Petition for Writ of Certiorari — Hodges v. Atchison, Topeka & Santa Fe Railway Co.

FILED

MAY 11 1964

88-1849 peEeTT

“5

ALEXANDER L. STEVAS,

No. CLERK

«

In The Supreme Court of the Anited States

OCTOBER TERM, 1983

EVERETT HODGES, III,

Petitioner.

vs.

THE ATCHISON, TOPEKA AND ,

SANTA FE RAILWAY COMPANY,

Respondent. /

y

> /

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BEN A. GOFF

GLOYD L. McCOY

GOFF, MORRISON AND McCOY

1212 N.W. 50th a

Oklahoma City, Oklahoma 73108

(405) 843-8401

Attorneys for Petitioner

May 1983

QUESTIONS PRESENTED FOR REVIEW

1. Is there a private cause of action cognizable under Section

503 of the Rehabilitation Act of 1973?

2. May a handicapped individual bring a breach of contract

action as a third party beneficiary of a contract or affirmative

action plan between an employer and the federal government?

3. If the plaintiff relies on unfair labor representation as a

defense to the requirements under the Railway Labor Act, must the

union be a named party to the suit?

4. Is the Railway Labor Act applicable in a case where the

plaintiff is not a member of a labor union and the action is not

based on the collective bargaining agreement?

**

TABLE OF CONTENTS

| |) ny Bete ee

EE STE cninvinhincacinnitichiuinpeibiabtiniiaaamaalassdaiitiiewecs

I. There is an implied private cause of action under Section

503 of the Rehabilitation Act of 1973 __...-..-----.-...-..-

Il. Petitioner has a common law right to sue for breach of

COI nsitcnnciccitininntintttinnnaipicidiiillglaaniguiibabnaieiumin ett.

Ill. Railway Labor Act is not the Plaintiff’s exclusive

TABLE OF AUTHORITIES

Case Law

Alexander v. Gardner-Denver Co., 415 U.S. % {J a

Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320

CTD cnisctcnicisniivishetnesAiepacpiiciabinienaieo eens Seana ree

California Paralyzed Veterans Association v. F.C.C., 496 FE.

ep. See BD. Ge. - TD ects cca

Cannon v. University of Chicago, 441 U.S. 677 (1979) _...---

Clark v. FELEC Serv. Inc., 489 F Supp. 165 (D. Alaska

=

AUTHORITIES CONTINUED PAGE(S)

Drennon vy. Philadelphia General Hospital, 428 F. Supp. 809

I BF WD ditsiiidinscsuncmecnnescennceccntsaneccsnnesosonsncese 5

Hart v. County of Alameda, 485 F. Supp. 66 (M.D. Cal.

lca eiedciciennmiiakneeenhnermanieesennsnees 5

Hodges v. Atchison, Topeka & Santa Fe Railway, 728 F.2d 414

I TD i sctcciarciaboeeiannannssacsdnnumenesnanescoseeses l

Kaschak v. Consolidated Rail Co., 707 F.2d 902 (6th Cir.

EE a nnn 7

Rogers v. Frito-Lay, Inc., 611 F.2d 1074 (Sth Cir, 1980) -....- 5

Schum v. South Buffalo Railway Co., 496 F.2d 328 (2d Cir.

1974) SS a ee a 7

Sinclair Ref. Co. v. Atkinson, 370 U.S 195 (1962) ------------- 5

Vaca v. Sipes, 386 U.S. 171 Ee 7

Statutes

Rehabilitation Act of 1973, 29 U.S.C. § 701 et. seq. -.... 2. 4. 7

Railway Labor Act, 45 U.S.C. § ISI et seq.-.-.--...-.. 3, 4, 6, 7

Legislative History

S. Rep. No. 890, 95th Cong., 2d Sess. 19 (1978) ------------ 5

Legal Periodicals

a a cc ciniendcuneenncenndennensanenshes 5

No. -- =

In The

Supreme Court of the United States

OCTOBER TERM, 1983

EVERETT HODGES, III, =

Petitioner,

vs.

THE ATCHISON, TOPEKA AND

SANTA FE RAILWAY COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR WRIT OF CERTIO

———_—__

OPINIONS BELOW |

The opinion of the United States Court of Appeals for the

Tenth Circuit is published Hodges v. Atchison, Topeka & Santa Fe

Ry., 728 F.2d 414 (10th Cir. 1984). Petitioner did not seek a

rehearing.

JURISDICTION

Judgment in accordance with the opinion of the Court of

Appeals. was entered on February 13, 1984. Jurisdiction of this

Court is invoked under 28 U.S.C. §1254. 7

tallies

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The following portion of the Rehabilitation Act of 1973, 29

U.S.C. §701 et seq., is relevant to this appeal:

(a) Any contract in excess of $2,500 entered into by

any Federal department or agency for the procurement of

personal property and nonpersonal services (including con-

struction) for the United States shall contain a provision

requiring that, in employing persons to carry out such con-

tract the party contracting with the United States shall take

affirmative action to employ and advance in employment

qualified handicapped individuals as defined in section 706

(7) of this title. The provisions of this section shall apply to

any subcontract in excess of $2,500 entered into by a prime

contractor in carrying out any contract for the procurement

of personal property and nonpersonal services (including

construction) for the United States. The President shall

implement the provisions of this section by promulgating

regulations within ninety days after September 26, 1973.

(b) If any handicapped individual believes any contrac-

tor has failed or refuses to comply with the provisions of his

contract with the United States, relating to employment of

handicapped individuals, such individual may file a com-

plaint with the Department of Labor. The Department shall

promptly investigate such complaint and shall take such

action thereon as the facts and circumstances warrant, con-

sistent with the terms of such contract and the laws and

regulations applicable thereto.

* * *

29 U.S.C. §793.

29 U.S.C. §794 a (b)

In any action or proceeding to enforce or charge a violation of

a provision of this title, the Court in its discretion may allow the

prevailing party, other than the United States, a reasonable attorney

fee as part of the cost.

alin

The following portion of the Railway Labor Act, 45 U.S.C.

$151 et seq., is relevant to this appeal:

Section 3

First. There is established a Board, to be known as the

“National Railroad Adjustment Board”. ..and it ts

provided—

* * *

~

(i) The disputes between an employee or group of

employees and a cartier or carriers growing out of griev-

ances or out of the interpretation or application of agree-

ments concerning rates of pay, rules, or working conditions,

including cases pending and unadjusted on June 21, 1934,

shall be handled in the usual manner up to and including the

chief operating officer of the carrier designated to handle

such disputes; but, failing to reach an adjustment in th

manner, the disputes may be referred by petition of the

parties or by either party to the appropriate division of the

Adjustment Board with a full statement of the facts and all

supporting data bearing upon the disputes.

(j) Parties may be heard either in person, by counsel,

or by other representatives, as they may respectively elect

and the several divisions of the Adjustment Board shall give

due notice of all hearings to the employee or employees and

the carrier or carriers involved in any disputes submitted to

them.

eR of MOE MORI

* * *

-

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

ment Board’ shall be stated in writing. A copy of the awards

shall be furnished to the respective parties to the con-

troversy, andthe awards shall be final and binding upon

both parties to the dispute. In case a dispute arises involving

an interpretation of the award, the division of the Board

upon request of either party shall interpret the award in the

light of the dispute.

45 U.S.C. §153 First (i), (j) & (m).

a ae

STATEMENT OF THE CASE

Petitioner filed suit against the respondent in Oklahoma state

court alleging wrongful employment discharge. Specifically, the

petitioner alleged breach of contract on the part of the respondent

as well as violation of 29 U.S.C. §793 (Section 503 of The

Rehabilitation Act of 1973) which prohibits discrimination against

handicapped individuals. !n August, 1981, the respondent filed

with the United States District Court for the Western District of

Oklahoma a petition and bond for removal of petitioner's action.

The cause was removed to that court.

On January 29, 1982, the respondent moved the district court

to grant summary judgment in its favor. The district court granted

the motion for summary judgment. The distric court held (1) that

any claim based directly or indirectly on Section 503 of the

Rehabilitation Act of 1973, 29 U.S.C. $793, could not be main-

tained because there exists no private right of action under the

statute, and (2) that the court lacked jurisdiction to entertain plain-

tiff’s breach of employment contract by virtue of the Railway

Labor Act, 45 U.S.C. §151 et. seg. Thereafter, petitioner perfected

an appeal to the Tenth Circuit Court of Appeals. On February 13,

1984, the Court of Appeals-entered its award affirming the district

court’s ruling. The petitioner prays to this Court for relief from

these judgments.

REASONS FOR GRANTING THE WRIT

: I.

THERE IS AN IMPLIED PRIVATE CAUSE OF

ACTION UNDER SECTION 563 OF THE REHABILI-

TATION ACT OF 1973.

The issue of whether or not Section 503 of *he Rehabilitation

Act of 1973 provides a private cause of action has not been

addressed by this Court. This question is of great importance both

for the millions of handicapped individuals who have waited and

labored to see their right to equal treatment established in the law

along with tke rights of other groups who have been victims of

invidious discrimination and also for the jurisprudence of implied

private rights of actions. Rogers v. Frito-Lay, inc., 611 F2d 1074

(Sth Cir. 1980) (Goldberg, dissenting op 611 F.2d at 1085).

Although no court of appeals decision has recognized a private

cause of action, several district courts have so ruled. California

Paralyzed Veterans Association v. FCC, 496 F Supp. 125 (C.D.

Cal. 1980); Clark v. FELEC Serv. Inc., 489 F Supp. 165 (D.

Alaska 1980); Hart v. County of Alameda, 485 F Supp 66 (M.D.

Cal. 1979); Drennon v. Philadelphia General Hospital, 428 F. Sunp.

809 (E.D. Pa. 1977).

This Court has made it clear that courts are to find implied

remedies when persuasive evidence of Congressional intent sup-

ports them. See, e.g., Cannon v. University of Chicago, 441 U.S.

677 (1979). The most illuminating legislative history accompanied

the passage of the 1978 attorney fees amendment, section 505 29

U.S.C. §794 a (b). Congress enacted section 505 in response to

fears that the expense was dissuading handicapped employees from

vindicating their rights. The Senate Report accompanying section

505 gives irrefutable evidence that a section 503 private cause of

action is one of the tools that Congress expected would be used to

vindicate those rights. It proclaims, “(T)he availability of attorney's

fees should assist in vindicating private rights of action in. . .(sec-

tion) 503 cases...” S. Rep. No. 890, 95th Cong., 2d Sess. 19

(1978). Where congressional intent is discernable, the court must

give effect to that intent. Sinclair Ref. Co. v. Atkinson, 379 U.S.

195, 216 (1962). The Court of Appeals, in the present case, failed

to give credence to clear legislative pronouncement, Therefore, the

Court of Appeals has so far departed from the usual course of

judicial proceedings as to call for an exercise of this Court’s power

of supervision. The Court of Appeals relied on the case of Rogers

v. Frito Lay Inc., supra. However, the Fifth Circuit's decision fails

to consider the importance of the legislative history and has been

so criticized. See Note, 79 Mich. L. Rev. 1093, 1104-1105. The

attorney fees provision constitutes an unimpeachable statement by

Congress that it understood section 503 to include an implied pri-

vate remedy.

The Court of Appeals stressed the theory that the comprehen-

sive remedial scheme dictates against implying another remedy.

‘

atin

However, the Court of Appeals failed to consider that this Court

has supplemented an express administrative remedy with an

implied judicial remedy, most notably under Title VI of the Civil

Rights Act of 1964 and Tuie LX of the Education Amendments of

1972. Cannon v. University of Chicago, supra, at 694-703. There-

fore, the Court of Appeals has decided a federal qustion in a way

which conflicts with applicable decisions of this Court.

The writ should be granted to consider this important issue

concerning an implied cause of action.

PETITIONER HAS A COMMON LAW RIGHT TO SUE

FOR BREACH OF CONTRACT.

Petitioner submits that, even if §503 does not in itself create a

private cause of action, he has a common law right to sue for

breach of contract. The respondent has asserted that petitioner's

discharge was because petitioner failed to disclose injury to his

back or prior employment with the respondent. However, an agent

of the respondent told the petitioner not to mention these items.

The reason petitioner was told not to mention his prior medical

condition was because questions. pertaining to this subject are

illegal under 29 U.S.C.S. Section 793,41 CFR, parts 60-250, 70-

741. The respondent should be estopped to deny directions given

by its own age. Also, the Court of Appeals failed to find that the

petitioner is a taird party beneficiary to the respondent's contracts

with the United States Government. This theory of recovery has

never been addressed by this Court and should be considered in

order to determine if handicapped individuals have a right of

recovery.

UL

THE RAILWAY LABOR ACT IS NOT THE PLAIN-

TIFFS EXCLUSIVE REMEDY.

The Court of Appeals concluded that the petitioner could not

maintain suit in the district court because he is obligated, under the

Railway Laber Act, to seek relief primarily and exclusively

= a

through arbitration. However, since petitioner’s action is not based

on the collective bargaining agreement such a holding is in error.

The petitioner contends that his cause of action arises either under

the laws of the State of Oklahoma, as a matter of contract law, or

under the Rehabilitation Act of 1973. Thus, the case 1s distin-

guishable from Andrews v. Louisville & Nashville Railroad Co., 406

U.S. 320 (1972) relied on by the Court of Appeals.

Even if the Railway Labor Act was applicable, the petitioner's

claim would not be barred. The petitioner states that he was not a

member of the union. The petitioner was specifically told he could

not bring a grievance. In Vaca v. Sipes, 386 U.S. 171 (1967), this

Court said an employee shall be excused from having to exhaust

his administrative remedies if the employee can show that the

union breached its duty of fair representation in processing his

claim. A question never before considered by this Court is pre-

sented. Must the petitioner, as the Court of Appeals suggests,

name the union as a party to the lawsuit in order to claim the

exception? Petitioner suggests that there is no such requirement.

The Tenth Circuit Court of Appeals decision not allowing an

exception to petitioner appears to conflict with rulings of other

circuits. Kaschak v. Consolidated Rail Corp., 707 F.2d 902 (6th Cir.

1983); Schum v. South Buffalo Railway Co., 496 F.2d 328 (2d Cir.

1974). Thus, if the Railway Labor Act is applicable to the peti-

tioner, the Court of Appeals failed to follow the established proce-

dure and grant him an exception. However, petitioner believes that

the Act is inapplicable because he never was a member of the

union.

The Court is also faced with an issue never before addressed

by this Court—Does the Rehabilitation Act of 1973 provide a

personal cause of action which supplements remedies available in a

collective bargaining agreement. Petitioner believes his case is

similar to the action brought by the plaintifff in Alexander v. Gard-

ner-Denver Co., 415 U.S. 36 (1974), under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. Section 2000-e, claiming he was a

~~

victim of racial discrimination. This Court held that although the

plaintiff had gone through the grievance procedure provided under

the collective bargaining agreement and lost, that Title VII indi-

cated that a congressional attempt to allow the plaintifff to pursue

independently his rights under Title VII. The court concluded that

the statutory scheme provided a personal cause of action which

supplemented remedies in a collective bargaining agreement.

Respectfully submitted,

BEN A. GOFF

GLOYD L. McCOY

GOFF, MORRISON AND McCOY

1212 N.W. 50th

Oklahoma City, Oklahoma 73108

(405) 843-8401

Attorneys for Petitioner

May 1983

CERTIFICATE OF MAILING

On this 13th day of May, 1984, a true and correct copy of the

foregoing was deposited in the United States mail, postage pre-

paid, and mailed to Ronald Lane and John J. Fleps, 80 East

Jackson Boulevard, Chicago, Illinois 60604 and H.D. Binns. Jr..

735 First National Center West, Oklahoma City, Oklahoma 73102.

Everett E. HODGES, III,

Plaintiff-Appellant,

Vv.

The ATCHISON, TOPEKA AND SANTA

FE RAILWAY COMPANY,

Defendant-Appellee.

No. 82-2112.

United States Court of Appeals,

Tenth Circuit.

Feb. 13, 1984.

SETH, Chief Judge.

This appeal involves the discharge of Everett ©. Hodges, III

by the Atchison, Topeka and Santa Fe Railway Company. Mr.

Hodges was discharged during an initial probationary period

because of incorrect statements in his job application. He sued

Santa Fe for wrongful discharge asserting that the Rehabilitation

Act of 1973 (29 U.S.C. § 793) provides for a private right of

action such as he filed. Mr. Hodges appeals from the District

Court’s summary judgment in favor of Santa Fe.

The District Court found that Mr. Hodges could not maintain

his action based directly or indirectly on § 503 of the Rehabilita-

tion Act of 1973 because the statute does not provide for a private

right of action. Furthermore, the court held that it lacked jurisdic-

tion to entertain Mr. Hodges’ claim insofar as it was based on the

Railway Labor Act.

—e

Mr. Hodges argues ‘that a private right of action may be

implied from the language of the Rehabilitation Act, which states

in part:

Ҥ 793. Employment under Federal contracts

“(a) Amount of contracts or subcontracts; provision for

employment and advancement of qualified handicappe ! indi-

viduals; regulations

—10—

“Any contract in excess of $2,500 entered into by any

Federal department or agency for the procurement of personal

property and nonpersonal services (including construction) for

the United States shall contain a provision requiring that, in

employing persons to carry out such contract the party con-

tracting with the United States shall take affirmative action to

employ and advance in employment qualified handicapped

individuals as defined in section 706(7) of this title ..

“Administrative enforcement; complaints; investigations;

departmental action

“(b) If any handicapped individual believes any contractor

has failed or refuses to comply with the provisions of his

contract with the United States, relating to employment of

handicapped individuals, such individual may file a complaint

with the Department of Labor. The Department shall

promptly investigate such complaint and shall take such

action thereon as the facts and circumstances warrant, consis-

tent with the terms of such contract and the laws and regula-

tions applicable thereto.”

Whether § 793 creates a private right of action has been

considered by several courts of appeal, all of which have con-

cluded that neither the legislative history nor the Act in general

support the inference of Congressional intent to create a private

right of action. Meyerson v. State of Arizona, 709 F.2d. 1235, 1238

(9th Cir.1983); Davis v. United Air Line, Inc., 662 F2d 120, 123-

26 (2d Cir.1981); Simpson v. Reynolds Metals Co., Inc. 629 F.2d

1226, 1240-43 (7th Cir.1980); Rogers v. Frito-Lay, Inc., 611 F2d

1074, 1080-84 (Sth Cir.1980). As stated in Rogers:

“There is no intimation that every qualified handicapped per-

son has a right to affirmative action in his particular case;

what is apparent is that those who control federal contracts

have a duty to make and enforce contracts containing the

requisite clause. The handicapped may have simply the right

to petition those who adntinister federal contracts to perform

their duty.” va

Mr. Hodges argues that a private cause of action may be

implied from the passage of 29 U.S.C. § 794a which permits an

award of attorney’s fees to successful litigants under Title V of the

Act, which includes § 793(a):

“In any action or proceeding to enforce or charge a violation

of a provision of this subchapter. the court, in its discretion,

may allow the prevailing party, other than the United States,

a reasonable attorney’s fee as part of the costs.”

Section 505(b), 29 U.S.C. § 794a(b).

Mr. Hodges cites remarks made in 1978 by Senator Cranston

to show Congressional intent to create a private right of action.

The court in Rogers said of such statement that it was a commen-

tary and not part of the legislative history. Mr. Hodges argues also

that legislative history supports the inference of a private right of

action. However, under Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080,

45 L.Ed.2d 26, an implied right of action is only one of four

requirements which must be met in order to imply & remedy. The

Court in Cort said:

“In determining whether a private remedy is implicit in a

statute not expressly providing one, several factors are rele-

van. First, is the plantiff ‘one of the class for whose especial

benefit the statute was enacted.’ Texas & Pacific R. Co. \.

Rigsby, 241 U.S. 33, 39 [36 S.Ct. 482, 484, 60 L.Ed. 874]

(1916) (emphasis supplied)—that is, does the statute create a

federal right in favor of the plantiff? Second, is there any

indication of legislative intent, explicit or implicit, either to

create such a remedy or to deny one? See, e.g., National

Railroad Passenger Corp. v. National Assn. of Railroad

Passengers, 414 U.S. 453, 460 [94°S.Ct. 690, 694, 38

L.Ed.2d 646] (1974) (Amtrak). Third, is it consistent with the

underlying purposes of the legislative scheme to imply such a

remedy for the plantiff? See, e.g., Amtrak, supra; Securities

Investor Protection Corp. v. Barbour, 421 U.S. 412, 423 [95

S.Ct. 1733, 1740, 44 L.Ed.2d 263] (1975); Calhoon v. Har-

vey, 379 U.S. 134 [85 S.Ct. 292, 13 L.Ed.2d 190] 11964).

And finally, is the cause of action one traditionally relegated

to state law, in an area basically the concern of the States, so

that it would be inappropriate to infer a cause of action based

—- 2...

solely on federal law? See Wheeldin v. Wheeler, 373 U-S.

647, 652 [83 S.Ct. 1441, 1445, 10 L.Ed.2d 605} (1963); cf.

J.1. Case Co. v. Borak, 377 U.S. 426, 434 [84 S.Ct. 1555,

1560, 12 L.Ed.2d 423] (1964); Bivens v. Six Unknown Federal

Narcotics Agents, 403 U.S. 388, 394--395 [91 S.Ct. 1999,

2003-2004, 29 L.Ed.2d 619] (1971); id., at 400 [91 S.Ct. at

2006] (Harlan, J., concurring in judgment).”

On this point, the comprehensive remedial scheme provided

in the statute dictates against implying another remedy. Mr. Hodges"

does not even address these other factors. We find no implied right

or remedy in the statute.

We have considered Mr. Hodges’ argument that he is a third-

party beneficiary under the provisions in Santa Fe’s federal con-

tracts which prohibit discrimination against the handicapped,

pursuant to § 503. This is but another aspect of the implied right

of action argument. See Hoopes v. Equifax, Inc., 611 F.2d 134, 135

(6th Cir. 1979).

Mr. Hodges further contends that the Railway Labor Act does

not bar his action because it is based on a common law contract

rather than a collective bargaining agreement and because the

union’s alleged misconduct excuses resort to the National Railroad

Adjustment Board.

Section 3 of the Railway Labor Act, 45 U.S.C. § 153, has

been interpreted to confer primary and exclusive jurisdiction of

railroad employees’ labor contract disputes to the National Railroad

Adjustment Board and the public law boards. Andrews v. Louisville

& Nashville R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95:

Order of Conductors v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90

L.Ed. 318. Even though Mr. Hodges alleges breach of an employ-

ment agreement and not the collective bargaining agreement itself

he is still obliged to seek relief primarily and exclusively through

arbitration. Andrews, 406 U.S. at 322-24, 92 S.Ct. at 1564-65.

Mr. Hodges asserts that because he was not a union member

the collective bargaining agreement cannot control his contract

claim. However, Mr. Hodges’ employment in the craft governed

by the applicable coilective bargaining: agreement makes him sub-

—, oe

ject to the terms and conditions of employment obtained in the

agreement, and the collective bargaining agent was obliged to rep-

resent him. Vaca v. Sipes, 386 U.S. 171. 177, 87 S.Ct. 903, 909,

17 L.Ed.2d 842; Steele v. Louisville & Nashville R. Co., 323 U.S.

192, 202-04, 65 S.Ct. 226, 231-33, 89 L.Ed. 173. Thus, his

union membership is irrelevant to the applicability of the collective

bargaining agreement. The existence of a comprehensive federal

scheme for the settlement of employer-employee disputes in the

railroad industry preempts state law action for wrongful discharge.

Magnuson v. Burlington Northern, Inc., 576 F.2d 1367 (9th

Cir. 1978).

Mr. Hodges asserts that because the union breached its duty

of fair representation he is excused from pursuing his claim

through administrative procedures. This argument is based on the

reasoning developed in “hybrid” cases in which the employee sues

both the employer and the union because they allegedly combined

in some ways to obtain or maintain the discharge. Richins v. South-

ern Pacific Co., 620 F2d 761 (10th Cir.1980). In the present case

Mr. Hodges neither named the union as defendant nor alleged any

collusion between the union and Santa Fe to effect his discharge.

We discussed in Richins the proper disposition of a case

involving an employer-employee dispute if the union were not

named as a defendant:

“If this suit had been brought against the Railroad only, we

would have no difficulty in determining the proper disposi-

tion. The dispute between plaintiffs and the Railroad is

clearly a ‘minor’ one—that is, ‘between an employee or

group of employees and a carrier or carriers growing out of

grievances or out of the interpretation or application of agree-

ments concerning rates or pay, rules, or working conditions.’

45 U.S.C. § 153 First (i). As the Supreme Court has emphat-

ically told us, ‘Congress considered it essential to keep these

so-called ‘minor’ disputes within the Adjustment Board and

out of the courts.’”

Thus plaintiff must pom, he administrative remedies.

AFFIRMED.