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April 18, 1972


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 company.

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 dissented.

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 member dissented.

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.


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 v. 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 ...

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