statutory review provided by the Act. However, they have
failed to describe the exact nature of the relief which they
desire, but which the Act fails to provide.
The crux of petitioners' aggrievement is that the Board's
Award No. 4692 is invalid because that Award dismissed
petitioner Lyons' claim without deciding it on the merits.
Seemingly, petitioners believe that the Railway Labor Act
requires the Board to make a decision on the merits as to such
a claim. Essentially then, petitioners claim that the Second
Division violated the Railway Labor Act by its decision.
However, Section 153 First (q) provides, inter alia, that
"the order of the division may be set aside, in whole or in
part, or remanded to the division, for failure of the division
to comply with the requirements of this chapter * * *." The
decision in Transportation-Communication Employees Union v.
Union Pacific Railway Co., 385 U.S. 157, 87 S.Ct. 369, 17
L.Ed.2d 264 (1966), in which the Supreme Court applied the
identical remand power contained in Section 153 First (p) of
the Act, is persuasive authority for the proposition that this
court has ample power to order the NRAB to comply with the
Act, if one of its decisions fails to adhere to its
In view of the above, we believe the statutory scheme
embodied in Section 153 First (q) confers power in this Court
to determine the grievance raised by petitioners, namely the
failure of the Board to conform to the law, and should be
considered their exclusive remedy for review of the Board
Award. Accordingly, mandamus, which sounds in equity, cannot
be ordered by this court, since petitioners have an adequate
remedy at law. Hence, the moving respondents cannot be joined
to this action on the ground that they are subject to this
Court's equitable jurisdiction.
However, petitioners argue that even if this action were to
be maintained as a statutory review proceeding, the individual
members of the NRAB would be proper parties because Award No.
4692 was a dismissal on jurisdictional grounds rather than a
judgment on the merits.
Section 153 First (q) makes no reference to the identity of
respondents in petitions for review, and does not explicitly
exclude the possibility of the Board members as potential
respondents. However, we believe the individual members of the
NRAB should not be included as respondents in such
proceedings. The instant respondents' suggestions on this
point were quite persuasive. The petition for review is
essentially a continuation of the proceedings before the
Board, to which the carrier alone was a party defendant. We
believe the parties in court should be the same as those
before the agency. The analogy is to appellate review of trial
court judgments, where the appellant names his opponent below
as appellee rather than the trial judge. The function of an
appellate court is similar to that exercised by a district
court on a petition for review, since both sit in review of
the decisions of lower tribunals. A petition for review
differs from a new civil action filed to challenge an agency's
decision. The latter constitutes a new proceeding with a
separate identity, and the members of the agency can be joined
as defendants. Such is the type of review provided by the
Social Security Act, 49 Stat. 624 (1935), 42 U.S.C. § 405
(g), under which an aggrieved party "may obtain a review of
such decision by a civil action."
The NRAB functions solely as an allegedly impartial
adjudicatory tribunal, unlike a body such as the Federal Trade
Commission, which operates as a quasi-legislative body.
Petitions seeking review of FTC decisions normally name the
agency as respondent. This is because the agency maintains an
interest in its decisions, which represents part of its
function to administer certain laws and formulate policy, and
which accordingly makes the Commission a proper respondent to
a petition for review. The NRAB has neither legislative nor
prosecutorial functions — it sits merely as an adjudicative
body, and does not administer laws or formulate policy. Rather
it resolves disputes between carriers and their employees
arising under the Railway Labor Act.
The above conclusions — that the NRAB is analogous to a lower
court — is equally applicable where the Board has dismissed a
claim on jurisdictional grounds rather than on the merits. The
trial judge is no more a proper party on appeal when he
dismisses an action for lack of jurisdiction, than when he
decided the case on the merits. And so here. Petitioners have
advanced nothing persuasive to challenge our above findings —
and the analogy upon which they rest.
We think the moving members of the NRAB are improper parties
to a statutory petition for review and must be dismissed.
Petitioners' request that we reserve decision on this motion
is equally unavailing. They suggest no justification for
subjecting the NRAB members to further expense and
inconvenience in defending this action when, in our judgment,
they are not proper respondents. The motion to dismiss is
© 1992-2003 VersusLaw Inc.