### The Honorable Steven Limbaugh, United States District Judg e 1 

### for the Eastern District of Missouri. ___________ No. 95-4042

___________ Benny L. Wheeler, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. St. Louis Southwestern Railway * Company; Southern Pacific * Transportation Company, * * Appellees. *

___________ Submitted: May 15, 1996 Filed: July 26, 1996

___________ Before FAGG, WOLLMAN, and LOKEN, Circuit Judges.

___________ WOLLMAN, Circuit Judge.

Ben ny Wheeler appeals the district court's order dismissing hi s 1 claim for severance benefits against St. Louis Southwestern Railway Compan y for lack of subject matter jurisdiction. We affirm.

I.

Benny Wheeler was employed by the St. Louis Southwestern Railwa y Com pany (Railway) as a locomotive engineer and was a member of th e Brotherhood of Locomotive Engineers (BLE), a railroad union that represent s engineers. Pursuant to a national agreement with the United Transportatio n Union (UTU), Wheeler also acquired seniority as a conductor, brakeman, and switchman. The UTU is also

### Included in this category of employees are conductors , 2 

### brakemen, and switchmen.
-2- a railroad union that represents employees in train and yard service. 2
In 1992, Railway developed a severance plan to reduce, on a vol untary basis, employees work ing as conductors, brakemen, and switchmen. Wheeler retired from active service on July 1, 1992, and applied for a $60,000 buy

out under the severance plan. Railway denied Wh eeler's application on the basis that he was not an eligible employee under the plan.

Wheeler appealed the denial of his application to the pla n admini strator. After the plan administrator denied his claim, Wheele r filed suit in Missouri state court. Railway removed the case to federal court, alleging that the claim was alternatively governed by the Railway Lab or Act, 45 U.S.C. §§ 151 et seq. (RLA) and the Employee Retiremen t Income Security Act, 29 U.S.C. §§ 1140 et seq. (ERISA). The district cour t denied Wheeler's motion to remand the case to state court. Railway then moved for summary judgment on the ground that the case was preempted by th e RLA. The district court found that Wheeler's cl aim for severance benefits
was subject to arbitration under the RLA. Concluding that it lacke d subject matter jurisdiction over the dispute, the district court treated Railway's motion for summary judgment as a motio n to dismiss and dismissed the action.

II.

From1988 through 1991, Railway and the UTU were involved i n negot iations between the nation's railroads and the railroad union s involving, inter alia , reduction in crew consist. Crew consist refers to the number of employe es necessary to safely operate a train. The parties failed to reach agreement, and in order to

### The Award was named after the panel's chairperson, Hele n 3 

### Witt. Public Law 102-29 provided that the recommendations of th e

4 

### Bo ard shall be binding on the parties and "shall have the sam e effect as though arrived at by agreement of the parties under the Railway Labor Act . . . ." Pub. L. No. 102-29, § 1(3).
-3- avoid a nationwide strike by the unions, President George Bush appointed Presidential Emergency Board 219 (the Board) to investigate the disputes and make recommendations. On January 15, 1991, the Board found that the railroads had valid r easons for proposing a reduction in crew consist and recommended that the individual parties negotiate at the local level.
Despite the Board's recommendations, some of the railroads and unions failed to reach agree ment. In response to this failure, Congress enacted Public Law 102-29, which imposed the recommendations submitted by th e Board. Settlement of Railroad Labor-Management Disputes, Pub. L. No. 102- 29, 105 Stat. 169 (1991). In accordance with this legislation, a n arbitration panel was appointed to resolve the crew consist dispute betwee n Railway and the UTU. On December 31, 1991, the panel issued its decision, known as the "Witt Award." Pursuant to the Witt Award, train and yar d 3 servic e employees would receive a $60,000 buy-out if they voluntaril y retire d from service by March 31, 1992. The Witt Award became a
con gressionally-mandated collective bargaining agreement in response t o Public Law 102-29. 4

III.
Dismissal for lack of subject matter jurisdiction will not be g ranted lightly. Bowe v. Northwest Airlines, Inc. , 974 F.2d 101, 103 (8th Cir

. 1992), cert. denied , 507 U.S. 992 (1993). Dismissal is proper, however, when a facial attack on a complaint's alleged basis for subject matte r jurisdiction shows there is no basis for jurisdiction. Id.

### The specific language contained in the Summary Pla n 5 

### Description states: This program is intended to make available a choic e between voluntary separation and dismissal allowanc e benefits to train and yard service employees in Company service, in accordance with th e Crew Consist Arbitration Award dated December 31, 1991 issued pursuant to Public Law No. 102-29.
-4- The issue is whether Wheeler's claim is preempted by the RLA. I n enacti ng the RLA, Congress attempted "`to promote stability in labor

management relations by providing a comprehensive framework for resolving labor disputes.'" Ta ggart v. Trans World Airlines , 40 F.3d 269, 272 (8th Cir. 1994) (quoting Hawaiian Airlines, Inc. v. Norris , 114 S. Ct. 2239 , 2243 (1994)). To accomplish this goal, the RLA imposes mandator y arbitration for "minor" disputes. Id. Controve rsy over the meaning of an existing collective bargaining agreement in a pa rticular fact situation is
one example of a "minor" dispute. Taggart , 40 F.3d at 272 (citin g Brotherho od of R.R. Trainmen v. Chicago R. & I. R.R. , 353 U.S. 30, 3 3 (1957)). In other wo rds, the RLA preempts "state law claims that involve minor disputes because such disputes are subject to mandatory arbitration. " Taggart , 40 F.3d at 272.

Wheele r argues that he is not seeking benefits pursuant to th e coll ectively-bargained Witt Award but rather under Railway's severanc e plan. He claims that because the severance plan was not drafted pursuant to the Witt Award, it is not a collective bargaining agreement subject to the arbitration provisions of the RLA. He contends that the plan wa s drafted solely by Railway and was thus not "bargained" for at all. H e further argues that the plan itself permits court adjudication of hi s claim.

We find Wheeler's contentions unpersuasive for several reasons

. First, the plan specifically refers to both Publ ic Law 102-29 and the Witt Award. Moreover, the plan simply mirrors the

5

### -5-

provisions set out in the Witt Award. For example, both the plan and the Witt Awar d provide for a $60,000 buy-out for train and yard servic e employees who apply for voluntary resignations b efore March 31, 1992. The plan merely provides in greater detail the procedures employees must follo w to apply for severance benefits.

That Rail way drafted the plan does not preclude the plan from being a collective bargaini ng agreement. Collective bargaining agreements take several forms under the RLA. In this case, it is clear that the plan aros e
as a result of Congress' action in enacting Public Law 102-29 and th e subsequent Witt Award. Wheeler's claim for severance benefits is precisel y the typ e of dispute the RLA's arbitration provisions were intended t o
cover.

We find unpersuasive Wheeler's argument that the Supreme Court' s recent decision in No rris lends support to his position that the claim is not preempted by the RLA. In Norris , the Supreme Court held that the RLA does not preempt state law rights that are independent of the collective bargaining agreement. Norris , 114 S. Ct. at 2248-49. In Wheeler's case, however, any severance benefits to which he may be entitled arise solely from the provisions o f the plan. Thus, Norris is inapposite. See id. at 22 48 ("[W]here the resolution of a state-law claim depends on a n interpretation of the collective-bargaining agreement, the claim i s preempted."); see also Taggart , 40 F.3d at 273.
Finally, Wheeler argues that the plan itself provides that a clai m for deni al of benefits may be brought in state or federal court. Thi s languag e, however, appears in the section of the plan entitled "ERIS A Requ irements." It is well-recognized that ERISA does not provide a n alternative to the RLA. Bowe , 974 F.2d at 103. "Despite [ERISA's] expres s provis ion allowing suits over the coverage and application of [employe e benefit] plans to be brought in federal court, ERISA was not intended to, nor did it, preempt t he mandatory arbitration provisions of Railway Labor Act." Id.

### -6-

(internal quotations omitted) (alteration in original).

The order of dismissal is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.