Petition — Chesapeake & Ohio Railway Co. v. LaFontaine

Supreme Cowt, @,§, -~

FILED

AUG2 8 1978

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

a

THE CHESAPEAKE AND OHIO RAILWAY COMPANY,

Petitioner,

vs.

ROBERT LaFONTAINE,

Respondent.

_——o —

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

—_——- oe ——_

ROBERT A. STRAUB JAMES M. BAYSINGER

407 One Northland Plaza JONATHAN S. TAUB

20755 Greenfield Road 400 Renaissance Center

Southfield, Michigan 48037 Suite 1900

Phone: (313) 552-5000 Detroit, Michigan 48243

Phone: (313) 259-1144

Counsel for Petitioner

Of Counsel:

CROSS, WROCK, MILLER & VIESON

400 Renaissance Center

Suite 1900

Detroit, Michigan 48243

Phone: (313) 259-1144

Interstate Brief & Record Co., Wurlitzer Bldg., 1509 Broadway, Detroit, MI 48226

962-8745 962-8746

TABLE OF CONTENTS

Page

OO ii

SN RS ee 2

EE ee 2

ee bonds ec cccece 2

Statutory and Regulatory Provisions Involved...... 3

ee 6

fee 9

EE Oe 9

B. The order of the Court of Appeals for the

Sixth Circuit in tandem with its opinion in

Cole v Erie Lackawanna Ry Co, 541 F2d 528,

misconceives the nature and purpose of

Railway Labor Act amendment creating the

public law board mechanism .............. 14

C. The order of the Sixth Circuit below, in

tandem with Cole v Erie Lackawanna Ry

Co, supra, misapplies this Court’s opinion

in Burley v Elgin, E. J. & E. R Co, (I), supra,

and is therefore in conflict with a decision

On Ge ween Gere... 1.22252. 21

Ee 32

ii

Page

Appendix:

Order of the Court of Appeals Denying

Rehearing En Banc (June 1, 1978)............. Al

Order of the Court of Appeals Affirming

judgment of the District Court (April 18, 1978) A2

Order of the District Court Remanding Case to

Public Law Board (April 30, 1976) ............ A3

Order of the District Court Granting in Part and

Conditionally Denying in Part Motion for

Summary Judgment and Granting Plaintiff

Right to Amend Complaint (February 13, 1975) A4

Memorandum Opinion of the District Court

(Fawraaty 8S, Terabe < vcs stensasdeasysnn ny tas A5

TABLE OF AUTHORITIES

Cases:

Cole v Erie Lackawanna Ry Co, 541 F2d 528 (6th

Cir, 1976), cert den, 433 US 914 (1977) .. passim

Conley v Gibson, 353 US 41 (1957).............. 25

Elgin, J] & E R Co v Burley (Burley 1), 325 US 711

CROC) 0 bk pve ia aoe RE Cee eee passim

Elgin, J & E Ry Co v Burley (Burley I), 327 US

GBl (TPG. 64084054 teas ee aes passim

Glover v St. Louis & S. F. R., 393 US 324 (1969).. 25

Kotakis v Elgin, J & E Ry Co, 520 F2d 570 (7th

Cir), cert den, 423 US 1016 (1975) ............ 29

iii

Page

Pyzynski v New York Central R Co, 421 F2d 854

EM NE iis pss avs ee peeks ee ebesy 19

Steele v Louisville & N R Co, 322 US 192 (1944).. 25

Walker v Southern Ry Co, 385 US 196 (1966)..... 10

Statutes:

Public Law 89.456.80 Stat §208 (1966) ........... 9

Po a en ee 4,26

er Sr Oe BU, IN oo is aes fee ewidd. 4,5,26

Se Wes A OED neni s chin vencesses 3,4,25,29

2 te 8 30), First () . «2.6.05... 3,14,15,17,24,30,32

SS Ue © 50; Fisst () and (a) ...... 2 6c ecccccees 6

er ee I I ako vk cb hole oa 'veae abn ees 6

Regulations:

pe |. Ee 6,10

RISE a a i 5,10.

Other Authorities:

pe Oe | ee ere 27

Forty-Second Annual Report of The National

co Ee ere 13,20,31

Forty-First Annual Report of The National

I dirs i a Sein cps tp nce se renee sys 13

Fortieth Annual Report of The National

cy in vg heb cane oo ven bas 13

Thirty-Eighth Annual Report of The National

ag icy ehicvip cabo eaakecae. 13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

oo

THE CHESAPEAKE AND OHIO RAILWAY COMPANY,

Petitioner,

vs.

ROBERT LaFONTAINE,

Respondent.

——_e———_-

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner, The Chesapeake and Ohio Railway

Company, prays that a writ of certiorari issue to the

United States Court of Appeals for the Sixth Circuit to

review the order entered April 18, 1978 in Case No.

76-2491, entitled Robert LaFontaine, Plaintiff-Appellee v

The Chesapeake and Ohio Railway Company, Defendant-

Appellant, and the order of that court denying

Petitioner’s Petition for Rehearing.

OPINIONS BELOW

The order of the Court of Appeals is unreported, and

is printed in the attached Appendix at p. Al.

The first opinion of the district court, conditionally

granting petitioner's motion for summary judgment is

unreported, and is printed in the Appendix at p. AS5.

The subsequent order of the district court, which gives

rise to this petition, was not accompanied by an

opinion; said order is printed in the Appendix at p. A3.

STATEMENT OF JURISDICTION

The order of the Court of Appeais was entered on

April 18, 1978. On June 1, 1978 the order of the Court of

Appeals denying petitioner’s petition for rehearing and

suggestion for rehearing en banc was entered. That

order is printed in the Appendix, p. A2. This petition

is, therefore, timely.

This Court’s jurisdiction is invoked under 28 USC

§ 1254(1) and Rule 19 of the Rules of this court.

QUESTION PRESENTED

Where a railroad and union, pursuant to the Railway

Labor Act, agree to establish a special adjustment board

to which an employee's claim for wrongful discharge is

submitted by his union on his behalf and with his full

3

knowledge and authorization, is, as United States Court

of Appeals for the Sixth Circuit ruled, the award of that

board upholding the discharge, subject to attack as

violative of due process of law solely because the board

did not give the employee actual notice of the board’s

hearing or is the board entitled to rely on the union’s

continuing and unrevoked authority to represent the

employee as this Court and the Court of Appeals for the

Seventh Circuit has indicated.

ay tee

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

45 USC § 153 First (j):

“Parties may be heard either in person, by

counsel, or by other representatives, as they may

respectively elect, and the several divisions of

the Adjustment Board shall give due notice of all

hearings to the employee or employees and the

Carrier or carriers involved in any disputes

submitted to them.”

45 USC § 153 First (1):

“The 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, including

cases pending and unadjusted on June 21, 1934,

shall be handled in the usual manner up to and

including the chief operating officer of the

4

carrier designated to handle such disputes; but,

failing to reach an adjustment in this manner,

the disputes may be referred by petition of the

parties or by either party to the appropriate

division of the Adjustment Board with a full

statement of the facts and all supporting data

bearing upon the disputes.

45 USC § 152, Third:

“Representatives, for the purposes of this

chapter, shall be designated by the respective

parties without interference, influence, or

coercion by either party over the designation of

representatives by the other; and neither party

shall in any way interfere with, influence, or

coerce the other in its choice of representatives.

Representatives of employees for the purposes of

this chapter need not be persons in the employ

of the carrier, and no carrier shall, by

interference, influence, or coercion seek in any

manner to prevent the designation by its

employees as their representatives of those who

or which are not employees of the carrier.”

45 USC § 152, Fourth:

“Employees shall have the right to organize

and bargain collectively through representatives

of their own choosing. The majority of any craft

or class of employees shall have the right to

determine who shall be the representative of the

craft or class for the purposes of this chapter. No

carrier, its officers, or agents shall deny or in any

5

way question the right of its employees to join,

organize, or assist in organizing the labor

organization of their choice, and it shall be

unlawful for any carrier to interfere in any way.

with the organization of its employees, or to

use the funds of the carrier in maintaining

Or assisting or contributing to any labor

organization, labor representative, or other

agency of collective bargaining, or in performing

any work therefor, or to influence or coerce

employees in an effort to induce them to join or

remain or not to join or remain members of any

labor organization, or to deduct from the wages

of employees any dues, fees, assessments, or

other contributions: Provided, That nothing in

this chapter shall be construed to prohibit

a carrier from permitting an employee,

individually, or local representatives of

employees from conferring with management

during working hours without loss of time, or

to prohibit a carrier from furnishing free

transportation to its employees while engaged in

the business of a labor organization.”

29 CFR § 1207.4(b):

“Filing of agreements. The original agreement

creating the PL Board under Public Law 89-456

shall be filed with the National Mediation Board

at the time it is executed by the parties. A copy

of such agreement shall be filed by the parties

with the Administrative Officer of the National

Railroad Adjustment Board, Chicago, Ill.”

29 CFR § 1207.2(c):

‘Docketing of PL Board agreements: The

National Mediation Board will docket

agreements establishing PL Board, which

agreements meet the requirements of coverage as

specified in Pub. L. 89-456. No neutral will be

appointed under § 1207.1(c) until the agreement

establishing the PL Board has been docketed by

the Mediation Board.”

STATEMENT OF THE CASE

This case arises under the Railway Labor Act,

specifically 45 U.S.C. § 153, First (p), and (q), and § 153,

Second.

Respondent (‘plaintiff’), a former employee of

petitioner (‘defendant’), was discharged from his

employment as the result of an altercation on

defendant's premises on April 26, 1971.

Plaintiff's discharge was appealed by his duly

authorized bargaining representative, the United

Transportation Union, in accordance with the

provisions of the collective bargaining agreement

between defendant and plaintiff's representative,

Unied Transportation Union.

Pursuant to the provisions of the Railway Labor Act,

defendant, The Chesapeake and Ohio Railway

Company, and the United Transportation Union

entered into an agreement under the provisions of

45 U.S.C.A. § 153 Second, to submit the matter of

plaintiff's claimed wrongful discharge to Public Law

Board 347 for resclution. Plaintiff authorized his union

(United Transportation Union) to kandle the appeal to

Public Law Board 347, and was aware of the fact that

7

L. J. Wojtaszak, General Chairman, United

Transportation Union, was handling the appeal of

plaintiff's grievance to Public Law Board 347.

Additionally, under the provisions of Article 44 of the

Constitution of the United Transportation Union, said

Union had authority to represent plaintiff in the

handling of his claim of wrongful discharge. Plaintiff

did not at any time claim that he revoked the authority

of the United Transportation Union to handle his claim.

In due course, Public Law Board 347 rendered its

decision, upholding the position of the defendant that

the discharge of plaintiff was justified.

Thereafter plaintiff commenced this action seeking

reinstatement with back-pay, or in the alternative, that

the adverse award of Board 347 be set aside and the

matter be remanded for a new hearing. Defendant

moved for summary judgment. On February 11, 1975,

District Judge James P. Churchill, in a written opinion

(reprinted in the Appendix, infra, p. A5), granted

defendant's motion, but allowed plaintiff time within

which to file an amended complaint, and entered his

order to that effect (reprinted in the Appendix, infra,

p. A4).

Within the time limited, plaintiff filed an amended

petition realleging the claims in his original petition

and adding:

“2. Public Law Board No. 347 violated the

Act USC § 153 by failing to give plaintiff notice

of the hearing conducted by said Board in this

case.

“3. Plaintiff incorporates by reference the

affidavit previously submitted by him in this

action denying receipt of a notice of hearing.”

8

Subsequently, plaintiff moved for summary judgment

and on his amended petition claiming lack of notice to

him of the hearing before Board 347. Following briefing

and argument, Judge Churchill granted plaintiff's

motion without opinion, and entered an order

(reprinted in the Appendix, infra, p. A3) setting aside

the award of Board 347 and remanded the matter for

rehearing on the merits. Defendant thereafter filed a

motion for rehearing, which was denied without

opinion.

Defendant then filed its appeal. with the United States

Court of Appeals for the Sixth Circuit from the adverse

order and the denial of defendant’s motion for

rehearing.

In his affidavit attached to the brief in opposition to

his motion for summary judgment, plaintiff averred:

“7, That at no time did I receive any notice

whatsoever of the hearing, if any was held,

before the Public Law Board. Further at no time

did the Board give me notice of my right to a

hearing.”

In his deposition, plaintiff denied receiving written or

oral notice of the hearing before the Board from anyone.

tiis union representative promised to advise plaintiff

when the Board convened so that he could assist in

presenting his case. Although plaintiff discussed his

case with the representative 10 or 12 times, he never

heard from him until the award had been rendered.

Plaintiff, however, authorized the union to handle the

appeal, asked the union to make the submission, and

knew his case was pending before Board 347.

9

There was no written or transcribed opinion on the

grant by the District. Court of plaintiff's motion

resulting in the remand and the appeal to the United

States Court of Appeals for the Sixth Circuit, but the

foregoing evidence was before the District Court at the

time of its order and it is the only evidence touching on

the issue of notice.

On April 18, 1978, the United States Court of Appeals

for the Sixth Circuit affirmed (reprinted in the

Appendix, infra, p. A2) the judgment of the District

Court, stating that its previous decision in Cole v Erie

Lackawanna Ry Co, 541 F2d 528 (6th Cir, 1976) was

dispositive of the appeal. On June 1, 1978, the Sixth

Circuit denied (reprinted in the Appendix, infra,

p. Al) defendant's petition for rehearing.

Defendant now seeks review of the Court of Appeals’

decision of April 18, 1978 and of its order of June 1,

1978, denying the petition for rehearing.

ARGUMENT

A. Introduction

In 1966, Congress adopted legislation’ passed upon

by the Sixth Circuit in this case creating an entirely

new scheme for the adjudication of ‘‘minor’’? disputes

arising under the Railway Labor Act — disputes which

involve interpretation or application of collective

bargaining agreements in the industry, and employee

' Public Law 89,-456.80 stat § 208 (effective June 30, 1966).

2 Elgin, ] & E R Co v Burley, 325 US 711 (1945).

10

grievances. Prior to that legislation, resolution of minor

disputes was within the sole jurisdiction of the National

Railroad Adjustment Board (NRAB). Dissatisfaction by

Congress with docket congestion of the Adjustment

Board prompted the 1966 legislation which ‘‘drastically

revise[d] the procedures to remedy the defects,” as the

Court itself observed in Walker v Southern Ry Co, 385

US 196 at 198 (1966).

The 1966 legislation, although retaining the

Adjustment Board, added an’ alternative forum for

disposition of minor disputes, called ‘special

adjustment boards.” The statutory jurisdiction of such

boards is the same as that of the older NRAB, but the

similarity ends there for special adjustment boards (or

“public law boards” as they are more commonly

referred to), unlike the NRAB, are not standing bodies

of appointed arbitrators prone to develop a case

backlog, but were designed to be created speedily by

the parties on an ad hoc basis to resolve promptly a

specific dispute or (as here) several disputes, following

which the board automatically dissolves.

In the usual situation, the convening of a public law

board is a rather simple matter. Upon request of either

the union or the railroad to the other, the two are

required by law to enter into a written agreement

within 30 days to establish a public law board. The

agreement must be filed with the National Mediation

Board [29 CFR § 1207.4(b)] and is docketed if agreement

meets “the requirements of coverage as specified in

Pub. L. 89-456’ [29 CFR § 1207.2(c)]. The board is

composed of a representative of each of the union and

the railroad, and a neutral member selected by the

parties (as in this case) or appointed by the National

Mediation Board at the request of either party. Statutory

provision is made for resolution of any disagreements

11

concerning convening of the public law board by the

National Mediation Board.

Unlike the statutory procedure governing the older

NRAB under which an employee (as well as a railroad

or union) may on his own invoke its jurisdiction, the

amendatory legislation of 1966 allows only the union or

the railroad, and not an employee to convene a public

law board. This departure from the older procedure was

not a matter of congressional inadvertence. Congress

wished the process to be speedy and thus excluded

direct employee claims:

“When either party requests a special

adjustment board, the committee contemplates

that a number of disputes will be referred to that

board. The committee believes it would only

result in a proliferation of special boards to

request a special board for each claim presented

by an employee. ;

“Carrier witnesses testified that many of the

claims presented by employees and disputes

referred to the Board are frivolous or at least

without merit. Although the committee is not

prejudging any claims, it believes that claims

should be carefully screened by the party

submitting it. The committee believes that the

merits of every claim should be carefully

considered by both the carrier and employee

representative in an attempt to resolve the

dispute before submission to the Board.’

3 S. Rep. 1201, 89th Cong., 2nd Sess. (1966) Code Cong. &

Admin. News, p. 2286.

12

Certainly an employee whose grievance has been

submitted to a public law board has rights concerning

his claim. But just what those rights may be and just

who has the duty to protect his interests has not been

decided by this Court. However, the Court of Appeals

for the Sixth Circuit has begun to define those rights

and to assign those duties in this and one other case,

Cole v Erie-Lackawanna Ry Co, 541 F2d 528 (1976), which

the Court declined to review [433 US 914 (1977)]. This

case, involving much different facts than Cole, was

disposed of by the Court of Appeals solely and

summarily on the basis of that decision.

Taken together, the decision below and the Cole

opinion mark the departure of the Sixth Circuit from

the traditional wisdom of opinions of this Court and

the Seventh Circuit, and its embarkation on a journey

through the compulsory arbitration provisions of the

Railway Labor Act, the eventual destination is

unknown.

Public law boards now and for some time have

carried the major share of the burden of resolving union

disputes in the railroad industry as the following table

demonstrates:

13

NRAB CASES P. L. BOARD CASES

YEAR Disposed Of Disposed Of

19764 886 5606

19755 1033 5404

1974° 1322 6439

19737 1387 N/A

19728 1313 3718

Because the public law board mechanism has become

the major vehicle for resolution of minor disputes under

the Railway Labor Act, we respectfully suggest that the

time has come for this Court to consider for the first

time the rights of the employees and whose duty it is to

protect them, and thus whether the approach of the

Sixth Circuit coincides with the intent of Congress. This

petition, seeking review of issues which go precisely to

those areas, presents this Court with an _ ideal

Opportunity.

* Forty-Second Annual Report of the National Mediation Board,

at 56-57.

* Forty First Annual Report of the National Mediation Board,

at 43-45.

® Fortieth Annual Report of the National Mediation Board,

at 43-44, 78.

7 Ibid.

8 Thirty-Eighth Annual Report of the National Mediation Board,

at 45-46, 97.

14

B. The Order of the Court of Appeals for the Sixth

Circuit in tandem with its opinion in Cole v

Erie-Lackawanna Ry Co, 541 F2d 528,

misconceives the nature and purpose of Railway

Labor Act amendment creating the public law

board mechanism.

The order below was entirely based upon the Sixth

Circuit's still recent decision in Cole. Cole ruled that an

employee whose grievance has been submitted to a

public law board is entitled to the benefits 45 USC § 153

First (j). That provision reads:

‘Parties may be heard either in person, by

counsel, or by other representatives as they may

respectively elect, and the several divisions of

the Adjustment Board shall give due notice of all

hearings to the employee or employees and the

carrier or carriers involved in any disputes

submitted to them.”

The Sixth Circuit in Cole, finding no reason not to

apply this portion of the statute governing the National

Railroad Adjustment Board to that part of the statute

providing for public law boards, but purporting to find

support in the legislative history of the public law

board amendment, so ruled. Since the notice provision

of the statute had not been complied with in Cole, nor

in this case, the Sixth Circuit in both instances affirmed

lower court orders upsetting otherwise valid public law

board awards.

Whether the Sixth Circuit correctly ruled that the 1966

public law board legislation ‘incorporated [existing

Section 153 First (j)] by implication” [541 F2d at 533],

15

depends upon whether the court correctly concluded

that public law boards were legislatively intended to be

congruent to the railroad adjustment board. While it is

clear, as the Sixth Circuit concluded, that Congress

intended to “remove the backlog of cases’? which has

been accomplished by the proliferation of public law

boards, it is equally clear that Congress, in addition,

wished to “provide an expeditious means of handling

future cases.’"'° Obviously, wholesale importation of

Section 153 First (j) into public law board procedure

cannot possibly alleviate the NRAB backlog. Instead, as

we will demonstrate, such a construction of the 1966

amendment frustrates achievement of the other

legislative goal of expeditious handling. For if Section

153 First (j) applies then so must the panoply of

employee rights guaranteed by this Court’s decision in

Elgin, ] & E R Co v Burley, 325 US 711 (1945) (I).

In Elgin, J] & E R Co v Burley, supra, this Court

established once and for all a railroad employee's right

individually to participate at all stages in the handling

of his grievance, and ruled that Section 153 First (j)

accorded him the individual rights to notice of and to

take part in NRAB hearings. Critical to this case and

Cole is the fact that Burley (I) arose out of the interplay

of those individual employee rights with the authority

of his union to act for him. This court there concluded

that, except to the extent the employee had authorized

his union to act for him, he was entitled to handle his

° S. Rep. 1201, 89th Cong., 2nd Sess. (1966) Code Cong. &

Admin. News, p. 2286.

- ie.

16

own case in his own way. This was the law in 1966 and

remains so to this day. Thus, if Section 153 First (j) is to

be imported into the public law board proceedings, as

the Sixth Circuit has ruled here and in Cole, then by

definition so is Burley (I) along with its subordination

of union authority to the employee's right to handle his

own case in his own way.

Clearly Congress did not so intend. It specifically

stated that the merits of each claim should be

considered prior to submission to a public law board.

This congressionally contemplated screening process

without question implies that the employee’s union has

the authority not to submit his claim at all. Put another

way, the screening process implies union authority to

deny the employee himself any access to a public law

board since the union, and not its member, may cause

the convening of a board. Put still another way, the

screening process beyond cavil implies that the union

member is entitled to no say in his union’s decision not

to submit his claim to a public law board.

There is yet another implication from the screening

process. Since his union can deny the employee any

access to a board, by the same token, it can decide the

manner in which the claim is submitted to the board;

for should the employee disagree with his union's

approach, the screening process implies that the union

has the authority then to refuse to submit the claim at

all.

Taken together, the consequences of these impli-

cations from the screening process are on their face

inconsistent with, if not repugnant to, the Burley (I)

17

bundle of rights arising from Section 153 First (j). For as

this court observed:

“In the view we take the Act guararitees to the

aggrieved employee more than merely the right

to be heard by the union and the carrier.

++ + *

“His rights, to share in the negotiations, to be

heard before the Board, to have notice, and to

bring the enforcement suit, would become rights

more of shadow than of substance if the union,

by coming to agreement with the carrier, could

foreclose his claim altogether at the threshold of the

statutory procedure. This would be true in any

case where the employee’s ideas of appropriate

settlement might differ from the union’s.” Burley

(I), 325 US at 736. (emphasis added)

But, as we have demonstrated, the union can foreclose

access by the employee to a public law board, and such

being the case, and it being the express intent of

Congress that the public law boards expeditiously

process their cases, it follows that Congress intended to

restrict Burley (I) rights and the impedimenta

consequent upon their exercise to the Adjustment Board

milieu, and not to import them wholesale into the

public law board arena. The two forums, we submit,

are therefore not congruent and the Sixth Circuit, here

and in Cole, erred in implicitly equating them.

This is not to say that the 1966 amendatory legislation

was intended to overrule Burley (1) and by that token

vest the union with czar-like power over its member's

18

claim. To the contrary, Burley (1) clearly forbids a union

from convening a public law board against the express

wishes of its member who may desire to exercise his

Burley (I) rights and thus to take his case to the

Adjustment Board. And, of course, that employee’s

union still cannot compromise his claim without

authority. And it surely follows that Burley (I) accords

the employee the right, even after his case has been

submitted to a public law board, to revoke his union’s

authority and thus to take his claim to the Adjustment

Board. But the 1966 amendatory legislation, given the

expression of congressional intent gleaned from the

legislative history, was meant, first, to exclude

employee participation in the new public law board

process and, therefore, to empower his union to act for

him through to conclusion.

To be sure, the employee is entitled to have his claim

presented to the public law board in proper fashion and

to be represented adequately. Again, however, the 1966

amendatory legislation, given the intent of Congress

that the process be expeditious, meant to impose the

duty to protect those rights on the union, and not the

public law board, Were it not so, the integrity of the

new mechanism is impeached and the intent of

Congress goes unfulfilled. Surely Congress was aware

of the ramifications of Burley (1) when it excluded

employee participation in the public law board process.

Thus, it must have recognized that the union’s

authority over its member’s claims once in the public

law board process would be enhanced, and that abuse

of that authority was possible. However, Congress

intended the process to be expeditious, a goal that

19

cannot be achieved if there is a duty to protect against

abuse of union authority on the part of the public law

board in cases, such as here and in Cole, where there is

nothing to indicate that the union is acting contrary to

the wishes of its employee. A claim cannot be

expeditiously processed if, as in the Adjustment Board

setting, the employee is in each case entitled to be

present when the Board meets, and then and there to

add to, change or disagree with his union’s submission

of facts, interpretation of applicable agreements, and

arguments or else an award unfavorable to the

employee can be upset. We th’~ it clear that Congress,

given the legislative history and the ramifications

flowing from it, concluded that railroad unions could be

trusted not to abuse their authority before a public law

board, and that in isolated instances of abuse, the now

well-developed doctrine of fair union representation is

available to recompense the employee. See Pyzynski v

New York Central RR Co, 421 F2d 854, 862 (2nd Cir,

1970).

The facts of the case below dramatically demonstrate

the error of the Sixth Circuit in its attempt to discern

the intent of Congress. Appellee here desired to be

present when the public law board met.

‘

‘... I asked him to let me know when the

Board would convene so I would have a chance

to defend myself, because I knew that transcript

better than anybody else did and I would be

able to enlighten the board to bring out

contradictory statements, lies, that would

certainly enhance my chances of getting back,

proving my innocence.” (50a)

20

There is no claim, as there was in Cole, that appellee

was given wrong advice by the union, nor was there

any evidence, as there was in Cole, that appellee did

not understand the workings of the Board. There is no

claim that the union failed adequately to present the

case. To the contrary of Cole, appellee here, one can

only gather, thought he could have done a better, more

forceful job than his union, a not uncommon complaint

of a losing party to any manner of case, but certainly

not a complaint of prejudice. LaFontaine, then, extends

Cole and its importation of Burley (1) employee rights

from cases involving prejudice from union misfeasance

at the public law board level to those in which union

mishandling is absent and in which the only prejudice

is in the result. Clearly, this cannot be what Congress

had in mind in 1966 when it established an alternative

mechanism to be utilized by unions for the expeditious

processing of employee claims.

The National Mediation Board, charged with

administration of the 1966 amendatory legislation, has

taken note of Cole and has characterized its reach:

“The sixth circuit’s decision in Cole v Erie

Lackawanna Ry., supra, not only substantially

broadened the meaning of ‘due notice’ under

section 3, first (j) of the act, it also held the

section and all of the rights it contains applicable

to public law board proceedings. Previously,

section 3, first (j) only had been held to apply to

proceedings of the National Railroad Adjustment

Board.” Forty-Second Annual Report, supra, n. 4,

p. 25 (emphasis added).

21

We respectfully submit that the Sixth Circuit has

grossly misread the intent of Congress and that, in so

doing, it has jeopardized the validity of hundreds of

public law board awards, and compromised the public

law board as a mechanism for resolving employee

claims.

Even if our construction of the 1966 amendatory

legislation is in the end mistaken in whole or in part,

we suggest the matter of employee rights in the public

law board process and the question whose duty it is to

protect them should at last be decided by this Court

because it is too important to the proper functioning of

the Railway Labor Act to be left standing as it is now.

C. The order of the Sixth Circuit below, in tandem

with Cole v Erie-Lackawanna Ry Co, supra,

misapplies this Court’s opinion in Burley v

Elgin, E. J. & E. R. Co, (I), supra and is

therefore in conflict with a decision of the

Seventh Circuit.

In the preceding section of this petition, we

demonstrated the error of the Sixth Circuit here, and in

Cole, in importing wholesale into the public law board

mechanism the employee rights enunciated by this

Court in Burley (I). This section of our petition,

however, proceeds on the assumption, arguendo, that

Our position there is wrong and that, thus, Burley (1)

does apply in the public law board process to the same

extent it applies to the National Railroad Adjustment

Board mechanism. Even so, the Sixth Circuit here and

in Cole misinterpreted Burley (I) and thus its order here

is in conflict with a decision of the Seventh Circuit.

22

After release of its opinion in Burley (1), this Court,

upon rehearing, considered the nature of the notice

which Burley (I) required to be given an employee to

permit him to protect his rights in connection with

disposition of his grievance and, in addition, took up

the question of the extent to which his union might be

authorized to act for him in that regard, Elgin, ] & E R

Co v Burley, 327 US 661 (1946) (Il). There this Court

recognized that, in the Adjustment Board setting, the

union’s authority to act on behalf of the employee is

entitled to ‘‘presumptive weight,’ 327 US at 664, and

indicated that such authority could be conferred by the

constitution of the union organization of which the

employee was a member, 327 US at 665, n. 2. Having

ruled on the presumption in favor of the union’s

authority, this Court cautioned that:

‘

‘... [W]e did not rule, and there is no basis

for assuming we did, that an employee can stand

by with knowledge or notice of what is going on

with reference to his claim, either between the

carrier and the union on the property, or before

the Board on their submission, allow matters to

be thrashed out to a conclusion by one method

or the other, and then come in for the first time

to assert his individual rights.” 327 US at 666,

667 (emphasis supplied).

This Court, however, declined to define what was

meant by ‘‘due notice’”’:

“But we did not undertake to define what was

meant by ‘due notice,’ nor do we now. ‘Due

notice’ conceivably could be given or had in a

variety of forms, more especially when account

is taken of the generally informal procedure of

the Board. It would require at the least, we

23

think, knowledge on the aggrieved ciuployee’s

part of the pendency of the proceedings or

knowledge of such facts as would be sufficient to

put him on notice of their pendency.”’ 327 US at

666, n. 9.

Both in the case below and in Cole, the Sixth Circuit

construed Burley II ‘due notice’ to mean:

‘Actual notice for this purpose is notice of the

hearing for a sufficient period prior thereto to

permit the employee to consult with union

officials and relay such information as he

possesses which might allow the union to more

effectively present his claim.”” Appendix, p. A2;

541 F2d at 534.

Such a statement of “due notice,” cast as it is in terms

of when the notice must be given or had, is perplexing,

if not incongruous, in the factual context here and in

Cole because, although no formal notice was given in

either case, each employee in fact knew early on that

his claim was before a public law board. Therefore the

message apparently intended to be conveyed by the

quoted sentence is that public law boards must furnish

each employee notice not only of ‘pendency of the

proceedings,’”’ but even beyond that, some instruction

in the workings of the public law board and of his right

to revoke the authority of his union thus permitting

him to handle his own case in his own way.!!

1! See the Cole court’s reference that Cole “did not understand

the workings of Board’ [541 F2d at 535) and that Cole “was

foreclosed from making the very decision [to represent himself or to

be represented by counsel! or by union representatives] which § 9

First (j) empowers him to make; thus, his failure to act affirmatively

cannot be held to have been a waiver of his right.’’ 541 F2d at 535,

536.

24

We respectfully submit that neither Burley case

supports such a construction of the ‘due notice’

provided for in Section 153 First (j), and, indeed, such a

construction is contrary to Burley (1) and (II). For what

the Sixth Circuit lost sight of is that Burley (I) and (II),

although defining employee rights, involved the larger

— much larger — question, namely to what extent and

under what circumstances are such employee's rights

waived or lost when his union undertakes to represent

him and during such representation. Burley (II) made it

clear that if the union had authority at the outset to

handle the employee’s grievance then, without regard

to lack of notice from the Adjustment Board, the

employee must take action to revoke such authority or

be bound by the end result. Of this there can be no

doubt, for in remanding for further proceedings, this

Court in Burley (1) stated:

“Since upon the total situation we cannot say

as a matter of law that respondents had

authorized the Brotherhood to act for them in

Docket No. 7324, whether in submitting the

cause or in representing them before the Board;

since it is conceded also that they were not given

notice of the proceedings otherwise than as the

union had knowledge of them; and since further

they have denied that they had knowledge of the

proceedings and of the award until after it was

entered, the question whether the award was

effective in any manner to affect their rights

must be determined in the further proceedings

which are required. The crucial issue in this

respect, of course, will be initially whether

respondents had authorized the Brotherhood in any

legally sufficient manner to represent them,

individually, in the Board's proceedings in Docket

No. 7324."’ 325 US at 748 (emphasis supplied).

25

Neither Burley case required or compelled the

Adjustment Board to notify the employee of anything

other than that his claim had been submitted, nor did it

cast the Adjustment Board in the role of the protector

of the employee's right to represent himself or to be

represented by counsel rather than by his union, as the

Sixth Circuit has done here and in Cole.

The view of the Sixth Circuit necessarily proceeds

from its erroneous and unjust assumption that the

union may not or cannot or should not be trusted to

deal fairly with its members, and that the Adjustment

Board therefore ought in each case to undertake in

effect to see that it does so. Surely, no support for such

an assumption can be found in either Burley case; to the

contrary, the presumption in favor of union authority to

represent its member presupposes that the union will

act responsibly.

Furthermore, the Adjustment Board has never been

held to have any authority to act on employee claims of

union misbehavior because Section 153 First (i) limits

the Adjustment Board’s jurisdiction to disputes between

railroads and employees and because the union

members on the Adjustment Board would be

presumably hostile in a union-member dispute.'? If

the Adjustment Board lacks authority to intrude into

the union-member relationship to redress a

member's grievance, then by parity of reasoning it

would be unseemly to compel it to intrude into the very

same relationship for the purpose of advising the

employee of his right to revoke the union’s authority to

12 See, e.g., Steele v Louisville & N R, 323 US 192 (1944); Conley v

Gibson, 353 US 41 (1957); Glover v St. Louis & S.F. R, 393 US 324

(1969).

26

represent him or otherwise to undertake to advise him

of the rights his union is duty-bound to protect.’

Imposition on the public law board of a duty to

notify (or perhaps “warn” is a more accurate word),

implies as well a duty to make certain that the

notification is effective. Discharge of that correlative

duty could be achieved only if the public law board, as

well as ruling on the merits, were also required to

conduct an inquiry into the reason for an employee's

failure to participate in his case wherever and whenever

only his union was heard from. Since it can be safely

assumed that the union will not impeach before the

Board its authority to act for its member nor that the

railroad will idly stand by if possessed of knowledge

that the union lacks authority, something more than

employee silence or representations from his union, is

required — perhaps something in writing from, or

perhaps face-to-face board communication with the

employee himself — followed by a finding by the Board

that the union has or has not full authority to act.

Whatever form independent'* board inquiry may take,

13 Since a railroad is required to have representation on either an

Adjustment Board or a Public Law Board, a railroad, which is in an

adversary position to the employee, would perforce be compelled to

insert itself into the employee’s relationship with his union, an

intrusion which, in any other context, is illegal. See 49 USC § 152,

Third and Fourth.

14 Because the vote of any two members of a public law board

governs, it is entirely possible that the railroad and union board

member could make a valid and non-reviewable finding of authority

over the dissent of the neutral member. This anomalous result is yet

another reason why such matters were not intended to be entrusted

to any Board, and further indication of the extent of the Sixth

Circuit’s error in implicitly so holding.

la

27

the consequent fact-finding of union authority vel non

launches the board improperly into resolution of

union-member disputes, for an adjudication that no

authority dispute exists [i.e., the employee agrees that

the union has authority to act] is as much an exercise of

Board jurisdiction as the contrary finding that a dispute

exists and the resolving of it [i.e., the union, despite its

claim to the contrary, lacks authority to act].!5 And that,

as we understand the holdings of this Court, is

impermissible.

We suppose it once might have been said that Cole is

factually unique so that only where the employee’s

union imparts advice that effectively deprives him of

his rights before an Adjustment Board or public law

board, can an otherwise valid award be set aside.'® The

case below, however, now makes it clear that the Sixth

Circuit intends Cole to have broad applicability.

In LaFontaine, the employee wished to be present at

the meeting of the public law board so that he could

assist the union in presenting his case. Although the

union apparently promised to advise him about the

meeting, it did not do so and, of course, no formal

'S Compare the juristic similarity to the jurisdiction of a court to

determine that it lacks in personam jurisdiction: such a decision

is binding on the parties and is, of course, a ‘‘decision,”

notwithstanding that the court, by its own ruling, concluded that it

lacked jurisdiction in the first instance. 20 Am Jur 2d, Courts, § 92.

16 Perhaps the narrow factual context was one reason why this

Court denied certiorari in Cole 433 U.S. 914 (1977) notwithstanding

that the Solicitor General urged that the writ be granted and that the

Sixth Circuit be reversed.

28

notice was given by the Board. LaFontaine, however,

was aware that his case was before the Board and that

his union was processing it on his behalf. By virtue of

his union’s constitution, the United Transportation

Union was granted not only complete authority to act in

its member's behalf to submit claims and grievances to

any tribunal unless the member serves the union with

reasonable written notice to the contrary, but also

authority

“. . . to receive notice of hearings, or to waive

hearing, and to appear for, represent, and act for

its members before any person, board, or other

tribunal in connection with consideration and

determination of claims, complaints, or

grievances.’’ (54a)

The public law board specifically found that ‘due notice

of hearing’’ was given the union, ( 8a). There is not a

scintilla of evidence that LaFontaine was misadvised of

his Burley (I) rights. There is no claim that LaFontaine’s

case was not properly handled by his union before the

Public Law Board nor is there any claim that LaFontaine

had any evidence known only to him that was not

communicated to his union or by his union to the

board. There is no evidence that LaFontaine did not

wish his union to continue to represent him or that he

told either the Board or the railroad of his desire to be

present, and there is no evidence that he did not

understand the workings of the Board. Yet on these

facts, the Sixth Circuit ruled:

4

‘... In Cole v Erie Lackawanna Railway Co.,

541 F.2d 528 (1976), cert. denied, 433 U.S. 914

(1977), this court held that actual notice of a

29

hearing is required ‘for a sufficient period prior

thereto to permit the employee to consult with

union Officials and relay such information as he

possesses which might allow the union to more

effectively present his claim.’ We conclude that

the quoted language is dispositive of this

appeal.” Appendix, p. A2.

Thus, although no prejudice arising from the Board's

failure to give formal notice to LaFontaine was or could

be shown, the Sixth Circuit rigidly and summarily

applied Cole. It can no longer be thought that Cole is

limited to its facts and other situations involving

prejudice to the employee. Cole now applies to every

case pending before a public law board. Such a result is

contrary to both Burley cases because it completely

ignores the presumption of unrevoked union authority

to act on its employee’s behalf and permits the

employee to sit idly by until an adverse award is

rendered, coming in then for the first time to assert his

rights.

To the contrary of the Sixth Circuit’s order below is

Kotakis v Elgin, ] & E R, 520 F2d 570 (7th Cir), cert. den.

423 US 1016 (1975), involving the review of an award of

the Adjustment Board. There, Kotakis’ discharge case

was handled by his union from the beginning through

to an unfavorable result before the Adjustment Board.

Kotakis then filed an action in district court seeking

review of the award; following dismissal of his lawsuit

as it related to review of the award, Kotakis appealed to

the Seventh Circuit, urging as one ground, failure of

the Adjustment Board to give him notice pursuant to

Section 153, First (j). The Seventh Circuit observed that

the notice issue, having been neither pleaded nor

30

argued in the district court, was not properly before it,

but nevertheless considered the issue:

“Moreover, the record discloses that plaintiff

knew his grievari¢@e had been submitted to the

Adjustment Board and that he had authorized

the union to represent him there. That satisfies

the notice requirement. Elgin, Joliet & Eastern

Railway Co. v. Burley, 327 U.S. 661, 666-667, 66

S.Ct. 721, 90 L.Ed. 928.” 520 F2d at 576.

Although Kotakis, unlike LaFontaine, did not take the

position that notice was required because he wished to

be present,'? nevertheless the result below and the

holding in Kotakis are in conflict for in neither case is

any prejudice alleged or shown, and in both cases the

employee’s union had unrevoked authority to act in his

behalf, including the authority to receive notice.

The National Mediation Board itself recently took

note of the appearance of a conflict between Cole and

Kotakis:

“The issue of whether, absent official notice

from an adjustment board, a claimant has

received ‘due notice’ as provided in section 3,

first (j) of the act, 45 U.S.C. §3, first (j), was

dealt with by two courts of appeal during the

period covered by this report. The seventh

circuit in the Kotakis case, supra, found sufficient

'7 We note in passing that it is exceedingly doubtful that

LaFontaine had any right to demand to be present so long as his

union's authority to act had not been revoked, for Section 153 First

(j) provides that parties may be “heard either in person, by counsel,

or by other representatives, as they may respectively elect... .”

(emphasis supplied.)

31

notice upon the simple showing that a claimant

had authorized his collective bargaining

representative to represent him before the

Adjustment Board with respect to his grievance

and knew that his grievance had been submitted

to the Board. However, in Cole v_ Erie

Lackawanna Ry., 541 F.2d 528, (6 Cir. 1976), cert.

denied, — U.S. — (1977) the sixth circuit found

such knowledge and authorization insufficient

notice within the meaning of section 3, first (j)

where the claimant had been informed by his

representative that he need not bring witnesses

to the hearing on his claim and that he could not

appear at the hearing.” Forty-Second Annual

Report, supra, p. 24.

We have no doubt that the Mediation Board would at

the very least be of the same opinion as to the ruling

and result below.

For these reasons, we submit that the ruling below,

in tandem with Cole, misconstrues and is contrary to

Burley (1) and (II) and thus is in conflict with Kotakis.

However, even if we are mistaken in whole or in part,

the matter is far more significant than merely whether a

public law board ought to take the time to mail

something to an employee or be denied the power to

enter a binding award, because inextricably drawn into

question is the extent to which a union currently has

authority to act, and the correlative question how far

beyond the mere giving of notice a public law board is

obliged to go in protecting an employee’s Burley rights.

The ruling below, extending Cole to all public law board

cases at the very least raises these questions and

disposes of them without any consideration of them or

32

of the implicit effects of the ruling on them. The matter

of the interplay of union authority before a public law

board with protection of employee rights, goes to the

very essence of the integrity of the public law board.

process. Whether or not our position is correct in the

end is immaterial. For these matters are far too

important to the administration of the Railway Labor

Act to be left standing as they are now.

D. Conclusion

The clear import of the ruling of the Sixth Circuit

below is to extend the holding in Cole to any and every

case submitted to a public law board so that, if notice is

not given by the Board to the employee, the otherwise

valid award may be set aside upon his motion, for that

reason, and that reason alone without regard to

prejudice. In part B of our argument, we have

marshalled the reasons why Congress did not intend

that the provisions of Section 153 First (j) apply to

public law boards, and in part C we demonstrated that,

even if that section were applicable to public law

boards, notice of hearing to the union was satisfactory

in the absence of some reason for the Board to believe

that the union had something less than full authority to

act on behalf of its member.

=

33

At the time this Court was considering whether to

hear Cole, a case involving prejudice resulting to an

employee who had not received notice of hearing, this

case in which no prejudice for lack of notice was alleged

or proved, was pending before the Sixth Cirtuit. After

this Court declined to review Cole, the Sixth Circuit,

relying strictly upon its decision there and this Court's

denial of certiorari, summarily affirmed the lower court,

and in so doing, extended Cole from cases involving

prejudice from lack of notice to all cases. We submit

that whatever may have then been this Court’s reasons

for declining to hear Cole, the ruling below requires a

fresh review by this Court now in a setting much more

appropriate for consideration of the important question

of the interplay of employee rights under Burley (1) and

their protection with union authority to act on behalf of

its members in the context of the new public law board

mechanism. '8

'8 We have not mentioned the burden, let alone unfairness to an

employer like the railroad here, innocent of knowledge of some

violation by the union of an employee’s Burley (I) rights, in the

public law board arena, of the result reached below, because we

think it goes without saying.

34

For the reasons stated in the Petition, a writ of

certiorari should be granted.

Respectfully submitted,

ROBERT A. STRAUB

407 One Northland Plaza

20755 Greenfield Road

Southfield, Michigan 48037

Phone: (313) 552-5000

JAMES M. BAYSINGER

JONATHAN S. TAUB

400 Renaissance Center

Suite 1900

Detroit, Michigan 48243

Phone: (313) 259-1144

Counsel for Petitioner

OF COUNSEL:

CROSS, WROCK, MILLER & VIESON

400 Renaissance Center

Suite 1900

Detroit, Michigan 48243

Phone: (313) 259-1144

Dated: August 24, 1978

Al

APPENDIX

ORDER

(United States Court of Appeals

For the Sixth Circuit)

(Filed June 1, 1978)

(Robert LaFontaine, Plaintiff-Appellee, v The

Chesapeake and Ohio Railway Company, Defendant-

Appellant. No. 76-2491)

BEFORE: LIVELY and MERRITT, Circuit Judges; and

RUBIN,” District Judge.

No judge in regular active service on the court heving

requested consideration en banc, the petition for

rehearing filed herein by the defendant-appellant has

been referred to the panel which heard the appeal.

Upon careful consideration of the petition for

rehearing the court concludes that the arguments

contained therein were fully considered upon the

original submission and decision of the appeal.

The petition for rehearing is denied.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

Clerk

*The Honorable Car B. Rubin, Judge, U. S. District Court for the

Southern District of Ohio, sitting by designation.

A2

ORDER

(United States Court of Appeals

For the Sixth Circuit)

(Filed April 18, 1978)

(Robert -LaFontaine, Plaintiff-Appellee, v Chesapeake

and Ohio Railroad Company, Defendant-Appellant.

No. 76-2491)

BEFORE: LIVELY and MERRITT, Circuit Judges; and

RUBIN, District Judge.*

The sole issue in this case is whether an employee on

whose behalf a union had submitted a claim of

wrongful discharge to a Public Law Board created

pursuant to the Railway Labor Act was entitled to actual

notice of the hearing before the Public Law Board. In

Cole v. Erie Lackawana Railway Co., 541 F.2d 528 (1976),

cert. denied, 433 U.S. 914 (1977), this court held that

actual notice of a hearing is required ‘‘for a sufficient

period prior thereto to permit the employee to consult

with union officials and relay such information as he

possesses which might allow the union to more

effectively present his claim.” We conclude that the

quoted language is dispositive of this appeal.

The judgment of the district court is affirmed.

ENTERED BY ORDER OF THE COURT

/s) John P. Hehman

Clerk

*The Honorable Carl B. Rubin, Judge, United States District Court

for the Southern District of Ohio, sitting by designation.

A3

ORDER REMANDING CASE TO

PUBLIC LAW BOARD

(United States District Court

Eastern District of Michigan

Southern Division)

(Filed April 30, 1976)

(Robert LaFontaine, Plaintiff, v The Chesapeake and

Ohio Railway Company, Defendant. No. 74-71397)

At a session of said Court held in the U.S. District

Court, Detroit, Michigan on April 19, 1976

PRESENT: HONORABLE James P. Churchill

U. S. District Judge

This matter having come on to be heard upon motion

of the Plaintiff and the Court being fully informed in

the premises;

IT IS HEREBY ORDERED that the decision of the

Public Law Board 347 upholding Plaintiff’s discharge be

set aside and that this matter be remanded to said

Public Law Board for rehearing on the merits.

Honorable /s/ Fred W. Kaess

U. S. District Judge

For Judge James P. Churchill

~_—e

A4

ORDER GRANTING IN PART AND

CONDITIONALLY DENYING IN PART

MOTION FOR SUMMARY JUDGMENT

AND GRANTING PLAINTIFF

RIGHT TO AMEND COMPLAINT

(United States District Court

Eastern District of Michigan

Southern Division)

(Filed February 13, 1975)

(Robert LaFontaine, Plaintiff, v The Chesapeake and

Ohio Railway Company, Defendant. No. 74-71397)

At a session of said court held in the Federal Building

and U.S. Courthouse, Detroit, Michigan, on Feb. 11,

1975

Present! HONORABLE JAMES P. CHURCHILL

United States District Judge

IT IS HEREBY ORDERED that the defendant’s motion

for summary judgment filed in the above-entitled

matter be and hereby is granted in part and

conditionally denied in part, and that the plaintiff be

and hereby is granted leave to file an amended

complaint as set forth in the Court’s Memorandum

Opinion; for the reasons set forth in a Memorandum

Opinion of the Court entered on this date.

/s/ James P. Churchill

United States District Judge

A5

MEMORANDUM OPINION

(United States District Court

Eastern District of Michigan

Southern Division)

(Filed February 13, 1975)

(Robert LaFontaine, Plaintiff, v The Chesapeake and

Ohio Railway Company, Defendant. No. 74-71397)

This is an action for review of an award made by a

special grievance board following the firing of a railroad

employee for assaulting another employee. The petition

alleges that plaintiff was employed as a yardman in

Detroit by defendant raiiroad. On April 26, 1971, he

was involved in an altercation with a fellow employee,

J. H. Flatt. Pursuant to railroad procedure, a hearing

was held before the trainmaster shortly thereafter;

plaintiff was found to be at fault and was discharged

from service. A claim for back pay and reinstatement

was taken before the Public Law Board #347 pursuant

to procedure agreed to by defendant and plaintiff's

collective bargaining representative, the United

Transportation Union. The claim was denied on January

19, 1973.

Plaintiff prays that he be ordered reinstated with back

pay, or in the alternative, that the Board’s decision be

vacated and the matter be remanded for a new hearing.

The asserted basis for such relief is that the original

hearing was procedurally unfair because the same

A6é

union representative served both plaintiff and J. H.

Flatt at the trainmaster’s hearing; that the Public Law

Board hearing was unfair in that the transcript of the

earlier hearing should not have been relied upon by the

Public Board because the trainmaster’s hearing had

been conducted in total disregard of the rules of

evidence; and in that the plaintiff here did not receive

proper notice of the hearing. This last claim was raised

only in plaintiff's brief; it does not appear in his

complaint.

The defendant railroad has moved for summary

judgment alleging lack of jurisdiction over the subject

matter as well as failure to state a cause of action. These

are both defenses which can be raised by motion to

dismiss under [2] Rule 12(b), F.R.C.P. The Court will

construe this motion for summary judgment as a

motion to dismiss under Rule 12(b)(1) and 12(b)(6).

Defendant claims that jurisdiction to review awards

of Special Adjustment Boards does not lie in the district

courts. In Andrews v. Louisville & Nashville R. Co., 406

U.S. 320 (1972), it was held that:

“A party who has litigated an issue before the

Adjustment Board on the merits may not

relitigate that issue in an independent judicial

proceeding. Union Pacific R. Co. v. Price, 360

U.S. 601 (1959).”” 406 U.S. at 325.

To some extent that principal [sic] is modified by the

terms of the statute under which Special Boards are

created. 45 U.S.C. Section 153 provides for juris-

diction in the district court to enforce awards of such

boards. The terms of awards may be set aside under the

statute only if a party alleges that the order exceeds the

= eel

A7

scope of the Board’s jurisdiction, that the Board failed

to comply with statutory requirements, or for fraud or

corruption by a member of the Board.

This suit is not for enforcement of an order; nor does

it allege any of the three grounds which would put it

properly before a district court if enforcement were the

issue. Rather, the suit is to set aside an order because

of procedural irregularities at both the trainmaster’s

hearing and the hearing before the Special Board. The

statute does not authorize review for those purposes.

There is, however, case law authority for review of

Special Board decisions where they are tainted by due

process violations. The Seventh Circuit has held:

“The sound conclusion to be drawn from the

statute (the Railway Labor Act) and the various

decisions, seems to be that, in the absence of any

question as to the regularity of proceedings before

the board for lack of notice or other defect

preventing due process of law, the district court

has no right to review an order of the board.”

Ellerd v. Southern Pacific R. Co., 241 F.2d 541

(CA7 1957). (Emphasis supplied.)

Thus, the defendant’s position that review is

unavailable is not necessarily valid if the plaintiff has

alleged a denial of due process in the hearing

procedure.

In Edwards v. St. Louis-S.F. RR Co., 361 F.2d 946 (CA7

1966), it was held that only in cases where the alleged

denial of due process occurred before the Public Law

Board would jurisdiction lie with the district court for

review. If the alleged due process violation occurred at

the initial trainmaster’s hearing on the railroad

property, the district court lacks jurisdiction to review

A8

the award. This district has recently adopted the

holding of the Edwards case in an opinion by Judge

Gubow in the case of Richard Wenzel v. Chesapeake &

Ohio Railway Co. et al., Civil Action 74-71578, decided

December 23, 1974.

[3] Therefore, the motion to dismiss will be granted

with respect to all claims raised by the plaintiff except

the issue of the adequacy of the notice to plaintiff of the

Special Board hearing. District courts lack jurisdiction

over the subject matter of those claims which are here

dismissed. This is not to say that the allegations of

unfairness at the trainmaster’s hearing would be

foreclosed should this Court remand for a rehearing by

the Special Board on the grounds of lack of due notice.

Under the terms of paragraph 8 of the agreement

between the railroad and the union establishing the

Special Board, each party to a claim before such Board

may present evidence and statements of fact at the

hearing before the Board. The issue of fairness of

representation and the use of the trainmaster’s hearing

transcript can properly be raised at such a hearing.

Heretofore, that claim of lack of notice has only been

raised in plaintiff's brief. The Court hereby grants

plaintiff leave to file an amended complaint to include

such a claim. If the amendment is filed within twenty

(20) days of the date of filing of this order, the order

granting the motion to dismiss as to the notice claim

will be denied. If no such amendment is filed within

such time, the motion to dismiss will be granted.

/s/ James P. Churchill

United States District Judge

Dated: February 11, 1975

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