In Bailey v. Norfolk and Western Railway Co., 206 W. Va. 654, 527 S.E.2d 516 (1999), longstanding railroad employees brought State claims for age discrimination in seniority placement following forced promotions.
Specifically, senior brakemen hired prior to 1985 were required by a collective bargaining agreement to accept promotion to the position of conductor where they would be placed on the bottom of the conductor seniority roster, effectively stripping them of the years of seniority they had accrued as brakemen.
In contrast, those hired after 1985 were permitted, under a different collective bargaining agreement, to use their brakemen seniority when promoted to the conductor position.
The Railroad contended that this placement was governed by a 1954 labor agreement requiring the Railroad to place the plaintiffs at the bottom of the seniority roster.
In their age discrimination suit, the plaintiffs did not challenge the Railroad's authority to force-promote the brakemen, but asserted that the Railroad's legitimate force-promotion did not justify discrimination in their placement on the seniority roster.
This Court found that the plaintiffs' age discrimination claim was not preempted by § 301, and reasoned:
"We conclude that ... this state law discrimination claim is not exclusively dependent upon the terms of the collective bargaining agreements. The Plaintiffs do not directly attack the agreements or allege a violation thereof, but instead allege that the Railroad discriminated against them in a more general effort to remove them from its workforce through any means available to it, including discriminatory application of the collective bargaining agreements, intimidation, and hostile comments directed toward older workers and based upon the age of those workers." (Bailey, 206 W. Va. at 666, 527 S.E.2d at 528.)