The opinion of the court was delivered by: Marovitz, District Judge.
Defendant Carrier Members Motion to Dismiss
Plaintiff System Federation No. 30, Railway Employes'
Department, AFL-CIO, an unincorporated association, consists
of several local labor organizations which represent various
crafts or classes of employees of the defendant Baltimore &
Ohio Railroad: including the Brotherhood Railway Carmen of
America which represents the craft of carmen. Plaintiff George
M. Lyons is a member of the Brotherhood of Railway Carmen of
America whose claim against the defendant carrier was
submitted to the National Railroad Adjustment Board by
plaintiff System Federation. The defendant Baltimore & Ohio
Railroad is a corporation organized under the laws of
Maryland, which operates through the State of Illinois.
Defendants Braidwood, Butler, Hagerman, Humphreys, Melberg
(hereinafter designated the "Carrier Members"), and Anderson,
Bagwell, McDermott, Stenziger, and Wertz, (hereinafter
designated the "Labor Members") are members of the Second
Division of the National Railroad Adjustment Board. Defendant
McCarthy is the Executive Secretary of that Division.
On April 28, 1967, System Federation No. 30 and George
Lyons, as plaintiffs, filed this action to annul Award No.
4692 of the Second Division of the NRAB, naming individually
all ten members of the Second Division, the Executive
Secretary of the Second Division, and the Baltimore & Ohio
Railroad Company as parties defendant.
Section 3, First of the Railway Labor Act established the
NRAB in 1934 as a permanent arbitration tribunal located in
Chicago, consisting of four divisions, with the carriers and
certain national labor organizations selecting an equal number
of members. 48 Stat. 1189 (1934), 45 U.S.C. § 153 (1954).
In accordance with the Railway Labor Act, whenever a dispute
arises concerning the application of a collective bargaining
agreement, the parties attempt a settlement on the property,
and failing such a settlement either party may submit the
dispute to the appropriate division of the NRAB. 45 U.S.C.
Sec. 153, First (i). If the Carrier and Labor Members of the
NRAB fail to agree upon an award, either the members or the
National Mediation Board selects a referee to break the
deadlock. 45 U.S.C. § 153, First (l).
This case involves a railroad employee, plaintiff George M.
Lyons, who sustained injuries in the course of his employment
with the Baltimore and Ohio Railroad, filed suit against the
carrier, received a verdict for $25,000, and subsequently
demanded reinstatement to service, which demand the carrier
denied. System Federation No. 30 then submitted a claim to the
Second Division, asking that George M. Lyons be restored to
service. Referee Seff, participating with the Second Division,
however, dismissed the claim on the ground that the NRAB could
not competently determine, in the face of a conflict of
evidence, the medical question of claimant's physical fitness.
The Carrier Members seek dismissal of the petition, as to
them, on the ground that they are not proper respondents to a
petition for review under Section 3 First (q) of the Railway
The enactment of Public Law 89-456, 80 Stat. 208, 209,
45 U.S.C. § 153 First (q), provided a statutory vehicle for
judicial redress, in the form of a petition for review, for
any employee or group of employees or any carrier, aggrieved
by the failure of the Adjustment Board to make an award in a
dispute referred to it, or aggrieved "by any of the terms of
an award or by the failure of the division to include certain
terms in such award." The present petition, as described by
petitioners, not only seeks to annul, vacate and set aside the
award in question, but "also is one in the nature of mandamus,
to compel the Second Division to proceed to a determination of
the dispute on its merits * * *" (Pet.Br. p. 2)
Prior to the adoption of the 1966 Amendments, this Court on
several occasions permitted parties aggrieved by decisions of
the NRAB to maintain non-statutory suits in the nature of
mandamus, against the individual members of the NRAB to compel
them to comply with the requirements of the Railway Labor Act.
See e.g. Missouri-Kansas-Texas R. Co. v. National Railroad
Adj. Bd., 128 F. Supp. 331 (N.D.Ill. 1954); Seaboard Airline
Railroad Company v. Castle, 170 F. Supp. 327 (N.D.Ill. 1958).
Respondents contend that the enactment of Section 153 First
(q) established an exclusive remedy at law, precluding all
non-statutory remedies, such as mandamus, and adequately
providing for the remedies sought by petitioner.
As a general principle, equitable relief is provided only
where there is no sufficient legal remedy. Beacon Theatres
Inc. v. Westover, 359 U.S. 500, 506-507, 79 S.Ct. 948, 3
L.Ed.2d 988 (1959); Enelow v. New York Life Ins. Co.,
293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440 (1935). Consistent with that
principle, the Supreme Court has quite explicitly held that
statutory review provisions preclude other forms of judicial
review. City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320,
78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958). Indeed, in Whitney
National Bank in Jefferson Parish v. Bank of New Orleans &
Trust Co., 379 U.S. 411, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965),
the Court held that Congressional enactment of a comprehensive
scheme for the determination of certain issues by an agency
and the review of those decisions by specified courts, should
be considered to create exclusive judicial remedies
"notwithstanding the absence of an express statutory command
of exclusiveness." (379 U.S. at 422, 85 S.Ct. at 558). Indeed,
respondents concede that they "are not in disagreement with
the general principle urged at length in the brief of
defendant Carrier Members, that the provision of a complete
and comprehensive statutory scheme for judicial review of the
decisions of an administrative tribunal precludes other forms
of non-statutory review." (Pet.Br. p. 6).
Of course, the content of each scheme of review must be
considered on its own merits to determine whether it meets the
test of exclusivity. Section 153 First (q) was enacted in 1966
as part of a comprehensive scheme which provided new and
amended procedures for making awards (subsections (m) and
(o)), for enforcement of awards (Subsection (p)), and for
review of awards (subsection (q)). It contains no "express
statutory command of exclusiveness." Petitioners contend that
the Act does not make available all of the remedies and relief
which they seek. They contend that the conduct of the Board
itself, in failing to pass on the merits of the dispute, "is
the gist of this action," and believe that relief from same is
apparently not within the scope of the
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, ...