Castle, Chief Judge, Duffy, Senior Circuit Judge, and Hastings, Circuit Judge.
Appellant Clio Slagley, plaintiff below, appeals from an order entered November 14, 1967 granting appellees' motion to dismiss his complaint for lack of jurisdiction.
The substance of the allegations of the complaint follow. Appellant has been employed by appellee Illinois Central Railroad Company (I.C.) since 1928 and was a conductor on July 1, 1960. At all pertinent times he was a member in good standing of the appellee Order of Railway Conductors and Brakemen (O.R.C. & B.).
At all pertinent times the cooperative agreement to which all appellees were parties, contained this provision:
"(e) Conductors may not voluntarily relinquish their rights as such and take a position as trainman without forfeiting their rights as conductors, except that the two general chairmen, by mutual agreement, may sub-divide seniority districts and/or territories over which conductors hold seniority; provided that exceptions to the aforesaid may be made if mutually agreed upon. It is further provided that the two general chairmen may, when it is mutually agreeable, permit a conductor, when sick, disabled, or injured, to work in a junior class, under such terms and conditions as may be mutually agreed upon."
In 1960, appellant obtained and submitted to appellee Order (Brotherhood) of Railway Trainmen (B.R.T.) the recommendation of his physician that he be permitted to work in a position junior to that of conductor because of a physical disability. In accordance with the contract provision quoted above the two appellee unions agreed to permit appellant to work in a junior class for six months beginning May 23, 1960. I. C. approved and sanctioned this agreement. On November 18, 1960, appellant's physician recommended that he continue working in the junior position.
When appellant reported for work on November 24, 1960, the day after the six months period expired, he was assigned by I. C.'s trainmaster to work in a junior position. He worked that day in the position assigned. Immediately thereafter the O.R.C. & B. compelled I.C. to deprive him of his seniority rights as a conductor.
The complaint further alleges that appellees' actions violated the cooperative agreement and deprived appellant of valuable property rights without due process, in violation of the Federal and Indiana Constitutions. It alleges that their actions were arbitrary, capricious and discriminatory. It seeks recovery of compensatory damages of $25,000, punitive damages of $1,000,000 and an injunction prohibiting further interference with appellant's seniority rights and requiring I.C. to restore his seniority.
I.C. and O.R.C. & B. filed motions to dismiss for lack of subject matter jurisdiction on August 28, 1967 and September 7, 1967, respectively.*fn1 The district court granted the motions on the alternative grounds that appellant's exclusive remedy is in the National Railroad Adjustment Board, that if the option of court action were open to him he waived it by submitting his dispute to the Adjustment Board,*fn2 and that he did not allege the requisite diversity of citizenship.
We first consider whether the Adjustment Board has exclusive jurisdiction of appellant's claims.
Section 3 First (i) of the Railway Labor Act, 45 U.S.C.A. § 153 First (i) provides:
"(i) The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions * * * shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes."
By this provision of the Act, Congress has provided an exclusive procedure for the settlement of so-called "minor disputes" -- those involving the interpretation or application of agreements concerning rates of pay, rules or working conditions.*fn3 Pennsylvania R. Co. v. Day, 360 U.S. 548, 3 L. Ed. 2d 1422, 79 S. Ct. 1322 (1959); Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U.S. 30, 1 L. Ed. 2d 622, 77 S. Ct. 635 (1957); Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 94 L. Ed. 795, 70 S. Ct. 577 (1950); Order of Railway Conductors of America v. Pitney, 326 U.S. 561, 90 L. ...