leave. 1565-66. employee brought then a defamation Andrews, employ Based on if an imprisonment against false action U.S. reality dispute ee’s claim is in a defamation Air. correctly The district court noted that involving application interpretation or hearing claims “would bargaining agreement of a collective mi —a congressional thwart purpose provid- of dispute dispute nor RLA removes the —the ing comprehensive federal scheme for the jurisdiction. from state and federal court’s employer-employee disputes settlement of alleged As the defamation becomes dis industry the railroad resort to without tanced from the work-place and is Majors, F.Supp. the courts.” 525 at 856. “peripherally” concerned federal labor with considering The cases ef law, excepted preemption. it is Pe increasing accep fect of the an RLA show terson, 759 F.2d at 1168. A defamation grievance tance of the RLA’s mechanisms upon action based statements made in the work-place disputes to resolve which sound context of the RLA thus raises the issue of in tort. In DeTomaso v. Pan American preemption. federal Inc., 517, Airways, World 43 Cal.3d 733 The ninth circuit examined the relation 614, 292, denied, Cal.Rptr. P.2d 235 cert. ship between state law tort claims and col 100, 829, 484 U.S. 98 60 L.Ed.2d bargaining agreements lective Magnu (1987), salvage the airline sold three bins of N., Burlington son v. Inc. 576 F.2d 1367 employee, to an but later learned that the (9th Cir.), denied, 930, cert. 439 U.S. 99 bins contained some material which was . 318, (1978) S.Ct. In Mag- security not An official abandoned. airline nuson, dispatcher brought a train an accompanied agent employ action FBI an to the home, intentional infliction of emotional concerning dis ee’s statements made upon tress based his discharge causing impropriety employee’s possession of 268 cites, on, material, cargo. heavily relies and confiscated the dissent discharged Lingle Norge Magic Chef, Division subsequently The airline Inc., S.Ct. 100 fraud, 486 U.S. dishonesty and abuse employee for (1988), proposition that L.Ed.2d 410 for the He filed policy. company preempted only suit is if the state-law ultimately him reinstated and the airline requires collec- action reinstatement, to his pay. Prior with back bargaining agreement. The Lingle tive de- for defa brought action employee cision, however, upon preemp- was based of emotional distress. mation and infliction Labor. under National Relations Appeals found that Court of The California (NLRA). Elgin, Act At since least Joliet & claims, preempt these the RLA did Burley, Eastern R. Co. indepen they “legally were holding that (1945), 89 L.Ed. 1886 the Court griev claims or any contractual dent of recognized preemption un- clearly has may have be arbitrable.” may ances he pervasive. der the is more The Court RLA Airways, Am. World v. Pan DeTomaso minor under RLA: stated that a Inc., Cal.Rptr. Cal.App.3d proper relates to the manner either (1985). Supreme The California particular provision aof [of Pan Am. reversed. DeTomaso v. Court agreement] an omitted case. In Inc., 43 Airways, Cal.3d World event the latter the claim founded Cal.Rptr. P.2d upon employment some incident L.Ed.2d 60 one, relation, independent or asserted upon that the statements It found bar- by those covered the collective his claims were which the based e.g., ac- gaining agreement, claims on hearings during investigations and made personal injuries. count of bargaining agree required the collective *6 (emphasis Id. at S.Ct. at 1290 add court ruled that the RLA’s ment. The ed). language The of the RLA itself states beyond effect extended actions disputes “disputes include: that covered contract, particularly of for breach employee group employ of between an or during premised upon claims statements growing ees and a carrier or carriers ... by investigations mandated

proceedings or grievances the interpreta out of or out of bargaining agreement. Find the collective agreements_” of U.S.C. §§ with ing “squarely statements fell that the (i), added). NLRA, (emphasis First The of the court held Magnuson,” in the ambit contrast, in limits itself to the “violation of preempted RLA defamation that the 185(a). labor contracts.” 29 The U.S.C. § distress claims. and emotional Lingle circuit courts that have considered light the RLA to extend its hand is similar. Lor of declined The case at and, analysis béyond NLRA context. Hub grounded state law enz’s claim is Airlines, Inc., 927 F.2d effect, ap bard United challenges conduct in the CSX’s (9th Cir.1991); Smolarek investigatory plication procedures of , Chrysler n. 4 Corp., F.2d required by the BMWE. The defamation (6th Cir.), denied, 493 claim from the issuance of a notice arises grievance process under incident to the required the notice to BMWE. BMWE argues posting Lorenz also that the disci given an could be before part scheme the notice was of a to coerce defamatory state plined. allegedly falsely implicate party him to another is, facially, simple ment recitation of the company the theft of materials. His and charges against Lorenz notice support allegation this is his assertion required CSX was to hold. hearing which charges against that he told him was that inextricably with dropped This act was intertwined if testify would be he would that procedures by mandated party, suspected by arranging third CSX of materials, dispute this BMWE and cannot be settled for the theft of its induced had party and so without reference to BMWE the Lorenz to unload material This grievance procedures by allegation, it. could the materials. mandated steal supported, investigation if it could be does not of the even unauthorized removal from-that of change company boxcar, the nature claim materials from á arising action out of the man- charged a defamation Lorenz “with insubordination and procedures. ex- datory grievance Lorenz unauthorized removal and/or theft of com- shows, pressly complaint and the affirmed pany property when failed to follow [he] solely claim is one for (J.A. that his defamation. 31). instructions.” hardly This 97, 98, 157; (Transcript, Complaint, J.A. amounts to conduct sufficient to warrant Farmer, 23-27). J.A. application of the exception, even applicable if it is in RLA cases. Lorenz asserts that his claim is ex preemption, cepted from under Farmer v. This is a defamation arising action out of Joiners, Carpenters investigation, United Bhd. & and it inextricably in- grievance procedures 51 L.Ed.2d 338 volves the under the , (1977) because CSX’s conduct was outra RLA. The matter is not attenuated from Farmer, work-place and, therefore, geous. a National Labor Rela is a minor (NLRA) case, allegations preempted tions Act involved under the RLA which is subjected plaintiff excepted officials preemption union by Farmer. ridicule, abuse, public Accordingly, incessant verbal we affirm the dismissal of threats intimidation. 97 this action district court. S.Ct. at 1059. It is not clear that AFFIRMED. Farmer, expressed in

concerns a NLRA case, apply previous in a RLA ease. As the SPROUSE, Judge, Senior Circuit illustrates, pre discussion RLA and NLRA dissenting: emption entirely Preemption different. I respectfully dissent. case, pervasive more much an RLA provides whereas the NLRA I, concurrent course, agree majority with the jurisdiction appropriate state in which it is part the RLA was created in provide “to Furthermore, to consider states’ interests. for the prompt orderly settlement of our decision Peterson makes it clear that disputes growing all grievances out of or balancing” the “sensitive of federal and out of the required

states’ interests in NLRA cases is agreements covering rules, pay, rates of *7 not the standard in RLA cases. In Peter 151a(5). working conditions.” 45 U.S.C. § son, apply analysis appropri we declined to agree I also that the effect of case, ate in an NLRA and outlined usually the RLA is cast in terms of wheth- Farmer, wrongful discharge to a claim er major dispute, the claim is a or minor preempted by pre that was the RLA. The separate that subject both are to mandato- emption doctrines under the NLRA and grievance Act, ry procedures of the differ; although RLA “[preemption under that major this case does not involve a RLA has followed a similar tack however, dispute. disagree, I [to with the ma- NLRA], stringent pattern judi a more jority’s conclusion that this is a minor dis- Peterson, emerged.” cial deference has and, therefore, pute preempted. The ma- preemption 759 F.2d at 1168. “Unlike un jority holding bases its that defa- Lorenz’s NLRA, preemption der the of state law against mation action is a minor dis- claims under the RLA has been more com pute dispute on the rationale that it is a (citations plete.” omitted)'. Id. at 1169 arising discharge, from his because it is “inextricably intertwined” with the collec- outrageous if the conduct ex Even bargaining agreement governing tive case, ception applicable was in an RLA employees. relations and its between CSX conduct of CSX this case does not rise I disagree with this conclusion. present the level of that in Farmer. The First, conduct Farmer was so extreme examining that Lorenz’s action without society “inextricably “no reasonable man in a civilized lan use of the intertwined” expected should guage, be endure it.” 430 U.S. it is clear that the claim does not contrast, at at In discharge. majority S.Ct. 1060. in its from his The le arise majority The Andrews v. Louisville & finds that the claim arises strongly on

ans Co., nonetheless, discharge 406 U.S. from Lorenz’s be Nashville Railroad (1972), is which 32 L.Ed.2d “inextricably S.Ct. cause it is with intertwined” proposition that the correctly cited bargain the collective a tort claim for preempts state RLA ing agreement. majority adopts The this Andrews, however, discharge. is wrongful language Magnuson Burlington from dispute. inapposite to this Northern, Inc., (9th Cir.), 576 F.2d 1367 cert. 439 U.S. 99 S.Ct. related to issue Andrews principal (1978), L.Ed.2d 323 in which the Ninth Cir discharge and con- straightforward preempted cuit held an em a minor RLA unquestionably dis- troversy was employee ployee’s was action for intentional a railroad infliction of In that case pute. discharged and was in an accident emotional distress. The injured court stated that attempted to return to work. he dispute when the claim was a minor because it prototypical discharge resulted There was “based on a matrix of facts which of the sued for breach case: the inextricably intertwined with contract, clearly which was employment machinery bargaining of the collective required' un- resolved minor agreement and of the Id. at 1369. R.L.A.” procedures. As Su- der RLA-mandated Supreme adopted has Court neither opinion: in its preme Court said rejected “inextricably nor intertwined” it is all that the Here conceded analysis RLA-preemption cases. Nota right not to be dis- petitioner’s source however, bly, analysis approach its to that therefore to treat an al- charged, and NLRA-preemption require cases would discharge “wrongful” one leged as a rejection reasoning. of the Magnuson damages, is the collective- him to entitles Lingle Norge Magic Chef, Division of agreement the em- bargaining between Inc., S.Ct. union_ petition- Thus ployer and (1988), L.Ed.2d 410 that a Court held claim, respondent’s disallowance er’s discharge retaliatory state-law suit for was differing interpretations it, stem preempted 301 of under section the Labor collective-bargaining agreement. Management “only Act if such Relations at 1565. Our court Id. at requires the inter [of law] state in Peterson v. Air Line Andrews echoed pretation collective-bargaining agree of a International, Association, Pilots ment.” Id. at 1885. It Cir.), (4th denied, 474 F.2d 1161 reasoning recited the Seventh Circuit’s (1985), “ retaliatory discharge ‘the state tort is employee’s wrong that an stated where we inextricably with the collective- .intertwined discharge necessarily a minor ful claim here, it agreements im because Here, in dispute. 1169. contrast to plicates analysis the same the facts as *8 Andrews, suing for of is not breach Lorenz inquiry pro just would an under the cause wrongful or dis employment contract ” agreements.’ 408, visions of the defamation, a suit is for tort charge. His (quoting Lingle 108 at Norge S.Ct. 1883 v. of the collective entirely independent bar Inc., 1031, Magic Chef, Div. 823 F.2d of said, In we agreement. Peterson gaining (7th Cir.1987)). However, 1046 while notes, “where the majority that con as the analysis agreeing might that “the state-law regulated by is sought to be state law duct well involve attention to the same factual only 'peripheral concern’ federal labor considerations as the contractual determi law,” at 1168. preempted. is not Id. We it employee] nation of whether was fired [the in that malicious pointed also out Peterson cause,” id., just Supreme for Court truly which “can a common-lawtort libel is enough preempt held that this was peripheral concern to said to be but of claim: Thus-, at 1171 n. 20. it is labor law.” Id. pursuant if resolution to a clear Lorenz’s defamation action does [E]ven agreement, on collective-bargaining discharge” the sense not “arise from his other, hand, law, on by one and state intended Andrews. 271 559, addressing precisely the require F.Supp. (N.D.Cal.1991); 758 564 would Mero facts, long same set of as the state- la v. National Passenger Corp., R.R. 683 law claim can be resolved without inter- 935, F.Supp. (S.D.N.Y.1988); 938 Ray itself, agreement the claim is preting R.R., Burlington bourn v. F.Supp. N. 602 “independent” agreement 385, (W.D.Mo.1985); 388 Balzeit v. South pre-emption purposes. 301 § Co., Transy. F.Supp. 986, ern Pac. 569 990 (N.D.Cal.1983). 409-10, Thus, Holding contrary to the at 108 S.Ct. at 1883. Id. example context, context, NLRA-preemption- see NLRA-preemption the Su “inextricably erpillar Williams, preme Court has stated that Inc. v. 482 Cat 386, 398, misleading phrase; 2425, 2432-33, intertwined” can be a U.S. 107 S.Ct. 96 (1987) the real test is whether the state-law claim L.Ed.2d (rejecting employer’s 318 ar requires collective gument that pre-empts '301 a state-law “§ bargaining agreement. Accord United employer claim even when the raises Rawson, v. 495 Am. requires Steelworkers defense a court to interpret 370, 1910, 109 L.Ed.2d apply a collective-bargaining agree (1990); 362 T Technol AT & ment”). McCormick ‘ Inc., (4th Cir.1991), ogies, 934 F.2d 535 Cases in the DeTomaso-Majors line are — denied, U.S.-, 112 cert. S.Ct. misleading they because distort the con gressional purpose of the RLA. Both the . assuming appropriate apply Even it is majority and the district court relied on “inextricably analysis intertwined” in language in' Majors entertaining Lor cases, RLA-preemption Lorenz’s defama enz’s action the' district court “would simply inextricably tion action is not inter congressional purpose thwart the provid bargaining twined with the CSX collective ing comprehensive federal scheme for the that, I agreement. agree adhering must of employer-employee' disputes settlement DeTomaso, developed the rationale Ma in the railroad industry without resort to cases, jors, might arguably and similar one Majors, F.Supp. the courts.” at 856. majority reach the result announced our view, my majority’s reliance on El opinion. Majors DeTomaso and effect gin, Burley, J. & E. R.R. v. 325 U.S. hold that a claim for tortious conduct oc (1945), 89 L.Ed. S.Ct. is mis curring during proceedings investiga placed. It would imply seem to that Con governed by tions a collective gress preempt any RLA to intended.the agreement inextricably intertwined with railroad-industry dispute upon “founded agreement, or that a tort action is of the employment some incident relation.” inextricably intertwined with a collective holding at 1290. The Id. bargaining agreement employer if Elgin primarily distinguishes minor dis pleads agreement as a defense. Ma putes major disputes, quoted and the Air, Inc., jors F.Supp. language simply is out of context with the (D.Md.1981); DeTomaso v. Pan Am. presented here. issue Several courts have Inc., Airways, World 43 Cal.3d expansive noted that such an of RLA view 292, 300, 614, 622, Cal.Rptr. 733 P.2d - preemption congres is a misstatement 484 U.S. See, McCann, e.g., intent. sional (1987); Magnuson, L.Ed.2d 60 accord (“some F.Supp. at 566 incident of the em 1369-70; F.2d at Ry., Carson v. Southern *9 ployment relation” test is an “erroneous (D.S.C.1979); F.Supp. 494 1112 legal principle”); F.Supp. Raybourn, 602 Marshall, N. Louisville & R.R. v. 586 (same). at 388 (Ky.App.1979). Holding S.W.2d to congressional purpose underlying contrary RLA-preemption the in the con text, require the RLA is to arbitration for all see not Jackson v. Consolidated Rail only (7th Cir.1983) employee-employer disputes, but Corp., 717 F.2d J., (those and) (Posner, denied, major that are -classified as dissenting), cert. “growing grievances those out of or out of (1984); Airlines, Inc., agree- the McCann Alaska agreement. rules, Nor does terpretation the pay, covering rates ments discharge 151a(5). claim arise out of Lorenz’s the 45 U.S.C. working conditions.” § Andrews, it is since in his dissent the sense intended Posner stated Judge' As. discharge Corp., wrongful art- an action for Rail not v. Consolidated

Jackson Cir.1983), pled to like a tort suit. (7th fully look F.2d 79 L.Ed.2d above, I reverse the In view of would Congress if might be different (1984),“[i]t dismissing court Lor- action of the district agency administrative an had established enz’s claim. conduct in railroad or tort-like police to tort not; it content it has has employment, but of con arbitration requiring itself with

ed J., (Posner, disputes.”

tract have Judge Posner would

dissenting). As Jackson, here held COMPANY; POWER MONONGAHELA it would exist not a because Company; Potomac Power West Penn bargain- collective if there were no even Plaintiffs-Ap Company, Edison Power ing agreement, unlike situation pellees, Andrews.... REILLY, Administrator present dispute does arise William ... The the, bargaining agree- Environmental Protec United States collective Agency, Defendant-Appellant. independent It basis ment. has therefore arbi- tort law and is outside Light Company; Indianapolis & Power jurisdiction. exclusive trators’ Indiana Public Service Com Northern J., dissenting). (Posner, at 1059-60 Id. pany; Electric Indiana Gas & Southern Congress not intend for the Clearly did Incorporated, Company; Energy, PSI common “wipe to out RLA Amici Curiae. right to enforce rights than his law other No. 92-1786. subject are to very contracts that compulsory arbitration.” Id. scheme of Appeals, Court of United States (Posner, J., dissenting). Circuit. Fourth view, simply this case my In the facts of Argued Sept. 1992. dispute. a minor Assum- do not constitute Nov. 1992. Decided allegations complaint in the ing the Amended Jan. 1993. true, must, posting of the defam- As as we by the col- atory not authorized notice was Jan. 1993. As Corrected con- bargaining agreement. CSX lective permitted it to agreement tends notify witnesses

post way notice as a disciplinary hearing. upcoming

of Lorenz’s fact, in the mention notice shall

agreement is that “the charge precise writing

notified shall have reasonable

against him and he presence of nec-

opportunity secure agreement con-

essary witnesses.” publish allowing CSX to provision

tains no much less employees,

the notice other large. Because Lorenz’s defa-

the world at with or

mation claim exist would without agreement, it the collective

n in- with an “inextricably intertwined”