Petition — Central of Georgia Railroad v. Hendley

IN THE

Supreme Court of the United States

OcToBER TERM, 1979

CENTRAL OF GEORGIA RAILROAD COMPANY,

Petitioner,

Vv.

JAMES EK. HENDLEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHARLES A. Horsky

Donna L. KoHANSKY

888 - 16th Street, N.W.

Washington, D.C. 20006

Counsel for Petitioner

Wiu1AM P. STALLsMITH, JR.

JOHN B. MILLER

~ Epe@ar A. NEELY, JR.

ELLswortH HAL, JR.

P.O. Box 1808

Washington, D.C. 20013

Of Counsel

TABLE OF CONTENTS

Page

Oermnawe BAne6 6.6 his ck bannccesee ee i

0 ee EEE SY POP rey tes mem TT YS 2

Quesrten: Paes... .. . ins cans cakansccncae 2

EREUUNS ABVORMUR ois abin'n's a sa wweduaedty chan 2

WEMPUMBIS 24.6 iss kannst haweikeiwns Gaeeeneee 2

Reasons For GRANTING THE WRIT .................... 6

COMIN ns. is ca idd a cnweset pane 15

Appendix A—Text of Statutes Involved ............ la

Appendix B—Opinion of the Court of Appeals ...... 4a

Appendix C—Judgment of the Court of Appeals .... 17a

Appendix D—Opinion of the District Court ......... 18a

Appendix E—Judgment of the District Court ........ 26a

Appendix F—Award of the Public Law Board ....... 27a

Appendix G—Denial of Rehearing and Rehearing En

Banc by the Court of Appeals .................. 32a

s%

ii TABLE OF AUTHORITIES

Casks: Page

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

MN ahaa se-cthask ese -aicavnaina deiaeiaia asia amiaiee 6, 7, 8, 10, 12, 15

Armour Packing Co. v. United States, 209 U.S.56.... 8

Brotherhood of Locomotive Engineers v. Louisville &

Nashville Railroad, 373 U.S. 33 ..............6. 9,13

Brotherhood of Railroad Trainmen v. Howard, 343 U.S. ,

SE. Add aWa.2 0 eddie bend bused aae eee aa eLA

Brotherhood of Ratlroad Trainmen v. Smith, 251 F.2d

ee ee GA SE bse ab dkduaedeewesebancaebes 8

Choate v. Louisville € Nashville Railroad, —— F.

Supp. ——, No. 79-4206 (S.D. Ill. March 21, 1980) 15

DiBlasi v. Baker, 404 F. Supp. 654 (D. Mass. 1975),

aff'd mem., 539 F.2d 702 (1st Cir. 1976) .........

Elgin, Joliet & Eastern Railway v. Burley, 325 U.S. i

ES kisah nie CS dened ani edees hae k eke aad

Farmer v. United Brotherhood of Carpenters ¢ Join-

I one an bees een 6, 8, 9, 12, 14, 15

Gunther v. San Diego & Arizona Eastern Railway, 382

SNS MENT has "a ini 9.004 hdd tng hibit he'd loo eR 9

Illinois Central Railroad v. Brotherhood of Locomotive

Firemen and Enginemen, 332 F.2d 850 (7th Cir.),

cert. dented, 279 U.S. 932 (1964) ................

Johnson v. Virginia, 373 U.S. 61 ......... bay's ealieweatn 16

Magnuson v. Burlington Northern, Inc., 576 F.2d 1367

(9th Cir.), cert. demed, 439 U.S. 930 (1978) ...... 11

Mason v. City of Bilowt, 385 U.S. 370 ................ 16

Missouri-Kansas-Texas Railroad v. Brotherhood of

Railroad Trainmen, 342 F.2d 298 (5th Cir. 1965) . .8, 13

Myers v. Bethlehem Shipbuilding Corp., 303 U.S.41.. 10

Northern Indiana Public Service Commission v. Porter

County Chapter, 423 U.S.12 .......cccccccccccce 16

Order of Railroad Telegraphers v. Railway Express

MON, BAe, BER Gab WO bk 6 oi caieenccheckiian 9

Table of Authorities Continued iii

Page

Order of Railway Conductors v. Southern Railway, 339

PMG Kau hiabb itis a dak vst pels re dins s, 14

Pennsylvania Railroad v. Day, 360 U.S. 548 ......... 13, 14

Railway Labor Executives Association v. Atchison,

Topeka & Santa Fe Railway, 430 F.2d 994 (9th

Cir. 1970), cert. denied, 400 U.S. 1021 (1971) .. .8,9, 12

Singleton v. Wulff, 428 U.S. 106 .................... 10

Slocum v. Delaware, Lackawana & Western Railroad,

POW MIM Neneh hie bok hac cae. ide idesiale's Nis 13, 14

Switchmen’s Union of North America v. Southern

Pacific Co., 398 F.2d 443 (9th Cir. 1968) ......... 7

Union Pacific Railroad Co. v. Sheehan, 439 U.S.89.... 9

United Steelworkers of America v. Warrior & Gulf

Navigation Co., 363 U.S. 574 .................., 7

United Transportation Union v. Baker, 482 F.2d 228

res wabbtcsse shee ois, eee TE CT EE 7

Vom Hoffman v. Quincy, 71 U.S. (4 Wall.) 535 ........ 4

STATUTEs:

Federal Employers’ Liability Act

We A a oT Sh oes lat 3

PP Re ana Ca PG ine 2, 3, 10, 14

Interstate Commerce Act, 49 U.S.C. SC Perr 12, 13

Railway Labor Act, 45 U.S.C. 4153 ................. 2,3

a Be dg RE REN es Sh SSR Re 2,14

Pa IE odo nc tts beef. Raitt 2

pir slinde se, LOOT OME IONE km EE 9

Me EES Sl hee ae Cy 2, 5,9

Boh ag EERE Te Cp ee eee eae 2, 3, 4

(Pub. L. No. 89-456, 80 Stat. ME cosa sausGa

saline nthe acs | MORO O TOT ORD) Oe eC 2

iv Table of Authorities Continued

MISCELLANEOUS : Page

Agreement Between Central of Georgia Railroad and

Its Switchmen Represented by United Transpor-

SNE SHOE nav kanwhdis <a eS SWERSES CORES EWEN SOO 8

Garrison, “The National Railroad Adjustment Board:

A Unique Administrative scutes 46 Yale L.

Rev. 567 GAN bes Camiieke make Ae aad eos 10

Hearings on S. 1708 Before a Subcomm. of the Senate

Comm. on the Judiciary, 76th Cong., 1st Sess.

SEs bss seknwe bees CR kw bao uke eek eaNw ess 11

a ia

IN THE

Supreme Court of the United States

OcToBER TERM, 1979

No. 79-

CENTRAL OF GEORGIA RAILROAD CoMPaNny,

Petitioner,

JAMES E. HENDLEY,

Respondent.

v.

:

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, Central of Georgia Railroad Company,

prays that a writ of certiorari issue to review the

judgment of the Court of Appeals for the Fifth Cir-

cuit in this case.

OPINIONS BELOW

The opinion of the United States District Court for

the Southern District of Georgia is reported at 442

F’. Supp. 482, and is reproduced in Appendix D at

pages 18a-25a. The opinion of the Court of Appeals

is reported at 609 F.2d 1146, and is reprinted in

Appendix B at pages 4a-16a.

2”

a

2

JURISDICTION

The judgment of the Cotrt of Appeals was entered

on January 15, 1980 (App. C, p. 17a). The time to

file an application for rehearing was extended, and a

timely petition for rehearing en banc was denied on

March 12, 1980 (App. G, p. 32a). Jurisdiction is in-

voked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

May an employee avoid mandatory arbitration un-

der the Railway Labor Act, 45 U.S.C. § 153, of his

wrongful discharge grievance by filing a suit to en-

join the railroad’s disciplinary investigation that re-

sulted in his discharge, alleging violation of 45 U.S.C.

§ 60, a criminal statute adjunct to the Federal Em-

ployers’ Liability Act?

STATUTES INVOLVED

The Railway Labor Act, 45 U.S.C. § 153 First (i),

(m) and (q), and Section 153 Second; and the Fed-

eral Employers’ Liability Act, 45 U.S.C. § 60. Their

pertinent text is set forth in Appendix A at pages

la-3a.

STATEMENT

This action began as an effort by respondent Hend-

ley to enjoin petitioner Central of Georgia Railroad

Company from conducting a disciplinary investigation

pursuant to the applicable collective bargaining agree-

ment as to whether Hendley, one of Central’s em-

ployees, had been guilty of disloyalty. Under investiga-

tion was Hendley’s accompanying and assisting an at-

torney for the plaintiff in an unrelated and terminated

3

FELA action in surreptitiously entering private prop-

erty without authorization to photograph the scene of

the accident involved in the FELA ease. The injunction

was sought on the ground that the investigation would

violate 45 U.S.C. § 60, a criminal statute forbidding

any action which would prevent any person from vol-

untarily providing information as to the facts incident

to any injury of an employee.’ Hendley also alleged

that the investigation would violate Georgia Code

§ 79-205, which, inter alia, guarantees due process, but

he did not pursue this ground. Hendley asserted 28

U.S.C. § 1331, 45 U.S.C. § 60, and 45 U.S.C. § 56 as

bases of jurisdiction. The District Court denied relief.

(App. D, pp. 18a-25a.) Noting the applicability of

the grievance machinery of the collective agi cement

and the Railway Labor Act to this dispute (ibid.,

pp. 20a-21a), the District Court observed that Hend-

ley’s purpose in seeking an injunction was “not to

obtain relief under 45 U.S.C. § 60,” but rather ‘to

by-pass the mandatory remedies prescribed by Con-

gress’’ (ibid., p. 23a). The District Court accordingly

held that Hendley’s grievance against Central was a

‘minor dispute’’ subject to the exclusive jurisdiction

of the National Railroad Adjustment Board under

the Railway Labor Act, 45 U.S.C. § 153. (1bid., pp.

24a-25a.) The District Court further held that Hend-

ley ‘‘[e]learly . .. has an adequate administrative

remedy under the law” because ‘‘[t]he dispute in-

volved in this case is part of the ordinary, diurnal

grist of employee-employer relations;’’ [t]he ques-

tions involved in the disciplinary investigation include

whether or not the conduct complained of constituted

disloyalty ;’’ and ‘“‘[s]uch questions of fact (or law)

* The full text of Section 60 is set out in Appendix A at page 3a.

4

are determinable under established grievance and

arbitral procedures, contractual and statutory.’’ (Jb1d.,

pp. 23a-24a.)

Following the District Court’s decision and subse»

quent denials of Hendley’s requests for an injunction

pending appeal, Central’s internal investigation pro-

ceeded. Central’s charge was based on descriptions of

Hendiey’s conduct made during his deposition in the

discontinued FELA proceeding.’ At the investigation

hearing some conflicting testimony was presented. On

the whole record, Central concluded that the weight of

the evidence showed that Hendley had been disloyal,

and that dismissal was the appropriate sanction.

Hendley obtained review of the railroad’s decision

by a Public Law Board as provided by the Railway

Labor Act, 45 U.S.C. § 153 Second.’ That Board up-

? Hendley was not called as a witness in the FELA case, but

the photographs that he helped to procure were admitted in evi-

dence in that case. (App. D, p. 18a, n.1.)

*The pertinent text of 45 U.S.C. § 153 Second is reproduced

in Appendix A, at pages 2a-3a. Public Law Boards were created

in a 1966 amendment to the Railway Labor Act, Pub. L. No. 89-

456, 80 Stat. 208, to relieve the congestion in the docket of the

National Railroad Adjustment Board. The two boards are identi-

cal in jurisdiction, since Public Law Boards are empowered ‘‘to

resolve disputes otherwise referable to the Adjustment Board.’’

45 U.S.C. § 153 Second. And the scope of judicial review of Public

Law Board decisions is the same as the scope of review of the

decisions of the National Railroad Adjustment Board. 45 U.S.C.

§ 153 Second; see DiBlasi v. Baker, 404 F. Supp. 654, 655 (D.

Mass. 1975), aff’d mem., 539 F.2d 702 (1st Cir. 1976). The Public

Law Board that handled Hendley’s grievance (Public Law Board

No. 2086) was properly established pursuant to 45 U.S.C. § 153

Second by agreement between United Transportation Union and

Central of Georgia Railroad Company. All references herein to

the powers and attributes of Adjustment Boards therefore apply

rage to the Public Law Board whose decision is involved in

this case.

4)

held Central’s determination that Hendley had been

disloyal. (App. F, pp. 29a-30a.) It disagreed with

Central, however, on the appropriate sanction. While

agreeing that Hendley’s offense warranted disciplinary

action, it found dismissal too harsh a penalty, and

ordered Hendley reinstated but without back pay.

(1bid., p. 30a.) Neither Hendley nor Central peti-

tioned for judicial review of the Board’s action as

provided by the Act, 45 U.S.C. § 153 First (q). Hend-

ley was promptly reinstated and has continued to be

an employee of Central.

Meanwhile, Hendley had appealed from the District

Court’s denial of injunctive relief. While the case was

pending in the Court of Appeals, Hendley, over Cen-

tral’s objections, lodged with that court a transcript

of Central’s internal investigation. When the Public

Law Board’s decision was made, Central lodged a copy

of that with the court below.

On that record, and not, it should be emphasized,

in a proceeding to review the decision of the Public

Law Board as provided in 45 U.S.C. § 153 First (q),

the court below declared the award of the Board “‘null

and void.’’ (App. B, p. 16a.) The court found ‘eo-

ercive”’ the fact that the Railway Labor Act requires

an employee ‘‘to submit to the hearing and to process

his claim through arbitration before finally reaching

the federal courts’’ (ibid., p. 14a), and held that Hend-

ley’s claim that the contractually and statutorily pre-

scribed investigation and arbitration procedures were

instituted for retaliatory purposes in violation of Sec-

tion 60 may be determined by the federal courts out-

side the procedures of the Railway Labor Act (ibid.,

pp. 15a-16a). It then made its own evaluation of the

conflicting evidence contained in the investigation

6

transcript which had been before the Public Law

Board, disagreed with the Board’s finding that Hend-

ley’s conduct had constituted disloyalty, and ordered

that Hendley receive full back pay. (/d.)

A timely petition for rehearing en banc was denied.

(App. G, p. 32a.)

REASONS FOR GRANTING THE WRIT

I.

The decision below conflicts with the principles

established by this Court in Andrews v. Louisville

¢& Nashville Ratlroad, 406 U.S. 320, and Farmer v.

United Brotherhood of Carpenters & Joiners, 430 U.S.

290. In Andrews, the Court made clear that the Na-

tional Railroad Adjustment Board’s jurisdiction over

wrongful discharge disputes may not be circumvented

through a court action brought by an employee claim-

ing to assert no rights under the collective bargain-

ing agreement bui, rather, under the general law of

contracts. The Court expressly rejected the notion that

the employee’s characterization of the nature of his

complaint could operate to avoid jurisdiction under

the Railway Labor Act. 406 U.S. at 323-24. Subse-

quently, in Farmer, the Court stressed that a suit

under state law for intentional infliction of emotional

distress, based on a series of incidents that could form

the basis of an unfair labor charge before the National

Labor Relations Board, may be maintained only if

and to the extent that there is no realistic threat of

interference with the. federal regulatory scheme, that

is, only if there is no overlap in enforcement of two

discrete areas of government concern. 430 U.S. at 304-

307. The lesson of Andrews and Farmer is that a court

-

w 7 eo

y

must look beyond the _ of an action to the sub-

stance of the claim in,drder to ensure that provid-

ing a fudicial forum/for resolution does not inter-

fore with the remedies provided by the federal regu-

latory scheme.‘

This is precisely what was done by the District

Court in the present case. (App. D, p. 23a.) It is

also precisely what was ignored by the court below.

Notwithstanding the language of Hendley’s complaint,

his grievance, as the District Court recognized, was

in substance that he would be wrongfully discharged

unless the railroad was enjoined.’ Ignoring the hold-

ing of Andrews that a wrongful discharge claim is

within the exclusive province of the Board, the court

below accepted Hendley’s characterization of his claim.

It then adopted the simple expedient of stating that

since resolution of Hendley’s claim involves interpre-

*Substance over form has long been the rule in cases dealing

with the ‘‘major’’-versus-‘‘minor’’ dispute dichotomy under the

Railway Labor Act. Switchmen’s Union of North America v.

Southern Pacifie Co., 398 F.2d 443, 447 (9th Cir. 1968). Thus,

regardless of how parties characterize their dispute, it will be held

to be a ‘‘minor dispute’’ within the exclusive province of the Ad-

justment Board if the disputed action by one of the parties can

“‘arguably’’ be justified in the agreement or if the contention that

the contract sanctions the disputed action ‘is not ‘‘obviously in-

substantial.’’ E.g., United Transportation Union v. Baker, 482

F.2d 228 (6th Cir. 1973).

Like. Andrews, 406 U.S. at 323, these decisions reflect the pref-

erence for arbitration which is embodied in our federal labor-

management relations laws and which requires courts to resolve

doubts in favor of arbitration, see United Steelworkers v. Warrior

& Gulf Navigation Co., 363 US. 574, 578, 582-83—a prudent

policy to which the decision below fails to adhere.

° This plainly appears from the face of Hendley’s complaint it-

self, in which he requests relief from petitioner’s ‘‘interfering

with Plaintiff’s employment.’’ ( Complaint, {| 9.)

8

tation of a federal statute, Section 60, it ‘‘is therefore

a matter of federal jurisdiction’’ and the disputes

resolution system‘af the Railway Labor Act may be

ignored. (App. B, p. lla.)* However, as Andrews and

Farmer make clear, reinaining faithful to the Con-

gressional purpeses in establishing the compulsory

arbitration procedures of the Railway Labor Act re-

quires a more searching scrutiny. Article 21 of the

applicable collective bargaining agreement’ confers

on Hendley the right not to be disciplined unjustly

or ‘‘without just cause.” If Hendley’s investigation

and discharge by the railroad violate Section 60, they

also violate the collective agreement. This is especially

true since subsisting laws must enter into and form

part of a contract. Von Hoffman v. Quincy, T1 US.

(4 Wall.) 535, 550; e.g., Armour Packing Co. v. United

States, 209 U.S. 56, 82 (a federal criminal statute)."

And contrary to the suggestion of the court below,

* What is involved here is the proper application and interpre-

tation of a labor agreement, 45 U.S.C. § 153 First (i) (App. A,

p. la), not the validity of a labor agreement, a confusion sug-

gested by the erroneous reliance by the court below (App. B, p.

lla) on decisions in which the validity of agreements was chal-

lenged (Brotherhood of Railroad Trainmen v. Howard, 343 US.

68; Brotherhood of Railroad Trainmen v. Smith, 251 F.2d 282

(6th Cir. 1958) ).

7 Agreement between Central of Georgia Railroad Company and

its Switchmen Represented by United Transportation Union (effee-

tive December 1, 1977).

*The Adjustment Board is fully empowered to resolve griev-

ances involving terms not expressly included in a collective agree-

ment. Elgin, Joliet & Eastern Railway v. Burley, 325 U.S. 711,

723; Railway Labor Executives Association v. Atchison, Topeka

& Santa Fe Railway, 430 F.2d 994, 996 (9th Cir. 1970), cert.

denied, 400 U.S. 1021 (1971); Missouri-Kansas-Texas Railroad v.

Brotherhood of Railroad Trainmen, 342 F.2d 298, 300 (5th Cir.

1965); Illinois Central Railroad v. Brotherhood of Locomotive

Firemen and Enginemen, 332 F.2d 850, 853 (7th Cir.), cert.

denied, 379 U.S. 932 (1964).

>

9

the Board is competent to construe the agreement by

interpreting and applying the applicable federal law.

E.g., Order of Railroad Telegraphers v. Railway Ee-

press Agency, Inc., 321 U.S. 342; Railway Labor

Executives Association v. Atchison, Topeka € Santa

Fe Railway, 430 F.2d 994, 997 (9th Cir. 1970), cert.

denied, 400 U.S. 1021 (1971).°

Indeed, the opinion of the court below itself belies

any attempt to treat Hendley’s Section 60 claim as

collateral to the Act’s grievance machinery. The fac-

tua! basis of Hendley’s Section 60 claim is precisely

the same as that of the grievance he processed before

the Board. But despite the warnings of this Court in

Farmer, the court below adjudicated these facts, reach-

ing a conclusion opposite to that reached by the Board.

(App. B, pp. 15a-16a; see also ebid., p. 8a, n.3.) Fur-

thermore, the Court of Appeals ordered that Hendley

receive back pay for the time he was unemployed until

the Board ordered his reinstatement (td.), the very

relief the Board is empowered to provide and declined

to provide in this case."

* Judicial review of the Board’s decision is available under 45

U.S.C. § 153 First (p) or (q). See Union Pacific Railroad Co. v.

Sheehan, 439 U.S. 89, 93 (judicial review of Adjustment Board

orders is confined to the three specific grounds stated in the Act) ;

Gunther v. San Diego & Arizona Eastern Railway, 382 U.S. 257,

261 (Board interpretation of contract may i set aside if wholly

baseless and completely without reason) ; Order of Railroad Tele-

graphers v. Railway Express Agency, Inc., 321 U.S. at 347 (Board’s

interpretation may be set aside if not in accordance with the law).

The decision below is particularly egregious. (1) The court

ignored the statutory procedure for review of Adjustment Board

decisions, 45 U.S.C. § 153 First (p) and (q), even though this

procedure is vital to the integrity of the grievance machinery of

the Act. Brotherhood of Locomotive Engineers v, Louisville &

Nashville Railroad, 373 U.S. 33, 38. (2) Although there had been

no evidentiary hearing by the trial court, the court below adjudi-

10

Disregard for the decisions of this Court cannot be

justified on the basis of the unsupported and unsup-

portable conclusion of the court below that Section 60

overrides the statutory arbitration process mandated

by the Railway Labor Act. (App. B, p. 9a.)" There is

no indication whatever either in the terms of Section

60 or in its history that Congress intended to override

the single forum requirements of the Railway Labor

Act established only five years before and hailed as a

great advancement in effective railway labor disputes

resolution.” Section 60, a criminal statute, does not

even expressly authorize a cause of action for its civil

enforcement. The conclusion that Congress expected

that grievances raising Section 60 claims would be

processed by the Adjustment Board is reinforced by

the fact that, in enacting Section 60, Congress was

aware that the Board routinely handled grievances

cated the conflicting facts contained in the transcript of the rail-

roai’s internal investigation, depriving petitioner of an oppor-

tunity to present evidence and to address legal arguments to the

court. Singleton v. Wulff, 428 U.S. 106, 120.

11 The sole reason offered by the court below for its conclusion

that Section 60 overrides the Railway Labor Act’s mandate of

compulsory arbitration was that the Railway Labor Act requires

Hendley to submit to the railroad’s investigation and to process

his claim to the Board before reaching the federal courts. (App.

B, p. 10a.) Indeed, the court found this requirement ‘‘coercive.’’

(Ibid., p. 14a.) This, of course, flies in the face of both the Act

itself and this Court’s specific approval of the exhaustion require-

ment in Andrews. 406 U.S. at 325. In any event, ‘‘the rule re-

quiring exhaustion of the administrative remedy cannot be cir-

cumvented by asserting that the charge on which the complaint

rests is groundless and that the mere holding of the prescribed ad-

ministrative hearing would result in irreparable damage.’’ Myers

v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 51.

12 See generally Garrison, ‘‘The National Railroad Adjustment

Board: A Unique Administrative Agency,’’ 46 Yale L. Rev. 567

(1937).

11

brought by employees discharged for giving informa-

tion in violation of railroad rules such as those pro-

hibited by Section 60 and that the Board had con-

demned such discharges as wrongful and illegal."

Indeed, the extended discussion of the Board’s deci-

sions during Senate hearings indicates that they

formed the backdrop for the protections embodied in

the statute.* Had Congress intended that courts as-

sume the Board’s function in these disputes, it surely

would have made its intention plain.

The decision below also is irreconcilable with two

decisions of another Court of Appeals in which, as here,

employees sought to avoid Adjustment Board juris-

diction by characterizing the rights they asserted as

arising under state or federal law but where, also as

here, in substance the rights asserted involved govern-

ing provisions of collective bargaining agreements.

In Magnuson v. Burlington Northern, Inc., 576 F.2d

1367 (9th Cir.), cert. denied, 439 U.S. 930 (1978), a

railroad employee was discharged following a company

investigation of his conduct in connection with a train

accident. The employee brought an action in state

court, alleging that the railroad had abused the in-

vestigatory process. He attempted to justify resort to

the state court by variously characterizing his claim

as a tort suit for intentional infliction of emotional

‘* Hearings on S. 1708 Before a Subecomm. of the Senate Comm.

on the Judiciary, 76th Cong., 1st Sess. 23, 39, 40-41, 42-44, 84

(1939) (statements of T. J. M’Grath, Brotherhood of Railroad

Trainmen, and F. M. Rivinus, Norfolk & Western Railroad Co.).

* Td,

12

distress, as one for violation of his due process rights,

and as an action for fraud. In a well-reasoned opinion

discussing Andrews and Farmer, the Ninth Circuit

rejected these characterizations for what they were—

an effort to avoid the Railway Labor Act’s disputes

resolution machinery—and concluded that ‘‘[a]rtful

pleading cannot conceal the reality that the gravamen

of the complaint is wrongful discharge.’’ 576 F.2d at

1369. Since all of the alleged wrongful conduct of

which the plaintiff complained was at least arguably

governed by the collective agreement, which provided

that he could not be disciplined ‘‘without proper in-

vestigation,’’ there was complete overlap between judi-

cial redress of the rights asserted and the grievance

machinery of the Railway Labor Act. Jd. at 1369-70.

Accordingly, the plaintiff’s exclusive remedy was un-

der the Act. Jd.

An earlier case in the same circuit is to the same

effect. In Railway Labor Executives Association v.

Atchison, Topeka & Santa Fe Railway, 430 F.2d 994

(9th Cir. 1970), cert. dented, 400 U.S. 1021 (1971),

railroad employees sought damages for loss of work

resulting from train discontinuances by the railroad,

which they alleged violated the Interstate Commerce

Act, 49 U.S.C. § 13a (1964). The court looked to the

substance of the claim and found exclusive jurisdiction

in the Board to resolve what was essentially an attempt

to assert a right incident to the employment rela-

tionship:

‘The employees seek to characterize this action as

a ‘tort action’ for violation of a statutory duty

and, therefore, not referrable to the Adjustment

Board. But the provisions of the Railway Labor

Act relate to matters of substance, not form. [Cita-

13

tion omitted.] Where, as here the dispute grows

out of the employment relationship and, in the

final analysis, involves an attempt to impose a

right which is incident to that relationship, the

statutory forum is the Adjustment Board, absent

a clear expression of legislative policy to the con-

trary.” Id. at 997.

The interpretation of Section 13a of the Interstate

Commerce Act by the Board was found to be entirely

appropriate,” especially since the Board’s expertise in

railroad practices and its duty to consider the effect

of its ruling on future bargaining in the industry

would be called into play to resolve the disagreement.

Id,"

Ill.

The integrity of the Railway Labor Act’s disputes

resolution machinery when challenged by resort to

other forums is’ important to the effective operation

of the Act, as this Court has often recognized. F.g.,

Brotherhood of Locomotive Engineers v. Louisville &

Nashville Railroad, 373 U.S. 33, 38; Pennsylvania

Ratlroad v. Day, 360 U.S. 548, 552-53; Slocum v.

'* Although there was no express provision in the collective

agreement governing the employees’ claim, the court noted that

the language of the Interstate Commerce Act could have been

incorporated into the agreement or bargained out in negotiation.

430 F.2d at 996.

*°In a similar case involving an attempt by employees to en-

force a railroad’s common law duty to furnish a safe work place,

a duty which was not expressly included in the applicable collec-

tive agreement, the Fifth Circuit itself held that the Railway

Labor Act required the Adjustment Board to settle the grievance.

Missouri-Kansas-Texas Railroad v. Brotherhood of Railroad Train-

men, 342 F.2d 298, 300 (5th Cir. 1965).

14

Delaware, Lackawanna & Western Railroad, 339 U.S.

239, 243-44. In the instant case, the dual processing of

Hendley’s grievance by both the Board and the court

below and the clash between the results reached in the

two forums are a paradigm of the dangers that this

Court has recognized will defeat the central purpose

behind the Act’s providing for compulsory arbitration

in a single forum specially competent in understanding

the practices among railroad employees and employ-

ers.” Pennsylvania Railroad v. Day, 360 U.S. 548,

552-53. Other dangers, ‘‘races of diligence’’ to the pre-

ferred forum and deprivation of the other party’s

privilege under 45 U.S.C. § 153 First (i) of referring

the dispute to the Board, were pointed out by the

Court in Order of Railway Conductors v. Southern

Railway, 339 U.S. 255, 256-57, a case in which, as here,

a court had proceeded to adjudicate the very same

dispute that was before the Adjustment Board.

If allowed to stand, the decision below will be a

dangerous precedent under which employees asserting

claims incident to the employment relationship may

nevertheless bypass the competent jurisdiction of the

Board simply by alleging a violation of some right

under state or federal law." The only limit on the

"The Board’s experience would be of great assistance here in

determining, for example, whether in a labor context in which

‘‘robust language and clash of strong personalities . . . may be

commonplace,’’ Farmer v. United Brotherhood of Carpenters &

Joiners, 430 U.S. at 306, a disciplinary investigation has the ‘‘in-

timidating effect’’ perceived by the court below (App. B, p. 13a).

* Even though the court below stated that there are situations

in which an employee may be disciplined without violating Sec-

tion 60, in exercising ‘‘jurisdiction to determine whether a dis-

ciplinary hearing ‘» brought for purposes violative of § 60’’ (App.

B, p. 15a), a court necessarily must determine the merits of the

question whether Section 60 is violated.

7%

15

variety of ways in which employees may attempt to

characterize such claims is their ingenuity. A graphic

illustration is the damage action recently instituted

by Hendley against petitioner and others in federal

district court in Georgia,” for, inter alia, wrongful

deprivation of his employment, mental anguish, de-

privation of his rights of free speech and association,

defamation, and libel—all of which he claims resulted

from the very investigation and discharge at issue in

this case.”

CONCLUSION

The decision below is incorrect, and dangerously so.

As the decisions cited above indicate, there are con-

tinuing efforts to evade, by artful pleading in federal

and state courts, the comprehensive and compulsory

arbitration procedures of the Railway Labor Act.

While the results of proceedings under the Act may

often prove disappointing to railroads as well as their

employees, proper channels of judicial review are

** Hendley v. Southern Railway Company, et al., No. CV 479-

351 (S.D. Ga.; complaint filed November 26, 1979). Hendley pre-

viously had filed the identical action in state court, but withdrew

his complaint after filing the federal ‘lawsuit. Hendley v. Southern

Railway Company, et al., No. 15096C (Chatham Co., Georgia,

Superior Ct.; complaint filed November 16, 1979).

*° Another example is Choate v. Louisville & Nashville Railroad,

—— F. Supp. ——, No. 79-4206 (S.D. Ill. March 21, 1980), in

which an employee sought to bypass the judicial review proce-

dures of the Railway Labor Act, 45 U.S.C. § 153 First (p), by

filing a suit for damages for the railroad’s alleged refusal to com-

ply with a Public Law Board award, which he claimed caused him

substantial emotional distress. Relying on Andrews and Farmer,

the District Court refused to entertain his action, noting that

‘‘[i]f this Court allowed every plaintiff who was wrongfully dis-

charged to couch his complaint in such terms, it would clearly be

in derogation of the purposes of the R.L.A.”’ Slip op. at 3.

16

available, and the Adjustment Boards have disposed

of countless thousands of minor disputes which other-

wise would have burdened court dockets and been the

potential source of industrial strife. It is of more than

ordinary importance that there can be no encourage-

ment to those who would nullify a wise Congressional

policy favoring arbitration. Unless reversed, the de-

cision below may have just that effect.

Indeed, because the Court may conclude that the

court below committed clear error in injecting itself

into a matter which had already been resolved by the

Adjustment Board, the appropriate relief may be a

summary reversal with instructions to dismiss the

complaint. Cf. Northern Indiana Public Service Com-

mission Vv. Porter County Chapter, 423 U.S. 12; Mason

v. City of Biloxi, 385 U.S. 370; Johnson v. Virginia,

373 U.S. 61. Or, the court may conclude that the case

should be set for briefs and argument.

Respectfully submitted,

CHARLES A. Horsky

Donna L. KoHANSKY

888 - 16th Street, N.W.

Washington, D.C, 20006

Counsel for Petitioner

Wu.1AM P. STALLSMITH, JR.

JOHN B. MILLer

Epaar A. NEELY, JR.

ELiLswortu ILALL, JR.

P.O. Box 1808

Washington, D.C. 20013

Of Counsel

June, 1980

APPENDIX

la

APPENDIX A

Text of Statutes Involved

The Railroad Labor Act, 45 U.S.C. § 153 First, provides

in relevant part:

(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 application

of agreements concerning rates of pay, rules, or work-

ing 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

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 sup-

porting data bearing upon the disputes,

(m) The awards of the several divisions of the Ad-

justment Board . . . shall be final and binding upon

both parties to the dispute.

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

carrier, is aggrieved by the failure of any division 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 para-

graph (p) could be filed, a petition for review of the

division’s order. A copy of the petition shall be forth-

with transmitted by the clerk of the court to the Ad-

justment Board. The Adjustment Board shall file in

the court the record of the proceedings on which it

2a

based its action. The court shall have jurisdiction to

affirm the order of the division, or to set it aside, in

whole or in part, or it may remand the proceedings 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 division 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.

The Railway Labor Act, 45 U.S.C. § 153 Second, pro-

vides in relevant part:

* - ”

If written request is made upon any individual car-

rier by the representative of any craft or class of

employees of such carrier for the establishment of a

special board of adjustment to resolve disputes other-

wise referable to the Adjustment Board, or any dis-

pute which has been pending before the Adjustment

Board for twelve months from the date the dispute

(claim) is received by the Board, or if any carrier

makes such a request upon any such representative,

the carrier or the representative upon whom such re-

quest is made shall join in an agreement establishing

such a board within thirty days from the date such

request is made.

* o ”

3a

... awards shall be final and binding upon both par.

ties to the dispute and if in favor of the petitioner,

shall direct the other party to comply therewith on or

before the day named. Compliance with such awards

shall be enforcible by proceedings in the United States

district courts in the same manner and subject to the

same provisions that apply to proceedings for enforce-

ment of compliance with awards of the Adjustment

Board.

The Federal Employers’ Liability Act, 45 U.S.C. ¢ 60,

provides:

Any contract, rule, regulation, or device whatsoever,

the purpose, intent, or effect of which shall be to pre-

vent employees of any common carrier from furnish-

ing voluntarily information to a person in interest as

to the facts incident to the injury or death of any em-

ployee, shall be void, and whoever, by threat, intimida-

tion, order, rule, contract, regulation, or device what-

soever, shall attempt to prevent any person from fur-

nishing voluntarily such information to a person in

interest, or whoever discharges or otherwise disci-

plines or attempts to discipline any employee for fur-

nishing voluntarily such information to a person in

interest, shall, upon conviction thereof, be punished by

a fine of not more than $1,000 or imprisoned for not

more than one year, or by both such fine and imprison-

ment, for each offense: Provided, That nothing herein

contained shall be constructed to void any contract,

rule, or regulation with respect to any information

contained in the files of the carrier, or other privileged

or confidential reports.

4a

APPENDIX B

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 78-1058

James EK. Henptey,

Plaintiff -A ppellant,

v.

CentraL or Georoia Rarroap Co.,

Defendant-A ppellee.

January 15, 1980

Appeal from the United States District Court for the

Southern District of Georgia.

Before Tutrie, Vance and Knravirou, Circuit Judges.

Ture.e, Circuit Judge:

The appellant, a railroad employee, was charged with

disloyalty to the railroad because of his assistance in a

fellow employee’s FELA action against the railroad. He

filed an action to enjoin the railroad from conducting a

disciplinary hearing, and now appeals from the district

court’s denial of the injunction. We reverse and remand.

James EK. Hendley is employed by Central of Georgia

Railroad as a switch engine foreman, and serves as local

chairman of the United Transportation Union. In 1977,

Daniel Razook, also a Central of Georgia employee, filed

suit under the Federal Employers’ Liability Act, 45 U.S.C.

§51 et seq., against Central of Georgia and Union Camp

Corporation, a customer of the railroad. Razook had been

injured while working. on a Central of Georgia railroad

track which runs through the property of Union Camp

Corporation. Although the property on which the tracks

are located is owned by Union Camp, Central of Georgia

5a

and the Seaboard Coast Line Railroad have operating

rights to the tracks.

Hendley had not been present when Razook was injured;

however, he had been employed by the railroad for twenty-

five years and was very familiar with the Union Camp

yard. Razook, who was confused about the exact physical

layout of the tracks, called Hendley at home and asked

Hendley to meet him at the Union Camp Company to look

at the tracks. Hendley, who was not on duty that day,

arrived first, and was met on the property by Razook and

Billy Moore, Razook’s attorney. Razook had not mentioned

to Hendley that he would be accompanied by his attorney.

The three men walked through a gate to the area where the

tracks were located. While Razook and Hendley were dis-

cussing the tracks, Moore took some pictures of the yard.

Hendley did not assist Moore in taking the pictures. An

engine was stopped in the woodyard, and Hendley and

Moore apparently stepped up on it to speak to the railroad

workers. None of the parties can recall whether the engine

belonged to Seaboard or Central of Georgia.

On November 11, 1977, Hendley was deposed in connec-

tion with the Razook case. He answered questions concern-

ing the physical characteristics of the Union Camp yard

and discussed his visit to Union Camp to view the tracks

with Razook. Certain responses in the deposition indicated

that Hendley and Moore had climbed up onto a switch

engine.’

*The deposition also included the following exchange between

John Miller, the attorney for Central of Georgia, and Hendley:

Q. You said you came in on a road there. Did you come

into Union Camp’s premises on the switch engine, or did

you-—.

A. No. We drove in on the premises.

Q. How did you get through the gate?

A. When you say ‘‘premises,’’ I don’t know if you mean

the yard or the particular track. We drove in off Bay Street

6a

A few days after Hendley’s deposition was taken, W. D.

Cogdell, Elendley’s superintendent, saw the deposition

while helping to prepare the defense in Razook’s case, After

reviewing the deposition, he concluded that Hendley was

guilty of disloyalty to the railroad. The trial of Razook’s

case against the railroad ended on November 30, and on

the next day, December 1, Hendley received a letter from

Cogdell informing him of a formal investigation to be held

on December 2 at 11:00 A.M. The letter charged Hendley

with “disloyalty to the Central of Georgia Railroad Com-

pany in that you accompanied and assisted Mr. Billy

Moore onto the property of the Union Camp Corporation

to the yard and walked down the yard where there was a

switch engine on Track 16.

Q. That’s the same way you come in when you go to work

out there?

A. Yeah,

Q. Do you have a sticker on your car, with identification?

A. No, sir.

Q. How do you get through the gate?

A. Well, there’s no gate actually. When I say ‘‘gate,’’ I

thought ya’ll were referring to the gate that comes into these

two particular tracks.

There’s two roads that lead—no road for an automobile. It’s

just a gate for the track.

Q. Well, when you drove the switch engine in there, was

that part of the job you were doing, or did you take it in

there just to take pictures?

A. No, there was a switch engine, if I’m not mistaken, that

was going that way, because I don’t know these people, really.

I can’t really remember.

From reading this language, Hendley’s superintendent con-

cluded that Hendley and Moore had stopped an engine and ridden

into the yard. At the disciplinary hearing, it developed that they

did not actually ride into the woodyard on a locomotive engine.

They merely stepped onto. an engine briefly to speak to other

employees.

7a

on an unknown date for the purpose of making photo-

graphs of Union Camp Corporation’s property for use in

a law suit against the Central of Georgia Railroad Com-

pany and Union Camp which is in violation of rule R? of

the book of operating rules of Southern Railway System.”

Hendley was suspended from service as of December 1,

pending the outcome of the investigation. At Hendley’s

request, the investigation was postponed until December

8 at 1:00 P.M. On December 8, Hendley filed suit in the

district court for the Southern District of Georgia, re-

questing that the district court enjoin the defendant from

conducting the disciplinary hearing and from interfering

with his employment. Hendley alleged that the railroad’s

actions violated 45 U.S.C. § 60, which provides that it is a

crime to discipline an employee for voluntarily furnishing

information in connection with an FELA case.

The district court denicd Hendley’s request for an in-

junction, holding that the disciplinary procedure was a

“minor dispute” within the exclusive jurisdiction of the

National Railroad Adjustment Board. Hendley v. Central

of Georgia Railroad Co., 442 F.Supp. 482 (S.D.Ga. 1977)

(citing the Railway Labor Act, 45 U.S.C. § 153 First (i)).

Although the court agreed that violations of § 60 can be

enjoined in connection with an on-going FELA case, it

held that the section does not confer jurisdiction to over-

ride the mandatory grievance procedures where the case

has been concluded and there is no possibility that evidence

*Rule R of the Southern Railway System’s Operating rules

provides :

Employees must not divulge to any person other than the

shipper, consignee or a duly authorized public officer, any

information concerning shipments of freight, which informa-

tion might be used to the disadvantage of the patrons of the

railroad,

Information detrimental to the Company’s interests must

not be divulged except to proper officers or to others author-

ized to obtain such information,

8a

will be suppressed through coercion by the railroad. 442

F.Supp. at 486. Hendley filed a notice of appeal and a

motion for an injunction pending appeal, stating that he

was being irreparably harmed by the defendant’s actions,

since he was now unemployed. The court denied his motion

for an injunction pending appeal.

The disciplinary hearing was conducted on February 15,

1978, and Hendley was dismissed from service on Febru-

ary 25, 1978. Hendley then progressed his grievance

through the procedures of the National Railroad Adjust-

ment Board. On April 6, 1979, the Board reviewed the deci-

sion and found that Hendley’s “disloyalty” warranted dis-

ciplinary action,’ but that dismissal from service was “an

extremely harsh penalty.” Accordingly, the Board ordered

that Hendley be reinstated with full seniority, but without

back pay.

It is necessary first for us to define precisely the question

that is before us. We are not faced with the broader issue

of whether 45 U.S.C. § 60, a criminal statute, may be en-

forced through a district court’s issuance of an injunction

in a civil action. The parties agree, and the district court

held, that an injunction may issue to prevent violations of

§ 60 in an ongoing FELA case, The question we must de-

cide is whether a federal court also has jurisdiction, when

*In making this decision, the Board relied heavily on the fact

that Hendley had entered the property of Union Camp without

authorization, In its award, the Board stated, ‘‘This conduct can

be characterized as being disloyal in the sense that the Claimant

entered properties controlled by the Carrier without authorization

and deprived the Carrier of the opportunity to be present at the

accident scene when photographs were taken by the plaintiff.’’ We

cannot agree that this finding is supported by the evidence. Union

Camp Corporation’s property is not controlled by the Central of

Georgia railroad; the railroad merely has operating rights to the

tracks that run through the yard. Furthermore, even if the rail-

road did control the property, Hendley was not responsible for

the attorney’s entrance onto the property or his photographing of

the area.

9a

an FELA case has been concluded, to enjoin a disciplinary

hearing used by a railroad for retaliatory purposes in

violation of 45 U.S.C. § 60.

The Railroad Labor Act, 45 U.S.C. §§ 151-163, requires

that railroads and railroad employees attempt to settle all

minor disputes through grievance procedures. If those

procedures fail, either party may appeal to the National

Railroad Adjustment Board for compulsory arbitration.

Id. § 153 First (i). An award of the adjustment board is

final and binding on both parties, § 153 First ( m), and the

scope of judicial review of these awards is narrow. See

Central of Georgia Railway Co. v. United Transportation

Union, 353 F.Supp. 293, 302 (S.D.Ga.1973) (range of ju-

dicial review is “among the narrowest known to the law ;”

awards are final in the absence of fraud or jurisdictional

defects). Minor disputes are those disputes which concern

the application or interpretation of existing collective bar-

gaining contracts, while “major disputes” concern changes

in rates of pav or working conditions where the method

of change is not provided in the existing labor contract.

REA Express, Inc. v. Brotherhood of Railway, Airline &

Steamship Clerks, 459 F.2d 226, 230 (5th Cir.), cert. de-

nied, 409 U.S, 892, 93 S.Ct. 115, 34 L.Ed.2d 149 (1972).

It is clear that a disciplinary hearing which is conducted in

accordance with the procedures set out in an applicable

collective bargaining agreement would usually constitute

a minor dispute, See Brotherhood of Railroad Trainmen

v. Central of Georgia Railway Co., 305 F.2d 605, 607 (5th

Cir. 1962); Clark v. Seaboard Coast Line Railroad Co.,

332 F.Supp. 3880, 381 (N.D.Ga.1970), Thus, the National

Railroad Adjustment Board has exclusive jurisdiction over

this dispute, unless 45 U.S.C.§ 60 is found to override the

statutory arbitration processes. We conclude that it does.

The authors of the Federal Employers’ Liability Act,

recognizing the danger that railroad agents would coerce

or intimidate employees to prevent them from testifying,

included 45 U.S.C. § 60 in the Act:

10a

Any contract, rule, regulation, or device whatso-

ever, the purpose, intent, or effect of which shall be to

prevent employees of any common carrier from fur-

nishing voluntarily information to a person in interest

as to the facts incident to the injury or death of any

employee, shall be void, and whoever, by threat, in-

timidation, order, rule, contract, regulation, or device

whatsoever, shall attempt to prevent any person from

furnishing voluntarily such information to a person in

interest, or whoever discharges or otherwise disci-

plines or attempts to discipline any employee for fur-

nishing voluntarily such information to a person in

interest, shall, upon conviction thereof, be punished by

a fine of not more than $1,000 or imprisoned for not

more than one year, or by both such fine and imprison-

ment, for each offense; Provided, That nothing herein

contained shall be construed to void any contract, rule,

or regulation with respect to any information con-

tained in the files of the carrier, or other privileged

or contidential reports.

[Emphasis added.] This section prohibits a railroad from

disciplining or attempting to discipline an employee for

furnishing information to an FELA plaintiff. Thus, any

disciplinary investigation held solely for the purpose of

punishing an employee for such conduct is violative of

this statute. Hendley filed suit in federal district court,

claiming that the scheduled disciplinary hearing was illegal

for this reason. Nevertheless, the district court held that

he had an adequate administrative remedy—the discipli-

nary hearing itself. The court listed a number of questions

to be determined in the hearing and the subsequent arbi-

tration, including whether “the disciplinary investigation

[was] punitive or coercive in motive or effect.” Hendley v.,

Central of Georgia Railway Co., 442 F.Supp. at 486. The

illogical result of such an interpretation is obvious. The

employee may be forced to undergo an illegal investigation,

and to present in that hearing his claim that the investiga-

tion is illegal.

lla

The question of whether a particular disciplinary hear-

ing violates § 60 involves interpretation of a federal stat-

ute, and is therefore a matter of federal jurisdiction. An

analogous situation was presented in Brotherhood of Rail-

road Trainmen v. Smith, 251 F.2d 282 (6th Cir. 1958); a

case arising under the Railway Labor Act. A railroad em-

ployee, the plaintiff in that case, was discharged for non-

compliance with a Union Shop Agreement. He sought to

enjoin enforcement of the discharge order on the ground

that the agreement between the union and the railroad, as

interpreted and applied, violated ¢ 2 of the Railway Labor

Act, 45 U.S.C. § 152. The union argued that the case was

within the exclusive jurisdiction of the National Railroad

Adjustment Board. Rejecting this argument, the court

stated:

The issue is whether the BRT Union Shop Agree-

ment is valid if interpreted and carried out by the

Railroad and BRT so as to deprive Smith and others

similarly situated of their employment as conductors.

Decision of this issue depends upon the meaning of

the statute and over such a question the federal courts

have jurisdiction.

251 F.2d at 285. See also, Brotherhood of Railroad Train-

men v. lloward, 343 U.S. 768, 774-75, 72 S.Ct. 1092, 96 L.

Kd. 1283 (1951). Similarly, in the instant case, the issue

before the court does not involve interpretation of a collec-

tive bargaining agreement, an appropriate matter for

resolution by arbitration, Rather, the question is whether

a disciplinary hearing brought in accordance with the pro-

cedures established in the collective bargaining agreement

violates a federal statute. This is a matter properly with-

in the jurisdiction of the federal courts and is not a ques-

tion to be determined by the administrative board.

This reasoning is also illustrated by a series of cases in

which a railroad’s conduct was found to be violative of the

Railway Labor Act’s prohibition against coercion to in-

12a

fluence an employee’s choice of a union representative, 45

U.S.C. § 152 Third. In Brotherhood of Railroad Trainmen

v. Central of Georgia Railway Co., 305 F.2d 605 (5th Cir.

1962), a railroad employee who was also a union represent-

ative was notified that he would be investigated in accord-

ance with the collective bargaining agreement. He was

charged with disloyalty because of his efforts to prevent

other employees from settling personal injury suits. He

filed suit in federal district court, requesting an injunction

on two grounds. First, he claimed that he was not an

“employee” subject to Rule 72 of the railroad’s operating

rules, under which the investigation was brought. The court

held that this question involved interpretation of the col-

lective bargaining agreement, and thus was within the ex-

clusive jurisdiction of the railroad adjustment board. Sec-

ond, the employee claimed that the investigation was the

result of a railroad plan to discredit the union and the

plaintiff as the union representative. The plaintiff claimed

therefore that the disciplinary hearing violated 45 U.S.C.

§ 152 Third, which prohibits coercion in employees’ choice

of a representative. The court held that the federal district

court had jurisdiction to hear this claim, since the disci-

plinary hearing, if brought for the purpose of interfering

with union representation, was a violation of the Railway

Labor Act. The railroad objected that determination of

the court’s jurisdiction to enjoin the hearing would neces-

sarily require a decision on the merits of the grievance

against the plaintiff. The court responded:

[T]}he Railroad may not use the disciplinary proceed-

ings as a guise for thwarting, or frustrating, or under-

mining the effectiveness of the Brotherhood, or Bying-

ton as its agent, in their statutory responsibilities as

bargaining representatives. And in passing on the

motivation for the disciplinary hearing, the Court may

inescapably find itself in the position of necessarily

passing on Byington’s legal status as an employee, to

his benefit or detriment, and the extent to which he

therefore owes a duty of fidelity.

13a

305 F.2d at 609. The court held that the plaintiff's claim,

if proven, would entitle him to injunctive relief by the

federal district court. Jd.

Section 60, like § 152 Third, is a specific prohibition of

certain conduct by a railroad. A plaintiff may not be de-

nied access to the federal courts when his employer uses

its grievance procedures and disciplinary powers in direct

violation of this statute. If an employee can show that the

object of a railroad’s investigation is to discipline the em-

ployee for furnishing information in an FELA case, then

injunctive relief by a federal district court is “appropriate

if not compelled.” Brotherhood of Railroad Trainmen v.

Central of Georgia Railway Co., 305 F.2d at 609; see Con-

rad v. Delta Air Lines, Inc., 494 F.2d 914, 918 (7th Cir.

1974).

Finally, a district court’s ability to enjoin a hearing or

conduct which violates § 60 is essential to effectuate the

purpose of the section. In Kozar v. Chesapeake & Ohio

Railway Co., 320 F.Supp. 335 (W.D.Mich.1970), affirmed

im part and vacated in part, 449 F.2d 1238 (6th Cir. 1971),

a district court recognized the intimidating effect of any

exercise of a railroad’s power against an FELA witness:

[RJailroad employees are subject to considerable

pressure if called to give testimony against their em-

‘In a later case, Brotherhood of Railroad Trainmen v. Southern

Railway Co., 393 F.2d 303 (5th Cir. 1968), the plaintiff railroad

relied on Brotherhood of Railroad Trainmen v. Central of Georgia

and requested that the district court enjoin union activity alleged

to have violated the general policy provisions of the Railway Labor

Act. The court rejected this argument, stating that § 152 Third,

the basis for injunction in the earlier case, was more than a gen-

eral policy statement, since it ‘‘specifically prohibits interference

by the carrier with the designation of representatives by the

union.’’ Id. at 307. This decision illustrates the similarities be-

tween §152 Third and § 60, and the necessity of federal court

jurisdiction to enjoin their violation. Both statutes involve much

more than mere policy statements—they declare certain conduct

unlawful and provide criminal penalties for violation.

l4a

ployer. This pressure need not be the result of direct

threats or arm-twisting; it is not necessarily the object

of deliberate railroad policy. But whether by design

or accident, the fact remains that these working men,

through numerous contacts with supervisors and claim

agents during the discovery process, often believe that

a wrong step—defined by railroad rules (real or ap-

parent) and interpreted by railroad officials—may re-

sult in sanctions, and that the wrong testimony—po-

tentially costing the railroad large amounts of money

—might arouse the displeasure of those in control of

their livelihood. The tremendous power of a corpora-

tion like the Chesapeake and Ohio Railroad, coupled

with its aggressive efforts to defeat the claims of those

injured by its activities—even when the victims are

their most valuable employees—can overawe and even

cower those individuals upon whom an opposing party

must rely to substantiate his claim.

320 F.Supp. at 369-70. If a railroad is allowed to discipline

an employee for furnishing information to an FELA plain-

tiff, and the employee is required to submit to the hearing

and to process his claim through arbitration before finally

reaching the federal courts, the coercive effect is over-

whelming. Employees who consider testifying in an FELA

case will understandably hesitate if they know that they

may be forced, as Hendley was, to undergo a formal in-

vestigation and possibly suspension for a lengthy period

of time. The fact that the employee may ultimately pre-

vail is of little assurance to one who faces possible unem-

ployment for a year or more. Thus, the disciplinary pro-

cedure not only violates the mandate that an employer re-

frain from disciplining an employee for furnishing infor-

mation, it also becomes a device the “effect of which shall

be to prevent employees of any common carrier from fur-

nishing voluntarily information to a person in interest.”

45 U.S.C. § 60.

15a

For these reasons, we hold that a district court has ju-

risdiction, even after the conclusion of an FELA case, to

enjoin any proceeding which is violative of § 60. We do not

hold that an employee may never be disciplined for his

conduct in connection with an FELA case. If, for example,

an employee removed documents or confidential files from

the railroad’s offices, disciplinary action would be appro-

priate for violation of the company’s rules. We simply hold

that a federal district court has jurisdiction to determine

whether a disciplinary hearing is brought for purposes

violative of §60, or whether the railroad is attempting

to discipline the employee for a violation of lawful com-

pany rules.°

It is clear from a review of the testimony before the

investigating board that the actions of Hendley which were

the subject of the investigation are within the protection

of $60. The railroad apparently charged that Hendley

had made arrangements for Moore to go onto the property

of Union Camp, had driven him in on a locomotive, and

had assisted him in photographing the accident scene. The

testimony at the hearing showed that Hendley did not

make arrangements for Moore to enter the property; he

did not even know that Razook would be accompanied by

his attorney until he was met by Razook and Moore on

Union Camp property. The men did not drive or ride a

locomotive into the area. Hendley did not photograph the

°The railroad argued that the plaintiff’s appeal is moot, since

the dispute has been processed to conclusion through the proce-

dure of the National Railroad Adjustment Board. We find this

contention to be without merit. The plaintiff initially requested

that the court enjoin the railroad from conducting the proposed

investigation and from interfering with the plaintiff’s employ-

ment. Although the disciplinary proceeding itself has been con-

cluded, the unlawful effects of the proceeding have not. The con-

tinued denial of back pay for the year that Hendley was unem-

ployed is a present unlawful interference with Hendley’s right

of employment, and constitutes a continuing violation of § 60,

16a

area or assist Moore in making photographs. Hendley’s

only “disloyalty” consisted of meeting Razook and his

attorney on the property, discussing the physical layout

of the tracks, and giving a deposition to be used in the

ease—conduct that falls within the protection of § 60,

Since Hendley’s actions could not lawfully be the subject

of disciplinary action and arbitration, any award made by

the National Railroad Adjustment Board is null and void.

We reverse, and remand to the district court to order that

the award of the National Railroad Adjustment Board be

set aside, and that Hendley receive full back pay for the

time that he was suspended or unemployed as a result of

the railroad’s actions.

Reversep and REMANDED.

17a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-1058

D. C. Docket No. CA CV4-77-269

James E. Henpuey,

Plaintiff-A ppellant,

versus

CENTRAL OF GroraiA RaLroap Company,

Defendant-A ppellee.

Appeal from the United States District Court for the

Southern District of Georgia

Before Tutrie, Vance and Kravitcn, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the

Southern District of Georgia, and was argued by counsel;

On ConsiperaTtION Wueregor, It is now here ordered and

adjudged by this Court that the judgment of the said

District Court in this cause be, and the same is hereby,

reversed and that this cause be, and the same is hereby

remanded to the said District Court in accordance with the

opinion of this Court;

Ir Is Furruer Orperep that defendant-appellee pay to

plaintiff-appellant, the costs on appeal to be taxed by the

Clerk of this Court,

January 15, 1980

A true copy Test: Giupert F. GanucHEAU

Clerk, U.S. Court of Appeals, Fifth Circuit

By /s/ Sarau L, Hotmes

Deputy

New Orleans, Louisiana March 20, 1980

Issuep As Manpate: Marcu 20, 1980

18a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT FOB THE

SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

CV 477-269

James KE, Henpbwey,

Plaintiff

vs.

CentTRAL OF Georcia RarLtroap Company,

Defendant

December 28, 1977

ORDER

I

James EK. Hendley is an employee of Central of Georgia

Railroad Company which is a part of the Southern Rail-

way System. He seeks an injunction against the defen-

dant’s pending disciplinary investigation growing out of

his activities in connection with a co-employee’s personal

injury suit against Central under the Federal Employers’

Liability Act.

Mr. Hendley is a switch engine foreman. It appears that

in off-duty hours, he assisted Daniel Razook in the latter’s

personal injury action against Central and Union-Camp

Corporation. He was present in a switch engine which car-

ried one of plaintiff’s attorneys (a former officer in the

Switchmen’s Union) onto Union-Camp’s woodyard where

photographs were made for use in the FELA action filed

by Razook.’

*See Hendley’s pre-trial deposition in the Razook case. He did

not testify at the trial of the claim against Central of Georgia and

Union-Camp Corporation. The pictures taken at the woodyard

were used in the trial.

19a

Following the trial and settlement of the damage suit,

written notice was sent to Hendley scheduling a discipli-

nary investigation based on “disloyalty” and the violation

of rule R of Southern Railway System’s operating rules."

Hendley who has been suspended responded with a suit

seeking injunctive relief in this Court. Jurisdiction is

predicated upon 28 U.S.C. § 1331(a) [federal question] ; 45

U.S.C. § 60 [prohibiting a carrier’s prevention of an em-

ployee’s volunteering information as to a claim to one in

interest], and 45 U.S.C. $56 [jurisdiction over personal

injury cases under the Federal Employers’ Liability Act].

Hendley maintains that the investigation is intimidatory

in nature and is a palpable violation of 45 U.S.C. § 60.

The disciplinary proceeding constitutes, plaintiff com-

plains, a mere reprisal because Central was the loser in

Razook’s action for damages. Plaintiff argues that relief

can and should be granted by this Court in the way of

enjoining the imminent disciplinary investigation.

The Railroad contends that this Court is without juris-

diction to do so and that Mr. Hendley has no remedy in the

courts until he has exhausted the procedures provided for

in the collective bargaining contract and the Railway

Labor Act, 45 U.S.C. §§ 151-159, Central takes the position

that the statute in question establishes “primary exclusive

jurisdiction” in the National Railroad Adjustment Board

and the procedures created in that Act.

The scheduled investigation was postponed pending a

decision by this Court as to the jurisdictional question.

Briefs have been filed and oral argument heard.

*“‘Information detrimental td the Company’s interests must

not be divulged except to proper officers or to others authorized

to obtain such information.’ The letter scheduling the hearing on

the charge of disloyalty is dated December 1, 1977, immediately

following the trial of the case in the Superior Court of Chatham

County.

20a

II

Under 45 U.S.C. § 60, which is an adjunct of the Federal

Employers’ Liability Act, any contract, rule or device is

void that is intended or has the effect of preventing em-

ployees of a common carrier from voluntarily furnishing

information to a person in interest as to the facets incident

to the injury or death of an employee. Anyone who by

threat, intimidation, contract, rule or device attempts to

prevent the voluntary furnishing of information or who

disciplines or attempts to discipline an employee for doing

so is guilty of a criminal offense. 45 U.S.C. § 60. It was

the intent of Congress to see to it that an injured employee

could readily obtain all the available information from

witnesses, particularly employees of the railroad company.

Dugger v. Baltimore & O. R. Co., 5 F.R.D. 334 (E.D., N.Y.).

The purpose of the statute is to prevent the coercion of

employees upon whom an employee claimant depends to

substantiate his claim against the railroad. Kozar v. Ches-

apeake and Ohio Ratlway Company, 320 F. Supp. 335, 369-

70, 383-85 (W.D., Mich.), reversed in part upon other

grounds, 449 F.2d 1238 (6th Cir.). In Kozar the District

Judge observed that where there are coercive practices by

a carrier, “Every remedial weapon, including contempt,

will be available to insure uninhibited exercise of federal

rights.” p. 386.

The Collective Bargaining Agreement between the Cen-

tral of Georgia Railroad Company and the Switchmen’s

Union of which Mr. Hendley was a member provides for

an investigation of grievances. Where the Railroad brings

charges, the employee has full opportunity to hear the

testimony of all witnesses and to present his side of the

case. If the result of the investigation is disciplinary ac-

tion or dismissal of the employee, there is a right of ap-

peal to the next higher officer and from him to the next

higher one. Article 18 of the Collective Bargaining Agree-

ment.

2la

Because of the huge backlog of minor disputes before

the Adjustment Board, Congress amended the Act in 1966

to provide for the establishment of special adjustment

boards to resolve disputes otherwise referable to the Board

itself. The machinery created establishes a mandatory arbi-

tration alternative. See Brotherhood of Locomotive Engi-

neers v. Denver & Rio Grande Western Railroad Com-

pany, 411 F.2d 1115, 1118 (10th Cir.). The awards of the

special adjustment boards are “final and binding upon

both parties to the dispute.” 45 U.S.C. § 153 First (m).

The range of judicial review of an award by such a board

is a narrow one. See Central of Georgia Railway Company

v. United Transportation Union[s], 353 F. Supp. 293, 302

(S.D., Ga.).

The Railway Labor Act (45 U.S.C. §§ 151-163) contem-

plates and commands that the parties attempt to settle al]

minor disputes through grievance procedures, failing which

either party has the right of recourse to compulsory arbi-

tration by way of appeal to the National Railroad Adjust-

ment Board. 45 U.S.C. § 153 First (i). A “minor” dispute

generally concerns the meaning or proper interpretation

and application of rules or working conditions under the

collective bargaining agreement. Major disputes “look to

the acquisition of rights for the future, not to aszertion of

rights claimed to have vested in the past.” Itasca Lodge

2029 of Brotherhood of Railway and Steamship Clerks,

Freight Handlers, Express and Station Employees v.

Railway Express Agency Incorporated, 391 F.2d 657, 662-

664 (8th Cir.), quoting Elgin, Joliet & Eastern Railway

Co. v. Burley, 325 U.S. 711, 723.

ITI

The logical extreme to which plaintiff’s argument leads

us is that a Railroad may not discipline an employee who

aids a fellow employee in developing his case against the

carrier. Accordiug to plaintiff, there can be no “disloyalty”

22a

grievance since 45 U.S.C. § 60 makes a federal crime out of

disciplinary reprisals by the carrier.

I cannot agree that that statute abolishes employer

charges and grievances as to employee disloyalty. Internal

disciplinary hearings at company level under a collective

bargaining agreement constitute neither harassment nor

other violation of 45 U.S.C. § 60. Clark v. Seaboard Coast

Line Railroad Company, 332 F. Supp. 380, 381 (N.D., Ga.).

See also Seaboard Air Line Railroad Company v. Wil-

kinson, 216 Ga. 338, 342.

Much in point is Brotherhood of Railway and Steam-

ship Clerks v. Atlantic Coast Line Railroad Company,

154 F. Supp. 71 (E.D., N.C.), aff’d. 253 F.2d 753 (4th

Cir.). The underlying facts in that case bear striking re-

semblance to those in the present case. A Union official

who was an employee of ACL had assisted the attorney

for another employee in the preparation of his FELA suit

by surreptiously arranging for the access of a photogra-

pher to the Railroad’s office building in order to take pic-

tures of a spiral stairway on which plaintiff had been

injured. The plaintiff was discharged following discipli-

nary proceedings pursuant to the bargaining agreement.

The Railroad Adjustment Board found such termination

of employment to be without cause. In the ensuing enforce-

ment proceeding in connection with such award the district

court reversed on the ground of the employee’s disloyalty.

On appeal to the Fourth Circuit that ruling was affirmed.

In the case of Greenwood v. Atcheson, Topeka and Santa

Fe Railway Company, 129 F. Supp. 105 (S.D., Cal.) the em-

ployee sued for damages for wrongful discharge. He had

previously processed his grievance through the National

Railroad Adjustment Board which denied his claim and

refused reinstatement. The District Court held that the

award in question was final and that no remedy existed

23a

beyond the administrative claim.’ It found that 45 U.S.C.

§ 60 conferred no right of action on a plaintiff pursuant

to the Federal Employers’ Liability Act.

a IV

Title 45 U.S.C. § 60 is a criminal, not a jurisdictional

statute. I have little doubt that violations of that Section

may be enjoined in connection with an on-going FELA

case. See Clark v. Seaboard Coast Line Railroad Company,

332 F. Supp. 380, supra; Kozar v. Chesapeake and Ohio

Railway Company, supra, 320 F. Supp. 335. Here, however,

the Razook case has been tried and settled. There was no

suppression of evidence through coercion by the Railroad.

The purpose of the present suit for injunction is not to

obtain relief under 45 U.S.C. § 60. It is to by-pass the

mandatory remedies prescribed by Congress under the

guise of the criminal statute. Clearly, plaintiff has an

adequate administrative remedy under the law. It is no

answer to say that proceedings under the National Ruil-

way Labor Act take too long.

The dispute involved in this case is part of the ordi-

nary, diurnal grist of employee-employer relations. The

questions involved in the disciplinary investigation in-

clude whether or not the conduct complained of consti-

tuted disloyalty. Was Switch Foreman Hendley merely

voluntarily furnishing information for use in the suit

against Central? Did Mr. Hendley have the right to fur-

nish or provide same to a co-employee? Is the disciplinary

investigation punitive or coercive in motive or effect?

* The Supreme Court agreed in Union Pacific Railroad Company

v. Price, supra, 360 U.S. 617 that the submission by the plaintiff

of his grievance to the Adjustment Board in respect to his dis-

charge from employment precludes him from seeking damages in

a subsequent common-law action. Congress never intented that the

Railroad Adjustment Board should only render advisory opinions.

24a

Such questions of fact (or law) are determinable under

established grievance and arbitral procedures, contractual

and statutory.

Awards of the special adjustment boards are, as stated,

“final and binding upon both parties to the dispute.” 45

U.S.C. § 153 First (m). The jurisdiction of the National

Railroad Adjustment Board and its remedial processes is

exclusive, primary and mandatory in the case of minor

disputes under collective bargaining agreements. The stat-

utory procedures represent a comprehensive system for

resolving such controversies and a party may not turn to

the courts for relief before the administrative body has

first evaluated and decided the dispute. See Slocum v.

Delaware Lackawanna ¢& Western Railroad Co., 339 U.S.

239; Union Pacific Railroad Co. v. Price, 360 U.S. 601,

616; International Brotherhood of Electrical Workers v.

Washington Terminal Company, 473 F.2d 1156, 1172-73

(D.C. Cir.), cert. den. 411 U.S. 906. The role of the courts

in adjustment of labor disputes does not begin until there

has been exhaustion of the contractual and statutory arbi-

tration processes. Andrews v. Louisville & Nashville Rail-

road Co., 406 U.S. 320, 325-26.

y The courts that have considered the effect of 45 U.S.C.

Ҥ 60 on jurisdiction in suspensions or terminations grow-

ing out of charges of employee perfidy have concluded that

that provision of FELA does not preclude, in a proper

case, such punishment. Nor does it confer jurisdiction

upon the district courts to decide that issue. I have read

the authorities relied on by plaintiff’s counsel and do not

find them to be persuasive.‘

* A few words probably should be said concerning Texas & New

Orleans Railroad Company v. Brotherhood of Railway & Steam-

ship Clerks et al., 281 U.S. 548. The Railway Labor Act of 1926

contained a provision that representatives of the disputant parties

should be selected by the respective parties without influence or

25a

Finding neither a clear and specific grant of federal

jurisdiction nor any statutory overriding of the remedies

established in labor disputes, the injunctive relief sought

must be and is denied and the complaint dismissed. The

defendant Railroad is free to reschedule the disciplinary

investigation and to proceed therewith.

This December 28th, 1977,

/8/ ALEXANDER A. LawrENCE

Judge, United States District Court

Southern District of Georgia

coercion by the other. The defendant Railroad had recognized a

company Union as the representatives of its clerical parties and an

injunction against it was granted below. Defendants contended

in the Supreme Court that the Statutory provision referred to

created a mere abstract right without provision for enforcement

by legal proceedings. The Court affirmed. It said: ‘‘The definite

prohibition which Congress inserted in the Act cannot . . . be over-

ridden in the view that Congress intended it to be ignored. As the

prohibition was appropriate to the aim of Congress, and is capable

of enforcement, the conclusion must. be that enforcement was con-

templated.’’ At 569.

But this is not to say that a right to be free from coercion as

set forth in a criminal law operates to displace a statutory system

of mandatory arbitration embracing the very controversy between

the parties in respect to loyalty.

26a

APPENDIX E

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

Civil Action File No. CV477-269

James EK. HENDLEY

vs.

CENTRAL OF GeorGia Rattroap Company

JUDGMENT

This action came on for consideration before the Court,

Honorable Alexander A. Lawrence, United States District

Judge, presiding, and the issues having been duly consid-

ered and a decision having been duly rendered,

It is Ordered and Adjudged that in accordance with

such decision Judgment is rendered in favor of the De-

fendant, CenTraL or GeorciA Raitroap Company, and

against the Plaintiff, James E. Henpiey. Costs are as-

sessed against Plaintiff.

Dated at Savannah, Georgia, this 28th day of December,

1977. .

Louis E. ArNCHBACHER

Clerk of Court

By /s/ Micuar, L. Artutr

Deputy Clerk

27a

APPENDIX F

PUBLIC LAW BOARD NO. 2086

Case No. 7

Award No. 1

Parties to Dispute:

CENTRAL OF Georoia Rartroap Company

vs.

Unitep Transportation Union

April 6, 1979

Statement of Claim:

(a) Claim on behalf of Savannah Yardman James

KE. Hendley for reinstatement to service with seniority

unimpaired, compensation for all lost time earnings

and all benefits deprived of, including but not limited

to, holiday pay and health and welfare benefits ac-

count suspended from service on December 1, 1977.

(b) Claim on behalf of Savannah Yardman James

K. Hendley for reinstatement to service with seniority

unimpaired, compensation for all lost time earnings

and all benefits deprived of, including but not limited

to, holiday pay and health and welfare benefits on

account of being suspended from service on December

1, 1977, and later being dismissed from service on

February 25, 1978.

Findings: The Board, upon the whole record and all the

evidence, finds that:

The Carrier and the employee involved in this dispute

are respectively carrier and employee within the meaning

of the Railway Labor Act, as amended.

28a

The Board has jurisdiction over the dispute involved

herein.

The Parties to said dispute were given due notice of

hearing thereon,

The Claimant in this case was a Yard Foreman with

over twenty-five years of service and was Local Chairman

for the past six years. One of the Claimant’s fellow em-

ployees filed a personal injury lawsuit against the Carrier

and Union Camp Corporation in December of 1976. In the

preparation of his lawsuit the plaintiff was confused about

the exact physical description of the location where he

was injured. The Claimant assisted the plaintiff in his

efforts to clarify this confusion about the location of the

injury. The Claimant, while off duty, met the plaintiff

and his personal attorney at the entrance to the Union

Camp Yard and they proceeded onto the property which

was either owned or controlled by the Carrier. They arrived

at the scene of the personal injury and the plaintiff’s

attorney photographed the area. The Claimant, the plain-

tiff and his attorney then left the premises together.

On November 11, 1977 the Claimant appeared and gave

his deposition in the plaintiff’s lawsuit. The Carrier’s attor-

ney and Claim Agent were present at this deposition in

which the Claimant related his visit to the accident svene.

The Carrier’s Claim Agent did not have any authority

over the Claimant. After November 11, 1977, the Carrier’s

Superintendent, who had authority over the Claimant’s

conduct, was involved in the preparation of the defense in

the civil action and reviewed the Claimant’s deposition.

Following this review the Superintendent charged the

Claimant with disloyalty and suspended him on December

1, 1977, pending an investigation. The Claimant submitted

a claim protesting this suspension on February 14, 1978.

On February 15, 1978 an investigation was held. On Feb-

ruary 25, 1978, the Claimant was notified of his dismissal

29a

from service. The Claimant then submitted a claim pro-

testing his dismissal.

Article 21 (b) of the schedule agreement provides:

If an appeal is taken from decision rendered, it

shall be presented to the next highest officer without

delay and not later than 60 days from date of decision.

The Claimant was suspended from service on December 1,

1977 and did not file his first claim until February 14, 1978,

which was more than sixty (60) days following the Car-

rier’s suspension decision. The Claimant’s initial claim,

therefore, must be denied without any consideration of the

merits. The Claimant’s second claim protesting his dis-

missal, however, was timely filed.

This Board has reviewed the entire record in this case

and finds that the Claimant was afforded a fair, impartial

and timely hearing. The record shows the Claimant as-

sisted another employee who was pursuing a civil action

for personal injuries against the Carrier, The Claimant’s

conduct was designed to show the plaintiff the actual con-

ditions at the scene of the accident. There was no intent

to distort the facts or evidence in the civil action. There

was no intent to encourage the litigation against the

Carrier. The Claimant merely intended to assist the plain-

tiff so he could accurately describe the physical conditions

at the accident scene. The plaintiff could have used avail-

able discovery procedures to acquire the same evidence.

If such procedures had been used, the defendants in the

civil action could have been present. Essentially, the

Claimant has deprived the Carrier of the opportunity to

be present at an examination of the accident scene by the

plaintiff.

This conduct can be characterized as being disloyal in

the sense that the Claimant entered properties controlled

30a

by the Carrier without authorization and deprived the

Carrier of the opportunity to be present at the accident

scene when photographs were taken by the plaintiff. Even

though the Claimant’s conduct was contrary to the Car-

rier’s procedural interests, his primary motivation was to

assist a fellow employee in ascertaining the truth. There

was no intent to undermine the Carrier’s position in the

civil action. Photographs takén at the accident scene were

used in the trial oi At civil action, but the Claimant did

not testify. There was no evidence that these photographs

were inaccurate or misleading. There was no evidence that

the plaintiff in the civil action was not entitled to acquire

such photographs for the preparation and trial of his law-

suit. There was evidence that the plaintiff was not entitled

to acquire these photographs through the Claimant.

Thé Claimant has argued that as a union representative

and fellow employee, he had the right to assist the plaintiff

during off duty hours. Such conduct would not be consid-

ered disloyalty. The Claimant, however, provided more

than off duty assistance when he made an unauthorized

entry upon the properties controlled by the Carrier. The

Claimant has misinterpreted his right and duty to assist

his fellow employee and union member. He has been dis-

loyal to the Carrier.

This offense warrants disciplinary action. The penalty

invoked by the Carrier muSt be appropriate for the proven

offense. It cannot be arbitrary, capricious or discrimina-

tory. Given the nature of the Claimant’s conduct, his long

service and the absence of any wilful misconduct, dismissal

from service is an extremely harsh penalty. This Board,

therefore, has concluded that the Claimant should be re-

instated with full seniority, but without any back pay.

3la

AWARD

1. The first claim is hereby denied.

2. The second claim is hereby sustained, in part, in

accordance with the findings. The Claimant shall be rein-

stated with full seniority, but without any back pay. Award

to be complied with within thirty (30) days from date of

this award.

Pusuic Law Boarp No. 2086

/s8/ Rospert G. WiLuiaMs

Neutral

/s/ R. E. Loomis /3/ J. M. Hicks, Dissenting

Carrier Member Organization Member

Date: April 6, 1979

32a

APPENDIX G

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-1058

James KE. Henp.ey,

Plaintiff-A ppellant,

versus

CenTtRAL oF Georgia RaiLroap Company,

Defendant-A ppellee,

Appeal from the United States District Court for the

Southern District of Georgia

ON PETITION FOR REHEARING AND PETITION FOR

REHEARING EN BANC

(Opinion January 15, 1980, 5 Cir., 197—, —— F.2d ——).

(March 12, 1980) |

Before Turtie, Vance and Kraviton, Circuit Judges.

Per Curiam:

(X) The Petition for Rehearing is Den1zep and no member

of this panel nor Judge in regular active service on the

Court having requested that the Court be polled on re-

hearing en banc, (Rule 35 Federal Rules of Appellate Pro

cedure; Local Fifth Cireuit Rule 16) the Petition for

Rehearing En Bane is Derniep.

( ) The Petition for Rehearing is Dentep and the Court

having been polled at the request of one of the members

of the Court and a majority of the Circuit Judges who

are in regular active service not having voted in favor of

it, (Rule 35 Federal Rules of Appellate Procedure; Local

33a

Fifth Circuit Rule 16) the Petition for Rehearing En Bane

is also Dentep.

( ) A member of the Court in active service having re-

quested a poll on the reconsideration of this cause en bane,

and a majority of the judges in active service not having

voted in favor of it, rehearing en banc is Deniep.

ENTERED For Tue Court:

c /s/ Exvsert P. Turrie

United States Circuit Judge