The opinion of the court was delivered by: McLAREN, District Judge.
Thereafter, claimant's name was removed from Santa Fe's
seniority roster on the ground that he had claimed and been
compensated for total and permanent disability as a brakeman and
was estopped from asserting any rights as a Santa Fe employee.
The Union protested the removal of claimant's name from the
seniority roster and filed a grievance stating its claim that
Santa Fe, by so doing, had violated the collective bargaining
agreement applicable to employees in the craft in which claimant
worked. The Union exhausted the avenues of appeal within the
Subsequently, the Union sought to have the dispute considered
by a Public Law Board under Section 3, Second, of the Railway
Labor Act (hereinafter "Act"). 45 U.S.C. § 153. Santa Fe agreed
to participate in those proceedings without waiver of its
contention that the matter in issue was not referrable to any
board under Section 3 of the Act. Pursuant to the Act, the
National Mediation Board established Public Law Board No. 296
(hereinafter "the Board"), nominally a respondent herein, and
named Professor Roy R. Ray as "Procedural Neutral." Professor Ray
received written submissions and conducted a hearing at which the
parties were represented. On April 14, 1969, he handed down his
award, holding that the dispute, including the issue of estoppel,
was within the substantive jurisdiction of the Board.*fn* The
Union's representative concurred and Santa Fe's representative
Thereafter, the National Mediation Board named Mr. David
Dolnick as the "Merits Neutral." He convened the Board in Chicago
and heard the dispute on the merits. In his award of June 29,
1970, Dolnick concluded that the estoppel contentions of Santa Fe
were not applicable to the facts and circumstances at hand. He
ordered Santa Fe to reinstate the claimant to its seniority
roster. The Union member of the Board concurred and the carrier
Santa Fe has not complied with the Board's order and it has
filed a Petition for Review of that order under 45 U.S.C. § 153,
First (q) and 28 U.S.C. § 1337. The Union has counterclaimed for
enforcement of the award. Both parties have moved for summary
judgment. Judgment will be entered for the Union and against the
Santa Fe first argues that the Board's jurisdiction did not
extend to the estoppel question. The Board's jurisdiction is set
out in Section 3, First (i) of the Act which gives it
jurisdiction over "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. . . ." Santa Fe
contends that whether or not an employee is estopped from
claiming seniority after recovery in a personal injury suit is
not an industrial type of grievance and has nothing to do with
collective bargaining agreements.
It is well established that the Railway Labor Act is a
comprehensive system for disposing of all disputes between
railway employees and unions, and railway companies. See Gunther
San Diego & Arizona Eastern Ry., 382 U.S. 257, 86 S.Ct. 368, 15
L.Ed.2d 308 (1965); Elgin, J. & E. Ry. v. Burley, 325 U.S. 711,
65 S.Ct. 1282, 89 L.Ed. 1886 (1945); Illinois Central R.R. v.
Brotherhood of Railroad Trainmen, 398 F.2d 973 (7th Cir. 1968).
In view of this, Congress can hardly be deemed to have intended
that estoppel questions must be decided by the courts every time
one is raised in a proceeding otherwise subject to a Public Law
Board's jurisdiction. Indeed, it is conceded that carriers and
employee representatives have long accepted the power of Section
3 Boards to determine estoppel questions (see Ex. 1 to Petition
for Review), and no good reason appears why a different rule
should apply now.
But aside from this, the estoppel issue here is but one of the
matters to be decided in determining whether the claimant's
seniority rights under the collective bargaining agreement were
violated by the removal of his name from the seniority roster.
The undoubted power in the Board to determine such claims
necessarily encompasses the power to decide related and
subordinate questions, including estoppel claims. See Hodges v.
Atlantic Coastline R.R., 363 F.2d 534 (5th Cir. 1966); Southern
Pacific Co. v. Leidenheimer, 296 F. Supp. 1377 (E.D.La. 1969).
In its second argument, Santa Fe contends that even if the
Board had jurisdiction, it exceeded that jurisdiction because it
allegedly did not consider Santa Fe's judicial estoppel argument
but considered estoppel arguments not presented by Santa Fe,
ruled them inapplicable, and rejected the authority which Santa
Fe relied upon.
This is not tenable. The Board did consider Santa Fe's judicial
estoppel argument and the case it principally relied on, Scarano
v. Central R.R. of New Jersey, 203 F.2d 510 (3d Cir. 1953). See
Award of Public Law Board No. 296 at pp. 4, 5, 9 (July 9, 1970)
(hereinafter "Award"). The Board distinguished Scarano on its
facts, noting that claimant here had not claimed permanent
disability while Scarano had done so. Award at 4, 5, 9. The Board
considered collateral estoppel and estoppel in pais because those
doctrines had been discussed in Scarano.
Although the Board does seem to distinguish Jones v. Central of
Georgia Ry., 331 F.2d 649 (5th Cir. 1964), and the rulings of
Public Law Board No. 276 (March 18, 1969) and 269 (February 4,
1970) on the mistaken assumption that those rulings involved
collateral estoppel, this does not necessarily constitute fatal
error. Rather, it is but one factor to be taken into account in
determining whether the Board's decision is "without foundation
in reason or fact." See Brotherhood of Railroad Trainman v.
Central of Georgia Ry., 415 F.2d ...