Hastings, Chief Judge, Major, Senior Circuit Judge, and Schnackenberg, Circuit Judge.
MAJOR, Senior Circuit Judge:
Plaintiff, an employee of United Air Lines, Inc. (United), brought this action against it and other defendants for the recovery of compensatory and punitive damages and other relief, for her alleged wrongful discharge on March 14, 1966. United is a common carrier by air, and it and its employees are subject to Title II of the Railway Labor Act, Title 45 U.S.C.A. Sec. 181. et seq. Defendant Air Line Pilots Association (ALPA) is a union representing the employees of United, including plaintiff, in an appropriate unit. United and ALPA operate under a collective bargaining agreement which sets forth the rights and responsibilities of the parties thereto. Defendants Ritner, Hardesty, McAnallen and Robertson were members of United's System Board of Adjustment, the two former being designees of United and the two latter of ALPA. Defendant Ruby was president of ALPA.
Defendants United, Ritner and Hardesty, pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure, moved to dismiss the complaint for the following reasons:
"1. The Court lacks jurisdiction over the subject matter of this suit since plaintiff's exclusive remedy is before the United Air Lines Stewardesses and Flight Stewards System Board of Adjustment;
"2. This action is premature since the System Board of Adjustment has not yet heard and decided plaintiff's grievance, and any constitutional impairment alleged in the Railway Labor Act may be asserted by plaintiff in a suit to review any award of the System Board of Adjustment which plaintiff may deem to be in violation of her constitutional rights;
"3. The complaint fails to state a claim upon which relief can be granted."
A similar motion was filed by ALPA, McAnallen and Robertson. The Court permitted the filing of numerous affidavits and other documentary evidence submitted by the parties in support of their respective positions.
The Court by its order of October 4, 1966, allowed defendants' motion to dismiss for lack of jurisdiction on the ground that "plaintiff having elected the grievance procedure and alleging no fraud or misrepresentation on part of either or both defendants is bound by such election." From this order plaintiff appeals.
In this Court defendants argue as an alternative basis for affirming the order of dismissal that the Court was without jurisdiction for want of diversity of citizenship.
Of the numerous issues argued by the respective parties, we think there clearly emerges the controlling issue as to whether the System Board acquired exclusive jurisdiction of plaintiff's grievance, which she submitted to it in accordance with the terms of the collective bargaining agreement.
As alleged in plaintiff's complaint:
"At all times relevant hereto an agreement existed between the defendant Air Line Pilots Association Air Line Stewardesses and Flight Stewards Division, a labor union duly certified and recognized, which covered the pay, rules and working conditions of stewardesses employed by United including Plaintiff; said contract contained a Section XII, 'Investigation and Discipline,' and a Section XIII, 'System Board of Adjustment,' set up in compliance with Sec. 204, Title II of the Railway Labor Act and whose jurisdiction was governed by the authority of Sec. 3, Title I of the Act."
A letter of discharge, dated March 14, 1966, was sent to plaintiff by Mary Decker, her supervisor, in conformity with Sec. XII-A-1 of the collective bargaining agreement between ALPA and United. Sections XII and XIII of the agreement contain procedures for the processing of discharge grievances. They provide for a series of appeals through various levels of supervision up to the vice president and general manager of the Customer Services and ultimately to the System Board of Adjustment. The Board's decisions, in all cases "properly referrable to it", are expressly made "final and binding upon the parties thereto."
The System Board has jurisdiction, inter alia, over all "disputes between (an) employee * * * and the company * * * growing out of grievances or out of the interpretation or application of any of the terms of this agreement." The Board consists of four members, two selected by the company and two by ALPA, with provision for appointment of a neutral referee in the event of a deadlock. Unless a timely appeal is taken to the System Board from the company's fourth level decision, that decision becomes "final and binding" under the contract.
Upon her discharge, plaintiff set in motion the contract grievance machinery. We need not recite in detail the evidentiary circumstances concerning the numerous hearings which were held at plaintiff's request. This is so for the reason, as we understand, that there is no claim by plaintiff that the contract procedure was not followed at least until June 15, 1966, when her grievance was submitted to the System Board. On brief plaintiff states:
"As required by the Railway Labor Act (45 U.S.C. 184), Plaintiff grieved this dispute and it was handled in the usual manner up to and including the chief operating officer of the carrier so designated (a Mr. E. C. Westervelt) but Stumo was not reinstated."
More than that, plaintiff argues that the Act "does not give the employee an election but compels processing the grievance in the usual manner to the chief operator of the carrier" as a prerequisite to the right of the employee to elect to sue in a court for wrongful discharge.
It may be of some relevancy to point out that at the first hearing, held on March 29, 1966, plaintiff appeared with a fellow stewardess, and Mary Decker was present for the company. Plaintiff's grievance was denied and a copy of the decision was sent to her and to ALPA's legal department, at her request. Hearing on a further appeal was held April 28, 1966, to which plaintiff was accompanied by the chairman of the ALPA local and by a fellow employee. Following this hearing, copies of the decision were sent to plaintiff and to the ALPA legal department.
At this stage of the proceeding United received a letter from Mr. George F. Archer, dated April 29, 1966, in which he stated, "Please be advised that Miss Sonja Stumo is a client of mine and has requested that I examine the pertinent decisions that have been rendered in the above case." He requested a copy of the decision following the hearing of April 28, 1966, with which he was supplied. The record reveals an exchange of a series of letters between Archer and United, which in the main we regard as immaterial. It may be pertinent to note, however, that in a letter dated May 25, 1966, Archer demanded that United "reinstate Miss Stumo with full back pay, seniority and a letter of apology * * *." In a letter dated June 3, 1966, United advised Archer that under the terms of the collective bargaining agreement and the Railway Labor Act, an appeal would lie to the System Board of Adjustment.
In the meantime, plaintiff by letter dated May 5, 1966, requested an appeal hearing from the adverse decision following the hearing of April 28. In response to this request she was advised by United, in a letter dated May 10, of a hearing date of May 18, 1966. Copies of this letter were sent to ALPA's local chairman, to its legal department and to Mr. Archer. Two of plaintiff's fellow stewardesses accompanied her to this hearing. For some reason not explained by the record, Archer was not present and his name was not mentioned by plaintiff. On May 25, 1966, plaintiff was advised that her appeal was denied, and copies of the decision were sent to ALPA's legal department and to Miss Holle, one of the stewardesses who had appeared with plaintiff at the hearing.
On June 15, 1966, ALPA submitted plaintiff's grievance to the System Board, protesting her discharge. This submission, in our opinion, is of great importance, perhaps decisive of the issue before us. The letter was directed to David S. Ritner (a defendant), Chairman, United Air Lines, Inc. Stewardesses', System Board of Adjustment, and was signed by Charles H. Ruby (a defendant), as President of Air Line Pilots Association (Steward and Stewardess Division). The letter set forth the provisions of the collective bargaining agreement which required the Board to consider any dispute properly submitted to it by an employee which had not been previously settled in accordance with the terms of the agreement. The letter stated the questions at issue, the facts upon which plaintiff relied and her position with reference thereto, as well as the position of the employer. It concluded:
"Wherefore, the grieving stewardess herewith requests the decision of the Board:
"1. That the Company was not justified in the discharge of the grievant.
"2. That the grievant be fully reinstated, that she be made whole any monetary losses sustained and that all papers pertaining hereto be removed from her file, and
"3. That the grievant have such other, further or different relief as this Board may deem just and proper."
John G. Loomos, regular staff attorney for ALPA, in an affidavit stated, among other things:
"3. That he furnished both subject and her attorney with advice before each of the hearings provided for in the Collective Bargaining Agreement. Similar assistance was rendered her by local Air Line Pilots Association officials.
"4. Per her request, a letter submitting her grievance to the United Air Lines, Inc. Steward & Stewardess System Board of Adjustment was prepared by me for signature by Association President, Charles H. Ruby."
Thus, it is not open to doubt but that plaintiff's grievance was properly submitted by ALPA to the System Board, at her request, and that the letter of submission was prepared by ALPA's legal counsel. Although Archer does not expressly affirm or deny that he had knowledge of the submission, it is plainly inferable that he did. Moreover, a reading of the correspondence between Archer and United leaves us with the distinct impression that he was not interested in aiding his client in processing her grievance before the System Board but was concerned only with preparing the way for court action.
On July 6, 1966, plaintiff by her attorney, Archer, filed the instant complaint in the United States District Court. Thus, we have a situation where plaintiff by ALPA, her duly authorized agent, properly submitted her grievance to the System Board, and some three weeks later, without notice and without affording the Board an opportunity to hear and decide her grievance, abandoned the same and elected to resort to the Court for relief. She not only abandoned her submission to the System Board but sought to enjoin it from hearing and deciding the matter.
This brings us to a consideration of the cases relied upon by the parties in support of their respective positions. Moore v. Illinois Central Railroad Co., 312 U.S. 630, 85 L. Ed. 1089, 61 S. Ct. 754, is much relied upon by plaintiff. It is the progenitor of a long line of cases and has been often cited and discussed by the Supreme Court. An attempt to analyze these many cases in detail would unduly burden this opinion. Furthermore, in the view which we take of the matter, it is not necessary.
True, in Moore, the Court held that a discharged railroad employee, who claimed to have been wrongfully discharged in violation of his union contract, could pursue his remedy under state law for breach of contract without having to exhaust either his contract remedies or his administrative remedy before the National Railroad Adjustment Board. In the instant case we need not be concerned with state law as it is not relied upon by plaintiff. Subsequent decisions of the Supreme Court have severely limited the Moore doctrine to the particular facts of that case, which were quite dissimilar from those before us.
In Slocum v. Delaware, Lackawanna & Western Railroad Co., 339 U.S. 239, 94 L. Ed. 795, 70 S. Ct. 577, the Court held that the jurisdiction of the Adjustment Board to adjust grievances and disputes of this type there involved was exclusive. As to Moore the Court stated (page 244):
"* * * Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad's action in discharging him as final, thereby ceasing to be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. * * *
"We hold that the jurisdiction of the Board to adjust grievances and disputes of the type here involved is exclusive. The holding of the Moore case does not conflict with this decision, and no contrary inference ...