United States District Court, Northern District of Illinois, E.D
November 21, 1969
CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, PLAINTIFF,
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.
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 that the only disputes which are decidable
by a special board are those between a carrier and a union
representative over an employee's claim.
Plaintiff does not dispute the position that the statute
requires appointment of representatives of railway labor
organizations and further states that railway labor personnel
were to be named because of their knowledge and experience in a
highly specialized field. Plaintiff's Memorandum in Support of
Motion for Summary Judgment, p. 17. However, plaintiff
nevertheless contends that the NMB can and must appoint a
partisan member to a special adjustment board even if the
claimant-employee chooses to have his claim prosecuted by an
attorney and not by a union.
It is difficult to avoid the conclusion that Congress
established two separate procedural devices for dealing with
identical subject matter. Certainly, the subject matter
jurisdiction of the special board is coextensive with that of the
Adjustment Board. Brotherhood of Locomotive Engineers v. Denver &
R.G.W.R.R., 290 F. Supp. 612, 620 (D.Colo. 1968), aff'd,
411 F.2d 1115 (10th Cir. 1969). However, while a grievance may be brought
before the NRAB by an individual pro se or by any designated
representative including an attorney, Elgin, J. & E. Ry. Co. v.
Burley, 325 U.S. 711, 734-736, 65 S.Ct. 1282, 89 L.Ed. 1886
(1945), aff'd on rehearing, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed.
928 (1946); Brotherhood of Locomotive Engineers v. Denver
R.G.W.R.R., 411 F.2d 1115, 1117-1118 (10th Cir. 1969); McElroy v.
Terminal R.R. Ass'n of St. Louis, 392 F.2d 966, 969 (7th Cir.
1968), cert. denied, Brotherhood of Locomotive Engineers v.
McElroy, 393 U.S. 1015, 89 S. Ct. 610, 21 L.Ed.2d 559 (1969),
there is no language in 45 U.S.C.A § 153, Second which permits an
individual, pro se or through an attorney, to initiate or to
reply to a request seeking the convening of a special board.
Rather, the initiation or reply must come from a "representative
of any craft or class of employees." Thus, the Tenth Circuit
recently approved a lower court's conclusion "that an individual
could not invoke the provisions of the (statute) to convene a
special adjustment board to handle his grievance, but rather
Congress intended to limit the availability of this machinery to
a union representative." Brotherhood of Locomotive Engineers v.
Denver & R.G.W.R.R., 411 F.2d 1115, 1118 (10th Cir. 1969).
Having come this far together, both sides draw different
conclusions from the fundamental principle as set forth in Elgin,
J. & E. Ry. Co. v. Burley, 325 U.S. 711, 736, 65 S.Ct. 1282, 89
L.Ed. 1886 (1945) that the Railway Labor Act grants employees the
right to prosecute his grievances as he elects. Plaintiff
suggests that as no dispute wherein the employee was represented
by other than a union could be withdrawn from the NRAB and
submitted to a special board, that as resolution by the NRAB
often takes many years, few employees would choose
self-representation or representation by counsel for to do so
would result in a delayed resolution of their grievance.
Plaintiff's Memorandum in Support of Motion for Summary Judgment,
pp. 18-19. Of course, it is difficult to know with any degree of
reasonable certainty how the potential lack of access to a
special board affects an employee's choice of representatives.
However, it is clear that in the instant case, the first of which
we are aware that deals with the problem, that the employee has,
in fact, chosen to be represented by counsel. Moreover, he
vigorously opposes the appointment of the Brotherhood of Railroad
Trainmen (BRT) or any other union to represent his claim. Tracy
Affidavit, ¶ 6; NMB Exhibit No. 4. In addition, the BRT
explicitly refused to act as Wells' representative in this
matter, Tracy Affidavit, ¶ 3; NMB Exhibit No. 2, and the Order of
Railway Conductors and Brakemen (ORCB) whose assistance Wells'
originally sought in prosecuting his claim, Tracy Affidavit, ¶ 5,
NMB Exhibit No. 4, is now a defendant in an action brought by
Wells before another court in this district for alleged failure
to properly provide representation. Id., see Wells v. Order of
Railway Conductors and Brakemen, 68 C 193, N.D.Ill.
Consequently, to permit the carrier to select either of these
labor unions to represent Wells' interest would be absurd.
Similarly, to require the NMB to appoint a labor oriented
representative for Wells would be effectively depriving him of
his fundamental right to prosecute his grievance as an
individual, independent of union interference. That is, should we
find that the NMB is empowered to appoint an unknown
representative, any carrier, by waiting for a year to pass and
then requesting the creation of a special board, could deprive an
individual of his right to proceed pro se or by counsel before
We recognize that this decision restricts the availability of
the special board machinery, but can only note that this result
is compelled by the language of the statute and supported by
pursuasive reasoning. Cf. Brotherhood of Locomotive Engineers
v. Denver & R.G.W.R. Co., 290 F. Supp. 612, 620 (D. Colo. 1968),
aff'd 411 F.2d 1115 (10th Cir. 1969). A carrier may not invoke
the special board machinery against an individual employee not
represented by a union any more than the latter may invoke the
law against the former. Compare, id., 411 F.2d at 1118. Nor can
a carrier avoid this predicament by making requests upon union
representatives whose interests are not in accord with those of
the allegedly aggrieved employee. Had Section 153, Second
contained language to the effect that a request for a special
board may be made upon or by a representative of any employee as
well as of any craft or class of employees, a different result
would obtain. Of course, that language is not in the act and
neither this nor any other court may put it there. At various
points in the Congressional review of this procedure, reference
is made to the "employee representative." 1966 U.S. Code Cong. &
Admin.News, 89th Cong. 2d Sess., at 2285, 2287, 2289. Yet, even
this, without more, would not be enough to justify reading into
the statute something which is not there. For that matter, the
literal reading was also embraced in Congress, with references
made to "a representative of * * * labor." Id. at 2289.
It is clear that this decision is contrary to a Congressional
policy concerning the quick resolution of railroad labor
disputes. As stated in the Senate Report on this aspect of the
railway labor act,
"(t)he principle purpose of the bill is to eliminate
the large backlog of undecided claims of railroad
employees pending before the National Railroad
Adjustment Board * * *." Id. at 2285. See also
Cong.Rec. (House-February 9, 1966; Senate — June 7,
1966), attached as Appendixes IV & V to Plaintiff's
Memorandum in Support of Motion for Summary Judgment.
This inconsistency, however, is the fault of Congress. It alone
has the power and prerogative to expand the review jurisdiction
of a special adjustment board or to reconstitute the NRAB so that
the latter can function normally.
As much as we dislike leaving the merits of this case
unresolved, we are helpless to do otherwise. Plaintiff's motion
for summary judgment is denied. Defendants' motion for summary
judgment is granted.
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