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CHICAGO, R.I. & P. RY. CO. v. NATIONAL MEDIATION BOARD

November 21, 1969

CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, PLAINTIFF,
v.
NATIONAL MEDIATION BOARD, AND LEVERETT EDWARDS, HOWARD G. GAMSER AND FRANCIS A. O'NEIL, JR., CHAIRMAN AND ASSOCIATE MEMBERS, RESPECTIVELY, OF THE NATIONAL MEDIATION BOARD, DEFENDANTS, EUGENE E. WELLS, INTERVENOR.



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

MEMORANDUM OPINION

Cross Motions for Summary Judgment

This is an action by the Chicago, Rock Island and Pacific Railroad Company, a railroad carrier, to compel the National Mediation Board (NMB), an agency created by the Railway Labor Act, 45 U.S.C. § 154, to appoint a partisan member to a special board of adjustment pursuant to 45 U.S.C. § 153, second, in order to resolve a grievance claim filed on behalf of Eugene E. Wells, a former employee of the carrier and, by order of June 17, 1969, an intervening defendant in the instant action. Jurisdiction, 28 U.S.C. § 1337, and venue, 28 U.S.C. § 1391, are proper.

Both sides have moved for summary judgment. As there are no material factual issues outstanding, and the only question is which party is entitled to prevail as a matter of law, summary judgment is appropriate. Silverstein v. United States, 293 F. Supp. 1106, 1110 (N.D.Ill. 1968).

The carrier discharged Wells, who was employed as a conductor, on October 27, 1964. Complaint, ¶ 6. On October 30, 1967, pursuant to 45 U.S.C. § 153, Wells filed a grievance with the First Division of the National Railroad Adjustment Board (NRAB) requesting reinstatement as a conductor employee and full compensation for the period of unemployment. Id. This claim was filed on behalf of Wells by his attorney, Harold A. Sanford. Horsley Affidavit, p. 1. A year after the grievance was filed on behalf of Wells and the claim still undecided, the carrier asked Mr. Sanford, as Well's Attorney, to agree to the establishment of a special board of adjustment, 45 U.S.C. § 153, Second, to resolve Well's grievance, Margason Affidavit, pp. 2-3. Sanford declined this request. Id.; NMB Exhibit No. 8, p. 2; Plaintiff's Memorandum in Support of Motion for Summary Judgment, Appendix VI; See NMB Exhibit 4. The carrier also requested the Brotherhood of Railroad Trainmen, a conductors union, to join with it in an agreement to establish a special board of adjustment. Complaint, ¶ 9; NMB Exhibit No. 1 (Mallory's letter of November 7, 1968). The next day, November 8, 1968, the union refused to help establish the special board. Complaint, ¶ 9; NMB Exhibit No. 1 (Brockman's letter of November 8, 1968); see also Tracy affidavit ¶ 7; NMB Exhibit No. 8. Thereafter, on November 12, 1968, the carrier asked the NMB to appoint a partisan member to serve on the requested special board. Complaint, ¶ 9; Tracy affidavit, ¶ 2; NMB Exhibit No. 1 (Mallory's letter of November 12, 1968). The NMB declined to appoint a partisan member on February 10, 1969. Complaint, ¶ 9; Tracy affidavit, ¶ 10; NMB Exhibit 8; Plaintiff's Memorandum in Support of Motion for Summary Judgment, Appendix VI. The original reinstatement claim filed on behalf of Wells remains undecided. Margason Affidavit, ¶ 2; Horsley Affidavit, p. 1. Because a merger among four union members of the First Division board, raises a question as to the validity of its composition, the board has abstained from deciding cases which are before it. Horsley Affidavit.

In sum, the First Division board to which Wells appealed is, at present, unwilling or legally incapable of resolving Wells' grievance. However, Wells opposes the establishment of a special adjustment board as was sought by the carrier, and the NMB contends that it may not create such a board in this case.

Essentially, the NMB takes the position that it is under no obligation and, in fact, may not appoint a partisan member or otherwise assist in establishing a special board of adjustment where there is no dispute between a carrier and a union representative over the claim of an employee. Defendants' Memorandum in Opposition to Plaintiff's Motion for Summary Judgment, p. 2; Tracy Affidavit, ¶ 10; Defendants' Exhibit 8, p. 3. Intervening defendant Wells similarly suggests that a special board of adjustment may not be created when an employee chooses to have an attorney rather than a labor union prosecute his claim. Plaintiff contends that the real issue in determining the propriety of convening a special board is not the personnel of the board, but the nature of the dispute which the board is asked to resolve. Plaintiff's Reply to Intervenor's Memorandum, p. 1.

Labor disputes may be brought before a division of the NRAB pursuant to 45 U.S.C. § 153, First which provides:

  "(i) The disputes between an employee or group of
  employees and a carrier or carriers growing out of
  grievances * * * 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.
  (j) Parties may be heard either in person, by
  counsel, or by other representatives, as they may
  elect, * * *."

The procedure for the establishment of a special adjustment board is set forth in 45 U.S.C. § 153, Second which states, in pertinent part, as follows:

  "If written request is made upon any individual
  carrier by the representative of any craft or class
  of employees of such carrier for the establishment of
  a special board of adjustment to resolve * * * any
  dispute which has been pending before the Adjustment
  Board for twelve months from the date the dispute
  (claim) is received by the Board, or if any carrier
  makes such a request upon any such representative,
  the carrier or the representative upon whom such
  request is made shall join in an agreement
  establishing such a board within thirty days from the
  date such request is made. * * * Such board shall
  consist of one person designated by the carrier and
  one person designated by by representative

  of the employees. If such carrier or such
  representative fails to agree upon the establishment
  of such a board as provided herein, or to exercise
  its rights to designate a member of the board, the
  carrier or representative making the request for the
  establishment of the special board may request the
  Mediation Board to designate a member of the special
  board on behalf of the carrier or representative upon
  whom such request was made. Upon receipt of a request
  for such designation the Mediation Board shall
  promptly make such designation and shall select an
  individual associated in interest with the carrier or
  representative he is to represent, who, with the
  member appointed by the carrier or representative
  requesting the establishment of the special board,
  shall constitute the board."

Plaintiff is clearly correct insofar as it contends that a special board of adjustment would have subject matter jurisdiction over the dispute between Wells and the carrier. It is clear that Wells' grievance has been pending before the adjustment board for over twelve months and, for that reason alone, is ripe for consideration by a special adjustment board.

Yet, if the subject matter of the grievance is properly presentable to a special board, the question of standing to present the dispute to the board stills remains unresolved. In order to convene a special board, the "representative of any craft or class" must serve a written request upon the carrier or the latter must serve such a request upon the former party. Both the NMB and the intervening defendant contend that the "representative of any craft or class" means a labor organization. Thus, they argue that the plain meaning of the statutory language is ...


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