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February 23, 1968


The opinion of the court was delivered by: Julius J. Hoffman, District Judge.


Petitioner, the Brotherhood of Railroad Signalmen, brought this action to enforce an Award and Order of the National Railroad Adjustment Board, Third Division. This court has jurisdiction of the action under Section 3 of the Railway Labor Act, as amended, 45 U.S.C. § 153. The amount in controversy exceeds $10,000, exclusive of interest and costs.

The plaintiff is an unincorporated labor association with headquarters at Chicago, Illinois. It is a standard railway labor organization organized in accordance with the Railway Labor Act as amended. It serves as the representative duly designated and authorized under the Railway Labor Act of employees in the craft or class of Signalmen on carriers throughout the United States.

The defendant is a corporation incorporated under the laws of the State of Wisconsin. It is a common carrier by railroad engaged in interstate operations, is subject to the Interstate Commerce Act, and is a "carrier" as defined in the Railway Labor Act as amended, 45 U.S.C. § 151. Defendant's principal place of business is in Chicago, Illinois.

The plaintiff is, and has for many years been, the duly authorized collective bargaining representative of defendant's employees comprising said craft or class. As such representative, it has entered into agreements which govern the rights of the craft or class represented and which, in particular, govern the seniority rights of those employees. By the terms of these agreements, the positions and work of signalmen were made subject thereto. It was the intent, purpose, and effect of these agreements to permit the employees represented to acquire seniority rights and the right to bid on various positions within the craft or class represented under procedures set out in the agreements.

The essential facts concerning the history of the dispute at hand, as found by the Third Division of the National Railroad Adjustment Board, are as follows: On June 1, 1962, R.C. Smith, a member of plaintiff union, was displaced from his position as Signal Maintainer at Ellensburg, Washington, by a senior Signal Maintainer. Smith, in turn, notified defendant carrier that he was exercising displacement rights over a junior Signal Maintainer located at Calder, Idaho. Smith, however, failed to report for duty at Calder within ten days of his notification. Subsequently, he bid on an advertised Signalman position in a Coast Division Gang. Defendant, however, awarded the position to an employee junior to Smith. Defendant contended that Smith had forfeited his seniority rights by failing to report for the position he had previously claimed in Calder, thereby failing to comply with provisions of the schedule rules relating to reduction in force.

Smith having been declined reinstatement on the property, plaintiff initiated a claim before the Third Division of the National Railroad Adjustment Board, under section 3 of the Railway Labor Act, as amended, 45 U.S.C. § 153, claiming (a) that defendant carrier violated the current Signalmen's Agreement; (b) that defendant carrier should be required to assign R.C. Smith to the signalman position for which he had bid and been turned down; (c) that defendant carrier be required to compensate R.C. Smith for forty hours a week at the pro rata rate and for all overtime hours worked by the signal crew at the punitive rate, beginning November 30, 1962, and continuing until his claim had been satisfied; and (d) that R.C. Smith be given sufficient credit so that he would obtain a 1963 paid vacation, since such signal work would be sufficient to satisfy such requirements.

After considering the evidence and the contentions of the parties, the Third Division of the NRAB, on February 18, 1966, issued an award, number 14162, sustaining the plaintiff's claim in its entirety. On the same day it issued an Order directing the defendant to make the award effective on or before May 1, 1966.

R.C. Smith returned to work on March 14, 1966. Defendant carrier offered to compensate Smith for the amount of money which was the difference between what he would have earned had he not been discharged and what he actually earned during that period. Plaintiff then commenced this action, claiming that since the Board sustained the claim of the petitioner, and since defendant did not urge before the Board that outside earnings be deducted, Smith is entitled to damages equal to the gross amount of the wages he would have earned at the position which was withheld from him.

The parties have stipulated that Smith's gross wages from the defendant carrier during the period from November 30, 1962, when he was discharged, to and including March 13, 1966, when he was reinstated, would have been $19,366.01. They have further stipulated that his actual earnings during that period were $15,447.00

Plaintiff claims damages in the amount of $19,366.01. Defendant seeks a remand of the dispute to the Adjustment Board for determination of the deductibility of outside earnings.

This court rules, in favor of defendant carrier, that the dispute must be remanded to the Board for resolution of this issue.

Plaintiff's request that this court enforce the Board's order cannot be granted, because the money award made by the Board is not final and capable of enforcement. As will be shown below, the Board did not determine the precise amount of the money award to be granted, and it is impossible to tell whether its award did or did not contemplate the deduction of outside earnings. The language of the Board's opinion neither precludes nor necessarily requires such deduction. In all probability, the Board did not consider the question.

The Board did not make a final determination with respect to the money award, because at the time it made the award, it was not required to do so. Section 3 First (m) of the Act, 45 U.S.C. § 153 First (m), at that time provided that "awards shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award." (Emphasis supplied.) Final determination of the amount of money awards, including resolution of disputes concerning the deductibility of outside earnings, was routinely made by district courts in proceedings for enforcement brought under section 3 First (p) of the Act. See, e.g., Brotherhood of Locomotive Engineers v. Louisville & Nashville R.R., 373 U.S. 33, 83 S.Ct. 1059, 10 L.Ed.2d 172 (1963); Raabe v. Florida East Coast Ry. Co., 259 F. Supp. 351 (M.D.Fla. 1966). Since money awards were not final and binding on the parties, they could be appealed for a de novo hearing on the amount of the awards. Gunther v. San Diego & Arizona E. Ry. Co., 382 U.S. 257, 264, 86 S.Ct. 368, 15 L.Ed.2d 308 (1965); Russ v. Southern Ry. Co., 334 F.2d 224 (6th Cir. 1964), cert. denied, 379 U.S. 991, 85 S.Ct. 699, 13 L.Ed.2d 611, rehearing denied, 380 U.S. 938, 85 S.Ct. 935, 13 L.Ed.2d 826 (1965). Questions concerning the deductibility of outside earnings were (and still are) also made by the Board under section 3 First (m), which provides that "in case a dispute arises ...

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