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October 25, 2005.


The opinion of the court was delivered by: HENRY KENNEDY JR., District Judge


Plaintiff, Waleed Abdul-Qawiy ("Abdul-Qawiy"), brings this action against defendants, National Railroad Passenger Corporation ("Amtrak"), United Transportation Union ("UTU"), and United Transportation Union Local 1933 ("Local 1933"), alleging that Amtrak illegally terminated his employment based solely upon alleged work-related injuries and that this termination violated the terms of a collective bargaining agreement, the Railway Labor Act, 45 U.S.C. §§ 151 et seq., the Federal Employer's Liability Act, 45 U.S.C. §§ 51, et seq., the public policy of the District of Columbia, and various constitutional provisions. Presently before the court is Amtrak's motion to dismiss Counts Two, Three, and Four of Abdul-Qawiy's complaint [#5]. Amtrak argues that these counts are preempted by the exclusive arbitral provisions of the Railway Labor Act, or, in the alternative, that Counts Three and Four fail to state a claim upon which relief may be granted. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that the motion should be granted in part and denied in part. I. BACKGROUND INFORMATION

The facts and allegations of this case pertinent to the motion before the court are as follows. Defendant Amtrak is a common carrier subject to the provisions of the Railway Labor Act, 45 U.S.C. §§ 151 et seq. On or about July 3, 2002, Amtrak hired Abdul-Qawiy as an Assistant Passenger Conductor. The terms and conditions of Abdul-Qawiy's position were governed by a collective bargaining agreement between Amtrak and UTU.*fn1 Under the agreement, new conductors are subject to a ninety-day probationary period. If the employee does not meet with disapproval during the probationary period, his application is considered approved. Additionally, the agreement requires that no employee shall be dismissed without a fair and impartial hearing.

  On July 8, 2002, Abdul-Qawiy began an eight-week training course for new employees, which was successfully completed on or about September 3, 2002. Abdul-Qawiy alleges that his employment began, for purposes of the collective bargaining agreement, on July 8, 2002 when he reported to his first day of training. Therefore, according to Abdul-Qawiy, the 90-day probationary period under the collective bargaining agreement ended, and Abdul-Qawiy became a permanent employee, on October 6, 2002. Defendants, however, assert that Abdul-Qawiy's employment did not begin until after the training course was completed on September 3, 2002, and therefore Abdul-Qawiy never became a permanent employee.

  Abdul-Qawiy alleges that he became a member of Local 1933 on or about October 1, 2002, that Amtrak deducted union dues from his paycheck and forwarded the payments to Local 1933, and that he is still a current union member in good standing. UTU and Local 1933 deny that Abdul-Qawiy is currently a member of the union, averring that all union dues were mistakenly deducted from Abdul-Qawiy's paycheck and have since been refunded.

  On or about October 7, 2002, Abdul-Qawiy injured his arm while lifting passengers' luggage. He claims that he was not provided with proper lifting equipment and that he was instructed to lift luggage that was too heavy to be lifted safely. Abdul-Qawiy also claims that he was required to open and close train doors, some of which were defective and therefore difficult to open. After Abdul-Qawiy reported his injury to his supervisor, he was instructed to go to the hospital. Amtrak paid for Abdul-Qawiy's hospital visit. The following day, the chairman of Local 1933, Ray Cunningham, informed Abdul-Qawiy that he was terminated without reason because Amtrak had decided not to make him a permanent employee. Abdul-Qawiy petitioned his union representative to intercede with Amtrak on his behalf. Local 1933, however, agreed with Amtrak that Abdul-Qawiy was still a probationary employee and was therefore entitled to neither a hearing nor union representation.

  Abdul-Qawiy alleges that he hired an attorney to persuade Amtrak and the union to give him a hearing, as he claims is required under the collective bargaining agreement. Abdul-Qawiy further alleges that he repeatedly attempted to contact both Amtrak and the union from late 2002 until June 2003, but that neither was responsive. On June 22, 2004, Abdul-Qawiy initiated the present action alleging that: (1) Amtrak breached the Federal Employer's Liability Act; (2) Amtrak breached the collective bargaining agreement; (3) Amtrak wrongfully discharged Abdul-Qawiy in violation of the common law and statutes of the District of Columbia; (4) Amtrak violated Abdul-Qawiy's constitutionally protected property interests; (5) UTU and Local 1933 breached their duty of fair representation; and (6) UTU and Local 1933 breached their contractual relationship with Abdul-Qawiy.


  In moving to dismiss Counts Two, Three, and Four of Abdul-Qawiy's complaint, Amtrak essentially makes two arguments. First, it argues that these counts are preempted by the Railway Labor Act, 45 U.S.C. §§ 151 et seq. Second, Amtrak contends that Counts Four and Five fail to state a claim upon which relief can be granted.

  A. Federal Preemption

  1. Legal Standard

  While Amtrak grounds its motion on Fed.R.Civ.P. 12(b)(6) motion, its preemption argument actually challenges this court's subject matter jurisdiction with respect to some of Abdul-Qawiy's claims. A motion to dismiss for lack of subject matter jurisdiction, which is properly considered under Fed.R.Civ.P. 12(b)(1), should not be granted "unless plaintiffs can prove no set of facts in support of their claim which would entitle them to relief." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); Beverly Enters., Inc. v. Herman, 50 F. Supp. 2d 7, 11 (D.D.C. 1999). Additionally, at the dismissal stage, the plaintiff's complaint must be construed liberally, and the plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged facts. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). 2. Plaintiff's Preemption Argument

  In enacting the Railway Labor Act, Congress sought to promote stability in labor-management relations by "providing a comprehensive framework for the resolution of labor disputes in the railroad industry." Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562 (1987). To do so, the Act provides for mandatory grievance procedures to resolve certain labor disputes, commonly referred to as "minor disputes." "Minor" disputes stem from the interpretation or application of an existing collective bargaining agreement and are distinguished from "major" disputes, which arise from the formation or change of a collective bargaining agreement. Consolidated Rail Corp. v. Ry. Labor Executives Ass'n, 491 U.S. 299, 302-07 (1989). When a minor dispute arises, labor and management must submit to binding arbitration before the National Railroad Adjustment Board (or an adjustment board established by the parties). 45 U.S.C. § 153 First (i). The jurisdiction of the Adjustment Board over minor disputes is exclusive, subject to limited judicial review. Consolidated Rail, 491 U.S. at 304.

  Not all claims arising out of an employment-related dispute are preempted by the Act, however. Rather, only those state-law claims that require an interpretation of the collective bargaining agreement itself are preempted. In discussing the scope of federal preemption under an analogous statute, the Supreme Court has held that "if the resolution of a state-law claim depends upon the meaning of a collective bargaining agreement, the application of state law (which might lead to inconsistent results since there could be as many state-law principles as there are States) is pre-empted" and "the interpretation of collective-bargaining agreements remains firmly in the arbitral realm." Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407, 411 (1998).*fn2 That said, whenever the "state law claim can be resolved without interpreting the agreement itself, the claim is `independent' of the agreement" for preemption purposes. Id. at 410; see also Hawaiian ...

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