The opinion of the court was delivered by: Parsons, District Judge.
MEMORANDUM OPINION AND ORDER
This is an action by the plaintiff for wrongful discharge
brought pursuant to 45 U.S.C. § 181, 182. The foregoing
sections are amendments to Title 45, commonly known as the
Railway Labor Act. They include the application of certain
sections of the Act to carriers by air and apply the duties,
requirements, penalties, benefits, and privileges established by
those sections specifically Sections 151, 152, 154 to 163 to
carriers by air.
This Court accepted the case at bar on petition for removal
from the Circuit Court of Cook County. The petition was filed in
this Court on June 20, 1972. The complaint demands reinstatement
and full seniority rights plus compensation due.
The defendant has moved for summary judgment or dismissal based
on the failure of the plaintiff to exhaust her administrative
remedies as required by Title 45.
Historically, plaintiffs in actions of this nature had the
option of either bringing an action under the state law for
breach of contract or resorting to administrative remedies
afforded them under the Railway Labor Act. This option was
supported by an interpretation of the Act by the Supreme Court in
the case of Moore v. Illinois Central Railroad, 312 U.S. 630, 61
S.Ct. 754, 85 L. Ed. 1089 (1941). The Court in interpreting
Section 153(e) of the Act in its original form of 1926 as amended
in 1934, noted that there had been a change in the wording
substituting "may" for "shall" "be referred to the . . .
adjustment board . . ."; and concluded that "This difference in
language, substituting `may' for `shall', was not, we think, an
indication of a change in policy, but was instead a clarification
of the law's original purpose. For neither the original 1926 Act,
nor the Act as amended in 1934, indicates that the machinery
provided for settling disputes was based on a philosophy of legal
compulsion." Moore v. Illinois Central R.R. Co., supra, at 635,
61 S.Ct. 754, 756, 85 L.Ed. 1089. The Court went on to hold that
the employee was not required to seek an administrative remedy as
a prerequisite to suit for wrongful discharge.
Later cases from the Supreme Court repudiated the reasoning
advanced in support of the result reached in Moore v. Illinois
Central, supra, cf. Brotherhood of Railroad Trainmen v. Chicago
R. & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957)
and Walker v. Southern R. Co., 385 U.S. 196, 87 S.Ct. 365, 17
L.Ed.2d 294 (1966).
Moore v. Illinois Central, supra, was expressly overruled and
administrative procedure made a prerequisite to any suit at law
by Andrews v. Louisville & Nashville Railroad Co., et al.,
406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95. In this case per Justice
Rehnquist, the Court stated "Thus the notion that the grievance
and arbitration procedures provided for minor disputes in the
Railway Labor Act are optional, to be availed of as the employee
or the carrier chooses, was never good history and is no longer
good law." Andrews v. Louisville & Nashville R. Co., supra, at
322, 92 S.Ct. at 1564.
The case at bar was filed on June 20, 1972, over a month after
the Andrews case was decided. Thus, the opinion of the
Andrews case is the law that is to be followed.
It is therefore adjudged, ordered, and decreed that the
defendant's motion to dismiss is granted. This ruling precludes
the necessity of deciding the defendant's alternative motion for
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