United States District Court, Northern District of Illinois, E.D
December 27, 1984
EDWARD KOZINA, PLAINTIFF,
BALTIMORE AND OHIO CHICAGO TERMINAL RAILROAD COMPANY, DEFENDANT.
The opinion of the court was delivered by: Kocoras, District Judge:
This matter comes before the court on the defendant Baltimore
and Ohio Terminal Railroad's motion to dismiss plaintiff
Kozina's complaint because this court lacks subject matter
jurisdiction over the plaintiff's action. For the following
reasons, the defendant's motion is granted.
Plaintiff alleges in his complaint that the action arises under
the Railway Labor Act, 45 U.S.C. § 151 et seq. Defendant
employed plaintiff from 1969 until August 1983. During his
employment, plaintiff was a member of the United Transportation
Union (UTU). Plaintiff suffers from diabetes which was
initially controlled by diet, and later, at the time of his
discharge, was controlled by diet and insulin. About August 3,
1983, plaintiff alleges that he was telephoned and told not to
report to work that shift or again because of his medical
condition. About one week later, plaintiff alleges he received
a letter from a medical officer with the Chessie System
Railroads informing him that he was being removed from service
as a switchman because of his diabetic condition and
accompanying use of insulin. When plaintiff informed the union
"grievor," John Lusneski, of his discharge, plaintiff alleges
that Lusneski told him "that there was nothing that the United
Transportation Union would be able to do in his behalf."
Plaintiff further alleges that defendant did not offer him
another position. He applied for a total and permanent
disability annuity which the United States Railroad Retirement
Board denied because his diabetic condition did not disqualify
him from all types of work.
Therefore, plaintiff alleges he was wrongfully discharged
solely on the basis of his diabetic handicap and his rights to
due process of law were violated because he was discharged
without a hearing in an arbitrary and capricious manner.
Plaintiff seeks an injunction, re-instatement to employment,
and damages equal to back pay and fringe benefits.
Both parties acknowledge that section 153 of the Railway Labor
Act provides that the National Railroad Adjustment Board has
jurisdiction over disputes between a railroad and its employees
growing out of collective bargaining agreements, rules, or
working conditions. § 153(i). The parties also recognize that
courts have imposed an exhaustion of remedies requirement on
all claims brought under the Railway Labor Act. Furthermore,
both agree that the courts have permitted certain exceptions to
be made to this requirement.
Plaintiff contends, first, that the exceptions to the
exhaustion requirement apply to his circumstances, and second,
that his claim for wrongful discharge is not based solely on
the collective bargaining agreement but also upon Federal
constitutional and state statutory and common law rights which
would exempt it from the exhaustion doctrine.
The first exceptions which plaintiff relies upon are rooted in
two United States Supreme Court cases: Vaca v. Sipes,
386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) and Glover v.
St. Louis-San Francisco Ry. Co., 393 U.S. 324, 89 S.Ct. 548,
21 L.Ed.2d 519 (1969). In Vaca, the Court found that an
employee will be excused from the exhaustion requirement upon a
showing that the employer repudiated the administrative
procedures for processing grievances, 386 U.S. at 185, 87 S.Ct.
at 914, or that the union, acting as bargaining agent, breached
its duty of fair representation in handling the employee's
grievance. 386 U.S. at 186, 87 S.Ct. at 914. In Glover, the
Court stated that the exhaustion of remedies would not be
required where the effort would be totally futile. 393 U.S. at
330, 89 S.Ct. at 551.
Plaintiff argues that his claim falls within these exceptions
because plaintiff was told that there was nothing the union
"grievor" would do on his behalf, which plaintiff argues is a
breach of the union's duty of fair representation. Because of
this breach, plaintiff asserts that any resort to arbitration
will be a futile and unnecessary effort. Plaintiff does not
that the employer repudiated the administrative procedures.
Therefore, the exception to be examined here is the alleged
breach of duty of fair representation by the union. The Seventh
Circuit defines the duty of fair representation as follows: the
union has a duty to represent every worker in the bargaining
unit fairly, but it breaches that duty only if it deliberately
and unjustifiably refuses to represent the worker. Even gross
negligence is not enough; there must be intentional misconduct.
Graf v. Elgin, Joliet and Eastern Ry. Co., 697 F.2d 771 (7th
Cir. 1983). In this case, the plaintiff's union "grievor"
stated that "there was nothing that the United Transportation
Union would be able to do in his behalf in this matter." The
plaintiff does not allege that he asked the "grievor" to file a
grievance or that the "grievor" refused to begin that process.
It does not constitute intentional misconduct for a union
"grievor" to believe that a grievance may have little merit or
hope for success. Vaca v. Sipes., 386 U.S. at 192-95, 87
S.Ct. at 917-19. Moreover, a union is not required to prosecute
a grievance that it honestly believes lacks merit. Id.
Plaintiff presents no allegations that the "grievor" was acting
in bad faith. Therefore, in this case, plaintiff had not yet
requested the union to file a grievance and none of the facts
allege behavior which constitutes intentional misconduct by the
union. Plaintiff's case does not fall within this exception.
Nor does it appear that pursuing and exhausting these remedies
will be wholly futile. The grievance procedure is not begun and
if plaintiff does not have faith in his union "grievor," this
will not render the process useless. Plaintiff may prosecute
his grievance on his own. He is not required to use the union
"grievor." Essary v. Chicago & N.W. Transport. Co.,
618 F.2d 13, 17 n. 6 (7th Cir. 1980). Therefore, plaintiff's claim does
not fall within this exception either.
The plaintiff has also argued that his claim for wrongful
discharge is not based solely upon the collective bargaining
agreement and therefore should be exempted from the exhaustion
of remedies requirement. The plaintiff argues that the wrongful
discharge claim includes rights under the Federal constitution
and Illinois statutory and common law rights. These claims by
the plaintiff do not remove his action from the Railway Labor
Act. In Andrews v. Louisville N.R.R., 406 U.S. 320, 92 S.Ct.
1562, 32 L.Ed.2d 95 (1972), the Supreme Court found that a
plaintiff's remedy for state actions for breach of contract are
precluded by his exclusive remedy under the Railway Labor Act.
406 U.S. at 325, 92 S.Ct. at 1565. The constitutional issues of
due process which plaintiff raises do not act to exempt him
from the exhaustion of remedies requirement. Plaintiff alleges
that the due process violations occurred when the defendant
acted to discharge him. He argues he was discharged without a
proper hearing and arbitrarily and capriciously. Under Seventh
Circuit law, when due process violations occur at the initial
stages of a grievance procedure, the dispute is characterized
as one between private parties. At this stage, there is no
requisite government involvement and no action for violation of
due process. In this dispute between private parties, the
Federal courts are not to act as the guarantors of the rights
of either management or labor. Edwards v. St. Louis-San
Francisco Ry. Co., 361 F.2d 946 (7th Cir. 1966); Dorsey v.
Chesapeake and Ohio Ry. Co., 476 F.2d 243 (4th Cir. 1973). The
plaintiff's alleged due process violations arose in a dispute
between private parties before the grievance procedure was even
begun. Therefore, these claims do not exempt him from the
exhaustion of remedies doctrine.
The defendant's motion to dismiss for lack of subject matter
jurisdiction is therefore granted.
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