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April 19, 1968


The opinion of the court was delivered by: Marovitz, District Judge.


For Decision.

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 dispute.

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 entirely for 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 permanent nature.

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 rejected.

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 ...

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