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