Appeal from the United States District Court for the Southern District of Illinois, Alton Division. No. 80-C-5224 -- William L. Beatty, Judge.
Wood and Posner, Circuit Judges, and Will,*fn* Senior District Judge. Will, Senior District Judge, concurring. Posner, Circuit Judge, dissenting.
WOOD, Jr., Circuit Judge.
The Louisville & Nashville Railroad Company (the "Railroad") appeals from the United States District Court for the Southern District of Illinois. The district court entered summary judgment, enforcing an award of Public Law Board No. 1998 (the "Board"), in favor of the Brotherhood of Railroad Signalmen (the "Brotherhood"), on behalf of railroad employee George L. Choate. After examining the briefs and reviewing the record, and based upon the oral argument before this court, we conclude that the district court, in entering its order, properly analyzed the issues raised in this appeal. Therefore, we affirm the district court's order and judgment and hereby adopt its opinion entered on April 22, 1981, attached hereto as an appendix. Moreover, we add the following comments, relating in particular to the district court's conclusions of law 542-544.
At the outset, we recognize, as did the district court, that the scope of judicial review in proceedings to enforce an award of the Public Law Board is among the narrowest in the law. Diamond v. Terminal Railway Alabama State Docks, 421 F.2d 228, 233 (5th Cir. 1970); see also Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 93, 58 L. Ed. 2d 354, 99 S. Ct. 399 (1978) (narrow scope of review applies to both questions of fact and questions of law). The Board's order may be set aside only if the Board failed to comply with the requirements of the Railway Labor Act, failed to confine the order or itself to matters properly within the scope of its jurisdiction, or for fraud or corruption by a member of the division making the order. 45 U.S.C. § 153, First (p).
We find it anomalous that an employee can claim to be permanently and totally disabled, obtain a certification to that effect, and collect sickness and disability payments, and, at the same time, seek to force his employer to reinstate him to his former position with back pay for time lost. Cf. Hodges v. Atlantic Coast Line Railroad Co., 363 F.2d 534, 539 (5th Cir. 1966) (court "strongly disapprove[d]" of practice which permitted employee to sue employer claiming permanent and total disability and at same time force employer to reinstate him to former position with back pay for time lost). Moreover, both the Public Law Board Award, as well as the district court's opinion, are somewhat uncertain in that neither specifies what constitutes "time lost." See, e.g., Monaghan v. Central Vermont Railway, Inc., 404 F. Supp. 683 (D.Mass. 1975); Brotherhood of Railroad Signalmen v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 284 F. Supp. 401 (N.D.Ill. 1968). Nonetheless, we recognize that in light of the issues raised by the parties in the district court and the narrow scope of review under the Railway Labor Act, the district court was limited in what it could do. See, e.g., Denver & R.G.W. Ry. Co. v. Blackett, 538 F.2d 291, 294 (10th Cir. 1978) (district court had no power to allow set-off where Board had not provided for such allowance); cf. United States v. Atlantic Coast Line Railroad, 237 F.2d 137 (4th Cir. 1956) (whether equity of the railroad should be worked out by subrogation or by way of exoneration was a matter resting in the sound discretion of district judge).
The Railroad relies on Sweeney v. Florida E.C. Ry. Co., 389 F.2d 113 (5th Cir. 1968), to support its contention that the district court had the authority to reduce the award by the amount Choate received during the period he was discharged. In Sweeney, the employee, for several years prior to his dismissal from the Florida East Coast Railway Co. ("FEC"), divided his working year, spending five months with the Baltimore & Ohio Railroad ("B&O") and the balance of the year with the FEC. When Sweeney was discharged by the FEC, he went to work for the B & O. The Board sustained Sweeney's wrongful dismissal claim, awarding him compensation for time lost, but the carrier did not pay. In the enforcement action which followed, the district court dismissed the action, holding that the dispute over whether the Board intended that the award be one of gross or net wages lost during the period must be resolved by the parties requesting the Board to interpret the award.
On appeal, the Fifth Circuit noted first that if the Board had intended the amount paid for "time lost" to be diminished by outside wages, it would have specified that in the award. Therefore, the court found that "Sweeney was entitled to the total amount of his 'time lost ', without deductions . . . for other compensation received by him through his efforts to diminish or minimize the damages suffered by reason of his dismissal." Id. at 116 (emphasis added). In view of the fact, however, that Sweeney had routinely worked for the B & O from June through October of each year and that his work during that period was "through his choice and not on account of his dismissal," the Fifth Circuit diminished the award by the amount Sweeney earned for those five months at the B & O. Id. at 116-17.
Sweeney is, in fact, quite consistent with the district court's decision in this case. Like the court in Sweeney, we must assume that if the Board wanted the amount paid Choate reduced by his sickness benefits and disability annuity, it would have said so in the award. Moreover, unlike Sweeney, Choate received the payments not "through his choice," but "on account of his dismissal." Thus, the district court properly enforced the award which gave Choate his "time lost," without deducting "other compensation received by him through his efforts to diminish or minimize the damages suffered by reason of his dismissal."
Finally, as the Brotherhood conceded and the district court recognized, "Choate may ultimately be responsible for reimbursement to the Railroad Retirement Board at some point in the future." After the Railroad complies with the terms of the award, the Retirement Board will have the option of seeking recovery from Choate for the sums it has paid him over the years. 45 U.S.C. §§ 231i(a), 362(o). Upon proper notice, the Retirement Board "shall have a lien" upon the judgment "to the extent of the amount [it] is entitled by way of reimbursement." 45 U.S.C. § 362(o); Atlantic Coast Line Railroad Co., 237 F.2d at 140; United States v. Luquire Funeral Chapel, 199 F.2d 429 (5th Cir. 1952).
The order of the district court is affirmed.
IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS
BROTHERHOOD OF RAILROAD SIGNALMEN, Petitioner, vs LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Respondent.
Before the Court are the motions of petitioner Brotherhood of Railroad Signalmen (BRS) and of respondent Louisville and Nashville Railroad Company (L&N) for summary judgment. The instant action was brought pursuant to 45 USC Section 153, First (p) and Section 153, second, as a petition to enforce Award No. 1, Case No. 1 of Public Law Board No. 1998, dated January 24, 1978, sustaining the claim of the BRS against respondent L&N. Both parties presented oral arguments on their motions and stipulated in open court that the Court should render judgment on the record without submission of the case to a jury.
1. Petitioner Brotherhood of Railroad Signalmen (hereinafter referred to as "BRS") is the duly authorized representative for the purpose of the Railway Labor Act (45 USC Section 151 et seq.) of the employees of the respondent Louisville and Nashville Railroad Company (hereinafter referred to as "L&N") in the positions of Signal Tester, Foreman, Assistant Foreman, Signal Technician, Leading Signalman, Leading Signal Maintainer, Assistant Signal Maintainer and Signal Helper and is a party to collective-bargaining agreements executed pursuant to that statute governing rates of pay, rules and working conditions of those employees. The BRS main office is located at 601 West Golf Road in Mount Prospect, Illinois. (See Complaint of BRS at paragraph 4, Answer of L&N at paragraph 2.)
2. Respondent L&N is a Kentucky corporation engaged in interstate transportation by rail pursuant to the provisions of the Interstate Commerce Act, 49 USC Section 1 et seq. and is subject to the provisions of the Railway Labor Act, 45 USC Section 151 et seq. Respondent maintains its main offices at 908 West Broadway, Louisville, Kentucky, and operates through the Southern District of Illinois. (See Complaint of BRS at paragraph 5; Answer of L&N at pargraph 2.)
3. BRS and the L&N are parties to a collective-bargaining agreement with an effective date of February 16, 1949, and parties to several successive supplemental and memorandum agreements. BRS and the L&N are also parties to an agreement dated July 14, 1977, which established Public Law Board No. 1998 pursuant to Section 3, Second of the Railway Labor Act (45 USC Section 153, Second) to hear and determine disputes between said parties in accordance with the provisions of that Section. This Agreement specified that the Board should have jurisdiction over disputes between the parties listed in Attachment A of the Agreement. A dispute between the parties arising out of the railroad's dismissal from employment of Mr. G. L. Choate, identified as "Dismissal of Mr. G. L. Choate, Signal Tester Helper, following investigation held on July 16, 1976, Carrier file Nos. D-106-67, G-306-20, G-226-18. Organization Case No. 4921" is such a dispute listed in such Attachment A. (A true and correct copy of the July 14, 1977 Agreement and Attachment A thereto is attached to the Complaint of BRS as Exhibit B.) (See Complaint of BRS at paragraph 6; Answer of L&N at paragraph 2.)
4. G. L. Choate has been employed by respondent L&N for thirty-four years. He began service as a signal helper with the L&N on April 9, 1945, established seniority as an assistant signalman on March 24, 1948, and established seniority as a signalman on April 11, 1949. (See Complaint of BRS at paragraph 7; Answer of L&N at paragraph 2.)
5. Prior to July 16, 1976, Mr. Choate was working on the L&N as a System Signal Tester Helper. He had been previously diagnosed as suffering from Meniere's Syndrome, an ear disorder which affects his sense of balance and which makes it impossible for him to hold any position that entails pole climbing or any other duty that requires balancing. (See Complaint of BRS at paragraph 7; Answer of L&N at paragraph 2; Deposition of George L. Choate, December 29, 1980, at P. 29 (hereinafter referred to as "Tr. 29."))
6. In addition to the regular rate of pay for the position of Signal System Tester Helper provided for in the BRS-L&N collective-bargaining agreement, Appendix DD of the Memorandum of Agreement between BRS and L&N of September 6, 1974, provided for the payment of $3.10 per day as a travel allowance to employees in the Signal Department occupying certain positions, of which Mr. Choate's was one. This $3.10 per day was intended to be a flat rate reimbursement for employees off-the-job expenses, and was in addition to any other authorized expenses for lodging, meals or equipment necessary to perform the required tasks. (Tr. 16-18).
7. On July 16, 1976, the L&N held two consecutive discipline investigation hearings into its charges that Mr. Choate failed or refused to protect his assignment on June 21, 22, 29 and 30, 1979, and was absent from duty without proper authority on those days. The investigations were conducted by H. L. Hood, the L&N's Signal Engineer, Maintenance and Construction. (See Complaint of BRS at paragraph 10; Answer of L&N at paragraph 5; Tr. 23-24.)
8. By letter dated August 10, 1976, H. L. Hood notified Mr. Choate that he had been found guilty of the charges brought against him, and that the penalty to be assessed was dismissal from service. (See Complaint of BRS at paragraph 10; Answer of L&N at paragraph 5; Tr. 24.)
9. Pursuant to the application provisions of the collective-bargaining agreement and Section 3, First (i) of the Railway Labor Act (45 USC Section 151, First (i)) Mr. R. B. Flowers, the BRS representative acting on behalf of Mr. Choate, appealed the decision of H. L. Hood up to and including the highest officer of the L&N designated to entertain and act upon such appeals, Mr. W. C. Moore, the L&N Assistant Vice President-Personnel and Labor Relations. In its appeals of the decision, the BRS contended that Mr. Hood's decision and the subsequent dismissal of Mr. Choate were invalid due to the unfairness of the proceedings as conducted by Mr. Hood. By letter dated October 1, 1976, W. C. Moore denied the appeal. (See Complaint of BRS at paragraphs 11 and 12; Answer of L&N at paragraph 5.)
10. Following conferences between representatives of the BRS and the L&N held on November 19, 1976, and December 13, 1976, the L&N offered to restore Mr. Choate to service on a leniency basis, restoring his former seniority but without pay for the time lost due to his dismissal. This offer was conditioned upon Mr. Choate's ability to satisfactorily pass a physical examination. By letter dated January 24, 1977, R. B. Flowers advised the L&N that the BRS refused to accept the offer of Mr. Choate's reinstatement on a leniency basis because Rule 55(a) (3) of the collective-bargaining agreement required that Mr. Choate be reinstated with all ...