Petition — Kaiser v. Consolidated Rail Corp.

82-1545

Office-Supreme Court, U.S.

PILED

war 16 1953

No

ALEXANDER t. S“EVAS,

CLERK

IN THE SUPREME COURT OF THE UNITED-STATES

OCTOBER TERM, 1982

RICHARD C. KAISER, PETITIONER,

Vv.

CONSOLIDATED RAIL CORPORATION,

and

(

BROTHERHOOD OF LOCOMOTIVE ENGINEERS,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

VESPER C. WILLIAMS 1l

ATTORNEY FOR PETITIONER

4643 Sylvania Avenue

Toledo, Ohio 43623

(419) 882-0601

FRANCIS X. BEYTAGH

3033 Westchester Road

Toledo, Ohio 43615

(419) 535-1077

OF COUNSEL

QUESTIONS PRESENTED

l. Whether the federal common law

should allow the doctrine of collateral

estoppel to bar any subsequent proper

refiling of an action, where said action

was originally dismissed for a failure

to join a necessary party?

ae How should the conflict between

the 6th, 9th, 7th and 4th Circuits be

resolved concerning the jurisdiction of

the National Railway Adjustment Board?

Se Does due process prescribe that

a person having a legal claim for injury

be forced to submit said claim to an

arbitor appointed by the claimant's

adversaries?

TABLE OF CONTENTS

page

Questions Presented -<<<<<<<<<<<-<--------- 0

Table of Contents -<<9ssesseeeseseeee=-e= 1

Table of Authorities -<<<<sessssesee<ee"" 2

Opinion BelOW -<<<<<<<<<<<--<<-008------- 4

Jurisdiction -<-<<<<<<<<<<<<<<<<<-------- 4

Statutory Provisions Involved ----------- 5

Statement of the Case -<<<<<<<<<<<-<-<-<--<-- 5

Reasons for Granting Writ -<-------------- 10

APPENDIX A: Order of the United States

Court of Appeals for the Sixth Circuit

affirming the District Court -<---------- 22

APPENDIX B: Opinion and Order of District

Court dated September 5, 1976 <----------- 23

APPENDIX C: Opinion and Order of District

Court dated May 17, 1981 <---------------- 26

APPENDIX D: National Railroad Adjustment

Board Award dated September 3, 1981 ----- 35

APPENDIX E: Order of the United States

Court of Appeals denying a rehearing

On bane more mmm meson reese eee eeeeseseccn= 37

APPENDIX F: Federal Rules of Civil

Procedure 8(e)(1), (f), 19(b), 21,

and 41(b) --<---<-<<- <9 -- ene een n n= === 28

APPENDIX G: Railway Labor Act, 45

U.S.C. 151, Section 3, First -<-<---------- 39

TABLE OF AUTHORITIES

Cases: Page

Allen v. McCurry, 101 S. Ct. 411 (1980) 1l

Andrewa v. Louisville and Nashville

R. Co., 406 U.S. 320 (1972) 19, 20

Blonder-Tongue Labs v. University

Foundation, 402 U.S. 331 (1971) | Pe

Dorsey v. Chesapeak and Ohio R. Co.,

476 F.2d 243, 4th Cir. (1973) 20

Eldridge v. Richfield Oil Co., 364

F.2d 909, 9rd Cir. (1966) 15

Etten v. Lovell Mfg. Co., 225 F.2d

844, 3rd Cir. (1955) 12

Glover v. St. Louis-San Francisco 9,10

R. Co., 393 U.S. 324 (1969) 17,18,19,20

International Video Corp. v. Ampex

Corp., 484 F.2d 634, 9th Cir. (1973) 15

Korvettes, Inc. v. Brous, 617 F.2d 1021,

3rd Cir. (1980) 15

Montana v. United States, 440 U.S. 147,

(1979) 16

Otero v. International Union of

Elec. R. and M. Wkrs., 474 F.2d

3, 9th Cir. (1973) 20

Saylor v. Lindsley, 391 F.2d 965,

2nd Cir. (1968) 15

Schum v. South Bufalo Railway Co.,

496 F.2d 328, 2nd Cir (1974) 20

Slivertone v. Valley Transit Co.,

140 F Supp 709, S.D. Cal (1955) 15

Smith v. Pittsburg Gage and Supply

Co., 464 F.2d 870 3rd Cir. (1972) 12

Williams v. Minnesota Min. & Mfg. Co.,

14 F.R.D. 1, &§.D. Cal. (1953) a3

Vaca v. Sipes, 386 U.S. 171 (1967) 10,17,

18,19,20

Miscellaneous:

American Law Instuite, Restatement of

the Law Second, Judgments 2d, Volume

I Section 1-42, American Law Institutes

Publishers, St. Paul, Minn. 1982 15

Federal Rules of Civil Procedure 18,19,21,41

Railway Labor Act, 45 U.S.C. 153 13

United States Code, Title 45, Sec 151-153 8

OPINIONS BELOW

There is no opinion for the Sixth

Circuit Court of Appeals in this cause.

That Court summarily affirmed the order

and opinion of the United States District

Court for the Nothern District of Ohio,

Western Division. (App., Pp. 22)

JURISDICTION

Review is sought in this cause

pursuant to authority found in 28 U.S.C.

Section 1254(1) of the decisions of the

United States Court of Appeals for the

Sixth Circuit entered October 21, 1982,

which was finalized by the denial of a

timely request for rehearing dated

December 16, 1982. (App., p. 437)

STATUTORY PROVISIONS INVOLVED

Federal Rules of Civil Procedure 8, 19,

21 and 41(b). See Appendix.

United States Code Title 45, Sections

151-153. See Appendix.

STATEMENT OF THE CASE

Richard C. Kaiser, petitioner herein,

was hired by the New York Central Railroad

in 1967 and worked as a fireman for six and

one-half years for the New York Central and

then the Penn Central Transportation Co.

This "closed shop" required him to join a

union. He joined the Brotherhood of Loco-

motive Engineers which negotiated collective

bargining contracts with his employer and

represented him pertaining to contract

grievances.

On May 28, 1967, petitioner was

seriously injured by the admitted negligence

of his employer, While still receiving

substantial medical treatment for these

injuries, petitioner was discharged from

employment and denied further medical

benefits.

He was discharged for failure to take

and pass scheduled exams for promotion to

engineer despite having successfully taken

and passed six promotional exams during the

prior two years. He was discharged under

claim of suffering present serious medical

disability (having recently undergone several

hospital surgeries for medical complications

directly related to his prior work injury),

under claim that he should not have been

denied requested medical execuses from

examination as authorized by contract,

under claim that the time periods specified

by contract to be between promotion exams

was not followed, and under claim that he

was forced under duress while suffering

serious medical disability to take an exam

and was fired that day.

Following discharge, petitioner

personally contacted his Union Local

Chairman concerning his discharge and the

filing of a grievance.

His employer failing to reinstate his

employment and his union failing to timely

process his grievance, petitioner sought

legal redress.

On December 5, 1975, petitioner filed

suit in district court against his employer

Penn Central Transportation Co. The complaint

alledged, primarily, that his discharge of

December 5, 1973, was a breach of contract.

Subsequently, petitioner amended the

complaint by further alleging a breach of

the duty of fair representation by his union

without making it a party. this case was

dismissed upon employer's motion for a lack

of jurisdiction. The court reasoned that

these contract disputes are within the

exclusive jurisdiction of the National

Railway Adjustment Board (comprised of

members from his employer and his union)

under Section 3 of the Railway Labor Act,

45 U.S.C. 153. (App., p.39)

On May 29, 1977, petitioner filed his

submission with the National Railway

Adjustment Board, First Division, against

his employer Pen Central. This was decided

adversly on September 3, 1981. (App., pas)

Almost two years before the NRAB made

its decision, petitioner again sought legal

redress because he was concerned about his

opportunity to obtain a fair decision of

his case and a determination that filing

with the NRAB was not essential to judical

review.

On December 5, 1979, petitioner

commenced a second action in the same court

against the successor to his employer,

Consolidated Rail Corporation, for breach of

contract and, for the first time, against

the Brotherhood of Locomotive Engineers for

breach of duty of fair representation for

failure to process his grievance. The

complaint alledged primarily the same facts

as did the first suit, but made the union a

party defendant. The second case was

dismissed upon motions of both defendants

for different reasons. (App., pP.2t)

The complaint against the employer was

dismissed for lack of jurisdiction under the

doctrine of res judicta and collateral

estoppel in that the first action was

essentially the same as the second.

Petitioner argued that the presence of the

union as a party defendant combined with a

claim of breach of duty of fair representation

brings this cause within the Glover exception

to the exclusive jurisdiction of the

National Railway Adjustment Board.

Jurisdiction in the district court

is based upon the cases of Glover v. St.

Louis-San Francisco R. Co., 396 U.S. 324

(1969) and Vaca v. Sipes, 386 U.S. 171 (1967).

The suit against the union was dismissed

upon motion for summary judgment under

Federal Rule 56(e) for not having met the

burden of producing affidavits or other

materail to establish a genuine issue of

fact.

From the district court's application

of the law appeal was taken to the court

of appeals, which affirmed summarily and

later denied a timely petition for rehearing.

(App-, P 37)

REASONS FOR GRANTING THE WRIT

Petitioner presents four reasons for

the allowance of the writ.

1. The decision appealed from

involves an important federal law question

which should be settled by this Court alone.

10

The question is, should the modern

concept of collateral estoppel include

barring any claim where there was a non-

joinder error?

In the instant case, a district court

has set the following precedent: A prior

dismissal for a failure to join a necessary

party (not an indispensable party) can forever

foreclose legal remedy in the district courts

on the same cause.

This precedent was justified by applying

the legal concept of collateral estoppel to

a party's cause, where the first complaint had

been dismissed for failure to join a necessary

party.

Collateral estoppel is a judical

doctrine modernized to achieve substantial

justice. See Allen v. McCurry, 101 S.

411, 414, 415, and Blonder-Tongue Labs. v.

University Foundation, 402 U.S. 331,322(1971).

In the instant case substantial justice

1l

is not being served. Here, a technical non-

joinder defect has been interpreted to

finally determine the court's jurisdiction

over a cause of action. Such an interpretation

via collateral estoppes makes a curable defect

fatal. Surley such an interpretation is not

in the interest of substantial justice.

This Court has tacitly approved the

commonly recognized principle that jurisdic-

tional dismissals do not bar further litiga-

tion of a cause of action when a subsequent

complaint cures the jurisdictional defect.

See Etten v. Lovell Mfg. Co., 225 F.2d 844,

846, 3rd Cir. (1955), cert denied, 350 U.S.

966 (1956) and Smith v. Pittsburg gage and

Supply Co., 464 F.2d 870, 3rd Cir. (1972).

Such a change in the law elevates

collateral estoppel to the level of res

judicata (e.g. a complete adjudication of

the merits), affecting the common legal

understanding of finality of litigation.

Pe

Attorneys across this land will no longer

know what the difference is between

collateral estoppel and res judicata for,

in this case, issue preclusion has become a

meritorious determination of a cause of

action.

For these reasons alone this Court

should decide what the modern limits of the

doctrine of collateral estoppel should be.

2. The decision of the district court

is so inconsistent with the decisions of this

Court as to warrant plenary review.

This Court has directed the district

courts to follow certain rules of law as

authorized in the Federal Rules of Civil

Procedure. See Federal Rule 1 and this

Court's orders of adoption and admendment.

Federal Rules of Civil Procedure 8, 19,

21, and 41(b) deal with this Court's

decisions and policies concerning problems

2

involving joinder of parties. Rule 8

establishes the general policy that pleadings

are notice in nature. (App., p. 38) Rule

19(a) (b) makes it clear that complaints are

to be dismissed only if parties are indispen-

sable and cannot be brought in (there was no

determination of indispensability by the

first court in this case). Rule 21, does

not make misjoinder a ground for dismissal

of an action, and in fact encourages parties

to be added or dropped. (App., p. 38) Rule

21 also allows any claim against a party to

be severed and proceeded with separately.

Rule 41(b) goes on to establish that a

dismissal for failure to join a party is

excepted from a determinationtion upon the

merits. (App., p.3g)

The thrust of all these rules expresses

this Court's decision not to make non-joinder

itself a defect sufficient to evoke the

sanctions of res judicata and collateral

estoppel.

Many courts, following the Federal Civil

Rules, have found that a dismissal for lack

of jurisdiction does not constitute adjudica-

tion of the merits. See Saylor v. Lendsley

391 F.2d 965, 2nd Cir. (1968), Eldridge v.

Richfield Oil Corp., 364 F.2d 909, 9th Cir.

(1966), cert. denied, 87 S. Ct. 750,

Silvertown v. Valley Transit Cement Co., D.C.

Cal, (1955), 140 F Suoo. 709, Williams v.

Minnesota Min. & Mfg. Co., S.D. Cal., 14

F.R.D. 1 (1953), Korvettes Inc. v. Brous,

617 F.2d 1021, 3rd Cir. (1980, International

Video Corp. v. Ampex Corp., 484 F.2d 634,

9th Cir. (1973).

In fact, the currently accepted statement

of the law found in the Restatement of

Judgments 2d, Sec. 20(1) (a) allows a proper

refiling for failure to join a necessary

party. (The Restatements of Judgments has

been recognized by this Court in Blonder-

16

Tongue Laboratories, Inc. v. University

Foundation, 402 U.S. 331, 322 (1971), and

in Montana v. United States, 440 U.S. 147,

154 (1979).

It is also clear that collateral

estoppel applies only to the issue determined.

See Montana v. United States, id at 153. In

the instant case that issue was whether a

party was necessary. Yet the second court

barred the cause when this issue no longer

existed, e.g. the party was present.

For these reasons the district court's

decision is so inconsistent with this Court's

decision on how res judicata and collateral

estoppel are to be applied, that this Court

should exercise its plenary power of review

in order to assure that its decisions and

opinions are followed.

Se In addition, here a federal court

of appeals has rendered a decision which

16

sanctions a departure by a lower court from

the holdings of this Court in specifically

Glover v. St. Louis-San Francisco R. Co. 393

U.S. 324 (1969), and Vaca v. Sipes, 386 U.S.

171 (1967), so as to call for an exercise of

this Court's power of supervision.

In Glover this Court held that federal

courts have jurisdiction over actions which

essentially involve a dispute between some

employees, on the one hand, and union and

management together, on the other, and not a

dispute between employees and a carrier

concerning the meaning of the terms of a

collective bargaining agreement, over which

the Railroad Adjustment Board would have

exclusive jurisdiction under the Railway

Labor Act. It also held that, in a case where

resort to contractual or administrative

remedies would be wholly fruitless, a

petitioner's failure to exhaust such remedies

constitutes no bar to judical review of his

19

claims,

Vaca held in part that federal district

courts have jurisdiction over disputes between

a railroad employee, his union, and his

employer for a breach of the duty of fair

representations by his union and a breach of

contract by his employer.

In the instant case the petitioner, a

railroad employee, did bring an action alleging

a breach of contract by his employer and

alleged that his union had breached its duty

to fairly represent him.

The District Court's rationale in this

case supports a departure from the holdings

of Glover and Vaca in that before any

railroad employee can seek jurisdiction in

the federal district courts he or she must

properly join his or her union in the first

complaint or run the risk of losing his or

her district court remedy. Such a high risk

severely limits the thrust of Glover and Vaca,

forcing railroad employees who have serious

disputes with their employer and union to

submit their claims to NRAB arbitrators who

are appointed by the claimant s adversaries.

Such a departure is inconsistent with

the substantial justice remedy provided by

Glover and Vaca, and call for an exercise

of this Court's supervisory authority over

the lower federal courts.

4. The decision appealed from conflicts

with the decision of other Circuits as to

the jurisdiction of the National Railway

Adjustment Board.

In the instant case the District Court,

sub judice, recognized the Glover-Vaca

exception to the jurisdiction of the NRAB.

It tacitly implied that the exception exists.

in doing so, this case is in conflict with

the 4th Circuit which has decided to follow

the preclusion interpretation of Andrews v.

19

Louisville & Nashville R. Co., 406 U.S. 320

(1972). See Dorsey v. Chespeak and Ohio

Railway Company, 476 F.2d 243, 4th Cir.

(1973).

The 2nd and the 9th circuits are also

in conflict with the 4th Circuit. They

have held that Andrews is not a bar to

district court jurisdiction over Glover-Vaca

exception to the jurisdiction of the NRAB.

See Schum v. South Buffalo Railway Co., 496

F.2d 328, 2nd Cir. (1974), and Otero v. Inter-

National Union of Elec. R. and M. Wkrs., 474

F.2d 3, 9th Cir. (1973).

This conflict essentially invloves a

disagreement among courts of appeals as to

whether the Glover-Vaca exception exists in

light of Andrews. This is an inportant and

recurring question that warrants plenary

review. The granting of certiorari in this

case will resolve this conflict.

Respectfully submitted,

Vesper C. Williams 11

Counsel for Petitioner

Francis X Beytagh

Of Counsel

ye

APPENDIX A

No. 81-3290

FILED

Oct. 21, 82

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CORCUIT

Richard C. Kaiser,

Plaintiff-Appellant, :

vs. $ ORDER

Consolidated Rail Corporation :

f/k/a/ Penn Central Trans. Co.

Rrotherhood of Locomotive $

Engineers,

Defendant~-Appellees :

BEFORE: ENGEL AND MERRITT, CIRCUIT JUDGES;

District Judge*.

This cause having come on to be heard

upon the record, the briefs and the oral

argument of the parties, and upon due

consideration thereof,

The Court finds that no prejudical error

intervened in the judgment and proceedings

in the district court, and it is therefore

ORDERED that said judgment be and it hereby

is affirmed.

ENTERED BY ORDER OF THE COURT

John P. Hehman, Clerk

Signed

The Honorable Westley E. Brown, Senior United

States District Judge for the District of

Kansas, sitting by designation.

ISSUED AS MANDATE: Jan. 4, 1983

costs: None

22

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NOTHERN DISTRICT OF OHIO

WESTERN DIVISION

RICHARD C. KAISER,

)

Plaintiff ) No. C 75-480

-VS- )

PENN CENTRAL TRANS. CO., ) OPINION AND ORDER

Defendant )

* -_ *

WALINSKI, J:

This cause is before the Court on the

defendant's motion to dismiss for lack of

jurisdiction pursuant to Fed. R. Civ. P.

12 (b) (1).

An examination of the pleadings and

affidavits establish that prior to December

5, 1973, the plaintiff was employed by

defendant Penn Central TRansportation

company (hereafter Penn Central) as a fireman.

On that date, he was discharged by the

defendant. Plaintiff alleges that immediately

after receiving the notice of discharge he

contacted his union representative and

informed him of the facts surronding the

event. It was apparently his belief that

the union was to process his grievance and

appeal. During the two and one-half year

period between his discharge and the filing

of this suit, the plaintiff made several

contacts with a representative of the union

about his grievance and appeal. Despite

those repeated communications, the union took

no action on his grievance.

Purpoting to base jurisdiction of 28

U.S.C., 1332, the plaintiff filed this suit,

seeking both damages and reinstatement,

23

alleging breach of the collective bargaining

agreement between Penn Central and the

Brothethood of Locomotive enggineers.

Although the plaintiff alleges that the union

breached its duty of fair representation,

the union was not joined as a defendant.

Penn Central, in its motion to dismiss,

asserts that despite the plaintiff's attempt

to base jurisdiction on diversity of

citizenship, the suit is governed by the

Railway Labor Act, 45 U.S.C., 151 et seg.

Pen Central argues that the dispute involves

here is a “minor dispute", or grievance

within the meaning of th Railway Labor Act.

Its argument continues that since the dispute

is minor, the Court is without jurisdiction

to entertain the merits.

Plaintiff, on the other hand, asserts

that this suit is not within the exclusive

jurisdiction of the Railroad Adjustment

Board because of the union's breach of its duty

of fair representation.

For the reasons set forth below, the

Court is satisfied that the dispute involved

herein is a "“mincr" dispute within the

exclusive jurisdiction of the Railroad

Adjustment Board, and that the defnednat's

motion to dismiss should be granted.

Under 3 of the Railway Labor Act, 45

U.S.C., 153. if the dispute involved is a

"minor" dispute, or grievance, and the parties

have been unable to reach a voluntary

resolution then the National Railroad Adjust-

ment Board has primary and exclusive juris-

diction to interpret the collective bargain-

ing agreement and issue an appropriate award.

Local 1477 United Transportation Union v.

Baker, 482 F.2d 228 (6th Cir. 1973); see

Elgin J. & E. Ry. v. Burley, 325 U.S. 711

(1945). A determination that the dispute

24

involved herein is minor would therefore

leave this Court with jurisdiction.

It is now well settled that a dispute

involving an employee's claim against his

employer that he was discharged in violation

of the collective bargaining agreement is a

minor dispute or grievance. Andrews v.

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

As such, the plaintiff's claim is subject to

the Railway Labor Act's requirement that it

be submitted to the Railroad Adjustment

Board for resolution. Section 3 First (i) of

the Railway Labor Act, 45 U.S.C., 153 First

(i).

Plaintiff neverless contends that there

is an exception to this rule when there is

an allegation that the union has breached its

duty of fair representation to the employee.

For this proposition he cites, inter alia,

Glover v. St. Louis-San Francisco Railway

Co., 393 U.S. 324 (1969).

In Glover, supra, the plaintiffs, a

group of blacks and whites employees,

brought suit for damages and injunctive

relief acaonst both their employer railroad

and their union. They alleged that the

defendants were acting in concert to bar all

of the plaintiffs from promotion solely to

avoid having to promote any of the blacks.

The district court granted the defendant's

motion to dismiss holding that the dispute

was within the wxclusive jurisdiction of the

Railroad Adjustment Board. The Fifth

Circuit Court if Appeals affirmed. 38€ F.2d

452 (1967).

Reversing the Circuit Court, the

Supreme Court held "that Sec. 3 First (i)

by its own terms applies only to disputes

between an employee or group of employees on

a carrier or carriers." Glover, supra, quoting

Conley v. Gibson, 355 U.S. 41, 44 (1957).

25

And the Court noted further;

Moreover, although the employer is made a

party to insure complete and meaningful

relief, it still remains true that in

essence the "dispute" is one between some

employees on the one hand and the union

and management together on the other, not

one "between an employee or group of

employees and a carrier or carriers."

Glover, supra, 393 U.S. st 329.

Here, howerer, the suit involves simply

a "minor" dispute "between an employee* * *

and a carrier* * *," The union is not a

party to the dispute, and the exception to

the general rule found in Glover is not

applicalbe. See Hill v. Southern Railway

Co., 402 F. Supp. 414 (W.D. N.C. 1975)

(union not made a party to suit). See also,

Schum v. South Buffalo Railway Co., 496

F.2d 328 (2d Cir. 1974) (defendant union

charged with breach of duty of fair

representation).

As thedefendant points out in the

affidavit of Richard Ellenberger, the

plaintiff has an adequate and existing remedy

before the National Railway Adjustment Board.

Furthermore, that board is a neutral arbiter

from whom the plaintiff can expect an unbiased

decision. See Sec. 3 First, Railway Labor

Act, 45 U.S.C., 153 First, for composition

of board. Finally, at the hearing before

the board, the plaintiff has the right to be

represented by counsel and need not rely on

his union to supply representation. 45

U.8.C., 153 First (4).

For the foregoing reasons, it is

accordingly ORDERED that the defendant's

motion to dismiss should be, and hereby is,

granted, and that the complaint should be,

25

and hereby is, dismissed.

signed

United States District Judge

Toledo, Ohio

August 5, 1976.

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Richard C. Kaiser,

Plaintiff Case No C 79-712

vs.

Consolidated Rail Corp.

£/k/a Penn Central

Trans. Co., et al., OPINION AND ORDER

Defendants

YOUNG, J.:

This cause came to be heard upon the

filing by defendant Consolidated Rail

Corporation ("Conrail") of a motion to dismiss.

Also, defendant Brotherhood of Locomotive

Engineers ("Union") has filed a motion to

dismiss or, in the alternative, for summary

judgment. Plaintiff has now filed an

opposition to thes motions, only at the urging

of the Court in its July 14, 1980 order.

This is an action for breach of a

collective barganing agreement between the

Penn Central Transportation Co. ("Carrier")

26

and the Brothernood of Locomotive Fireman

& Engineermen ‘"BLF&E"). The amended

complaint alleges that the defendant Carrier

discharged plaintiff on December 5, 1973, in

violation of the terms of the collective

bargining agreement. The amended complaint

charges the Union with a breach of duty of

fair representation in connection with the

Union's alleged failure to process plaintiff's

grievance concerning the December 5, 1973

discharge.

Defendant Conrail's Motion to Dismiss

Defendant Conrail first moves to dismiss

on the ground that Conrail is not the proper

defendant and is not liable in its own right

for a breach of contract occuring in 1973.

Defendant contends that Conrail did not

begin operations as a rail carrier until

April 1, 1976, purauant to the Final System

Plan prepared under 206 of the Regional Rail

Reorganization Act, as amended, 45 U.S.C.

716. Defendant Conrail concludes that any

liability in the present case remains a

preconveyance obligation of the estate of

the Penn Central Transportation Company

under 45 U.S.C.774(e).

Subsequent to the defendant Conrail's

motion to dismiss, plaintiff has filed an

amended complaint purporting to divert

plaintiff's claim on to Penn Central. It

is unclear, however, whether the amended

complaint successfully names Penn Central as

a party defendant. Nevertheless, this Court

finds that Penn Central is the proper party

defendant and that 45 U.S.C. 774(e)

designates Conrail as the processing agent

for claims of employees arising under the

collective bargaining agreement of

defendant Penn Central.

27

Defendant Conrail next move for

dismissal on the ground that plaintiff's

present lawsuit is barred by the principles

of res judicata and collateral estoppel.

Defendant contends that plaintiff filed an

identical claim arising out of the December

5, 1973 discharge before Judge Walinski

entitled Richard C. Kaiser V. Penn Central

Transportation Co., No. 75-480. The

complaint in that prion case alleges the

same cause Of action as in the present case,

i.e. that plaintiff's December 5, 1973

discharge violated the terms of the

collective bargaining agreement. An

amendment to that complaint also charged the

Union with a breach of duty of fair repre-

sentation, but failed to name the Union as

a party defendant. Motion to dismiss

Appendix A. In an opinion and order dated

August 5, 1976, Judge Walinski dismissed

plaintiff's action for lack of jurisdiction.

Uudge Walinski held that plaintiff's com-

plaint stated a "minor dispute," that is a

contraversy over the meaning of an existing

collective bargaining agreement. The Judge

concluded that such "minor disputes" are

within the exclusive jurisdiction of the

National Railroad Adjustment Board ("NRAB")

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

153.

Subsequent to Judge Walinski's opinion,

plaintiff, through his attorney, filed a

claim with the NRAB, First Division, on May

28, 1977. An oral hearing was held on

January 25, 1978 at which both plaintiff

and his attorney appeared befor the Board.

Affidavit of A.W. Paulos. To date, no

decision has been rendered by the Board.

Plaintiff has now filed this lawsuit

involving the very same cause of action as

28

did the prior case. Both complaints allege

that plaintiff's rights under the collective

bargaining agreement were infringed by Penn

Central's termination of plaintiff's employ-

ment on December 5, 1973. Both cases, in

reality, involve the same parties, plaintiff

Kaiser and defendant Penn Central.

Both lawsuits charg the Union with a

breach of duty of fair representation. The

only technical difference between the two

lawsuits is that the present amended

complaint actually names tha Union as a

party defendant. Plaintiff contends that

the presence of the Union as a party defendant,

combined with a claim of breach of duty of

fair representation, brings this claim within

the Glover exception to exclusive jurisdic-

tion Of the NRAB. Glover v. St. Louis-San

Francisco Railway Co., 393 U.S. 326 (1969).

This Court finds that plaintiff's

jurisdictional arguments regarding the

Glover exception are barred by the doctrine

Of collateral estoppel. This precise juris-

dictional issue was actually raised and

decided by Judge Walinski in the prior action.

The plaintiff raised the issue of the Union's

alleged breach of duty of fair representation

in the prior lawsuit, both in his amend-

ment to the complaint and in his motion for

reconsideration of Judge WAlinski's final

opinion and order. Judge Walinski carefully

considered the Glover exception and, yet,

concluded that the complaint stated a "minor

dispute” within the exclusive jurisdiction

of the NRAB. Judge Walinski necessarily

held that plainitff's conclusory allega-

tions of breach of duty of fair representa-

tion were insufficient to give this Court

jurisdiction of plaintiff's claim.

29

As stated above, the only discernible

difference in the present case is that the

Union is actuallu named as a party defendant.

The present amended complaint contains the

same conclusory allegations regarding the

Union's breach of duty of fair representation.

This Court will not permit plaintiff to

circumvent Judge Walinski's order by simply

naming the Union as a party defendant.

Since the issue of subject matter

jurisdiction of this action was actually

litigated and decided between plaintiff and

defendant Penn Central in the prior action,

plaintiff's argument on the same issue in

the present case are barred by the doctrine

of collateral estoppel. Dismissal of this

case againse Penn Central will fully

effectuate the purposes of the doctrine of

collateral estoppel, that is, to protect

adversaries from the expensive and vexation

attending multiple litigation on the same

issue; to conserve judical resources, and

to foster reliance on judical action by

minizing the possibility of inconsistent

decisions. Montana v. United States, 440

U.S. 147, 153-54 (1979)

Finally, plaintiff's present lawsuit

would, in effect, constitute an impermis-

sible collateral atack on his case which is

currently pending before the NRAB. Plaintiff

has has opportunity to fully and fairly

present his case to the Board with the aid

of counsel. Once a claim is submitted to

the Board, the Railway Labor Act permits

judical review only after the board has

rendered its decision. 45 U.S.C. 153 First.

Accordingly, palintiff's remedy is to file for

review of the decision of the NRAB if he is

aggrieved thereby.

30

The Union's Motionfor Summary Judgment

The Union move to dismiss or, in the

alternative, for summary judgment. The

Union has submitted various affidavits and

other materials in support of its motion.

To the extent that the Unio relies on

materials outside the pleadings, this Court

will consider the Union's alternative motion

for summary judgment. This motion has been

opposed by plaintiff.

The Union moves for summary judgment

on several grounds. First, the Union argues

that this Court lacks jurisdiction of this

lawsuit. The Union that this is a dispute

over the application and interpretation of

a collective bargaining agreement. By

definition, the Union continues, this is a

"minor dispute” within the exclusive

jurisdiction of the NRAB. Andrewa v.

Louisville & Nashville Railroad Co., 406

U.S. 320 (1972). The Union contends that

the presence of a claim of a breach of the

Union's duty of fair representation should

not change this result since the plaintiff

was adequately tepresented by able counsel

before the NRAB. 45 U.S.C. 153 First(i),(j).

The Union concludes that the Andrews case

requires the dismissal of both the Carrier

and the Union.

As a second ground in support of its

motion for summary judgment, the Union argues

that the conclusory allegations in the

complaint regarding the Union's breach of

duty of fair representation are insufficient

to state a claim for relief against the Union.

The Union urges that plaintiff has failed to

state a valid claim because plaintiff has

alleged no facts supporting his charges

against the Union, citing Gainey v. Brother-

hood of Railway and Steamship Clerks, 313 F.

31

2d 318,323(3rd Cir 1963), and several other

case.

Third, the Union claims there was no

breach of a duty of fair representation for

the reason that the Union was not the

bargaining representative for plaintiff's

particular unit of employees. The Union notes

that plaintiff was a fireman at the time of

his discharge. Affidavit of John f. Systm,

@8. The Brotherhood of Locomotive

Engineermen (the Union or "BLE") was not and

is not the bargaining agent for the craft or

class of firemen employees on the predecessor

railraod (Penn Central) and does not represent

those employed as fireman by Conrail.

Affidavir of John F. Sytsma, @6-8. Therefore,

the Union concludes that it owed no duty to

plaintiff to prosecute a grievance on his

behalf since plaintiff was not a menber of

the bargaining unit of classification of

employees from whom the Unio (BLE) had

bargaining authority.

Fourth, even assuming arguendo that the

Unio did owe a duty to plaintiff, the Union

contends that there was no breach of duty

of fair representation on the merits of the

case fore the reason that plaintiff has no

meritorious grievance under the terms and

provisions of the collective bargaining

agreement. The Union submits affidavits and

other materials which show that the

applicable collective bargaining agreement

in effect between BLF&E and the railroad

provided that if an individual failed three

times to pass the qualifing examination to

become a locomotive engineer he would be

discharged from service. Affidavit of A.W.

Paulos, Exhibit A, Submission 20, p.3.

Plaintiff did not appear for his first and

second attempts and failed in his third

32

attempt. Affidavit of A.W. Paulos, Exhibit

A, Submissions 4,5,9,10. Thus, the Union

contends it was justified in failing to

process plaintiff's grievance since plaintiff

discharge was clearly authorized by the terms

of the collective bargaining agreement.

Finally, the Union contends that there

was no arbitrary or bad faith conduct on the

part of the Union in refusing to process

plaintiff's grievance. The Union submits

affidavits which state that the Union was

never requested by plaintiff to take any

action on his behalf until applicable time

limits under the agreement had expired.

Affidavits of John F. Sytsma. The Union

concludes that the undisputed material facts

before the Court show no breach of their

duty of fair representation.

Plaintiff has failed to file affidavits

or other materials in opposition to any of

these issues raised by the derendant Union.

Instesd, plaintiff has filed a two-page

memorandum which contains only conclusory

denials of the various points raised by the

Union.

Rule 56(e), Fed. R. Civ. P. does not

permit a party to rest on his pleadings in

opposing a motion for summary judgment.

Rule 56(e) provides:

"When a motion for summary judgment is

made and supported as provided in this

rule, an adverse party may not rest upon

the mere allegations or denials of his

pleadings, but his response, by affidavit

or as otherwise provided in this rule,

must set forth specific facts showing

that there is a genuine issue for trial.

If he does not so respond, summary

judgment, if appropriate, shall be entered

against him."

33

This Court finds that the plaintiff has not

met the burden imposed by Rule 56(e) of

producing affidavits or other materials to

establish a genuine issue of fact regarding

any of the defenses raised by the Union.

Under Rule 56(e), it is incumbent upon

the plaintiff, no the Court, to demonstrate

the existence of and genuine issue of fact.

Accordingly, this Court finds that summary

judgment in favor of the defendant Union is

appropriate.

THEREFORE, for the above stated reasons,

good cause appearing, it is

ORDERED that the defendant Consolidated

Rail Corporation's motion to dismiss be, and

it hereby is, SUSTAINED and that the clerk

shall dismiss the complaint as to defendant

Consolidated Rail Corporation; and it is

FURTHER ORDERED that the motion of

defendant Brotherhood of Locomotive

Engineers for summary judgment be, and it

hereby is, SUSTAINED and the clerk shall enter

judgment accordingly.

IT IS SO ORDERED.

Signed

Sr. United States District Judge

Toledo, Ohio

filed April 17, 1981

34

APPENDIX D

NATIONAL RAILROAD ADJUSTMENT BOARD

FIRST DIVISION

With Referee Robert E. Peterson

Award 23302

Docket 43043

PARTIES ( Richard C. Kaiser

TO (

DISPUTE ( Penn Central Trans. Co.

STATEMENT "Why Richard C. Kaiser is not

OF CLAIM: reinstated with lost wages for

being wrongfully terminated and

denied complete process of appeal

by Penn Central Transportation Co,

after following proper Union-

Management appeal proceedures?"

FINDINGS: The First Division of the

National Railroad Adjustment

Board, upon the whole record and all the

evidence, finds that the parties herein are

carrier and employee within the meaning of

the Railway Labor Act, as amended, and that

this Division has jurisdiction.

Hearing was held.

This is a claim on behalf of a fireman who

was terminated after he failed to pass

promotional examination to the position of

Engineer.

Although it is contraverted as to whether

the claim was in fact handled in the usual

and timely manner on the property, we do not

35

find it necessary the Board consider such

arguments. We say this for the reason that

even if we were to so rule on such a matter,

it would still be our finding that the claim

must be denied on its merits.

The Claimant admittedly failed to pass the

promotional examination after being afforded

the opportunity to attend numerous

instructional classes. Moreover, reasons

advanced by claimant for his failure to take

the promotional examination when scheduled,

or to have availed himself of instructional

classes, is suspect and self-serving.

Accordingly, Claimant having failed to

comply with the requirements mandated in

the controlling agreement realative to

promotional examinations, the claim is without

merit and will be denied.

AWARD: Claim denied

National Railroad Adjustment

Board by ORDER OF FIRST DIVISION

DATED AT Attest: Executive Secretary

CHICAGO, ILL NRAB

THIS 3rd DAY

of September 1981 By: signed

Ass. Executive

Secretary

36

APPENDIX E

No. 81-3290

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

DEC 16 1982

RICHARD C. KAISER,

Plaintiff-Appellant

V. ORDER

CONSOLIDATED RAIL CORPORATION

£/k/a PENN CENTRAL TRANSPORATION

co.

and

BROTHERHOOD OF LOCOMOTIVE

ENGINEERS,

Defendants~-Appellee.

/

Before: ENGLE and MERRIT, Circuit Judges; and

BROWN, Senior Circuit Judge.

No judge in regular active service of

the Court having requested a vote on the

suggestion for a rehearing en banc, the

petition for rehearing filed herein by the

original appeal. Upon consideration of said

petition, the court finding no issue present-

ed which have not previously considered,

IT IS ORDERED that the petition for

rehearing en banc be and it is hereby denied.

ENTERED BY ORDER OF THE COURT

clerk

37

APPENDIX F

Federal Rules of Civil Procedure:

Rule 8(e)(1) Each averment of a

pleading shall be simple, concise, and

direct. No technical forms of pleading

or motions are required.

Rule 8(f) Construction of Pleadings.

All pleadings shall be so construed as to do

substantial justice.

Rule 19(b) If a person described in

subdivision (a) (1)-(2) hereof cannot be made

a party, the court shall determine whether

in equity and good conscience the action

should proceed among the parties before it,

of should be dismissed, the absent person

being thus reguarded as indispensable.

The factors to be considered by the court

include: first, to what extent a judgment

rendered in the person's absence might be

prejudical to him or those already parties;

second, the extent to which, by protective

provisions in the judgment, by the shaping

of relief, or other measures, the prejudice

can be lessend or avoided; third, whether

a judgment rendered in the person's

absence will be adequate; fourth, whether

the plaintiff will have an adequate remedy

if the action is dismissed for nonjoinder.

Rule 21 Misjoinder and Non-joinder of

Parties Misjoinder of parties is not grounds

for dismissal of an action. Parties may be

dropped or added by order of the court on

motion of any party or of its own initiative

at any stage of the action and on such terms

as are just. Any claim against a party may

be severed and proceeded with separately.

38

Rule 41(b) " .. . Unless the court

in its order for dismissal otherwise

specifies, a dismissal under this subdivision

and any dismissal not provided for in this

rule, other than a dismissal for lack of

jurisdiction, for improper venue, or for

failure to join a proper party under Rule 19,

Operates as an adjudication upon the merits.

APPENDIX G

RAILWAY LABOR ACT, 45 U.S.C. 151,

et seg., Section 3, First (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 car-

rier may file in any United States district

court in which a petition under paragraph

(p) could be filed, a petition for review

of the division's order. A copy of the

petition shall be forthwith transmitted

by the clerk of the court to the Adjustment

Board. The Adjustment Board shall file in

the court the record of the proceedings on

which it 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 furhter action as it

may direct. on such review, the findings

39

and order of the division shall be conclu-

sive 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 comform, of 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 Section 1291 and

1254 of Title 28."

40