The opinion of the court was delivered by: Marovitz, District Judge.
Plaintiff System Federation No. 30, Railway Employees'
Department, AFL-CIO, an unincorporated association, consists
of several local labor organizations which represent various
crafts or classes of employees of the defendant Baltimore and
Ohio Railroad, including the Brotherhood of 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 (NRAB)
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.
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.*fn1 The parties have
submitted a lengthy stipulation of facts, and it is agreed
that only legal issues remain for decision. Briefs have been
filed, and in this opinion, the Court will rule on the
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 to effect a settlement, but
failing such a settlement, either party may submit the dispute
to the appropriate division of the NRAB. 45 U.S.C. § 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 stems from the injuries suffered by plaintiff
George M. Lyons, a former employee of the Baltimore & Ohio
Railroad, during the course of his employment on January 22,
1953. As a result of that accident Lyons was unable to work on
a continuous basis. In June, 1954, Lyons stopped working
the B & O, and has not worked for the carrier since then. Upon
failure to reach a settlement with the B & O for his injuries,
Lyons instituted suit in the federal court for the Eastern
District of Pennsylvania, and in 1957, obtained a verdict of
$25,000. Lyons' counsel therein, argued and introduced
evidence tending to show that Lyons' injuries were of a
In 1958, Lyons sought reinstatement from the B & O without
the aid of his union. However, defendant's medical examiner
rejected him as physically unfit. He then sought the
assistance of his organization representative. All efforts to
have Lyons restored to service were rejected by the B & O. A
request that he be examined by a "neutral" doctor was also
In 1960 he instituted another federal court suit seeking
reinstatement, but it was dismissed on March 15, 1963 for
failure of plaintiff to exhaust his administrative remedies.
The B & O had contended before the federal court that Lyons
should be estopped to seek reinstatement, because he had
contended in the earlier suit which resulted in the damage
award, that he had suffered permanently disabling injuries.
The Court did not find it necessary to rule on that argument
in view of its decision.
Meanwhile, on March 19, 1962, the union again requested
reinstatement for Lyons, and supplied the company with a
report from Lyons' physician, indicating that Lyons had been
examined, and was found to be physically fit for work. The
request was denied.
The union then filed a claim with the NRAB contending that
B & O had violated the collective bargaining agreement, and
asking that Lyons be restored to service. Referee Bernard Seff
was appointed by the National Mediation Board to participate
with the Second Division. The carrier contended alternatively
that the claim was untimely, and that Lyons' earlier assertion
of permanent disability estopped him to introduce evidence
before the Board to negate such disability. On April 29, 1965,
Referee Seff dismissed plaintiffs' claim, in Award No. 4692.
However, he did not rule on either of the carrier's defenses,
but based his decision on the following rationale, not urged
by the carrier:
"Thereafter (after Lyons' recovery against the B
& O), Lyons reapplied for work now claiming that
he was fully recovered. The carrier's physician
examined Claimant and reported that he was not
physically able to perform his duties as the
result of which carrier refused to reemploy him.
Lyons then was examined by his own doctor who
concluded that he was able to return to work. In
the face of these conflicting medical reports
claimant requested that the carrier establish a
neutral medical board to make a final
determination of his physical fitness. There is
no contractual requirement for the establisment
of a neutral medical board and the carrier
refused this request.
"The carrier takes the position that having
brought suit and having recovered $25,000, based
in part at least on Lyons' contention that he was
totally and permanently disabled, he was estopped
from now stating that he was well.
"The instant case poses two questions:
(1) All other things being equal, does he have
a right under the rules of the ...