HAWAIIAN AIRLINES, INC. v. NORRIS

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Argument of Kenneth B. Hipp

Chief Justice Rehnquist: We'll hear argument next in Number 92-2058, Hawaiian Airlines v. Grant Norris.

Mr. Hipp.

Mr. Hipp: Mr. Chief Justice and may it please the Court:

This case is about the scope of the minor dispute resolution procedure of the Railway Labor Act, and whether an airline employee can abandon that procedure and go to State court with a State tort claim of wrongful discharge.

This Court has repeatedly recognized that Congress, in establishing the Railway Labor Act, set up a comprehensive, indeed, pioneering alternative dispute resolution procedure for adjusting minor disputes between employees and employers without lawsuits and without strikes.

Furthermore, as all the parties in this case accept, the minor dispute resolution procedure within the Railway Labor Act, section 204, must go through the mandatory arbitration procedures of the adjustment board in the absence of concurrent jurisdiction pursuant to congressional act.

Where we part company with the Hawaii court, with the respondent, and with the Solicitor General is in defining the scope of the jurisdictional language of section 204.

In our view, and as we have argued at length in our brief, our opponent's positions concerning the scope of section 204 are flawed because they attempt to rewrite the plain language of section 204 and other provisions of the Railway Labor Act, and they misconstrue the Railway Labor Act's legislative history and this Court's decisions interpreting the RLA.

If this Court were to accept our opponent's views, the result would greatly undermine Congress' scheme for resolving employment disputes, and it would do that by undercutting the historic legislative tradeoff that took place in 1934, whereby unions and employees achieved the mandatory arbitration procedures of the Railway Labor Act in return for giving up their right to go to court and their right to strike.

As this Court recognized in the Chicago River and Indiana Railroad case, that tradeoff was fundamental to the 1934 amendments to the RLA prior to the enactment in 1936 of section 204.

Unknown Speaker: Mr. Hipp, you seem to be arguing for a different standard under the RLA than that under Lingle and under the National Labor Relations Act.

I'm not sure... how do you justify application of such a different standard?

Mr. Hipp: Your Honor, the touchstone for preemption, as in fact the Court recognized in Lingle, is not to apply some procrustean approach, but instead to look at the purposes of Congress in each scheme.

What was the purpose of Congress in section 301?

The purpose of Congress was to assure common interpretation of collective bargaining agreements pursuant to Federal common law.

There's no mention of alternative dispute resolution there.

There's no mention of any arbitral forum there.

What is the purpose of the Railway Labor Act?

The purpose of the Railway Labor Act is to provide a method, a comprehensive method for resolving disputes between employers and employees.

If you look at section 2 First of the Railway Labor act, Congress has made the determination that it is these kinds of disputes between employers and employees that leads to disruption of interstate commerce, therefore Congress set up, in section 3 First (i) for the railroad industry and in section 204 for the airline industry, a method for resolving those disputes.

The method is an arbitral or adjustment board method, and a scope of jurisdiction is stated there.

It is a congressional scope of jurisdiction.

Therefore, unlike Lingle, which addresses Congress' concerns related to interpretation of the collective bargaining agreements, Congress had a different agenda in 204 and 3 First (i).

Unknown Speaker: But I suppose Congress didn't intend to entirely preempt ordinary State laws, even in the transportation industry, having... I guess we've upheld State requirements that the train have a caboose, and one thing and another, and so obviously we have said there is room for application of State law--

Mr. Hipp: That's correct.

Unknown Speaker: --even under the RLA.

Mr. Hipp: That's correct, Your Honor, and that is because you must address the congressional purposes of the RLA.

The RLA was designed to deal with disputes between employees and employers.

It was not designed to deal with whether or not a State established a minimum substantive standard such as a caboose.

If you have a regulatory agency in a State that says... and the State makes the determination through its legislative process that State may have a caboose law, it doesn't have anything to do with the Railway Labor Act.

Unknown Speaker: Well, the State perhaps could arguably have made a conscious decision, by the passage of whistleblower statutes, that this is a means of assuring public safety.

Mr. Hipp: They can make that determination, but what they cannot do, Your Honor... and this is what the Andrews case in essence holds... is that they cannot take a dispute between an employee and an employer in the airline or railroad industry and convert that dispute into a State law claim, taking it out of the adjustment board process.

Why not?

Why can't they do that?

Because Congress recognized--

Unknown Speaker: Well, they haven't taken it out.

They've added, perhaps.

Mr. Hipp: --Well, this raises the specter, again, of what happened when this Court in the Moore case years ago established this concurrent jurisdiction concept, whereby you could go both to State court, and you could go to the adjustment board procedure.

Unknown Speaker: Mr. Buell, as I understand your argument, you're not arguing that the RLA preempts State law at all.

It's not a preemption claim you're making at all.

It's an exclusive jurisdiction claim.

You're saying State law applies, but it has to be applied through the arbitration procedure of the RLA, isn't that correct?

Mr. Hipp: No, Your Honor, that's not correct.

Unknown Speaker: That's not correct.

You're saying State law is preempted, so the State law does not exist.

Mr. Hipp: The State law does not exist in the situation where there's a dispute between the employer and the employee covered by these mandatory adjustment board--

Unknown Speaker: Where the dispute concerns an issue of State law, there no longer is a dispute, so you don't have to go to arbitration, then.

You say the State law is ineffective, is that what you're saying?

Mr. Hipp: --No, I'm not saying that, Your Honor.

Unknown Speaker: It is effective.

Mr. Hipp: It is effective, correct.

Unknown Speaker: Then it's not preempted.

Mr. Hipp: No, I'm sorry, Your Honor.

It is preempted.

If your question, Your Honor, is directed at the question of what the adjustment board looks at, the substance--

Unknown Speaker: Does State law apply?

Is the State law applicable--

Mr. Hipp: --The State law--

Unknown Speaker: --to the employment relationship?

Can the State law govern it?

Mr. Hipp: --Yes, Your Honor, it can, depending upon whether or not it is regulating a dispute between the employer and the employee, on the one hand, or if it is establishing substantive minimum standards.

Perhaps I can give you an example that would clear this up.

Unknown Speaker: I'm really confused.

I had thought you were making an exclusive jurisdiction claim, that you apply the State law but it's to be applied by the board through the arbitration.

Now you're telling me no, that the State law is preempted.

That's a quite different--

Mr. Hipp: Well, Your Honor, let's make this clear, because it is--

Unknown Speaker: --Maybe you can make your example specific to this case, and this would be my question: suppose the board finds that Norris was indeed improperly discharged.

At that point, what remedy could the board give?

Would there be any room for the State whistleblower's statute in the remedy that the board could give?

Mr. Hipp: --The board would be free to fashion a remedy to deal with the finding that it made.

Unknown Speaker: The finding is that a discharge was improper.

This person did just what an employee should do, detecting a condition that might make flights unsafe for passengers, so it's a complete exoneration of what he did.

Indeed, the board concludes, instead of being disciplined, he should have gotten a medal.

Therefore, the remedy is... and what could the remedy be, and how would it differ from a State law remedy under the whistleblower act?

Mr. Hipp: The remedy would be left open to the adjustment board to establish, and that remedy would take into account the State public policies in establishing whatever remedy the adjustment board wanted.

Unknown Speaker: But as a practical matter, could the... in the absence of a State law, couldn't the board do exactly the same thing?

It would simply not look to State law for the source of its public policy, but it could come up with basically the same standard, couldn't it?

Mr. Hipp: That's exactly correct, Your Honor, and in fact that is a--

Unknown Speaker: Why, then, did Congress add... if I'm correct, why did Congress add a whistleblower provision to the substantive law governing rail employees but not airline employees?

Mr. Hipp: --Well, it was only addressing the railroad side of the equation in the--

Unknown Speaker: On your theory, wasn't it equally redundant, equally unnecessary with respect to the rail employees?

Mr. Hipp: --Yes, Your Honor, except for one thing.

What is clear under the Federal Rail Safety Act is a specific punitive damage remedy is included under that of $20,000.

Therefore, there is a direction by Congress as to how you should be formulating your remedy, and it's important that you understand, particularly in dealing with the arguments by my opponents here, that under the Federal Rail Safety Act, nonunion employees are committed to adjustment board jurisdiction.

So that even in the absence of a collective bargaining agreement, those employees go through the adjustment board procedure for resolution of their claim, and this is why I need to address, if you don't mind, Justice Scalia's point, because I think it's a fundamental point here, and that is, what is the source of the law, the substantive law that an adjustment board looks at?

What did Congress intend about that, because it deals with the complex questions, including the Seventh Amendment question that is presented here.

If all Congress had said was, you take State law claims, and you move them over to an adjustment board process, then you would have a problem with regard to a right to jury trial, but that is not what Congress said.

Congress said, we want disputes, grievances, if you will, which are identified to include discharges, to be resolved by an adjustment board, and the adjustment board... and this Court recognized this in Burley, by the way, and I will refer to footnote 36 of Burley, for exactly the problem that you presented, Justice Scalia, and that is--

Unknown Speaker: There's no grievance, it seems to me, unless State law applies.

Let's assume that there's no Federal whistleblower statute.

There is a State whistleblower statute.

The employee is dismissed, claims it's in violation of the State statute, so he brings a grievance.

Why is there a grievance, if State law does not govern?

What does he have to grieve about?

You're telling me State law does not apply.

Mr. Hipp: --Okay, in that particular grievance he has been disciplined in some way, as you've just described.

Unknown Speaker: Yes, and he says, this disciplining is in violation of State law, isn't he saying?

Mr. Hipp: Correct, and now--

Unknown Speaker: If it's not in violation of State law, it's okay.

Mr. Hipp: --So now the question is that there's a dispute between the employee and the employer.

That's covered by the Railway Labor Act, and the question is, what is the substantive law that is going to be applied by the adjustment board in that--

Unknown Speaker: There is no dispute, unless you posit the applicability of State law.

There is no dispute.

The only basis for his claim is that State law governs.

If you tell me State law doesn't govern, there's no dispute.

Mr. Hipp: --State law--

Unknown Speaker: He's not claiming that he has a Federal right to whistleblower relief.

Mr. Hipp: --Well, State law provides the floor upon which the adjustment board has to function.

There's a difference, of course, between taking into account State law policy and requirements and not rejecting those.

That's in essence what you've looked at in the Misco case.

Unknown Speaker: That's a really gossamer distinction, it seems to me.

Are you saying that... supposing this case... we have this case coming up in Hawaii, which has a whistleblower protection statute.

Supposing you have an identical facts case coming up from, let's say, Nevada, which doesn't have a State whistleblower protection statute.

Now, must the adjustment board handle these two cases differently?

Mr. Hipp: No, Your Honor, and in fact this is exactly... this is my point, and that is, the adjustment board was established by Congress, and you'll see this in Representative Crosser's statements at the time of the passage of the act: to act like a court, to make the kinds of judgments based upon a range of policy considerations.

Unknown Speaker: Well, and I take it from what you've just said that among those policy considerations is not the State law.

Mr. Hipp: The State law may be taken into account.

Unknown Speaker: Is it just totally arbitrary, then, on the part of the adjustment board?

It may, it may not, it could do lots of different things, but it doesn't have to do any?

Mr. Hipp: It is not arbitrary, Your Honor.

Unknown Speaker: Well then... but... it seems to me every time you've been asked you've said, well, it could be, but it doesn't have to.

Mr. Hipp: Well, and the--

Unknown Speaker: How... why would the Nevada and Hawaii cases be treated either (a) differently, or (b) the same?

Mr. Hipp: --Well, certainly it would be treated to provide under our contract, because it states that an employee cannot be disciplined for refusal to perform work in violation of Federal or State safety laws, to provide a floor at whatever the State safety law mandated, but it would be up to... and there could be inconsistencies.

Let's give you an example.

This was one of the things Congress addressed when it was looking at the right to work laws.

What if you have a State law that said, you have to sign off... you have to become a union member, and then you have another State law that says, no, you have a right to work here, and you cannot require somebody to become a union member.

There's a conflict there.

Well, Congress dealt with that in an explicit fashion by saying we're not going to apply these particular kinds of laws across State lines, but when you look, and in particular you look at Burley, when it talks about what the nature of the substantive considerations are at the adjustment board level, here's what they say in Burley: depending upon the substantive character of the claim, its foundation in the collective bargaining agreement or otherwise, and other factors, that that will determine how the adjustment board comes out.

Unknown Speaker: But that frankly seems to me to be almost so vague that you can't put your finger on anything.

Do the cases from Nevada and Hawaii come out differently before the adjustment board, or do they come out the same?

Mr. Hipp: They would no doubt come out the same.

Unknown Speaker: So it doesn't make any difference if Hawaii has a statute and Nevada doesn't.

Mr. Hipp: That's correct.

Unknown Speaker: So then, the State law must be virtually nonexistent.

It must be entirely preemptive.

Mr. Hipp: Well, in the context of a dispute between an employer and an employee, that is absolutely correct.

Unknown Speaker: Then you're withdrawing what you said earlier about... you said State law provides a floor, State law policy would be taken into account by the board, now your response to the Chief Justice is State law is irrelevant.

Indeed, not to be... positively not to be considered.

Mr. Hipp: No, I'm sorry, Justice Ginsburg, if that's what I suggested.

I believe the Chief Justice asked me if those cases would come out the same.

I believe that the cases would come out the same, and Congress believed these cases would come out the same, because it recognized specifically with regard to the whistleblowing situation the background in the adjustment boards of dealing with these whistleblower claims.

Therefore, since Congress has already recognized that the adjustment boards deal with these whistleblower claims, I am assuming that the employee will get the benefit of the whistleblower protection, and where the--

Unknown Speaker: Well, what is the whistleblower protection, and where does it come from... case law, if it comes from statute or... you're rejecting the Hawaii whistleblower act as the source of law.

What is the source of the whistleblower protection that the employee would get before the board?

Mr. Hipp: --The source comes from four different locations.

One source is the collective bargaining agreement.

Another source is the practice and procedures of the parties with regard to the collective bargaining agreement.

A third source--

Unknown Speaker: What does... well, can you be specific about what the collecting bargaining statute... agreement says about whistleblowers?

Mr. Hipp: --I'm sorry, what the collective bargaining--

Unknown Speaker: You said a source is the collective bargaining agreement.

Okay, what in the collective bargaining agreement governs whistleblower protection?

Mr. Hipp: --In particular, there's a just cause provision in the contract that prohibits employees from being terminated for just cause.

It also protects employees from refusing to sign off on work performed in violation of State or Federal laws, safety laws.

That's--

Unknown Speaker: Counsel, let me try this one more time, a different way.

Suppose that before this employee were discharged the employer came to you, as the employer's counsel, and said, in determining whether or not I may discharge this employee, must I consult and be guided by the Hawaii whistleblower statute?

What would be your answer?

Mr. Hipp: --My answer would be that you may not do anything in your adjustment board process that would reject the policies in the Hawaii whistleblower protection statute.

Unknown Speaker: I'm not talking about the adjustment board process, I'm asking whether or not I may... I must take account of that statute in determining whether or not I will discharge the employee.

Mr. Hipp: My answer would be that you should take into account the policies under that statute and... in deciding whether--

Unknown Speaker: I should under a matter of law.

Must I, as a matter of law?

Mr. Hipp: --That you must.

Unknown Speaker: Then why do the Nevada and Hawaii cases come out the same?

Mr. Hipp: Because in one you have provided a floor.

In the other, you have not... if the Nevada case had stated, Your Honor, that you are permitted, in fact mandated to terminate people for whistleblowing, then there would be a conflict.

If the Nevada case as you posited it says nothing, then the Hawaii case provides the floor.

Unknown Speaker: So there are other sources for whistleblower protection other than State law.

Mr. Hipp: That is correct, Your Honor.

Unknown Speaker: And what are they?

Mr. Hipp: The sources arise in the contract, in the practice and procedures of the party, in the Federal Rail Safety Act... it is also... is a source.

Unknown Speaker: The board would... even though the Federal Rail Safety Act applies only to railroads and not to airlines, the board would simply carry it over?

Mr. Hipp: Well, certainly the policies involved would be carried over.

Unknown Speaker: Well, why?

Why?

That just doesn't make any sense.

Congress passes a law saying, here's a... we want this law to apply to railroads, and the board says well, we'll apply it not only to railroads, we'll apply it to airlines, too.

Mr. Hipp: My response is that the policies would carry over because Congress, in the legislative history which we cited for you, states very specifically that it understands that this same protection is provided through the adjustment board process.

Unknown Speaker: May I ask... you started to respond to an earlier question by identifying four sources of law.

You've got the agreement, the practices, and the Railway Act.

What's the fourth?

Mr. Hipp: And... the agreement, the practices, the State... the policies under State and Federal substantive laws, the policies involved, and that's through a Misco analysis--

Unknown Speaker: And how do you--

Mr. Hipp: --and finally--

Unknown Speaker: --Oh, go ahead.

I'm--

Mr. Hipp: --That was the third one.

Unknown Speaker: --That's the third.

Mr. Hipp: And then the finally is the Federal Rail Safety Act provides explicit jurisdiction, even for nonunion employees in the rail line... railroad industry.

Unknown Speaker: Focusing on the third for a moment, how does that reconcile the Chief Justice's hypothetical, if the two States have different policies?

Mr. Hipp: As long as they don't have conflicting policies, then whatever the adjustment board decides upon, it would take into account the policies involved and establish a floor for the employees.

This, of course, is nothing new.

Unknown Speaker: But it wouldn't follow from that that they would come out the same.

They might come out the same, but I don't see how you can answer the Chief's question by saying they would.

Mr. Hipp: Well, certainly with regard to the specific whistleblowing question I think we can, by reference to what Congress has said it understands to be done in the adjustment boards already.

Unknown Speaker: Where did Congress say that?

Well, but that's--

--Where did Congress say that?

Mr. Hipp: In... in the legislative history of the Federal Rail Safety Act.

Unknown Speaker: Of a congressional... of a congressional act applying only to the railroads.

Mr. Hipp: Yes, that's correct, Your Honor, but it was speaking about adjustment board process, and what they took into account, and the adjustment board scope of jurisdiction in the airline and railroad industries are coextensive.

Unknown Speaker: May I give you a hypothetical that does not have a Federal policy counterpart?

Supposing in Hawaii you said they had a statute that said, nobody has to work on King Kamehameha's birthday, and it's just Hawaii has such a statute.

Could the employer... and the employer made the man work on that birthday and fired him... or fired him if he didn't, something like that.

What result in that case?

Mr. Hipp: In that case--

Unknown Speaker: And you assume the collective bargaining agreement is silent on this particular holiday.

Mr. Hipp: --All right.

In this case, Your Honor, the employee would have to be reinstated.

Why... and let me tell you... explain why, because that's a good hypothetical.

The reason that that would work that way is that you have a State minimum standard that is established, correct, namely, every employee will be off on King Kamehameha day.

The employer is, as we know pursuant to the Terminal case, has to abide by the State substantive standards.

Now, as to... after you have that substantive standard, if you terminate an employee in violation of that substantive standard, you will have violated a policy pursuant to State law.

That policy is incorporated in the complex that the adjustment board must evaluate in deciding the discharge case.

Let's... your... let's carry your hypothetical out, because if you go to the adjust--

Unknown Speaker: Let me change it just a little.

Instead of saying... instead of discharging him, they just didn't pay him for the day.

They docked him for a day's pay, and there's no remedy under the collective bargaining agreement for missing a day's pay.

Could he sue in State court and get the day's pay?

Mr. Hipp: --No, he could not, Your Honor.

Your assumption here is that... you assumed the answer in your question, namely that there would be no remedy under the collective bargaining agreement.

But Congress dictated that there would be a remedy for that under the collective bargaining agreement, because Congress said there has to be an adjustment board, and Congress said that that adjustment board has to consider grievances, and if you would look at how the development of the Railway Labor Act was in the first 10 years, and you look in particular--

Unknown Speaker: The term "grievances" is really the heart of the dispute, I suppose, whether grievances include noncontractual disputes as well as contractual disputes.

Mr. Hipp: --That's correct, Your Honor, and I would really ask--

Unknown Speaker: You say they must provide relief in that case--

Mr. Hipp: --That they--

Unknown Speaker: --They must.

The adjustment board must provide relief.

Mr. Hipp: --and if by that case, it was the wage payment situation--

Unknown Speaker: The holiday case, right, but they need not provide it in the whistleblower case.

Just, they may.

They may take it into account, right?

Mr. Hipp: --No, Your Honor--

Unknown Speaker: They must provide it in the whistleblower case, too, right?

Mr. Hipp: --That's correct, Your Honor--

Unknown Speaker: The same relief that the State requires.

Mr. Hipp: --They... not the same remedy.

This was the debate between the majority in Andrews and Justice Douglas, because Justice Douglas kept saying, under State law you get this additional remedy.

You get all of these good remedies under State law that you're not going to get under the adjustment board, and the answer to that is, that is not what preemption is all about.

That preemption allows the adjustment board to fashion the remedy.

I would ask the Court to look at Professor Garrison's article, and particularly... it's cited many times by this Court, because it was written in 1937, after 10 years of experience under the Railway Labor Act.

At pages 583 and 586 of that article, the... Dean Garrison describes... he describes how the adjustment boards had been dealing with grievances.

He identified grievances as a narrow class of cases that he identified as being discharges or refusals to promote.

If you look at the analytical framework that was being used by the adjustment board, he distinguishes how the adjustment board addressed those cases and how it addressed contract interpretation cases.

He said that in those cases, the adjustment board looked at the equities.

The adjust--

Unknown Speaker: Norris, in his State lawsuit, did he ask for punitive damages?

Mr. Hipp: --Yes, he did, Your Honor.

Unknown Speaker: Could he get those under the grievance board proceeding, assuming every fact was found in his favor?

Mr. Hipp: The Hawaii court found that he could not.

The arbitrator, who is the only arbitrator who has testified in this case, said that under certain limited circumstances punitive damages would be available.

However, I would also hasten to note, Justice Ginsburg, that this again lies at the heart of the debate between Justice Douglas and the rest of the Court in the Andrews case, because he was focusing on the remedy provided by State law, and he was saying, look, you can't get the same remedy over here in this Railway Labor Act proceeding, and that was not a basis for not finding preemption.

You have to understand--

Unknown Speaker: Review for me your answer of... assuming everything was found in his favor, what could the remedy be from the board and how would it differ from the State law remedy?

Mr. Hipp: --Your Honor, that is addressed at length by the arbitrator in the Joint Appendix.

The arbitrator takes one position.

The Hawaii courts found that there would not be anything other than back pay and the traditional status quo ante remedy.

The Hawaii Whistleblower Protection Act itself provides for the payment of back pay plus actual damages.

That's the terminology that's used there.

The Hawaii Whistleblower Protection Act, according to the State court judge, does not provide for punitive damages.

However, the plaintiff has sued for... in common law and asked for punitive damages.

I would like to make two final points here, and I think they are key, and that is that what in essence is being asked of the opponents in this case is for you to do away with the tradeoff that took place in 1934, whereby employees got their mandatory arbitration procedures and they gave up strikes, and going to court.

Unknown Speaker: Aren't you doing away with it too, because you are telling us that even in the instances in which there is a preemption, the preemption is somehow softened by this obligation to borrow standards, or to borrow principles?

You're interfering with the tradeoff too, aren't you?

Mr. Hipp: No, Your Honor.

I believe this is exactly what was entailed, that--

Unknown Speaker: What is the source of--

Mr. Hipp: --if you look at the adjustment--

Unknown Speaker: --I still don't understand the source of the obligation to borrow these standards.

Mr. Hipp: --The source of the obligation is for the court to... I mean, for the adjustment board to function in the nature of a court, to look at and draw upon the policies--

Unknown Speaker: Then why isn't... why wouldn't it be functioning in the nature of the court for the board to say, we think whistleblower legislation is very unwise, and we are not going to recognize any grievance whatsoever that has as its source a whistleblower claim.

Is that open to the board?

Mr. Hipp: --If the board... the board might well say that.

That would be subject to review in the courts under this Court's Misco standard.

Unknown Speaker: Well, but I want to know how the review turns out.

Can the board say that in a grievance arising in Hawaii?

Mr. Hipp: I would say that it could not say that.

Unknown Speaker: Why?

Mr. Hipp: And the reason I would say that, Your Honor, is that Congress has recognized already that this has to be dealt with through the adjustment board process.

Unknown Speaker: Thank you, Mr. Hipp.

Ms. Mollway, we'll hear from you.

Argument of Susan Oki Mollway

Mr. Mollway: Mr. Chief Justice and may it please the Court:

Petitioners have lost sight of what the RLA is.

The RLA provides for airlines and railroads to enter into agreements, and provides procedures for enforcing those agreements.

The world of the RLA is nothing more.

Nothing in the RLA sets terms and conditions of employment.

Nothing in the RLA prevents any Government from setting those terms and conditions of employment by providing minimum protections for all workers, including workers covered by the RLA.

Only by ignoring decades of law can petitioners argue that the RLA wipes out or forces into an RLA forum these minimum protections.

Beginning more than 60 years ago, this Court has had opportunities in which it could have held that the RLA governs such independent laws.

This Court has never so held.

It did not so hold in 1931 in the Norwood case.

It did not so hold 12 years later in Terminal Railroad, which, although petitioners have characterized it as a State-based case, in reality began with a union filing a complaint against a railroad in a State administrative agency.

Unknown Speaker: Well, if you were to prevail in this case, Ms. Mollway, we would have to cut back some on the Burley opinion, would we not?

Mr. Mollway: I believe, Your Honor, that that cutback... if Your Honor is referring to construction of the omitted case language--

Unknown Speaker: Yes.

Mr. Mollway: --Insofar as the omitted case language might have been earlier construed to include independent claims, I believe that cutback has already come.

I believe it came in Buell in 1987.

That case specifically involved a personal injury brought under the FELA.

Personal injuries were the only specific example of omitted case in the Burley decision, and to the extent that that decision was referring to a personal injury covered by the FELA, I believe that omitted case did come, has now been either eliminated or at least rejected insofar as it might earlier have been interpreted in that way.

A lot of the problem here I believe has been recognized by the panel in that petitioners are unclear as to what they are really asking for.

Are they asking for substantive preemption... that is, that all of these minimum protections disappear totally... or are they asking for forum preemption?

That is, that these kinds of independent claims are funneled into the RLA forum.

They say, in their briefs, that they are arguing for forum preemption, but they shift continually back and forth, as in fact has just occurred in the oral argument, and even in their briefs, in their reply brief in footnote 5, they refer to what is in essence substantive preemption, wiping out these rights.

Obviously, the analysis that will be applied to petitioner's case will differ depending on which kind of preemption they are seeking, but in either case, we submit, preemption is inappropriate, and that is because these independent laws were never intended by Congress to be wiped out either in terms of--

Unknown Speaker: --something else between the two, for exclusive jurisdiction but applying both State and Federal law and substantive preemption... that is, to the extent that there would be questions and comments in a wrongful discharge before the board, that the question whether Norris was wrongfully discharged has to be determined by the board, and then the State forum can take over, so it's kind of a deference until the board decides the preliminary question.

How about that?

Would that be a way of harmonizing State and Federal law?

Mr. Mollway: --It would not, Your Honor, because Federal law only refers to contract disputes, and in the case of Mr. Norris' common law dispute, that is not based on the contract.

We are looking at the distinction as being the source of the right that Mr. Norris is pursuing, so insofar as Mr. Norris is pursuing a right independent of the collective bargaining agreement, even if there were some question that were to arise under a contract because the source of the right is independent of the contract, that particular right remains adjudicable in a court and need not go through the RLA procedure.

Unknown Speaker: Well if a State is willing to take the trouble to do it, can a State enact, therefore, an extremely detailed code of labor management relations basically covering everything that is normally covered in CBA's and therefore, in each case, simply be enforcing a substantive State... the employee who might sue under it would in each case simply be enforcing a substantive State law right and therefore ignore the CBA entirely?

Mr. Mollway: Well, the State obviously could not come into conflict with direct Federal law, but the RLA does not--

Unknown Speaker: Let's assume it basically enacts what as a practical matter is a parallel regime to the most salient provisions of most collective bargaining agreements and one that is entirely in harmony, can it therefore, in effect, provide on each really serious issue an alternate forum if it has a sufficiently detailed law to address each issue?

Mr. Mollway: --I believe, Your Honor, that it could, but it would at that point have to also refer to the collective bargaining agreement if there was one that applied to that particular provision.

Unknown Speaker: Why?

Mr. Mollway: Well, for example, if there were a seniority provision in the collective bargaining agreement, I don't believe that the State could somehow override the agreement that the parties had come into, but if--

Unknown Speaker: Well, let's assume that the State statute was simply in harmony with it.

Could the employee begin, and if he does not like the way the arbitration is going, basically drop it and then simply walk into a State court?

Mr. Mollway: --Yes.

If he is in State court not asserting his rights under the contract but instead asserting his rights under the State law, yes, he could then go into State court and proceed in that way, and that's exactly what Ms. Lingle did in the Lingle case.

She went under her contract and she pursued her remedies there and in fact won reinstatement and back pay.

She went into court and pursued her wrongful termination claim there, and there was no conflict according to this Court, even though she was proceeding in both the RLA forum and in court, and we would submit that there is no reason that any different approach should be applied under the RLA.

In fact, in terms of preemption procedures the cases about preemption have developed in parallel lines under the LMRA context applicable to Lingle and under the RLA context applicable here, and specifically in the Andrews case, which held that for contract disputes only, the exclusive forum was an RLA forum.

In that case, this Court referred to LMRA developments in preemption law, such as Republic Steel and Lucas Flour, and that has been the case throughout the history of preemption under both laws.

I would like to address some of the matters that came up in my opponent's discussion.

There was a great deal of discussion about the Federal Railway Safety Act, and I would like to point out that he has completely overlooked the inclusion by Congress of an election of remedies provision there, so that even though it applies to railroad workers and not to airline workers, there is in fact retained a railroad worker's right to go to court, if in fact he has an independent State right.

There is some confusion, the reason being that one of the legislative reports that has been cited says there is an exclusive remedy under the RLA, but that is because the legislative report apparently was from a bill different from the statute that was actually enacted.

Unknown Speaker: You've mentioned the prospect of someone pursuing relief in both forums.

Mr. Mollway: Yes.

Unknown Speaker: Suppose in the... before the board, the board determines that there was no wrongful discharge, would that have preclusive effect on the State court action under the whistleblower's protective act?

Mr. Mollway: No, it would not, Your Honor, because then, in the separate State court action brought under an independent law, an independent determination would be made whether, under State law, there had been a wrongful discharge or not, and different considerations would come into play irrespective of whatever the collective bargaining agreement might have provided.

Unknown Speaker: Well, what if there's a Federal whistleblower law that's applicable to railroad workers?

would that be applied by the board?

Mr. Mollway: It... I don't believe so, Your Honor, but in case after case what the NRAB has done is said, we are confining our consideration to matters of contract, and they refer to law outside of a collective bargaining agreement only if that law is expressly incorporated into the agreement, or if it serves as a guide, but to my knowledge you have--

Unknown Speaker: But suppose the grievance before the board is... there's a dispute over whether he was fired at all.

Mr. Mollway: --Yes.

Unknown Speaker: The employer says, I didn't fire you.

You were welcome to come back to work, and he said, oh, no you fired me... that's the dispute... and it goes to arbitration before the board, and the board says, he was not fired.

You're saying that that is not binding on the State court, when he brings a whistleblower suit in State court?

Mr. Mollway: Yes, that's correct, because--

Unknown Speaker: That's extraordinary, to have no collateral estoppel effect at all.

Mr. Mollway: --There is no effect, we submit, and the reason is because the determination of whether in fact he was discharged that was made by an adjustment board would turn on provisions in the collective bargaining agreement, whereas when he came into court--

Unknown Speaker: It's the same fact.

The fact is whether he was free to come back to work or not.

That very same fact is going to be at issue in the State proceeding.

Mr. Mollway: --Yes.

Unknown Speaker: And you're saying, even though it's already been adjudicated in a proceeding between these two, it will be readjudicated by the State differently.

Mr. Mollway: Yes, because under State law there may be--

Unknown Speaker: Do you have any precedent for that in any other area?

Do you know any other area where we allow that to happen?

Mr. Mollway: --I am not aware of any case directly like that, where in fact, exactly contrary results were found by an adjustment board and by a court, but the reasoning behind it is that the RLA is confined to that world that we have discussed, which is the world--

Unknown Speaker: Yes, but the determination of fact is that he wasn't fired, and if he wasn't fired, a fortiori he wasn't fired for whistleblowing.

Mr. Mollway: --But it would be a determination made under the terms of the collective bargaining agreement based on the collective bargaining agreement's determination of a discharge.

Unknown Speaker: You mean fired or discharge might mean something different under State law?

Mr. Mollway: Yes.

Unknown Speaker: If it didn't mean something different under State law, there would be preclusion.

Mr. Mollway: Presumably the same result would be reached.

Not necessarily preclusion, but the same result would be reached if the two--

Unknown Speaker: But I thought you said there wasn't preclusion because the standards might be different.

If we determine the standards are the same, why wouldn't there be preclusion?

Mr. Mollway: --If this Court were to rule that the standards are exactly the same... yes, then I believe, if in fact there were that determination, there would be a preclusion.

In this case, however--

Unknown Speaker: How could this Court ever make that determination with respect to the law of the State of Hawaii?

Mr. Mollway: --I agree with you, Justice Ginsburg, I don't believe that this Court could make that kind of determination.

Unknown Speaker: But the supreme court of Hawaii could.

The supreme court of Hawaii could say we... the Supreme Court of the United States has told us what discharge means for Federal purposes and our definition is the same, and if they did that, there would be an obligation to recognize an estoppel, wouldn't there?

Mr. Mollway: Perhaps there would be, Your Honor, but in this case we don't have that.

We don't have a specific whistleblower protection address... or even on the discharge issue addressing the facts of this particular case, and so we are left with the record as it stands, and on the record as it stands, Mr. Norris has evidentiary differences with the petitioners as to whether or not he was discharged at all, whether or not that discharge was proper, and we submit that the RLA does not require those evidentiary differences to be resolved in an RLA forum, so that he remains free to come into court.

I'd like to go back to the procedural that the forum preemption issue is in fact that is what petitioners are arguing for.

If they are arguing--

Unknown Speaker: I like that one better.

I think that's a good forum.

Mr. Mollway: --Thank you.

If in fact they are arguing for forum preemption, that Mr. Norris' claim is required to go to an RLA forum, then they run smack up against decisions by this Court.

In particular, they run up against Terminal Railroad, which was a case brought by a union against a railroad in a State administrative agency, and if in fact there were forum preemption, then at the outset in the State administrative agency there should have been preemption, and that case should have been funneled to an RLA forum.

That didn't happen, the case came to this Court, and the Court did not say that the case should have gone to an RLA forum.

Similarly--

Unknown Speaker: Was the argument made in Terminal Railroad that it should have, and the Court expressly rejected it?

Mr. Mollway: --Not that I am aware of, Your Honor, but if in fact there were forum preemption at stake, presumably this Court would have recognized what the intent of Con--

Unknown Speaker: Well, that gives it the benefit of the doubt.

Mr. Mollway: --Yes, Your Honor.

Yes, and also he runs smack up against Buell, which was an independent claim, independent of a collective bargaining agreement that was permitted to go through the judicial procedure.

As you know, petitioners have tried to distinguish Buell on the ground that it is a Federal law-based claim, but there is no reason that State and Federal laws for preemption purposes should be treated differently.

Unknown Speaker: You would say a fortiori, wouldn't you?

If they should be treated differently, you would give more deference to the States.

Mr. Mollway: Yes.

Yes, and in fact this Court has said that they should be treated alike.

In Metropolitan LIfe this Court said that, and again in Lingle this Court said that, and in Lingle, in saying that, this Court cited to Buell, an RLA case, even though Lingle was an LMRA case.

In addition, petitioners run smack up against, at the very least, a constitutional consideration as to whether or not Congress may constitutionally take away Mr. Norris' right to a jury trial.

We will concede that clearly, had he brought a claim under the contract, there would be a public right in having the RLA forum handle contract claims in a uniform manner, so that claim clearly would go, without a jury trial, to the RLA forum, but there is no indication of an equivalent public right that would force an independent State law claim to go into that kind of forum, so at the very least--

Unknown Speaker: But--

Mr. Mollway: --Yes, Mr. Chief Justice.

Unknown Speaker: --What is the constitutional argument you're making?

Mr. Mollway: A Seventh Amendment argument, Your Honor.

I'm not asking this Court to decide that issue, but simply to take into consideration that petitioner's argument, if accepted, would implicate that issue--

Unknown Speaker: Seventh Amendment requires jury trials and certain civil actions in the Federal courts.

I thought your client was suing in a Hawaii court.

Mr. Mollway: --He was, Your Honor.

Unknown Speaker: The Seventh Amendment has never been held applicable to State courts.

Mr. Mollway: Our position is that in the way that this is working what is happening is, if you take away the jury trial you are funneling all claims, including State and Federal claims, into a Federal forum.

That is a nonjury forum into an RLA Federal forum, so to that extent we are talking about creating a nonjury Federal forum that is not a jury forum, when--

Unknown Speaker: Well, what constitutional... it violates the Seventh Amendment to do that--

Mr. Mollway: --Yes--

Unknown Speaker: --because--

Mr. Mollway: --It violates the Seventh Amendment because it takes away the right to jury trial, and that right has been construed as--

Unknown Speaker: --The right to jury trial, but it certainly doesn't take away the right to jury trial of any Federal courts.

Mr. Mollway: --Our submission is that by channeling his case into a Federal forum you are also implicating Article III, and this Court has construed Seventh Amendment concerns as being on the same standard as Article III concerns.

Unknown Speaker: How is one implicating Article III by doing that?

Mr. Mollway: You are channeling into a non-Article III forum these kinds of claims that traditionally have been deemed to be entitled to be triable in court.

If, for example, this were a diversity case, so that it was brought in Federal court, surely Mr. Norris would have been entitled to a jury--

Unknown Speaker: But you can make that same argument about a great deal of our National Labor Relations Act preemption cases.

Mr. Mollway: --Our position is that in those cases, if the court is taking about contract rights, then there is an overriding public right that permits the channeling of such cases into an RLA forum, but there is no such overriding public right with respect to State based rights, differing State by State, and certainly not in the congressional intent.

All that petitioners are laying their weighty argument on is in essence the word RLA, and we submit that that is too heavy a weight to place.

In fact, just 2 days ago, Justice Stevens read the decision in Landgraf, in which this Court said extraordinary weight should not be placed on narrow terms in a long and complicated statute, and we submit that the placement of such weight on the word "or" in the terms arising out of grievances, or out of the interpretation or application of contracts is much too great a weight--

Unknown Speaker: Thank you, Ms. Mollway.

Mr. Mollway: --Thank you, Your Honor.

Unknown Speaker: Mr. Seamon, we'll hear from you.

Argument of Richard H. Seamon

Mr. Seamon: Thank you, Mr. Chief Justice, and may it please the Court:

I would like to begin by addressing some of the issues that came up earlier in the argument.

First, we would part company with our colleagues on the issue of preclusion.

We would say that when a factual issue is arbitrated and goes through to an award, that under Utah Mining and similar precedent the normal rules of administrative res judicata would apply.

The second point I would like to make is related to that, which is, we believe that what an arbitrator, or what the National Railroad Adjustment Board can decide under the RLA are grievances, and we believe that the term grievances, by and large, includes claims based on the collective bargaining agreement.

Now, to the extent the collective bargaining agreement actually incorporates State law, then it may well be that the arbitrator can look to State law, but his or her authority to do so is solely bounded by the terms of the contract, and that is because, again, the term grievances really embraces claims based on the employment contract.

The third point I would like to make has to do with the hypothetical that arose with respect to whether a State could effectively enact a comprehensive labor code that would address virtually all of the subjects that would be covered under a collective bargaining agreement.

We think the answer to that to a large extent depends on whether the State was attempting to regulate the collective bargaining process on the one hand, in which case we think that it would severely limited by doing so, because that is what the RLA deals with.

That's on the one hand.

The other hand is that a State still remains free to govern... to regulate about substantive matters of employee safety, to set minimal standards of protection.

Again, one of the points that Ms. Mollway made, and this Court has made, is that the RLA governs the process for arriving at an agreement rather than the substantive terms that end up in the agreement that's--

Unknown Speaker: Why just safety?

Why not wages?

Mr. Seamon: --It can cover wages as well.

Unknown Speaker: Well, all terms of employment.

You're saying that States can control the mandatory terms of an employment agreement under the RLA.

Mr. Seamon: There may be other Federal statutes and Supremacy Clause problems at the margins, but as far as the RLA is concerned, the answer is yes, substantive matters such as wages.

The next point is also related to the question about what a State can regulate without running afoul of the RLA and the process for arbitrating minor grievances, and that is that our opponents try to make a distinction between disputes that arise in the employment setting and safety issues, but in fact the two are often related.

In the caboose case, for example, the whole dispute began when employees of a railroad sought to have cabooses added to trains, even though the collective bargaining agreement in that case didn't provide for the cabooses that the State law provided for.

In other words, that was a dispute, but it was also a safety issue.

In that case, the State had determined that there were a minimal number of cabooses that had to be added to trains even though the collective bargaining agreement in that case provided for a fewer number, so in reality the distinction that our opponents try to draw between safety matters on the one hand and employment disputes on the other hand doesn't really exist.

And the last point I'd like to make with respect to issues that arose prior in the argument has to do with the Seventh Amendment, and we would say that ultimately we don't know the answer to the question of whether the Seventh Amendment applies.

We think the difficulty of making a Seventh Amendment argument with respect to our colleagues is that this Court has never held that the Seventh Amendment applies to actions in the State court.

It only applies to Federal court actions, and for that reason we doubt that a serious Seventh Amendment problem was raised here.

Unknown Speaker: Some of these, if you had diversity, you could be in a Federal court.

Mr. Seamon: That's right, but a diversity action would go forward in Federal court, and to the extent that the proceeding was in a court of the United States then the Seventh Amendment would clearly apply.

Unknown Speaker: Well, that's true, but her point is that by excluding that course, by requiring you to go through the arbitration mechanism, you deprive the plaintiff of that option of getting a jury.

Mr. Seamon: That's right, and... and--

Unknown Speaker: So it's a possible argument.

You're just not going along with it.

Mr. Seamon: --I think the more important point, and it is important in interpreting Congress' intent, is that even if a person doesn't have a constitutional right to a jury trial in a State court, it's nonetheless an important and valuable right, and so in interpreting the RLA, the Court should consider whether Congress intended to extinguish this valuable right either by totally extinguishing the State's substantive right, or extinguishing the right to a State forum.

Unknown Speaker: Do you recognize any kind of deference, or which one goes first?

You've answered the preclusion question differently.

If the board goes first, it would bind the State court.

But here, it was a person proceeding in both forums at the same time.

Does the State have any obligation to defer, to hold its case in abeyance while the board answers the question, was there a wrongful discharge?

Mr. Seamon: We don't believe that it has an obligation to do so, although we would certainly think that in certain cases it would be prudent, and that the State court could, without running afoul of either the plaintiff's rights or the RLA, defer to arbitration.

In other words--

Unknown Speaker: Could the State court be bound by factual findings in the arbitration?

Mr. Seamon: --Yes.

Unknown Speaker: And would the arbitration panel be bound by factual findings in the State proceeding if that terminated first?

Mr. Seamon: I believe that's so, and there... and that is where the problem of deferral becomes important, and we think that... but we don't believe that the RLA itself, of its own force, would require a State court to basically defer or stay proceedings pending the outcome of arbitration, at least as long as the plaintiff's claim does not depend on an interpretation of the collective bargaining agreement.

We're basically positing an either-or situation.

Either the claim can be brought in State court, and we think that respondent's claim here can be brought in State court because it doesn't depend on an interpretation of the collective bargaining agreement, or it has to be brought in arbitration, and that would be because the claim requires some interpretation of the collective bargaining agreement.

That isn't so here.

Unknown Speaker: What if the collective bargaining agreement contained a definition of discharge that was not complied with.

I mean, so that under an agreement there was no discharge.

What do you do in the State court action?

Mr. Seamon: Well, in this case that issue doesn't arise because the respondent was very clearly discharged after the step 1 hearing, but in general the question of whether a discharge occurs under... for Hawaii whistleblower protection purposes is a question of State law.

If it's independent--

Unknown Speaker: So that would mean that if an arbitrator determined there was a discharge within the meaning of the collective bargaining agreement, that would not necessarily preclude a different holding in the State court on the same issue decided under a different standard.

Mr. Seamon: --That's correct.

The only... the preclusion would attach only to factual findings, historical matters for example, and I should actually qualify my point about preclusion by saying that certainly, in deciding whether a finding about a historical fact of an arbitrator was entitled to preclusive effect, a court should take into account the procedures that the arbitrator followed.

I mean, obviously, again, in accordance with Utah Mining Construction Company principles, the extent to which the arbitral proceeding resembled judicial sorts of proceedings would be important in deciding--

Unknown Speaker: Mr. Seamon, are you representing simply the Solicitor General here, or the views of the National... NRAB?

Mr. Seamon: --We are representing the views of the United States, not one specific agency such as the NRAB, or the NMB.

If there are no further questions, that concludes my presentation.

Unknown Speaker: Very well.

Thank you, Mr. Seamon.

Mr. Seamon: I thank the Court.

Chief Justice Rehnquist: The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 92-2058, Hawaiian Airline versus Norris will be announced by Justice Blackmun.

Argument of Justice Blackmun

Mr. Blackmun: This case comes to us from the Supreme Court of Hawaii.

The respondent, Norris, lost his job as an aircraft mechanic with the petitioner, Hawaiian Airlines when he refused to sign a maintenance record for a plane he considered unsafe.

He brought separate State Court suits against the Airline and its officers in which, he alleged wrongful discharge in violation of public policy expressed in federal statutes.

The State Court dismissed these tort claims as preempted by the Railway Labor Act.

The State Supreme Court reversed rejecting petitioner's claim of preemption.

In an opinion filed with the Clerk today, we affirm that judgment and hold that the Railway Labor Act does not preempt respondent's state law causes of action.

The court is unanimous on this one.