Petition — Union Pacific R. Co. v. Sheehan

Supreme Court, U.S,

FILED

AUG29 1978

MICHAEL RODAK, JR. CLERK 4

In The

Supreme Court of the United States

OCTOBER TERM, 1978

ty)

Vv

No. 28- sad 3 4 4

fay

Vv

UNION PACTFIC RAILROAD CO.,

Petitioner,

Vs.

KERMIT KIMBALL SHEEHAN,

Respondent.

fay

Vv

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

oO

Harry LustGarTen, JR.

JoHN J. MARCHANT

1416 Dodge Street

Omaha, Nebraska 68179

Attorneys for Peitioner

Union Pacific Railroad Co.

COCKLE PRINTING CO., 1822 St. Mary’s Ave., Omaha

TABLE OF CONTENTS

Pages

Petition for a Writ of Certiorari ei ccc 1

Rates 9 Ss eC MA El rane at eo 2

Jurisdiction _....... $ ee.

EL SEs FS SR

OR ie,

Statement of the Case occ. | eas

Reasons for Granting the Writ:

1. The decision below is in conflict with applicable

decisions of this Court and other Courts of Ap-

peals to the effect that awards of the National

Railroad Adjustment Board need not set forth the

Board’s reasons for accepting or rejecting each

argument raised by a party to the arbitration

2. The decision below is in conflict with applicable

decisions of this Court and decisions of other

Courts of Appeals to the effect that a court may

not substitute its judgment for the judgment of

the National Railroad Adjustment Board simply

because the Court does not agree with the result

reached by the Board. ...0....00..0.. na &

EERE EE UE re 5 VE ALR a mis AO

Appendix A ich time 1

pS REG Ea a Oe App. 9

Appendix C App. 18

I i etait ercwnetne pp, 19

CASES CITED

Pages

Andrews vy. Louisville & Nashville Railroad Co.,

406 -T. 6. S98 Cibte) i A, 8

Barrett v. Manufacturers Railway Company, 408

Fs ek TR LO 1 TTY senha ey By

Devita v. Burlington Northern, Ine., 494 F. 2d 347,

349 (9th Cir. 1947) .... AY Ee a RSA ASLO ot |

Diamond v. ‘Terminal Railway Alabama State

Docks, 421 F. 2d 228, 233-24 (5th Cir. 1970) ...........11, 15

(iunther v. San Diego & A. I. R. Co., 382 U.S. 257

8: } iene ae A A, CoE SAO Far eda Cea SS My My |

Kotakis v. Elgin, Joliet & Kastern Railway Co.,

620 F. 22.570, 576 (7th Cir. 1975) a hy DD

Moore y. Iliinois Central Railroad Co., 312 U.S.

630 (1941) ice scen $e er i te ne a

Rossi v. TWA, Ine., 507 I’. 2d 404, 405 (9th Cir, 1974) 11

Thomas v. Hlineis Central Railroad Co., et al.,

521 F. 2d 208, 214 N. 10 (Sth Cir. 1975) ween LI

United Steelworkers vy. Enterprise Wheel and

Car Corp., 863 U.S. 598 (19

OTHER AUTHORITLES

Title 28, United States Code, Section 1254(1) ww 2

45 UGC Hes 16h et dee ee es

In The

Supreme Court of the United States

OCTOBER TERM, 1978

°

No. .......

©

UNION PACIFIC RAILROAD CO.,

Petitioner,

VS.

KERMIT KIMBALL SHEEHAN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Petitioner Union Pacific Railroad Co. prays that a

writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Tenth Circuit

entered in favor of the respondent in the above-entitled

case on May 31, 1978.

oc

OPINIONS BELOW

The opinion of the Court of Appeals is unofficially

reported at 98 LRRM 2632 and 84 LC 10, 633, and is

printed in Appendix A. The opinion of the District Court

is reported at 423 F. Supp. 324, unofficially reported at

93 LRRM 2815 and 81 LC 13, 108, and is printed in Ap-

pendix B.

JURISDICTION

The opinion of the Court of Appeals was filed and

a judgment in accordance therewith, printed in Appendix

C, entered on May 31, 1978. The jurisdiction of this

Court is invoked under Title 28, United States Code,

Section 1254 (1).

°

QUESTIONS PRESENTED

1. Must arbitration awards of the National Railroad

Adjustment Board contain findings which set forth the

Board’s reasons for accepting or rejecting each argument

raised by a party to the arbitration proceedings?

2. May a court substitute its judgment for the judg-

ment of the National Railroad Adjustment Board simply

because the court does not agree with the result reached

by the Board?

°

3 \

STATUTES INVOLVED

This case involves questions as to the proper interpre-

tation and application of provisions of the Railway Labor

Act, 40 USC See. 151 et seq. (hereinalter referred to as

‘the Act’’). The provisions of the Act pertinent to this

case are contained in Section 158, First (i), (m), (0),

and (q), which read as follows:

(i) The disputes between an employee or group

of employees and a carrier or carriers growing out

of grievances or out of the interpretation or appliea-

tion of agreements concerning rates of pay, rules, or

working conditions, including cases pending and un-

adjusted on June 21, 1934, shall be handled in the

usual manner up to and including the chief operating

officer of the carrier designated to handle such dis-

putes; 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 state-

ment of the facts and all supporting data bearing

upon the disputes.

(m) The awards of the several divisions of the

Adjustment Board shall be stated in writing. A copy

of the awards shall be furnished to the respective

parties to the controversy, and the awards shall be

final and binding upon both parties to the dispute.

In case a dispute arises involving an interpretation

of the award, the division of the Board upon request

of either party shall interpret the award in the light

of the dispute.

(o) In ease of an award by any division of the

Adjustment Board in favor of petitioner, the division

of the Board shall make an order, directed to the

carrier, to make the award effective and, if the award

includes a requirement for the payment of money, to

pay to the employee the sum to which he is entitled

4

under the award on or before a day named. In the

event any division determines that an award favor-

able to the petitioner should not be made in any dis-

pute referred to it, the division shall make an order

to the petitioner stating such determination.

(q) If any employee or group of employees, or

any carrier, is aggrieved by the failure of any divi-

sion of the Adjustment Board to make an award in

a dispute referred to it, or is aggrieved by any of

the terms of an award or by the failure of the division

to include certain terms in such award, then such

employee or group of employees or carrier may file

in any United States district court in which a petition

under paragraph (p) could be filed, a petition for

review of the division’s order. A copy of the petition

shall be forthwith transmitted by the clerk of the

court to the Adjustment Board. The Adjustment

Board shall file in the court the record of the pro-

ceedings on which it based its action. The court

shall have jurisdiction to affirm the order of the di-

vision or to set it aside, in whole or in part, or it may

remand the proceeding to the division for such

further action as it may direct. On such review, the

findings and order of the division shall be conclusive

on the parties, except that the order of the division

may be set aside, in whole or in part, or remanded

to the division, for failure of the divisicn to comply

with the requirements of this chapter, for failure of

the order to conform, or confine itself, to matters

within the scope of the division’s jurisdiction, or

for fraud or corruption by a member of the division

making the order. The judgment of the court shall

be subject to review as provided in sections 1291 and

1254 of Title 28.

So

STATEMENT OF THE CASE

Kermit, Sheehan, Respondent here, is a former em-

ployee of Petitioner Union Pacifie Railroad Co. (herein-

after referred to as “Union Pacific’). Following a hear-

ing held pursuant to the governing collective bargaining

agreement between Union Paeifie and the Respondent's

union, The American Railway Supervisor’s Association,

Respondent was, on October 17, 1969, discharged by

Union Paetfic tor violation of a wort rule. Respondent

progressed an intra company appeal of his discharge

through his union. Union Pacifie’s highest officer desig-

nated to handle such appeals declined the appeal on Feb-

ruary 3, 1970 ( Apn. pp. 10-11, 21-22),

On April 20, 1971, Respondent filed suit against

Union Pacific in the District Court of Salt Lake County,

Utah. While that suit was pending, this Court decided

Andrews v. Louisville & Nashville Railroad Co., 406 U.S.

320 (1972), reversing Moore v. Illinois Central Railroad

Co., 312 U. S. 630 (1941), in which it was held that a

discharged railroad employee’s exclusive remedy was an

appeal to the National Railroad Adjustment Board (here-

inafter referred to as “NRAB” or “the Board”). On the

basis of this Court’s holding in Andrews, Respondent and

Union Pacific stipulated for the dismissal of Respondent's

state court suit and the court entered an Order dismiss-

ing the suit without prejudice to the interests of any

party on November 7, 1972 (App. pp. 10-11, 20-21).

On July, 25, 1973, Respondent instituted a proceed-

ing before the NRAB by filing a Notice of Intent to File

Ex Parte submissions with the NRAB. Thereafter, writ-

ten submissions were tendered by both parties and the

Board held two hearings during which the case was

argued orally. The second hearing was hefore a referee

and Respondent was allowed to participate by presenting

oral argument. On March 5, 1974, the NRAB, by an Or-

der accompanying Fourth Division Award No. 3045, de-

nied Respondent’s claim. Fourth Division NRAB Award

No. 3045 and accompanying Order are printed in Appen-

dix D. The NRAB’s denial of Respondent’s claim was

based on the fact that Respondent had failed to comply

with applicable time limits contained in the governing

collective bargaining agreement in bringing his claim be-

fore the NRAB. In reading this conclusion the Board

rejected the argument of Respondent’s attorney that the

filing of the action in Utah State Court had the effeet of

tolling the time limits contained in the collective bargain-

ing agreement (App. pp. 19-23).

On June 20, 1975, Respondent instituted this action

in the United States District Court for the District of

Utah, Central Division. Jurisdiction in the District Court

was based on Title 45, United States Code, Section 153,

First (q). In an opinion dated September 7, 1976, the

District Court affirmed the Order of the NRAB and

granted Union Pacific’s Motion to Dismiss, which the

Court treated as a Motion for Summary Judgment. The

basis for the District Court’s action was that Respond-

ent had failed to demonstrate the existence of any grounds

for reversal of the NRAB Order under 45 USC, Section

153, First (q) (App. pp. 16-17).

Tn an opinion dated May 31, 1978, the Court of Ap-

peals for the Tenth Circuit held that in rendering its

award in the instant case the Board denied Respondent

due process of law. The Court of Appeals, accordingly,

directed that the cause be remanded to the Board for

further proceedings.

REASONS FOR GRANTING THE WRIT

1. The decision below is in conflict with appli-

cable decisions of this Court and other Courts of

Appeals to the effect that awards of the National

Railroad Adjustment Board need not set forth

the Board’s reasons for accepting or rejecting

each argument raised by a party to the arbitra-

tion proceeding.

Before both the NRAB and the District Court, Re-

spondent argued that the time limitation contained in the

collective bargaining agreement governing the time for

filing appeals to the NRAB was tolled during the pend-

ency of his actior in Utah state court:

“Plaintiff therefore argues NRAB should have held

. that the time limitation was tolled during the

pendency of the state suit.’? (App. pp. 138-14).

This argument has been characterized as “equitable toll-

+4 ”

ing”.

The Court of Appeals found that the NRAB failed

to consider Respondent’s equitable tolling argument and

concluded that the failure of the Board to consider this

argument amounted to a denial of due process. On this

basis the Court directed that the cause be remanded to

the Board for further proceedings. Petitioner submits

that the Court of Appeals’ statement that the NRAB

failed to consider the equitable tolling argument is in

direct conflict with the record which clearly indicates that

the Board did consider the equitable tolling argument and

chose to reject it.

At Page 2 of Award No, 3045 the Board, in pertinent

part, stated:

“Nor do we agree with Mr. Arnold that the time lim-

its did not commence running until the Utah court

dismissed claimant’s breach of contract suit in No-

vember, 1972. Filing of the civil suit did not have

the effect of obviating the time limits in the Agree-

ment. When claimant decided to pursue his remedies

with this Board he was obligated to do so in the man-

ner prescribed in the applicable Agreement in effect

on the property.” (App. pp. 21-22).

The foregoing hardly indicates that the Board failed to

consider the equitable tolling argument. On the contrary,

the Board’s language clearly indicates that the Board did

consider Respondent’s equitable tolling argument but con-

eluded that it was without merit. The only thing which

the Board failed to do was to set forth its reasons for

rejecting the tolling argument.

Since, as pointed out above, the Board clearly con-

sidered the tolling argument and rejected it, the Court of

Appeals’ decision can only stand for the proposition that

the Board must set forth its reasons for rejecting the

argument. This—setting forth its reasons for rejecting

the argument—is the only thing which the Board failed

to do in the instant case. Further buttressing the con-

clusion that the Court of Appeals is demanding that the

Board explain its reasons for rejecting the tolling argu-

ment is the language of the Court of Appeals’ decision

which indicates that the court feels a more stringent re-

view of Board decisions on “purely legal issues” is in

order :

“Considering the implications arising from, and the

developments since Andrews v. Louisville & Nash-

ville RR, 406 U. S. 320, and the elimination of the

right to sue on the employment contract in the state

courts, it is possible that the extent or scope of judi-

cial review of purely legal issues decided by the

National Railroad Adjustment Board should be re-

examined, The Board members are not chosen for

their legal expertise; they are chosen to interpret

and appiy the collective bargaining agreements.”

(App. pp. 4-6).

Only if the Board explains its reasoning with respect to

“purely legal issues” can the courts undertake to more

closely examine the validity of the Board’s reasoning as

the Court of Appeals suggests. Thus, it seems that the

reason the Court of Appeals held the Board’s action to

be invalid was not because the Board failed to consider

Responcent’s tolling argument—because the Board clearly

did consider the argument—but because the Board failed

to explain its reasons for rejecting the argument.

Insofar as the Court of Appeals’ decision is based

on the fact that the Board failed to explain its reasons

for concluding that ‘*. .. Filing of the civil suit did not

have the effect of obviating the time limits contained in

the agreement”, the court’s opinion is in conflict with

previous decisions of this Court as well as with decisions

of other courts of appeals. In United Steelworkers v.

Enterprise Wheel and Cay Corp., 363 U. S. 598 (1959),

10

this Court specifically rejected the notion that an arbi-

trator is obligated to explain the rationale which led to

a given conclusion:

“Arbitrators have no obligation to the court to give

their reasons for an award.” 363 U.S. 598,

This Court’s opinion in Steelworkers also rejects the sug-

gestion made by the Court of Appeals in the instant case

that courts should undertake a broader review of the

Board’s findings on “purely legal issues”:

“The collective bargaining agreement could have pro-

vided that if any of the employees were wrongfully

discharged, the remedy would be reinstatement and

back pay up to the date they were returned to work.

Respondent’s major argument seems to be that by

applying correct principles of law to the interpreta-

tion of the collective bargaining agreement it ean be

determined that the agreement did not so provide, and

that therefore the arbitrator’s decision was not based

upon the contract. The acceptance of this view would

require courts, even under the standard arbitration

clause, to review the merits of every construction of

the contract. This plenary review by a court of mer-

its would make meaningless the provisions that the

arbitrator’s decision is final, for in reality it would

almost never be final. This underlines the funda-

mental error which we have alluded to in United

Steelworkers of America v. American Manufacturing

Co., ante, p. 564, decided this day. As we there em-

phasized, the question of interpretation of the eol-

lective bargaining agreement is a question for the

arbitrator. It is the arbitrator’s construetion which

was bargained for; and so far as the arbitrator’s de-

cision concerns construction of the contract, the

courts have no business overruling him because their

interpretation of the contract is different from his.”

11

Several Courts of Appeals have also concluded that

arbitrators need not set forth their reasons for an award.

See e. g., Thomas v. Illinois Central Railroad Co., et al.,

921 F. 2d 208, 214 N: 10 (Sth Cir. 1975). (It is not nee-

essary for the referee to make specific, findings on issues

presented to it.); Rossi v. TWA, Inc., 507 F. 2d 404, 405

(Mth Cir, 1974). (*We cannot require an arbitration

board to spell out for our benefit the logical process by

Which it makes its deeision.’’?); and Diamond v. Terminal

Railway, Alabama State Docks, 421 F. 2d 228, 233-34

(Sth Cir, 1970). (To be enforceable an NRAB decision

simply has to have on inferentially rational basis that

furthers the aim of the collective bargaining agreement.).

From the foregoing it is apparent that the Court of

Appeals would require the Board to set forth its rea-

sons for rejecting Respondent's equitable tolling argu-

ment and it is equally apparent that such requirement is

in conflict with decisions of this Court as well as with

decisions of other Courts of Appeals.

2. The decision below is in conflict with appli-

cable decisions of this Court and decisions of

other Courts of Appeals to the effect that a court

may not substitute its judgment for the judgment

of the National Railroad Adjustment Board

simply because the Court does not agree with the

result reached by the Board.

As established, supra, the record in the instant case

clearly indicates that the Board did consider Respond-

ent’s equitable tolling argument and chose to reject. it.

By remanding the ease to the NRAB, the Court of Ap.

peals is doing nothing more than attempting to substitute

its judgment—that the equitable tolling argument should

apply—for the judgment of the Board. In short, the

Court of Appeals did not like the result reached by the

Board and “stretched” to find a reason to overturn the

award in order to give the Board another opportunity

to reach the “correct” result.

The Court of Appeals’ discussion of Barrett v. Man-

ufacturers Railway Company, 453 F. 2d 1305 (8th Cir.

1972), at pages 6 and 7 of its decision indicates that the

court disagrees with the result reached by the Board and

feels that the Board should have applied the doctrine of

equitable tolling:

“In Barrett v. Manufacturers Railway Co., 453 I. 2d

1305 (8th Cir.), the plaintiff emplovee was required

under the terms of the collective bareainine agree-

ment to file his appeal with the NRAB six months

from the date he received the decision of Railway’s

vice president. He failed to do so and the Board

would not hear the merits of his claim. The Eighth

Cireuit upheld the NRAB’s decision, stating that‘ ..

the decision of the arbitrators is final and not sub-

ject to review on either the merits or procedural is-

sues.” Although the employee in Barrett was con-

testing his discharge, he elected to pursue his rem-

edies before the Board. Therefore, understandably,

{ime limitations under the agreement should be

strictly applied. Mr. Sheehan, on the other hand,

pursued his remedy in state court which was subse-

quently extinguished in Andrews,”

In distinguishing Barrett from the ease at bar, the court

is clearly suggesting that the Board should reach a dif-

ferent result than that reached in Barrett and in so do-

ing is obviously attempting to substitute its judgment

for the judgment of the Board.

12

The Eighth Circuit Court of Appeals’ decision in

Barrett is also important to the instant case for another

reason, In Barrett the Board reached the same result

as it did in the instant case (i.e, the “merits” of the

claim were not addressed because the claim was not ap-

pealed to the Board in a timely fashion) and the Bighth

Circuit affirmed the award finding nothing wrong with

the result reached by the Board. hus, the Court of Ap

peals’ decision in the instant ease is in divect contliet

with the decision of the Fighth Cireuit in) Barrett and

should be reviewed for this if for no other reason.

To the extent that the Court of Appeals has substi.

tuted its judgment for the judgment of the Board simply

because it disagrees with the result reached by the Board,

the decision is in direct confliet with the decisions of this

court in Andrews v. Louisville & Nashville R. Co., 406

U. S. 826 (1972) and Gunther v. San Diego & ALER.

Co., 882 U.S. 257 (1965). In Andrews this Court, in div-

cussing the purposes of the Railway Labor Act, stated,

in part, as follows:

“The term ‘exhaustion of administrative remedies’

in its broader sense may be an entirely appropriate

description of the obligation of both the employee and

carrier under the Railway Labor Act to resort to

dispute settlement procedures provided by that Act.

It is clear, however, that in at least some situations

the Act makes the federal administrative remedy

exclusive, rather than merely requiring exhaustion

of remedies in one forum before resorting to another,

A party who has litigated an issue before the Adjust-

ment Board on the merits may not relitigate that

issue in an independent judicial proceeding. Union

Pacifie R. Co. v. Price, 360 U.S. 601 (1959), He is

limited to the judicial review of the Board’s pro-

14

ceedings that the Act itself provides. Gunther v.

San Diego & A. E.R. Co., 882 U.S. 257 (1965). In

such a ease the proceedings afforded by 45 U.S.C.

§ 158 First (i), will be the only remedy available to

the aggrieved party.’’

In Gunther this Court emphasized the necessity for

treating awards of the NRAB with finality in the follow-

ing terms: t

“This Court time and again has emphasized and re-

emphasized that Congress intended minor grievances

of railroad workers to be decided finally by the Rail-

road Adjustment Board. In Brotherhood of Railroad

Trainmen y. Chicago River & Indiana R. Co., 358

U.S. 30, the Court gave a Board decision the same

finality that a deeision of arbitrators would have.

In Union Pacifie R. Co. v. Price, 360 U.S. 601, the

Court discussed the legislative history of the Act at

length and pointed out that it ‘was designed for

effective and final decision of erievances which arise

daily’ and that its ‘statutory scheme cannot realis-

tically be squared with the contention that Congress

did not purpose to foreclose litigation in the courts

over grievances submitted to and disposed of by the

Board . . .’? 3860 U.S., at 616. Also in Locomotive

Engineers v. Louisville & Nashville R. Co., 373 U.S.

33, the Court said that prior decisions of this Court

had made it clear that the Adjustment Board provi-

sions were to be considered as ‘compulsory arbitra-

tion in this limited field,’ p. 40, ‘the complete and

final means for settling minor disputes,’ p. 39, and ‘a

mandatory, exclusive, and comprehensive system for

resolving grievance disputes.’ P, 38.”

By substituting its judgment for the judgment of the

Board the Court below is also in direct confliet with

decisions of other Courts of Appeals. See e.g. Kotukis

». Elgin, Joliet & Eastern Railway Co., 520 ¥. 2d 570, 576

15

(7th Cir. 1975); (‘The Board was expected to exercise

its expertise in matters of railroad labor disputes, and

Congress did not intend for the courts to maintain a check

on each procedural and substantive ruling of — the

Board.’’); Devita v. Burlington Northern, Inc., 494 F. 2d

347, 349 (9th Cir, 1947); (‘* Here in Devita’s case, the

trial court made a de novo determination of fact. Some

God in heaven may know that it was right and the board

was wrong. But Congress does not seem to have com-

mitted to us the function of reviewing faetual determina-

tions on procedural steps, especially where there was some

evidence to support the Board’s coneclusion.”); Barrett v.

Manufacturers Railway Company, 453 F.2d) 1805, 1807

(Sth Cir, 1972); (‘The decision of the NRAB in the in-

stant case that the dispute was not timely filed before it

should not be disturbed by us on the basis of this record.

Arbitration is favored by the law and the decision of the

arbitrators is final and not subject to review on either

the merits or procedural issues.’’); and Diamond wv. Ter-

minal Railway Alabama State Docks, 421 F.2d 228, 234

(5th Cir. 1970); (**The courts, therefore, must be careful

not to restrain the Board in a strait jacket of precedent

under the guise of determining whether the Board ex-

ceeded its jurisdiction in making a particular award. So

long as the Board’s decision is drawn from the ‘essence’

of the bargaining contract, we cannot say that onee the

Board has fashioned a particular remedy for a particular

contract violation, any other remedy fashioned in the

future is beyond the Board’s authority.’’).

It is apparent that the Court of Appeals is, in the

instant case, substituting its judgment with regard to the

16

validity of the equitable tolling argument for the judgment

of the Board. In so doing the Court below is improperly

denying finality to Award No, 3045 and thwarting the

purposes of the Railway Labor Act as interpreted by this

Court in Andrews and Guather. Furthermore, the deei-

sion of the Court of Appeals in this regard is in direet

contlict with the decisions of several other Courts of

Appeals cited, supra.

°

CONCLUSION

For the foregoing reasons it is respectfully submitted

that this petition for a writ of certiorari should be granted.

Respectfully submitted,

Harry Lusraarres, Jr.

Joun J. Mancnant

1416 Dodge Street

Omaha, Nebraska 68179

Attorneys for Petitioner

Union Pacifie Railroad Company

App. 1

APPENDIX A

5-31-78 76-2001

UNITED STATES COURT OF APPEALS

For the Tenth Cireuit

SLIP OPINION

(Filed May 31, 1978)

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 76-2001

KERMIT KIMBALL SHEEHAN,

Appellart,

Vs.

UNION PACIFIC RAILROAD COMPANY, a Utah cor-

poration, and NATIONAL RALLROAD ADJUSTMENT

BOARD, FOURTH DIVISION, an agency of the United

States of America,

Appellees.

Appeal from the United States District Court

For the District of Utah

Central Division

(D.C. No, C-75-241)

R. Clark Arnold, Reynolds & Arnold, Salt Lake City,

Utah, for Appellant.

Robert N. Weatherbee, Omaha, Nebraska (Steven. A.

Goodsell, Salt Lake City, Utah, with him on the Brief),

for Appellee, Union Pacific Railroad Company.

App. 2

Ramon M. Child, United States Attorney, and Brent

Ward, Assistant United States Attorney, on the Brief for

Appellee, National Railroad Adjustment Board, Fourth

Division.

Before SETH, Chief Judge, DOYLE and McKAY, Circuit

Judges.

PER CURIAM.

The appellant Sheehan, a discharged employee of the

Union Pacifie Railroad, filed an action in the trial court

to set aside or reverse a decision of the National Railroad

Adjustment Board which had denied him a hearing on his

discharge. The trial court treated defendants’ motions

as motions for swnmary judgment and granted them. The

court thus did not disturb the Board’s decision on the

basis that the Board had jurisdiction to enter the order

it did.

The facts are set out by the district court in Sheehan

v. Union Pavific R. R., 423 F. Supp. 324, and need not be

repeated here.

However, two preliminary issues should be considered

at the outset. First, plaintiff Sheehan urges that the

National Railroad Adjustment Board (NRAB) is a proper

party to these proceedings because “. . . it was the

Board’s action in refusing to adjudicate the issue which

effectively bars litigation of his [Sheehan’s] claims, ...”

On this contention, we agree with the distriet court’s rea-

soning that the Board’s status as a quasi-judicial body

makes it inappropriate as a defendant in this case. See

System Federation vy. Braidwood, 284 F. Supp. 607; Fong

v. American Airlines, Ine., 431 F. Supp. 1340, at 1342-43.

App. 3

Second, plaintiff’s cause of action under the Labor

Management Relations Act, 29 U.S.C. A. § 185 (1965),

was properly dismissed. Employees subject to the Rail-

way Labor Act are specifically excluded from coverage

under the Labor. Management Relations Act. See 29

U.S.C. § 142 (3); 29 U.S.C. § 152 (3) (5); Brotherhood

of Locomotive Firemen & Enginemen v. United Transpor-

tation Union, 471 F.2d 8 (6th Cir.), headnote No. 2.

The real issue here is whether the Board’s determina-

tion that it lacked jurisdiction because of non-compliance

with the limitations in the modified collective bargaining

agreement ‘deprived Sheehan of his due process rights.

We conclude the Board’s failure to address the merits

of plaintiff Sheehan’s claim denied him due process of

law.

Union Pacific maintains that the award of the Board

complied with the requirements of the Railway Labor Act

and the Board acted within its jurisdiction. The Railroad

also urges that the NRAB’s determination with regard to

the time limitations in the collective bargaining agreement

is subject to a narrow standard of judicial review under

45 U.S.C. A. § 153 First (p) and (q), and under Gunther

v. San Diego & Arizona Eastern Ry., 882 U.S. 257. The

provisions of the Railway Labor Act dealing with the

Adjustment Board are ‘‘to be considered as compulsory

arbitration in this limited field.’’ Brotherhood of Rail-

road Trainmen y. Chicago River & Indiana R.R., 353

U.S. 30; see Gunther v. San Diego & Arizona Eastern

Ry., 382 U.S. 257. The Senate report on 1966 amend- .

ments to Railway Labor Act stated:

App. 4

‘“‘The National Railroad Adjustment Board was

established in 1934 under the Railway Labor Act to

provide machinery for resolving so-called minor dis-

putes between individual employees and the carriers.

Minor disputes arise out of grievances or mterpre’.

tion or application of agreements concerning rates of

pay, rules, or working conditions,’’ (Emphasis added.)

U.S, Code Cong, & Adm, News.

The federal courts do not sit as super arbitration

tribunals in suits brought to enforce awards of the Ad-

justment Board. Prompt execution of Board orders is a

necessity, The range of judicial review in enforcement

cases is among the narrowest known to the law and the

findings and order of the Board are conclusive. Denver

& R.G.W. RR, v. Blackett, 588 F.2d 291 (10th Cir.) ;

Diamond v. Terminal Railway Alabama State Docks, 421

F.2d 228 (Sth Cir): Brotherhood of Railroad Trainmen

v. Denver & R.G.W. RR, 3870 F.2d 8383 (10th Cir).

We agree generally with the railroad that the review-

able aspects of an award have been traditionally confined

to lack of jurisdiction, the Board's acting outside the law,

or the presence of fraud or corruption. This seope was

fully treated by this court in Denver & R.G.W. RR. v.

Blackett, 588 F.2d 291 (10th Cir.), whieh concerned a

seniority issue and yardmasters’ qualifications under the

agreement then in force, No jurisdictional question was

there present. Lack of due process must always be recog-

nized as a legitimate ground for objection to a decision

of the Railroad Adjustment Board, Kotakis v. Elgin,

Joliet & Eastern Ry., 520 F.2d 570 (7th Cir.); Hall v.

Eastern Airlines, Ine, 511 F.2d 663 (Sth Cir), Con-

sidering the implications arising from, and the develop-

ments since Andrews v. Louisville & Nashville R. R., 406

App. 5

U.S. 320, and the elimination of the right to sue on the

employment contract in the state courts, it is possible

that the extent or scope of judicial review of purely legal

issues decided by the National Railroad Adjustment

Board should be reexamined, The Board members are

not chosen for their legal expertise; they are chosen to

interpret and apply the collective bargaining agreements.

In such interpretation and application their decisions are

reviewable only as to such aspects as relate to lack of

jurisdiction, fraud or corruption, acting outside the law,

and, of course, lack of due process as above mentioned,

Tae Board's expertise and the legislative intent otherwise

dictate that the most narrow scope of review must be

applied as to all other matters,

Plaintiff Sheehan had two options at the time of his

discharge from Union Pacific. He could have treated

his grievance as involving a determination of rights as

an employee under the bargaining agreement and as.-

serted his rights to be retained as an employee before

the Adjustment Board, Or he could have accepted the

action of the carrier as a final discharge, and sued in

court for a breach of his contract of employment. Sloewn

v. Delaware, Lackawanna & Western R. R., 339 U.S, 239;

Moore vy. Illinois Central R. R., 312 U.S, 630. Mr. Shee-

han could only choose one course of action. He opted to

treat his discharge as final and sue in the state court for

breach of his contract of employment. This was under

way at the time of the decision of the Supreme Court in

Andrews vy. Louisville & Nashville R.R., 406 U.S, 320,

which extinguished Sheehan's right to sue in state court,

This decision made the Board the only forum in which

his rights could be adjudicated, and the parties to the

App. 6

lawsuit in state court stipulated a dismissal. However,

the problem before us arose because under the collective

bargaining agreement Sheehan had to file an appeal with

the Board before May L971 to meet the twelve-month time

limitation in the agreement, This time had by then long

passed, Mr. Sheehan did not submit his notice of intent

to file an ex parte submission with the Board until July

25, 1973. The Board's award which dismissed Mr, Shee-

2,

han’s claim without a hearing on the merits stated:

* > Nor do we agree ... thet the time limits

did not commence running until the Utah eourt dis:

missed claimant's breach of contract suit in Novem

ber, 1972. Filing of the civil suit did not have the

effect of obviating the time limits in the Agreement.”

As the district court noted, a persuasive argument!

can be made for the tolling of time limits. The court in

Andrews expressed the view that an agreement under

the Railway Labor Act was a federal contract governed

and enforeeable by federal law in the federal courts, 406

U.S. at 323. The applicability of equitable tolling to the

agreement in question is not in doubt, While we do not

pass on the merits of the tolling issue, we hold the fail

ure of the Board to consider tolling under these cir-

cumstances deprived Sheehan of an opportunity to be

heard in violation of his right of due process,

In Barrett v. Manufacturers Railway Co. 453 PF, 2d

1305 (Sth Cir.), the plaintiff employee was required un-

der the terms of the collective bargaining agreement to

file his appeal with the NRAB six months from the date

he received the decision of Railway's vice president, THe

failed to do so and the Board would not hear the merits

App. 7

of his claim. The Eighth Cirenit upheld the NRAB’s

decision, stating that “. .. the decision of the arbitrators

is final and not subject to review on either the merits or

procedural issues.” Althongh the employee in Barre!t

was contesting his discharge, he elected to pursue his

remedies before the Board, Therefore, understandably,

time limitations under the agreement should be. strictly

applied. Mr, Sheehan, on the other hand, pursued his

remedy in state court which was subsequently extin-

guished in Andrews, On returning to the Board, he

found there was no forum whieh would hear his elaim,

See Crusen v. United Air Lines, Ine, 289 F. 2d 868 (10th

Cir), and Hodges vy. Atlantie Coast Line RR. 868 TP, 2d

O34 (Sth Cir.), which also dealt with discharges whieh

were pursued before the NRAB,

Appellant Sheehan asks the court to award attor-

neys’ fees in the event the district court is reversed, How-

ever, it is clear that plaintiff's claim was brought under

45 ULS.C. A. § 158 First (q) which does not provide for

an award of attorneys’ fees, Seetion i538 First (p) of the

Act deals with suits by employees to enforee awards of

the Board, The latter section provides for ar vward of

attorneys’ fees to the employee in the event he ultimately

proves successful in securing enforcement of a Board

award, Sheehan, however, is not seeking to have the

Board’s award enforced but is seeking to have the award

overturned, Thus jurisdiction of the court is premised

upon section 153 First (q). In Burlington Northern Ine.

v. American Railway Supervisors Ass'n, 527 F. 2d 216

(7th Cir.), the Seventh Cireuit said:

» + In 1966, Seetion 3 First (q) was enacted

to permit unsuccessful employees and carriers to file

App. 8

petitions for review of Adjustment Board awards.

Unlike Section 3 First (p), Congress did not see fit

to provide for the recovery of reasonable attorneys:

fees in suits for review under Section 3 First (q).

We hold an award of attorneys’ fees in a case such as

this was not intended by Congress.

REVERSED AND REMANDED to the trial court

for further remand to the National Railroad Adjustment

Board.

A true copy

Teste

Howard K. Phillips

Clerk U.S. Court of

Appeals, Tenth Circuit

By /s/ Stephanie Schetrom, Deputy Clerk

(Seal)

App.

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

C 75-241

KERMIT KIMBALL SHEBHAN,

Plaintiff,

Vs.

UNION PACIFIC RATLROAD COMPANY, a Utah cor-

poration, and NATIONAL RAILROAD ADJUSTMENT

BOARD, FOURTIL DIVISION, an agency of the United

States of America,

Defendants,

ORDER AFFIRMING TIE NRAB AND GRANTING

DEFENDANTS’ MOTIONS TO DISMISS

(Filed September 7, 1976)

For the plaintiff; R. Clark Arnold, Esq., 818 Kearns

Building, Salt Lake City, Utah 84101.

For defendant Union Pacifie Railroad Company:

S. M. Matheson, Esq., and Robert N. Weatherbee, Esq.,

600 Union Pacifie Building, Salt Lake City, Utah 84101,

For defendant National Railroad Adjustment Board:

Ramon M. Child, United States Attorney, and Brent

Ward, Assistant United States Attorney, 200 U. S. Post

Office & Courthouse Building, Salt Lake City, Utah 84101,

Background and Arguments

Both of the defendants in the above-entitled case

have filed motions to dismiss and all of the parties have

filed extensive materials in support of their respective

App. 10

positions. Oral arguments were heard on Mareh 29, 1976,

On May 14, 1976, the plaintiff filed a motion for summary

judgement and a stipulation was filed by counsel stating

that the court could rule on the summary judgment mo-

tion without further briefing or argument. The court has

examined the filed materials, including the reeord of the

proceedings before the National Railroad Adinstment

Board [NRAB], and is prepared to rule on the motions.

The plaintiff in this ease was an employee of the de-

fendant Union Pacifie Railroad [Union Paeifie]. On Oc-

tober 8, 1969, the plaintiff was charged with violating one

of Union Pacifie’s work rules and a hearing was held on

October 10, pursuant to rule 23 of the colleetive bargain-

ing agreement between the railroad and the plaintiff's

union. After the hearing, the plaintiff was dismissed

from his employment. The plaintiff unsuecessfully ap-

pealed the dismissal within the company and then filed a

claim in state district court alleging wrongful discharge

and denial of a fair hearing. While that claim was pend-

ing, the Supreme Court decided Andrews v. Louisville &

Nashville Railroad Co., 406 U. S. 320 (1972), reversing

Moore v. Illinois Central Railroad Co., 312. U. S. 630

(1941), in which it was held that a discharged railroad

employee's exclusive remedy was an appeal to the NRAB.

The parties to the state court proceeding entered into

a stipulation and the ease was dismissed without preju-

dice to the interests of any party. The plaintiff then

filed an appeal with the Board whieh was subsequently

dismissed on the technical ground that the plaintiff had

not filed his appeal within time limits prescribed by the

collective bargaining agreement. Following that denial,

the plaintiff filed a complaint with this court praying for

App. 11

an order directing the Board to hear the merits of his

ease or, in the alternative, for a money judgement and re-

instatement against Union Pacifie.

Union Pacific maintains that the complaint does not

allege facts which invoke the court’s jurisdiction to re-

view the Board’s decision under the Railway Labor Act

because the plaintiff has not alleged that the Board failed

to comply with the requirements of the Act, acted out-

side its jurisdiction, or that the order was affeeted by

fraud or corruption of any Board member, 45 U.S. C.A,

§ 153 First (q) (1972). The railroad maintains that the

plaintiff's claim is a “minor” grievance and that the

NRAB determination under compulsory arbitration is

intended to be final. Union Pacific also argues that the

court must affirm the Board’s ruling beeruse it is not

wholly baseless or completely without reason. Union

Pacific maintains that the plaintiff's contentions relating

to denial of a proper hearing are without legal support.

Union Pacifie also contends that the Labor Management

Relations Act does not grant. this court jurisdiction over

the plaintiff's second cause of action (against Union

Pacific for breach of the employment agreement) and

that an appeal to the Board is the plaintiff’s exclusive

remedy. See 29 U.S.C. A. § 152 (2) and (3) (1978), as

amended to 1976.

The NRAB maintains that its status as a quasi-judi-

cial body makes it inappropriate as a defendant in this

ease. The Board admits that its orders may be subject

to judicial review but maintains that filing a case against

the Board in federal court is not an appropriate means

of obtaining that review. System Iederation No, 80 v.,

App. 12

Braidwood, 284 F, Supp, 607, 610-11 (N.D. TIL 1968),

The court agrees with the Board’s contention that only

the disputing parties, Sheehan and Union Pacific, are

proper parties in this case,

The plaintiff maintains that his claim was properly

and timely filed with the NRAB pursuant to the Railway

Labor Aet end the rules and procedures promulgated by

the Board, The plaintiff's appeal was dismissed by the

Board because it had not been filed within the time al-

lowed by the collective bargaining agreement, The plain-

tiff points out that the period of limitations provision

was vudded to the collective bargaining agreement after his

discharge and after the final action by Union Pacifie on

the plaintiff's internal appeal. Mr. Sheehan also ar-

gues that the time requirements were tolled during the

pendency of the plaintiff's state court case and that the

NRAB should be required to hear and decide his elaim

on the merits,

The plaintiff does not have a cause of action in his

second count under the Labor Management Relations Act,

20 U.S.C. A, § 185 (1965). This case must be treated

simply as an appeal from a federal administrative de-

termination. The only real issue relates to the propriety

of the NRAB determination that the Board lacked juris-

diction because of a violation of the time limitations in

the modified collective bargaining agreement. Judicial

review of that decision may be had only within the lim-

its of 45 U.S.C. A. § 1583 First (q) (1972).

Analysis

The plaintiff has persuasively argued for tolling the

time limits. The policy expressed by the Court of Ap-

App. 18

peals of the Tenth Cireuit supports this view. Darltt v,

Shell Oil Co., No. 75-1277 (10th Cir. Filed July 22, 1976),

Further,

Statutes of limitation... are designed to promote

justice by preventing surprises through the survival

of claims that have been allowed to slumber until

evidence has been lost, memories have faded, and

witnesses have disappeared, The theory is that even

if one has a just claim it is unjust not to put the

adversary on notice to defend within the period of

limitation and that the right to be free of state elaims

in time comes to prevail over the right to prosecute

them.

Order of Railroad Telegraphers v. Railway Express

Agency, Inc., 821 U. S. 342, 348-49 (1944). The policy of

protecting defendants is, however, “frequently outweighed

.» +» Where the interests of justice require vindication of

the plaintiff's rights.” Burnett v. New York Central Rail-

road C'o., 380 U. S. 424, 428 (1965).

Mr. Sheehan argues persuasively that he diligently

and in a timely manner pursued one of the two avenues

open to him following his discharge and that it is not in

the interests of justice to deny the plaintiff relief simply

because he eleeted to pursue his state court remedies

rather than to file an appeal to the NRAB when both

alternatives were open to him. Union Pacifie was on no-

tice that the plaintiff intended to seek relief and was

actually pursuing his remedies. The purposes of the time

limitation were fulfilled. The plaintiff did not sleep on

his rights and Union Paeifie does not appear to have been

injured by the delay. As in Order of Railroad Tele-

graphers v. Railway Express Agency, supra, the long de-

lay was ‘‘caused by the exigencies of the contest, not by

App. 14

the neglect to proceed.” 321 U.S. at 349, Plaintiff there-

fore argues NRAB should have held, as the Supreme

Court did in Burnett v. New York Central Railroad Co.,

supra, that the time limitation was tolled during the pend-

ency of the state suit. This position of the plaintiff has

one severe limitation in itself. The ability of this court

to review the Board's order has been severely restricted

by Congress:

On [iudieial] review the findings and order of the

division shall be conclusive on the parties, except that

the order of the division may be set aside, in whole

or in part, or remanded to the division, for failure

of the division to comply with the requirements of

this chapter, for failure of the order to conform, or

confine itself, to matters within the seope of the

division’s jurisdiction, or for fraud or corruption

by a member of the division making the order,

45 U.S.C. A. 9153 First (q) (1972). The purpose of

the Railway Labor Act is to secure the prompt, orderly

and final settlement of minor disputes between employees

and the earrier, See, e.g. Union Pacific Railroad Co. v.

Price, 360 U. S. 601, 613-16 (1959); Atlantic Coast Line

Railroad Co, v. Pope, 119 F. 2d 39, 41 (4th Cir, 1941);

Crusen v, United Air Lines, 141 F. Supp. 347, 355 (D.

Colo. 1956), aff'd, 239 BF. 2d 868 (10th Cir, 1956). The

above provision, added in 1966, helps to meet that goal

by severely restricting the scope of judicial administra-

tive review, thereby increasing the finality of the Board’s

order, It is subject to the weighty criticisms raised

against the scope of it by Justice Douglas in his dissent

in the Andrews case.

Courts have recognized that their right to review

orders of the NRAB is very, very limited, even when the

A pp. 15

review involves a procedural issue relating to the time-

liness of an appeal to the NRAB and the court is con-

vineed that the Board was incorrect. Devita v. Burling-

ton Northern, Inc., 494 F. 2d 347 (9th Cir. 1974), cert.

denied, 419 U. S. 869 (1974). To prevail on review, the

plaintiff employee usually must show the existence of

one of the three statutory grounds for reversal. EF. g.,

Johnson v. Interstate Railroad, 345 F. Supp. 1082, 1085

(W.D. Va. 1972); McDonald v. Penn Central Transpor-

tation Co., 337 F. Supp. 803, 805-06 (D. Mass. 1972);

Barrett v. Manufacturers Railway Co., 326 ¥. Supp. 639,

643-45 (KE. D. Mo. 1971), aff’d, 453 F. 2d 1305 (8th Cir.

1972). The plaintiff has failed to meet that burden.

A collective bargaining agreement can impose a time

limitation on the institution of an appeal to the NRAB

by a railroad employee. Atlantic Coast Line Railroad

Co, v. Pope, supra, 119 F. 2d at 43-44; Crusen v. United

Air Lines, supra, 141 F. Supp. at 349. It is equally clear

that the NRAB, not the court, has been given the pri-

mary jurisdiction to interpret the collective bargaining

agreement. E.g., Kotakis v. Elgin, Joliet & Eastern

Railway Co., 520 F. 2d 570 (7th Cir. 1975), cert. denied,

— U.S. — (1976).

As a general guideline in judicial review of admin-

istrative action, the court should give deference to the

agency’s application of legal concepts. The court can,

however, in an appropriate case, substitute its judgment

concerning the underlying question of law. E.4g., Fish-

gold v. Sullivan Drydock & Repair Corp., 154 F. 2d 785

(2d Cir. 1946, aff’d, 228 U. S. 275 [1946]). Unlike the

NRAB time limitation cases previously cited by the court,

App. 16

the parties in this case are in basic agreement concern-

ing the facts. As such, the dispute appears to be purely

a question of law conecrning whether the state court

proceeding could toll the time period under the faets of

this ease. A careful analysis of 45 U.S.C. A. § 153 First

(q) (1972) indicates that the general rule does not apply

in appeals from NRAB orders. The statute states that

“the findings and order of the division” may be set aside

only if one of the three statutory bases for reversal is

found to exist (emphasis added). It appears that the

statute is designed to cover not only findings of fact but

also the complete order, including legal conclusions. As

such, this court is precluded from applying its interpre-

tation of the proper legal standard rather than that of

the NRAB.

Several courts have intimated or directly held that:

[T]he Board’s order can be reversed by the courts

if it is found to be “aetually and indisputedly with-

out foundation in reason or fact” [citations omitted |

or “wholly baseless and without reason” [citations

omitted]. If a Board decision can be so character-

ized, it is viewed as outside the “matters within the

scope of the division’s jurisdiction” under 45 U.S.C.

§ 1538 First (q).

Kotakis v. Elgin Joliet & Eastern Railway Co., supra,

520 F. 2d at 574-75; see Gunther v. San Diego & Arizona

Eastern Railway Co., 382 U. S. 257, 261 (1965); Laday

v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co.,

422 F. 2d 1168, 1171 (7th Cir. 1970); Brotherhood of

Railroad Trainmen v. Central of Georgia Railway Co.,

415 F. 2d 403, 414 (Sth Cir. 1969), cert. denied, 396 U.S.

1008 (1970). In applying the above standard to this

—

SO en ee ae Ee oe

ae

App. 17

case, it cannot be said that the NRAB’s determination

was without foundation in reason or fact and therefore

beyond the Board’s jurisdiction.

The plaintiff has failed to demonstrate the existence

of any of the grounds for reversal under 45 U.S.C. A.

§ 153 First (q) (1972) and the court has been unable to

find any legal principle under which it ean grant the

plaintiff relief without violating the provisions of the

Railway Labor Act. Consequently,

IT IS HEREBY ORDERED that the order entered

by the NRAB is affirmed and the defendants’ motions to

dismiss, treated as motions for summary judgment, are

granted.

DATED this 7th day of September, 1976.

/s/ Aidon J. Anderson

United States District Judge

‘_—

Vv

App. 18

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MAY TERM—May 31, 1978

Before Honorable Oliver Seth, Honorable William E.

Doyle, and Honorable Monroe G, MeKay, Cireuit Judges

KERMIT KIMBALL SHEEHAN,

Plaintiff-Appellant,

Vs.

UNION PACIFIC RAILROAD COMPANY, a Utah cor-

poration, and NATIONAL RAILROAD ADJUSTMENT

BOARD, FOURTIE DIVISION, an ageney of the United

States of America,

Defendants-Appellees,

JUDGMENT

No, 76-2001

(D. C. No, C-75-241)

This cause came on to be heard on the record on

appeal from the United States Distriet Court for the

District of Utah, and was argued by counsel,

Upon consideration whereol, it is ordered that the

judgement of that court is reversed, The cause is re-

manded to the United States District Court for the Dis-

triet of Utah with instructions that it be promptly re-

manded to the National Railroad Adjustment Board for

further proceedings in accord with the opinion of this

Court.

/s/ Howard K. Phillips, Clerk

A true copy

Teste

SEAL By Stephanie Schetrom, Deputy Clerk.

SF i eee ee ee -

App. 19

APPENDIX D

Form 2(a) NATIONAL RAILROAD ADJUSTMENT

BOARD, FOURTH DIVISION

ORDER

To accompany (Award Number 3045

(Docket Number 3028

Mr. R. Clark Arnold

Attorney at Law

Suite 318, Kearns Building

136 South Main

Salt Lake City, Utah 84101

The Division, after consideration of the Docket iden-

tified above, hereby orders that an award favorable to the

petitioner should not be made. The claim is denied as

set forth in the award, a copy of which is attached and

made a part of this Order,

NATIONAL RAILROAD ADJUSTMENT

BOARD

By Order of Fourth Division

ATTEST: Executive Secretary

National Railroad Adjustment Board

By /s/ Nancy J. Dever

Assistant Executive Secretary

Dated at Chieago, Illinois, this 5th Day of Mareh, 1974.

Copy to: Mr. G. L. Farr, Vice President, Labor Relations

Union Pacific Railroad Company

1416 Dodge Street

Omaha, Nebraska 68102

App. 20

Form |} NATIONAL RAILROAD ADJUSTMENT

BOARD, FOURTIL DIVISION

Award No, 8045

Docket No, S028

Referee Robert M. O’Brien

Parties to Dispute:

Kermit Kimble Sheehan

Union Pacifie Railroad Company

Statement of Claim:

Claim and request of Kermit Nimble Sheehan that:

Kermit Kimble Sheehan claims that he is entitled

reinstatement with back pay from October 17, 1969, by

reason of his wrone/ul discharge from employment with

the Union Pacific Railroad Company and his denial of a

fair hearing as required by Rule 23 of the Labor Manage-

ment Agreement between the American Railway Super-

visor’s Association, Inc., and the Union Pacifie Railroad

Company,

Opinion of Board:

On October 6, 1969 an article appeared in the Desert

News, a newspaper of general cirevlation in the Salt Lake

City area, indicating that Utah State Liquor officers had

filed charges of illegal sale of aleohol against claimant.

Carrier was not mentioned in the article nor was claimant

identified as an employee of Carrier, Following a hearing

held October 10, 1969, claimant was discharged effective

October 17, 1969 for violation of Rule 700 in that Carvier

had been subjected to criticism and embarrassment due

to the above newspaper article. Claimant now seeks re-

instatement with back pay due to his alleged wrongful

discharge,

App. 21

The claim had been appealed on the property and,

also, suit was filed by claimant in the Utah courts on a

breach of contract theory, That suit was dismissed on

November 7, 1972 the Court coneluding that appeal to the

National Railroad Adjustment Board was mandatory in

grievances of this nature,

Carrier argues that the claim is barred by the ap-

plicable time limits since it was not timely filed with this

Board. We agree with Carrier in this reward, Under

date of April 21, 1970 an agreement was entered into be-

tween Carrier and the American Railway Supervisors’

Association, the duly authorized bargaining agent for

foremen in Carrier’s Mechanical Department, That Agree-

ment provided the machinery for handling all claims and

grievances arising on or after May 1, 1970 as well as all

pending claims, and provided, in pertinent part,:

es

. in the case of all claims or grievances on which

the highest designated officer of the Carrier has

ruled prior to the effective date of this rule, a period

of 12 months will be allowed after the effective date

of this rule for an appeal to be taken to the appro.

priate board of adjustment... before the claim or

grievance is barred,’’

It is our opinion that the time limits contained in the

above Agreement are clearly applicable to the claim at

hand. Mr, Acord, Carrier’s highest designated officer,

had declined the claim on February 3, 1970, which was

prior to the effective date of this rule, May 1, 1970. Con-

sequently, it was incumbent upon claimant to file his

claim within 12 months of the effective date of the rule,

or by May 1, 1971. However, Mr. Arnold, claimant’s at-

torney, did not submit his notice of intent to file an ex

A pp. 22

parte submission with this Board until July 25, 1973, well

alter the 12 month time limit.

Mr. Arnold, claimant’s attorney, has argued the

Agreement that was in effect at the time of discharge is

applicable to this claim, and since that Agreement con-

tains no time limits on the filing of claims with this

Board, the claim is not barred. We disagree, however.

The April 21, 1970 Agreement explicitly applies to claims

filed prior to the effective date of this rule on which Car-

rier’s highest designated officer has previously ruled.

All the conditions of that Agreement have been met in

the claim before us and we cannot disregard the clear

provisions thereo!. Nor do we agree with Mr. Arnold

that the time limits did not commence running until the

Utah court dismissed claimant’s breach of contract suit

in November, 1972. Filing of the civil suit did not have

the effect of obviating the time limits in the Agreement.

When claimant decided to pursue his remedies with this

Board he was obligated to do so in the manner prescribed

in the applicable Agreement in effect on the property.

Since he failed to comply with the time limits of the

Avreement, we have no standing to decide the merits of

the claim and we are constrained to dismiss the claim for

non compliance with the applicable time limits.

FINDINGS:

The Fourth Division of the Adjustment Board, upon

the whole record and all the evidence, finds that:

The carrier and the employes involved in this dispute

ure respectively carrier and employe within the meaning

of the Railway Labor Act, as approved June 21, 1934:

App. 23

This Division of the Adjustment Board has jurisdic-

tion over the dispute involved herein.

The parties to said dispute were given due notice

of hearing thereon.

The parties to said dispute were granted the privilege

of appearing before the Division, with the Referee sitting

as a niember thereof, to present oral argument.

AWARD

Claim dismissed,

NATIONAL RAILROAD ADJUSTMENT

BOARD

By Order of the Fourth Division

ATTEST: Executive Secretary

National Railroad Adjustment

Board

By: /s/ Naney J. Dever

Assistant Executive Secretary

Dated at Chicago, Illinois, this 5th Day of March, 1974.