UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 97-10873 Summary Calendar

RONALD BLANKENSHIP, Plaintiff-Appellant,

VERSUS

ATCHISON, TOPEKA, & SANTA FE RAILROAD COMPANY, Defendant-Appellee.

Appeal from the United States District Court For the Northern District of Texas Fort Worth Division

(4:97-CV-124-Y)

March 18, 1998 Before REYNALDO G. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM:^

This case comes from a decision of the United States

District Court for the Northern District of Texas, Fort Worth

Division, the Honorable Terry R. Means, presiding. The district

court dismissed the case against the Defendant-Appellee, the

Atchison, Topeka, & Santa Fe Railroad Company (“the Railroad”).

The Plaintiff-Appellant, Ronald Blankenship (“Blankenship”),

timely appealed, and the matter now lies before this circuit.

^ Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Background

Blankenship worked for the Railroad for twenty-five years,

and he lives in Barstow, California. Blankenship is a Diesel

Locomotive Machinist and a member of the International

Association of Machinists and Aerospace Workers (“the Union”).

The terms of Blankenship’s employment are governed by a

Collective Bargaining Agreement (“CBA”) between the Railroad and

the Union.

As part of his job, Blankenship is occasionally asked to

move locomotives in and out of the building in which the

locomotives are repaired, a practice known as “hostling.” As a

hostler, Blankenship was covered under the Hours of Service Act

(“the Service Act”),

(b), which requires the

random drug testing of covered employees. If Blankenship was

required to hostle a locomotive on a given day, his name would be

shown on a specific “Hours of Service Report” at the locomotive

terminal. Even if he was not listed for hostling on a given day,

his name was in the database of workers subject to the Service

Act, and hence, drug testing, under the requirements of the

Railroad’s drug and alcohol policy.

On January 9, 1995, Blankenship reported for work. His name

was not included on any report showing him to have hostling

duties that day. Nevertheless, Blankenship’s supervisor informed

2 him that he was subject to a random drug test, and he would be

required to produce a urine sample. Blankenship assented to this

and presented himself for testing. Blankenship, despite having

ingested a quantity of liquids, was unable to produce a sample.

The next day, as instructed by the Railroad, Blankenship reported

to a doctor chosen by the Railroad, in order to determine whether

Blankenship’s inability to produce a sample was medically

justified, or constituted a refusal to test. Blankenship refused

this exam, stating that he did not know this physician, and he

would be willing to have a medical exam performed by his own

physician. The Railroad declined this offer. Incidentally, a

subsequent drug test, performed by Blankenship’s physician,

showed no evidence of illegal drugs in his system.

The Railroad proceeded with an investigation of Blankenship

(as provided for and required by the CBA), and dismissed

Blankenship for alleged violations of the Railroad’s drug and

alcohol policy. Blankenship contended that his selection for

drug testing and his subsequent firing was improper, and he

appealed his dismissal to a Public Law Board. Approximately two

years later, Blankenship prevailed in the decision of Public Law

Board No. 5816, and he was awarded his net lost wages.

On January 9, 1997, Blankenship filed suit against the

Railroad in the District Court of Tarrant County, Texas (the site

of the Railroad’s headquarters), seeking damages for intentional

infliction of emotional distress. The Railroad moved for removal

3 to federal court, and removal was granted. The Railroad then

filed a motion to dismiss, and Judge Means granted the motion on

the grounds that the Railway Labor Act (“RLA”),

,

et seq., preempted the state law claims, and on the alternative

grounds that the elements for the state law claims were not met.

Blankenship timely appealed, and we affirm the decision of the

district court on the grounds that preemption was appropriate.1

Standard of Review

Preemption is a question of law reviewed de novo. Reece v.

Houston Lighting & Power Company,

(5th Cir.

1996), cert. denied,

(1996). This circuit reviews

de novo a district court’s dismissal for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Dao

v. Auchan Hypermarket,

(5th Cir. 1996).

Analysis

This case turns on the preemption issue. The question of

jurisdiction, while argued separately by the Plaintiff-Appellant,

is intertwined with the preemption issue, because if preemption

is proper, then jurisdiction is proper as well. If the state law

1 We do not pass on whether dismissal was appropriate on the grounds that the elements of the state law claims of intentional infliction of emotional distress were not met. This case should not be cited for the proposition that we passed on that issue, one way or another.

4 claim was completely preempted by the RLA, then federal question

jurisdiction exists, and this case was properly removed to

federal court. Anderson v. American Airlines, Inc.,

(5th Cir. 1993).

There are two categories of disputes under the RLA, major

and minor. Minor disputes are those which arise from disputes

from grievances or from the interpretation or application of

agreements regarding pay, working conditions, or work rules.

. The RLA’s arbitral remedy is mandatory and exclusive for

minor disputes, and state law claims that involve these disputes

are preempted. Id.; see also Consolidated Rail Corp. v. Railway

Labor Executives’ Ass’n,

(1989)

(“Conrail”); Hawaiian Airlines v. Norris,

(1994). “The distinguishing characteristic of a minor dispute is

that it ‘may be conclusively resolved by interpreting the

existing [collective bargaining] agreement.’” Anderson,

(citing Conrail,

).

The Supreme Court has stated that the determination of

whether a dispute is a minor one, and hence, whether its

resolution by an RLA system board preempts an alternative cause

of action, is to be determined using the same analysis employed

in determining whether a cause of action is preempted by Section

301 of the Labor Management Relations Act (“LMRA”),

. Hawaiian Airlines,

. Under Section 301,

5 the key in determining whether a claim is preempted is whether

that claim depends on an interpretation of the collective

bargaining agreement.

; see also Lingle v. Norge

Div. of Magic Chef, Inc.,

(1987).

In the instant case, any analysis of whether the Railroad’s

actions were improper must depend upon an interpretation of the

CBA. The questions of whether the drug testing and dismissal

were proper can only be answered by consultation with and

interpretation of the CBA. Therefore, the claims are preempted

by the RLA, under the precedent cited. Further, we find no error

in the district court’s decision that the Railroad met its burden

in persuading the district court that its drug testing policy and

subsequent actions were justified by the terms of the CBA.

Accordingly, we affirm the decision of the district court.

Conclusion

Based on the foregoing, we find no reversible error in the

decision of the district court, which dismissed the case against

the Defendant-Appellee. Therefore, we AFFIRM the decision of the

district court.

AFFIRMED.

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