Amicus Brief — Central of Georgia Railroad v. Hendley

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NN No. 79-1922

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s IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

CENTRAL OF GEORGIA RAILROAD COMPANY,

- Petitioner,

JAMES E. HENDLEY,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF FOR THE NATIONAL RAILWAY LABOR

CONFERENCE AS AMICUS CURIAE IN SUPPORT

OF THE PETITION

RICHARD T. CONWAY

RALPH J. MOORE, JR.

SHEA & GARDNER

1800 Massachusetts Avenue, N.W.

Washington, D.C. 20036

(202) 828-2000

DAVID P. LEE

General Counsel

Nationa] Railway Labor Conference

1901 L Street, N.W.

Washington, D.C. 20036

(202) 862-7200

Attorneys for the National Railway

Labor Conference as Amicus Curiae

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

eae”

IN THE

Siyweme Comet of the United States

OCTOBER TERM, 1979

No. 79-1922

CENTRAL OF GEORGIA RAILROAD COMPANY,

“ Petitioner,

JAMES E. HENDLEY,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

MOTION OF THE NATIONAL RAILWAY LABOR |

CONFERENCE FOR LEAVE TO FILE BRIEF

AS AMICUS CURIAE

The National Railway Labor Conference hereby moves

the Court, pursuant to its Rule 42, for leave to file the

attached amicus brief in support of the Petition for

Writ of Certiorari.

The Conference is an unincorporated association which

includes almost all of the Nation’s Class I railroads

among its members. One such member is the petitioner

Central of Georgia Railroad Company. The Conference

represents its members in industrywide collective bar-

gaining with unions representing railroad employees and

with regard to a wide variety of other labor relations

problems of concern to the railroad industry generally.

One such concern is the proper functioning of the pro-

cedures for adjusting claims and grievances under Sec-

tion 3 of the Railway Labor Act, 45 U.S.C. 153.

The decision by the Fifth Circuit that is the subject

of the Petition is of major concern to the Conference

and to the railroads generally. As is more fully set

forth in the attached amicus brief, the Fifth Circuit in

that decision has completely disregarded the procedures

and standards specified in Section 3 of the Railway

Labor Act in setting aside an award by an adjustment

board established under Section 3. If permitted to stand

as a precedent, that decision could be seized upon to

justify disregard of the statute in other circumstances

affecting other railroads. We believe that the attached

amicus brief will assist the Court in appreciating the

magnitude of the error by the court below and the gen-

eral national importance of its decision and will other-

wise supplement the arguments contained in the Petition.

For these reasons, we request the Court to enter an

order granting this motion so as to permit the filing of

the attached amicus brief.

Respectfully submitted,

RICHARD T. CONWAY

RALPH J. MOORE, JR.

SHEA & GARDNER

1800 Massachusetts Avenue, N.W.

Washington, D.C. 20036

(202) 828-2000

DAVID P. LEE

Genera] Counsel

National Railway Labor Conference

1901 L Street, N.W.

Washington, D.C. 20036

(202) 862-7200

Attorneys for the National Railway

Labor Conference as Amicus Curiae

INDEX

Interest of Amicus Curiae —........2.....o.....--- ec eceeeoeee-ee-----

Statement of the Case ..._........

Argument estiiinieii Rida nina eat at tak

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ENE STI cl RR RS RRR

oumUmw6r,CUhIUlUlUCUr

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ii

CITATIONS

Cases:

Andrews Vv. Louisville & Nashville R. Co., 406 U.S.

A. ENGIN co RAE ae AGE RCE ee OR 3, 4,5

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

(9th Cir. 1974), cert. den., 419 U.S. 869 (1974).. 6

Farmer v. Carpenters, 480 U.S. 290 (1977)............ 8

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

520 F.2d 570 (7th Cir. 1975), cert. den., 423 U.S.

OO NN aa a EOp a Mar 6

Labor Board v. Electrical Workers, 346 U.S. 464

I iia tuiie in wiaichenetaasEhnatecniel chdlacnie eRe eit ar ak 8

Locomotive Engrs. v. L. & N. R. Co., 873 U.S. 33

| RIE ae par NR CEL None MANE De 5

Moore vy. Illinois Central R. Co., 312 U.S. 630

(ISN AER Ge rae en Oe 9 CPO D REY DEN De 5

Union Pacific R. Co. v. Price, 360 U.S. 601 (1959).. 5

Union Pacific R. Co. v. Sheehan, 489 U.S. 89

gh REAR gener ite = SRA TD ce Sac ne ag 6,7

United Transp. Union Vv. Indiana H. B. R. Co., 540

F.2d 861 (7th Cir. 1976) ............... silabicg Aida eal tat & Ry

Statutes:

Railway Labor Act

AC a passim

§ 3 First (i), 45 U.S.C. 158 First (i) .............. 2,4

§ 3 First (m), 45 U.S.C. 153 First (m)............ 4

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

_ BMRAEARE AR psa ie ceE OE SAMA 3, 4, 5, 6

§ 3 Second, 45 U.S.C. 153 Second ...................... 2

ir em BEE i chencid a tentehsineseensianies nplinenicaloantoobun 2, 6,7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-1922

CENTRAL OF GEORGIA RAILROAD COMPANY,

v. Petitioner,

JAMES E. HENDLEY,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF FOR THE NATIONAL RAILWAY LABOR

CONFERENCE AS AMICUS CURIAE IN

SUPPORT OF THE PETITION

This amicus brief is being filed with the leave of the

Court pursuant to its Rule 42.

INTEREST OF AMICUS CURIAE

As is more fully set forth in the motion for leave to

file, the National Railway Labor Conference and its mem-

ber railroads are vitally concerned with the decision be-

low because of the precedent which it will establish, un-

less reviewed and reversed by this Court, for setting

aside an award by an adjustment board established un-

der Section 3 of the Railway Labor Act (45 U.S.C. 153)

without compliance with the procedures and standards

specified by the Congress therein for reviewing such arbi-

tration awards. The finality of adjustment board awards,

subject only to narrowly limited judicial review as pro-

vided in Section 3, is an integral part of the statutory

2

claims and grievance procedure established by the Con-

gress for railroads and their employees, and is essen-

tial to the proper functioning of that procedure. By

undermining the finality which the Congress thus pro-

vided, the decision below is of major concern to the

Conference and its member railroads as well as being

erroneous.

STATEMENT OF THE CASE

The pertinent facts and procedural history of this case

are fully set forth in the Petition at 2-6. For pur-

poses of this amicus brief, we emphasize the following

matters which for the most part are set forth in the

opinion of the Fifth Circuit, reported at 609 F.2d 1146

and printed in the Petition as Appendix B.

Hendley sued to enjoin the Central of Georgia from

investigating charges that he had been disloyal to the

railroad in violation of its rules, alleging that such an

investigation would violate 45 U.S.C. 60. The District

Court held that he was not entitled to relief and dis-

missed the complaint. 442 F. Supp. 482, Pet. App. D.

In its view, Hendley was attempting “to by-pass the

mandatory remedies prescribed by the Congress’’ in Sec-

tion 3 of the Railway Labor Act (45 U.S.C. 153) which

clearly afforded “an adequate administrative remedy un-

der the law.” Pet. App. 23a. An injunction pending

appeal was denied by both the District Court and the

Court of Appeals. See Pet. App. 8a.

Thus, while that appeal was pending, the Central of

Georgia proceeded with its investigation and dismissed

Hendley for disloyalty. Hendley appealed his dismissal

to Public Law Board No. 2086, established pursuant

to Section 3 Second of the Railway Labor Act (45 U.S.C.

153 Second), as he was authorized to do by Section

3 First (i), 45 U.S.C. 158 First (i).1. That arbitration

1 The statute provides for the establishment of such special

adjustment or public law boards to arbitrate claims and

3

board issued an award upholding the railroad’s finding

that Hendley had been disloyal, but reducing the penalty

from dismissal to reinstatement without back pay (Pet.

App. F). Hendley did not petition a Federal district

court to review that award as provided in 45 U.S.C. 153

First (q), and thus the adjustment board did not “file

in the court the record of the proceedings on which it

based its action” as is required in the event such a

petition for review is instituted.”

Rather, Hendley was allowed (over the railroad’s ob-

jection) by the Court of Appeals to lodge with that

court, in connection with the then-pending appeal in

this case, a copy of the transcript of the railroad’s in-

vestigatory hearing and the railroad lodged with that

court a copy of the arbitration award. The full record

of the proceeding before the arbitration board was not

lodged with or filed in that court, and the pending ap-

peal was not taken from the arbitration award or from

a district court decision which had reviewed that award.

Nonetheless, the Court of Appeals held the arbitration

award to be “null and void” and remanded the case to

the District Court with directions “to order that the

award ... be set aside, and that Hendley receive full

back pay for the time that he was suspended or un-

employed as a result of the railroad’s actions.” Pet. App.

16a. In so doing, the court relied upon its own “review

of the testimony before the [railroad’s] investigating

board” rather than upon the facts found by the arbi-

tration board. Pet. App. 15a.

grievances in lieu of the National Railroad Adjustment Board

established by Seetion 3 First. See, e.9., Andrews v. Louisville

& Nashville R. &. 406 U.S. 320, 325 (1972).

* Those provisions are applicable to judicial review of

awards by adjustment boards established under Section 3

Second as well as to awards of the National Railroad Adjust-

ment Board under Section 8 First. E.g., United Transp.

Union v. Indiana H.B.R. Co., 540 F.2d 861 (7th Cir. 1976).

4

ARGUMENT

In the decision sought to be reviewed, the Court of

Appeals has disregarded the procedures and standards

specified by the Congress for reviewing and setting aside

an award by an adjustment board established under Sec-

tion 3 of the Railway Labor Act. Unless reversed by this

Court, that decision will partially reopen and in some

aspects widen a judicial exception to the statutory re-

quirements which this Court, only eight years ago, em-

phatically overruled in Andrews v. Louisville & Nash-

ville R. Co., 406 U.S. 3820 (1972).

Section 3 First (i) of the Act provides that ‘“dis-

putes 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 concern-

ing rates of pay, rules, or working conditions . . . shall

be handled in the usual manner up to and including

the chief operating office: of the carrier designated to

handle such disputes,” and that, if the parties to the

dispute “fail to reach an adjustment in this manner, the

disputes may be referred . . . by either party” to an

adjustment board. 45 U.S.C. 153 First (i). The ad-

justment board is required to issue a written award

which “shall be final and binding upon both parties to

the dispute.” 45 U.S.C. 153 First (m). The only statu-

tory exception is that, in a petition to enforce an award

under 45 U.S.C. 153 First (p) or to review an award

under 45 U.S.C. 153 First (q), an arbitration award

may be “set aside” if the adjustment board failed “to

comply with the requirements of this Act, for failure

of the [award] to conform, or to confine itself, to mat-

ters within the scope of the [board’s] jurisdiction, or for.

fraud or corruption by a member of the” adjustment

board. With that exception, “the findings and order of

the [board] shall be conclusive on the parties... .”

45 U.S.C. 153 First (q).

5

Such a petition to enforce or review an arbitration

award must be “file{d] in the District Court of the

United States for the district in which [the petitioner]

resides or in which is located the principal operating

office of the carrier, or through which the carrier oper-

ates,” 45 U.S.C. 153 First (p), and when so filed the

“Adjustment Board shall file in the court the record of

the proceedings on which it based its action.” 45 U.S.C.

153 First (q).

This Court has repeatedly “made it clear that this

statutory grievance, procedure is a mandatory, exclu-

sive, and comprehensive system for resolving grievance

disputes” in the railroad industry. Locomotive Engrs.

v. L. & N. R. Co., 873 U.S. 33, 88 (1963). “A corol-

lary of this view has been the principle that the process

of decision through the Adjustment Board cannot be chal-

lenged collaterally by methods of review not provided

in the statute.” Ibid.

At one time, a judicial exception, first recognized in

Moore Vv. Illinois Central R. Co., 312 U.S. 630 (1941),

permitted a discharged employee who accepted his dis-

charge as final (rather than seeking reinstatement) to

bring an action under state law to recover damages for

wrongful discharge. Even when that exception was in

force, 2 discharged employee who submitted his griev-

ance to an adjustment board was bound by the board’s

decision, subject to judicial review specifically provided

by the Act, and could not in that circumstance obtain

an independent judicial determination as to the validity

of his discharge. Union Pacific R. Co. v. Price, 360 U.S.

601, 616 (1959). And, in Andrews that Court expressly

overruled Moore and its progeny, and made emphatic-

ally clear that:

“A party who has litigated an issue before the Ad-

justment Board on the merits may not relitigate that

issue in an independent judicial proceeding. . . .

He is limited to the judicial review of the Board’s

7%

6

proceedings that the Act itself provides. . . . In

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

§ 153 First (i), will be tiie only remedy available

to the aggrieved party.” 406 U.S. at 325.

Hence, the court below plainly erred in permitting

Hendley to relitigate issues decided by the adjustment

board “in an independent judicial proceeding” entirely

apart from “the judicial review of the Board’s pro

ceedings that the Act itself provides.” Moreover, in

thus acting to set aside the arbitration award outside

of the statutory review procedure, the Court of Appeals

did not even give lip service to the statutory limitations

upon the scope of that judicial review which this Court

noted as being “among the narrowest known to the

law,” in Union Pacific R. Co. v. Sheehan, 439 U.S. 839,

91 (1978). This Court went on in Sheehan to hold

that the provision in 45 U.S.C. 153(q), under which an

award “may be set aside only for the three reasons

specified therein . . . , means just what it says.” Id. at

93. And, the Court of Appeals made its own independent

determination of the facts—on the basis of a partial rec-

ord—even though the statutory command that the “find-

ings” of an arbitration board “shall be conclusive on the

parties” has generally been recognized as virtually pre-

cluding review of a board’s factual determinations. See,

e.g., Kotakis v. Elgin, Joliet & Eastern Railway Co., 520

F.2d 570, 575 (7th Cir. 1975), cert. den., 423 U.S. 1016

(1975) ; Devita v. Burlington Northern, Inc., 494 F.2d

347, 349 (9th Cir. 1974), cert. den., 419 U.S. 869 (1974).

The Court of Appeals attempted to justify its dis-

regard of the Railway Labor Act as construed by this

Court on the ground that “45 U.S.C. $60... over-

ride[s] the statutory arbitration processes.” Pet. App.

9a. But, nothing in that statute or in the Railway Labor

Act so provides, and this Court has not recognized such

an exception in its decisions. Even if the court below

were correct in concluding that a district court has ju-

7

Pin

risdiction to enjoin a railroad from conducting a dis-°

ciplinary proceeding “which is violative of § 60,” Pet.

App 15a, that did not occur here. The discipline inves-

tigation was not enjoined and therefore went forward,

and Hendley voluntarily invoked arbitration by an ad-

justment board. The Court of Appeals did not explain

or cite any authority for the proposition that the as-

sumed jurisdiction to enjoin an investigation in the

first place somehow conferred jurisdiction to set aside

the arbitration award in a proceeding which was not

brought for that purpose and did not otherwise comply

with the procedures and standards required by the Rail-

way Labor Act for review of adjustment board awards.

In making that quantum jump, the court plainly contra-

vened the language of the Railway Labor Act and the

decisions of this Court construing that statutory lan-

guage.

The general importance of the issues involved to the

proper functioning of the Railway Labor Act is indicated

by the statement of this Court in Union Pacific R. Co.

v. Sheehan, supra at 94, that:

“The effectiveness of the Adjustment Board in ful-

filling its task depends on the finality of its de-

termination. Normally finality will work to the bene-

fit of the worker: He will receive a final adminis-

trative answer to his dispute; and if he wins, he

will be spared the expense and effort of time

consuming appeals which he may be less able to

bear than the railroad. . . . Here, the principle of

finality happens to cut the other way. But even-

handed application of this principle is surely what

the Act requires.”

The importance of those issues, and thus of review by

this Court, is emphasized by the fact that, as this Court

also has observed, “[t]here is no more elemental cause

for discharge of an employee than disloyalty to his

_- |

8

employer.” Labor Board v. Electrical Workers, 346 U.S.

464, 472 (1953). Hence, the dispute between Hendley

and the Central of Georgia that gave rise to the arbi-

tration award did not concern some matter of “merely

peripheral concern” under the Railway Labor Act, but

rather conduct that plainly is within the “central aim”

of the statutory grievance procedure. See Farmer v.

Carpenters, 480 U.S. 290, 296 (1977). It is as im-

portant in such circumstances to protect the regulatory

scheme established by the Railway Labor Act as it is to

protect the regulatory scheme under the Labor Man-

agement Relations Act involved in Farmer.

CONCLUSION

For these reasons and those stated in the Petition, the

Petition for Writ of Certiorari should be granted. For

those same reasons, we also suggest that a summary

reversal is appropriate.

Respectfully submitted,

RICHARD T. CONWAY

RALPH J. MOORE, JR.

SHEA & GARDNER

1800 Massachusetts Avenue, N.W.

Washington, D.C. 20086

(202) 828-2000

DAVID P. LEE

General Counsel

National Railway Labor Conference

1901 L Street, N.W.

Washington, D.C. 20036

(202) 862-7200

Attorneys for the National Railway

Labor Conference as Amicus Curiae