# Petition — Kaiser v. Consolidated Rail Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 461 U.S. 943

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0646%3A1. Public record. Not legal advice.