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September 23, 1998

JAMES M. BLAKELEY, SR., an individual; CHARLES W. FOWLER, an individual; PETER L. CURRAO, an individual; HOWARD T. ADAMS, an individual; GREG A. COOKSEY, an individual; GEORGE E. DATZ, an individual; ERNEST W. SMITH, an individual; and HENRY B. TAYLOR, an individual, PLAINTIFFS
USAIRWAYS, INC., a corporation, DEFENDANT.

The opinion of the court was delivered by: DIAMOND


 Plaintiffs commenced this action seeking a declaration that certain policies and practices of USAirways, Inc. ("defendant") violate the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and corresponding injunctive and monetary relief. Presently before the court is defendant's motion to dismiss. For the reasons set forth below, the motion will be denied.

 Plaintiffs are eight employees who claim that their rights under the ADA have been violated by defendant's administration of a company-wide "light-duty" work policy. Each plaintiff has been placed on light-duty status because of a work-related injury. Plaintiffs allege that defendant has engaged in a class-wide policy of discrimination against individuals protected by the ADA by failing to analyze separately each light-duty employee's physical abilities and restrictions and categorically denying such employees the opportunity to be considered for overtime work and other benefits and privileges of employment. Plaintiffs aver that they are required to work in an area known as the "reclamation room," that management has engaged in and permitted other employees to engage in conduct which is demeaning and degrading to such employees and that defendant "has adopted and followed a policy of harassing, segregating, ostracizing and demeaning the plaintiffs and all other USAirways personnel on 'light-duty,'" thereby subjecting them to an illegal hostile work environment. Plaintiffs aver that they are subjected to these policies and practices and are treated adversely in the terms and conditions of employment because of their disabilities.

 Each plaintiff is a member of the International Association of Machinists and Aerospace Workers ("IAMAW"), which has entered into a collective bargaining agreement ("CBA") with defendant. The CBA sets forth the general terms and conditions of plaintiffs' employment and mandates that members of the IAMAW and defendant submit to a binding and final grievance/arbitration process for resolving disputes arising under the CBA.

 Defendant contends that plaintiffs' claims are "preempted" by the Railway Labor Act ("the RLA"), 45 U.S.C. § 151 et seq., because plaintiffs' claims cannot be "disentangled" from the CBA. Defendant asserts that in order to place plaintiffs' claims within their proper perspective, the CBA must be "interpreted" to determine "what plaintiffs' job duties were, whether a reasonable accommodation existed that would allow plaintiffs to perform those duties, whether plaintiffs were qualified and eligible to work overtime within the meaning of the agreement, and what amount of overtime pay, if any, is allegedly due them." Defendant further posits that "the very source" of any right to overtime pay is the CBA itself.

 Defendant also contends that plaintiffs' claims are subject to dismissal on the ground that the CBA's grievance and arbitration procedures provide the exclusive forum for resolving any disputes arising out of plaintiffs' employment. Defendant notes that the CBA provides that all employment disputes are subject to final and binding arbitration, which assertedly encompasses disputes pertaining to the improper denial of overtime and unlawful discrimination, and that all but two of the plaintiffs already have invoked these contractual procedures prior to initiating the instant lawsuit. Against this backdrop it points out that the ADA specifically encourages arbitration and that the Supreme Court has a firmly entrenched policy of honoring agreements to arbitrate under the Federal Arbitration Act.

 Plaintiffs oppose the motion on the ground that the right(s) which they now seek to vindicate arise from a federal statute which is independent of the CBA and argue that their claims are not precluded under the United States Supreme Court's recent precedent. Plaintiffs also contend that a resolution of their ADA claims does not require an "interpretation" of the CBA and argue that defendant cannot avoid its independent statutory obligations because, inter alia, the CBA does not address or authorize the policy and conduct which plaintiffs seek to have declared illegal. Finally, plaintiffs assert that while they are entitled to arbitrate their discrimination claims under the CBA's procedures for grieving disputes if they choose to do so, an individual's statutory right to proceed to court with a discrimination claim cannot be waived through a CBA.

 Defendant initially observes that its 12(b)(1) motion seeks to dismiss plaintiffs' claims on the grounds that they are precluded by the RLA and are subject to final and binding arbitration under the CBA. It asserts that these issues pertain to the court's subject matter jurisdiction and thus evidence outside the pleadings may be considered without converting the motion into one for summary judgment. It further argues that plaintiffs bear the burden of establishing subject matter jurisdiction, and thus the allegations in the complaint need not be assumed to be true. Plaintiffs do not take issue with these assertions nor do they dispute the general facts advanced in support of defendant's arguments. Instead, plaintiffs challenge defendants' interpretation and application of the law.

 Defendant advances the following in support of its contention that plaintiffs' claims are precluded by the RLA. Defendant is an international commercial air carrier. Plaintiffs are employed in various maintenance jobs, are represented by the IAMAW and the contractual terms and conditions of their employment are set forth in the CBA. Article 4 of the CBA defines the duties and requirements for each position covered by the CBA. Seven of the plaintiffs are mechanics, which is defined in pertinent part:

The work of a Mechanic shall consist of any and all work generally recognized as Mechanic's work performed on or about the aircraft, including the servicing of the aircraft in or about shops, Maintenance bases, Company buildings or equipment wherever located, including, but not limited to, mechanical work involved in the dismantling overhauling, repairing, fabricating, assembling, welding, and erecting all parts of airplanes, airplane engines, avionics equipment, instruments, electrical systems, heating systems, hydraulic systems, automotive equipment, and machine tool work in connection therewith, including all general building maintenance and construction work.

 Reprinted at Exhibit A of Declaration of Richard Frey (Document 8) at pp. 14-15.

 Article 6 of the CBA sets forth a body of rules which govern additional pay that can be earned for work outside normal working hours on a regular work day or on a holiday ("overtime"). According to defendant, the guiding overtime principle reflected in Article 6(E) is that "overtime shall be distributed as equally as possible among all qualified employees of a shop or shift whenever overtime is required." Article 6 indicates in general when overtime pay is available, the method for computing overtime pay, the qualification requirements for working overtime and the procedures and formulas used to determine eligibility. Defendant also observes that Article 6 provides the following guidelines concerning the selection of crews on a holiday:

When a full scheduled crew is not required to work on a holiday, employees will be offered the holiday off on the basis of hiring date, seniority by classification, shift, and department until the reduced complement is achieved. Once the reduced complement is achieved and the Company finds it necessary to increase the complement, those employees in the bid area who were not afforded an opportunity to work by reason of such reduction will be asked to work first in order of hiring date, seniority by classification, shift and department prior to utilizing the overtime list.

 Id. at p. 27.

 Article 8 governs, inter alia, seniority and bumping rights. It also provides that employees who are injured on the job and who cannot perform their regular work "will be given preference of such light work as they are able to handle within their work classification." Declaration of Richard Frey at P14. When an employee cannot perform his or her regular job due to a job-related injury, the limited work the employee can perform is known as "light-duty work." Id. at P15. The CBA further provides that all employees injured on the job prior to October 10, 1992, are entitled to receive their full pre-injury salary while on light duty. Id. Some of the plaintiffs have at various times worked under medical restrictions which would have precluded them from working more than eight hours per day. Id. at P18.

 Each plaintiff has been assigned to work in the Hardware Sorting and Parts Reclamation Room ("the Reclamation Room"). The Reclamation Room was established by "special agreement" between the defendant and the IAMAW in 1996 and is one room in a large building called the Small Support Building, which contains several rooms used for the repair of small airplane parts. Id at P20. Work within the Reclamation Room entails sorting small unused airplane parts and returning those parts to inventory by classifying them on a computer. From defendant's perspective the work permits employees restricted to light-duty to perform productive and valuable work while earning their full salaries during the period of recovery, and this arrangement has saved defendant substantial sums of money. Id. at P21. This work is not time sensitive and does not need to be performed on an overtime basis. Id.

 The CBA also establishes a multi-step procedure for "the presentation and adjustment of disputes or grievances that may arise .... Any employee or group of employees who believe that they have been unjustly dealt with or that any provisions of this [CBA] have not been properly applied or interpreted" may invoke the grievance procedures. Id. at P24. Article 15 establishes a binding arbitration procedure, culminating in a proceeding before the System Board of Adjustment, for resolving "disputes between any employee covered by [the CBA] and the [defendant] growing out of grievances or out of interpretation or application of any of the terms of [the CBA]." Id. This system of final and binding arbitration also is mandated by the RLA, which requires mandatory arbitration for disputes "growing out of grievances, or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions." 45 U.S.C. § 184.

 Finally, Article 1 provides that defendant and the IAMAW shall not "discriminate against employees covered by [the CBA] because of race, color, religion, sex, national origin, age or handicap ..." and that they "agree to comply fully with all applicable Federal and State statutes and regulations regarding non-discrimination." Declaration of Richard Frey at P27. All but two of the plaintiffs filed grievances under the CBA and set forth the following statement in support of the proceeding:

The company (USAir) has willfully engaged in the practice of discrimination and harassment towards the grievant by not complying with the following but not limited to" Civil Rights Act of 1974, Americans With Disabilities Act of 7- 26-92 and the USAir-I.A.M. contract of 3-1-90 Art. 1 par A., Art 1 par F, Art 8 par J. The grievant seeks an end to the discrimination and harassment. The grievant further seeks to return to his bid area with the same rights and privileges as same classification "full duty" workers. The grievant will be seeking compensation for past, present, and future violations of all applicable state federal statutes and laws and contract violations.

 Id. at P28. Defendant complains that plaintiffs "now bring the very same claims in this lawsuit."

 Whether the RLA precludes a cause of action under a separate federal remedial statute is a question of Congressional intent. See generally Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 94 L. Ed. 2d 563, 107 S. Ct. 1410 (1987). The RLA was enacted in 1926 and extended to the airline industry in 1936. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 129 L. Ed. 2d 203, 208, 114 S. Ct. 2239 (1994). "Congress' purpose in passing the RLA was to promote stability in labor-management relations by providing a comprehensive framework for resolving labor disputes." Id. at 252 (citing Buell, 480 U.S. at 562).

 Under the RLA two types of disputes between carriers and labor organizations have been recognized: disputes concerning the application or interpretation of agreements concerning rates of pay, rules and working conditions, which are known as "minor disputes" and are committed under Section Three of the RLA to the exclusive jurisdiction of the National Railroad Adjustment Board ("NRAB") or an arbitration panel of coordinate jurisdiction established by agreement; and "major disputes" which involve the formation or modification of collective bargaining agreements and must be pursued and resolved in accordance with the exclusive negotiation and mediation process mandated by Sections Five and Six of the RLA, 45 U.S.C. §§ 155, 156. Major disputes involve "'the formation of collective bargaining agreements or efforts to secure them.'" Norris, 129 L. Ed. 2d at 211 (quoting Consolidated Rail Corp. v. Railway Labor Executives' Assn., 491 U.S. 299, 302, 109 S. Ct. 2477, 105 L. Ed. 2d 250 (1989)). "Minor disputes 'involve controversies over the meaning of an existing collective bargaining agreement in a particular fact situation.'" Id. (quoting Brotherhood of Trainmen R.R. v. Chicago R. & I.R. Co., 353 U.S. 30, 33, 1 L. Ed. 2d 622, 77 S. Ct. 635 (1957)). Where a dispute between an employee and a carrier is a minor one within the meaning of the RLA, the NRAB or the adjustment board of coordinate jurisdiction retains exclusive jurisdiction over the dispute and thus a federal district court lacks statutory jurisdiction to adjudicate any substantive aspect of the controversy. Id. (citing 45 U.S.C. § 184; Buell, 480 U.S. at 563; and Consolidated Rail Corp., 491 U.S. at 302).

 Defendant argues that resolution of plaintiffs' claims will entail an interpretation of the CBA and therefore they are minor disputes which are within the exclusive jurisdiction of the Systems Board. Defendant points out that establishing a prima facie case under the ADA requires each plaintiff to prove that he or she is a "qualified individual with a disability," which encompasses a determination of (1) whether he or she physically is able to perform the essential job functions, with or without reasonable accommodation, and (2) whether he or she has the requisite skill, experience, and other requirements for the job desired. Defendant asserts that these determinations cannot be made "without interpreting [the CBA] for the purpose of ascertaining (1) what plaintiffs' essential job duties were, (2) whether a reasonable accommodation existed that would have allowed them to perform those duties, and (3) whether they were denied overtime work for which they were eligible and qualified to perform."

 In support of the contention that the CBA will have to be interpreted to determine what each plaintiff's job duties were, defendant notes that the Equal Employment Opportunity Commission ("EEOC") has promulgated a regulation which indicates that a CBA may provide evidence of an employee's essential job functions, see 29 C.F.R. § 1630.2(n)(3)(v), and that the CBA here sets forth the duties of all established job classifications. According to defendant, this assessment will require scrutiny of Article 4, its arbitral history and the parties' practice under it (including the division of work between the subspecialties within the mechanic job classification) and any relevant System Board decisions. By way of example defendant notes that the System Board already has determined that defendant's ability to provide accommodations might be restricted where the number of employees among whom the work can be distributed is limited.

 Defendant also observes that the ADA provides that reasonable accommodations may include:

job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or material or policies, the provision of qualified readers or ...

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