Petition — Peterson v. Chicago & Eastern Illinois Railroad

Supreme Court brief1983

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85-652

No. 83-

IN THE

Supreme Court of the United States

OcTOBER TERM, 1983

PauL W. PETERSON,

Petitioner-P/zintiff-A ppellant,

VS.

CHICAGO AND EASTERN ILLINOIS RAILROAD

COMPANY, TRANSPORTATION-COMMUNICATION

EMPLOYEES UNION, SySTEM Division No. 34

and TRANSPORTATION-COMMUNICATIONS

DivisiION, BROTHERHOOD OF RAILWAY,

AIRLINE AND STEAMSHIP CLERKS, FREIGHT

HANDLERS, Express AND STATION EMPLOYEES,

Respondents-Defendants-A ppellees.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JAMES B. WHAM

WHAM & WHAM

Attorneys at Law

212 East Broadway

P. O. Box 549

Centralia, Illinois 62801

(618) 532-5621

Attorneys for Petitioner-Plaintiff-

Appellant, Paul W. Peterson

ass PEA oe TE

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

Office -Supteme C

curt, US,

OCT 45 1983

ALEXANUER (. STEVAS,

QUESTIONS PRESENTED

Petitioner Peterson was denied an award against his

employer, defendant Railroad, by the National Railroad Ad-

justment Board, Third Division, under the Railway Labor Act

(45 U.S.C. Section 152, 153) on his claims that Railroad

violated the Collective Bargaining Agreement by wrongfully dis-

qualifying him from his first shift telegrapher’s position and

then by wrongfully discharging him from employment with the

Railroad.

Defendant Union twice refused to represent Peterson before

the Board, although each time requested to do so, and through

its acts and omissions, aided Railroad in obtaining its favorable

awards from the Board.

Peterson, in the District Court action, demanded trial by jury

against both defendants for damages growing out of the

Union’s breach of its duty of fair representation to him, which

seriously tainted and undermined the arbitral process, thus

removing the bar of finality of the award, and permitting

recovery of damages against Railroad in the District Court for

its wrongful acts.

Summary Judgment was granted by the District Court for

both defendants and affirmed on appeal by the United States

Court of Appeals for the Seventh Circuit.

The questions presented are:

A. Was there a material issue of fact as to whether Union

breached its duty of fair representation to Peterson, thus under-

mining the integrity of the arbitral process, tainting the Board’s

decision and removing the bar of finality of the Board’s award

against Peterson, thus permitting trial by jury for damages

against both defendants in the District Court?

B. By the guarantee of the Seventh Amendment to the Con-

stitution of the United States and within the meaning of Rule

56, Fed.R.Civ.Proc., should not the jury rather than the judge

draw the inferences from the facts to determine the Union’s

motive in refusing to represent Peterson before the Board and in

aiding Railroad to obtain an award against Peterson?

C. Would it not be a violation of the due process clause of the

Fifth Amendment for the Board’s railroad members to have

automatically voted against Peterson as a matter of practice so

as to deadlock the Board, thus permitting the case to be decided

by a referee?

D. If, on the other hand, the vote of the Board was not that

of an automatic deadlocking procedure, would not the

unanimous vote of the Board’s union members constitute

evidence from which a jury could draw a reasonable inference

that Peterson was prejudiced by the Union’s bad faith refusal to

appear for him before the i*oard, thus signaling to the Railroad

members of the Board that L/nion did not believe in Peterson or

his claims?

E. Assuming Peterson is entitled to a jury trial against Union

for breach of its duty of fair representation, should not the jury

rather thatn the judge also be permitted to draw inferences from

the facts in determining whether Railroad wrongfully dis-

qualified and discharged Peterson and to weigh the facts

without considering the Board’s denial of Peterson’s claims

against Railroad?

In determining whether Union breached its duty of fair

representation to Peterson, is the rigid standard of intention#!

misconduct adopted by the United States Court of Appeals for

the Seventh Circuit in Graf’ which the Court followed in the ins-

tant case rather than the less stringent standard previously

followed by the Seventh Circuit in Ba/dini? and other circuits to

be the standard contemplated by this Court in Vaca’ and

Hines*.

' Graf v. Elgin, Joliet & Eastern Railway Co., and Brotherhood of

Railway Carmen, Local No. 882, Case No. 82-1864, Seventh Circuit

Court of Appeals (decided January 7, 1983, unpublished copy Appen-

dix F at page A-58.

? Baldini v. Local Union No. 1095, Intern. U., etc., 581 F.2d 145,

151 (7th Cir. 1978).

> Vaca v. Sipes, 386 U.S. 171.

‘Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 7 L.Ed.2d 231.

TABLE OF CONTENTS

IN 6. ca sre sv cuudl iveasesuencechas’

ry earn kd Obi de nwad aun 96 Oh kee

SIS firktemrorie ile es og Waa noe Bole debe

ee ee. Ct ataradi aad aie a

I ea ba nietee ho aw ae

meen Tor Giramting the Writ... occ ccc cccccccecece

Peterson Has Been Erroneously Deprived Of

His 7th Amendment Right To A Trial By Jury

And In Violation Of Fed.R.Civ.Proc. 56 ....

The Seventh Circuit Has Adopted An Er-

roneous Standard To Determine Whether

Union Breached Its Duty Of Fair Representa-

ee ee ee ee

rE cucu we can sebes wun

Appendices:

Order of United States Court of Appeals,

Seventh Circuit, filed May 10, 1983, affirming

final Order of the United States District Court

Petition for Rehearing filed in tne United

States Court of Appeals, Seventh Circuit ....

Order of United States Circuit Court of Ap-

peals, Seventh Circuit, denying Petition for

Rehearing dated July 21, 1983 .............

Order of United States District Court for the

Southern District of Illinois granting Sum-

REET SUE 6.5. ot v ovvsndanea tah htaneeas

A-l

E. Statement of facts relied on by Plaintiff-

Petitioner-Appellant Peterson in the United

States Court of Appeals for the Seventh Cir-

EEE Sikoniede coeasoin sande heecennaeee A-40

F. Opinion of the United States Court of Ap-

peals for the Seventh Circuit in the case of

Graf v. Elgin, Joliet and Eastern Railway

Co., and Brotherhood of Railway Carmen,

Local No. 882, decided Jan. 7, 1983 ........ A-58

G. Letter of Leighty to Hayes dated January 26,

PR EN. co cncncasananeanenens A-77

H. Letter of Hayes to Railroad of August 7, 1965

SE SP i cnx vuseecvwtecaeeneneewan A-80

I. Letter of Hayes to Railroad of August 18,

PEE: wié'npas Wakeb occu ss de ea OIE A-82

J. Letter of Hayes to Railroad of October 26,

SE PEED 6 5 oss wacccaeeasaneiteune A-84

rr A-85

TABLE OF AUTHORITIES CITED

Page

Baldini v. Local Union No. 1095, Intern. U., etc., 581

aes S00 BSE Ce Gt, Bere onc eneaccanutenes 10,27,28

Beriault v. Local 40, Super Cargoes & Check, of I.L.

& W.U., 501 F.2d 258 (9th Cir. 1974) ............ 27

Farmer v. ARA Services, Inc., 660 F.2d 1096, 1103

Se Gls SUED bc a viene ons kcccceswereienven 27

Foust v. International Brotherhood of Elec. Workers,

57a FAG TO, 763 iG Coe. ISPD. Snncctivivacwen 27

—

Vii

Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077,

87 L.Ed. 1458, 1474 (1943) (dissenting opinion) ... 8

Glover v. St. Louis-San Francisco R. Co., 393 U.S. 324,

89 S.Ct. 548, 21 L.Ed.2d 519, 523, 524(1969)..... 6

Graf v. Elgin, Joliet and Eastern Railway Co., and

Brotherhood of Railway Carmen, Local No. 882,

slip opinion at 11 (7th Cir. January 7, 1983) ...... 6,16,

26,28,29

Griffin v. United Auto Workers, 469 F.2d 181, 183

NT ED Foo. wileice cc eesputdsanantinee war 27

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 566,

EE SO RUPON soso v tetas vevesuendbe secs 9,29

Hoffman v. Lonza, 658 F.2d 519 (7th Cir. 1981)....... 27

Kesner v. National Labor Relations Bd., 532 F.2d 1169,

os oe a ee ere 19

Margetta v. Pam Pam Corp., 501 F.2d 179, 180 (9th

eS ac nae oi pia dra el eee ROME 29

Miller v. Gateway Transport Co., 616 F.2d 272 (7th

Os ue hc kb hohe ows nid nook caawlaedee 27,28

Poller v. Columbia Broadcasting System, 368 U.S. 464,

82 S.Ct. 486, 7 L.Ed.2d 458, 461 (1962).......... 9

Robesky v. Quantas Empire Airways, Ltd., 573 F.2d

a RE EP Oe rer re ee 27,28

Ruzicka v. General Motors Corp., 523 F.2d 306 (6th

EE Sdn Sc Sin) dine sso So-0 Ns wed eee PA ee 27

Ruzicka v. General Motors Corp., 649 F.2d 1207 (6th

EN Pa a bin lea iwa 4 pind. 6 xe ee ee 27

Steele v. Louisville & Nashville R. Co., 323 U.S. 192,

199, 204, 65 S.Ct. 226, 89 L.Ed. 173 (1944) ....... 6

Vili

Vaca v. Sipes, 386 U.S. 171, 191-193, 87 S.Ct. 903, 17

LEED on ocd va vicndunvlapaawoGaran 9,25,29

CONSTITUTIONAL AND STATUTORY PROVISIONS

Rule 56, Fed.R.Civ.Proc., Title 28 U.S.C.A. ......... 9

ee Be a OC ATIGLA) oo vince cb acwcnenes 3

Dee Ae OA, BORO ESSE) a occ ced de cccccenns 6

ie EE oe A: eee ere er 3

Title 45 U.S.C.A. Section 153 First (i), (m) and (q)..... 3,6,21

Rule 17(a), Supreme Court Rules, Title28U.S.C.A.... 3,29

Constitution of the United States, Amendment VII .... __ ii,8,9

Constitution of the United States, Amendment V...... ii

No. 83-

IN THE

Supreme Court of the United States

OcTOBER TERM, 1983

PauL W. PETEPSON,

Petitioner-Plaintiff-Appellant,

Vou

CHICAGO AND EASTERN ILLINOIS RAILROAD

COMPANY, TRANSPORTATION-COMMUNICATION

EMPLOYEES UNION, SYSTEM Division No. 34

and TRANSPORTATION-COMMUNICATIONS

Division, BROTHERHOOD OF RaiLway,

AIRLINE AND STEAMSHIP CLERKs, FREIGHT

HANDLERS, Express AND STATION EMPLOYEES,

Respondents-Defendants-Aprpellees.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, Paul W. Peterson, respectfully prays that a writ of

certiorari issue to review the Judgment and Order of the United

States Court of Appeals for the Seventh Circuit.

An appeal to the Seventh Circuit was taken from the final

Order of the United States District Court for the Southern

District of Illinois rendering summary judgment in favor of the

defendants, Chicago and Eastern Illinois Railroad Company

(the ‘‘Railroad’’), now merged with the Missouri Pacific

Railroad Company, and the Union, now renamed and merged

with the defendant, Brotherhood of Railway, Airline and

oe, on

Steamship Clerks, Freight Handlers, Express and Station

Employees (the ‘‘Union’’), in a suit wherein the plaintiff-

petitioner Peterson sought money damages, reimbursement of

lost wages and reinstatement of his position against his

employer, the defendant-respondent Railroad, and money

damages against the defendant-respondent Union. Peterson’s

suit against Union is for breach of its duty of fair representation

to him, thus tainting and removing the bar of finality of the Na-

tional Rai'road Adjustment Board Award rendered in favor of

Railroad. In view of Union’s breach of its duty to Peterson

removing said bar, the suit against Railroad is for breach of the

governing Collective Bargaining Agreement in wrongfully

removing and disqualifying Peterson from his first shift posi-

tion as telegrapher and wrongfully dismissing him as an

employee of the Railroad.

The Seventh Circuit, in affirming the District Court, ruled

that Petitioner Peterson failed to show that there are any

material facts which might be resolved by a jury at trial

establishing that Union breached its duty of fair representation

to its member, Peterson, thus preventing recovery against both

defendants as a matter of law.

OPINIONS BELOW

The Judgment and Order of the United States Court of Ap-

peals for the Seventh Circuit filed May 10, 1983, affirming the

final judgment of the District Court of the United States for the

Southern District of Illinois, appears as Appendix A hereto.

The Judgment and Order is unpublished. Petition for Rehear-

ing, timely filed on May 24, 1983, by petitioner-plaintiff-

appellant, Paul W. Peterson, was denied on July 21, 1983,

which Petition for Rehearing appears as Appendix B hereto,

and the Court’s Order denying Petition for Rehearing appears

as Appendix C hereto. The Order of the United States District

Court for the Southern District of Illinois granting Summary

Judgment for defendants, which was affirmed on May 10, 1983,

appears as Appendix D hereto.

se A le

JURISDICTION

The Judgment of the United States Court of Appeals for the

Seventh Circuit was entered May 10, 1983, rehearing was denied

on July 21, 1983. The jurisdiction of this Court is invoked under

28 U.S.C. Sec. 1254(1) and 45 U.S.C.A. Sec. 153 First (i) and

(m) and (q), and 28 U.S.C.A. 1337. Also, the standard applied

by the United States Court of Appeals for the Seventh Circuit in

this case conflicts with the standard applied by other Circuits in

determining whether Union has breached its duty of fair

representation, which conflict should be resolved by this Court

so that a uniform standard will be applied in all Circuits. Rule

17(1) (a), Supreme Court Rules, Title 28 U.S.C.A.

STATUTES INVOLVED

The statutes and constitutional provisions involved are set

forth in Appendix K attached hereto.

STATEMENT OF THE CASE

Petitioner-plaintiff-appellant, Paul W. Peterson, was

employed as a telegrapher by the defendant, Chicago and

Eastern Illinois Railroad Company (the ‘‘Railroad’’), now

merged with the Missouri Pacific Railroad Company, at the

Wansford Yard near Evansville, Indiana from 1946 to 1965. On

December 23, 1964, Railroad suddenly and without notice,

removed and disqualified Peterson from his first shift operator

position. Railroad contended he had delayed transmission of

consist reports to the Chicago Office, which contention was

disputed by Peterson. A hearing was held on January 11, 1964,

at which Peterson was represented by his Union, now renamed

and merged with the defendant, Brotherhood of Railway,

Airline and Steamship Clerks, Freight Handlers, Express and

Station Employees (the ‘‘Union’’).

At this hearing, General Chairman Hayes, Union represen-

tative appearing for Peterson, strongly supported Peterson as

follows:

See

‘*Peterson was suspended from work on December 23rd,

two days before the Christmas Holidays, without any war-

ning or reason, presumably account the Piggyback consist

was not transmitted promptly that day. Yet, as Peterson

informed Mr. Cable, he could not send it until the

Lineman completed repairs to the equipment. So, he was

suspended from his position and declared unqualified even

though he was not at fault.

‘*Mr. Peterson has been an employee of this railroad for

nearly twenty years. Needless, to say, Peterson was shock-

ed by the notice that he was disqualified, knowing that he

hadn’t done anything to merit it. It was at his represen-

tative’s suggestion that he went to Chicago Heights on

January Sth, to ascertain what the trouble was and to try

and see if it couldn’t be disposed of. However, as a condi-

tion of his return to his assignment, he was presented with

an affidavit to sign that not only would have admitted he

was guilty of some wrong-doing, but would have per-

manently disqualified him for any reason, even one over

which he had no control. He did not sign the affidavit as

any reasonable intelligent person would refuse to do.

‘*Therefore, by the carrier’s action in suspending him from

work two days before Christmas for something over which

he had no control, and without endeavoring to ascertain

why the consist was not sent promptly on December 22,

and by not permitting him to resume work after being ap-

prised of the facts without his signing a binding affidavit,

we can only conclude that without question, there is pre-

judice against him.

“It is, therefore, the position of the Employees that the

carrier is not only in violation of the discipline rule when it

suspended him without a hearing under the disguise of dis-

qualification, but violated = suspension from work rule;

the Guarantee rule; the seniority rule, as well as related

rules, and is liable for wages lost and penalties for each day

that he is held off his rightfully owned assignment.’’ (A

141, 142) (Amended Supplemental Petition Exhibit ‘*M’’,

A 44).”’ (Appendix E, pages A-44 - A-45)

His disqualification was nevertheless affirmed by the

Railroad and again affirmed on appeal to higher officers of the

Railroad.

After being disqualified from his position as first shift

operator, he was subsequently discharged by the Railroad which

was likewise affirmed on appeal to higher officers of the

Railroad.

Peterson requested that Union appeal Railroad’s decisions on

these grievances to the National Railroad Adjustment Board

under the provisions of the Railway Labor Act. The Union kept

under advisement Peterson’s request until af.cr the deadline for

the appeal on the disqualification claim, November 15, 1965,

had passed.

After the deadline had expired, the Union President, G. E.

Leighty, on January 26, 1966, wrote a letter to General Chair-

man He ‘es, who represented Peterson on his grievances, and in-

structed him that the Union would not take the appeal (Appen-

dix G). On January 28, 1966, Hayes informed Peterson of

Union’s decision. This was Peterson’s first notice that Union

had decided to abandon his case.

Peterson then attempted to take the appeal himself. The dis-

qualification grievance was denied by the Board on the ground

that the appeal was not timely filed, and the dismissal grievance

was also denied (Appendix D).

Dissatisfied with the result, Peterson filed for judicial review

of the Board’s decisions in the United States District Court on

July 11, 1968, and thereafter filed his Amended Petition in the

same action seeking relief against Union for breach of the duty

~<a

of fair representation and against Railroad for damages

resulting from the wrongful disqualification and discharge (Ap-

pendix 4). Peterson demanded trial by jury on those counts.

The jurisdiction of the District Court was invoked under 45

U.S.C.A. Sec. 153 First (i) and (m) and (q), and 28 U.S.C.A.

Sec. 1331 (a) and 1337. Steele v. Louisville & Nashville R. Co.,

323 U.S. 192, 199, 204, 65 S.Ct. 226, 89 L.Ed. 173 (1944);

Glover v. St. Louis-San Francisco R. Co., 393 U.S. 324, 89

S.Ct. 548, 21 L.Ed.2d 519, 523, 524, and also, Graf v. Elgin,

Joliet & Eastern Railway Co., and Brotherhood of Railway

Carmen, Local No. 882, Case No. 82-1864, Seventh Circuit

Court of Appeals (decided Jan. 7, 1983, unpublished copy Ap-

pendix F), cited in the Circuit Court of Appeals Order in this

case, support jurisdiction of the District Court.

The District Court, at Union’s request, realigned Union as

party plaintiff with Peterson on the review of the Board’s

Award and on May 4, 1976, ordered the case remancled to the

Board for a hearing on both claims. The Court also, at Union’s

request, stayed proceedings on the fair representation claim

against Union and on the common law counts against the

Railroad pending the determination of the Board’s action on

Peterson’s grievances against Railroad (Appendix D). Again,

Peterson requested Union to appear on his behalf before the

Board, and Union again refused to do so.

On January 11, 1980, after many depositions had been taken

during which Union sided with Railroad against Peterson on

Peterson’s claims against Railroad (Appendix E, pages A-55 -

A-57), the Board denied both the disqualification and dismissal

grievances. Peterson again appealed to the District Court and

was permitted to file additional counts against Union for breach

of its duty of fair representation prior to and during the Board

proceedings, which included charges that Union assisted

Railroad in examination of witnesses in depositions ‘“‘in an

adversary manner against petitioner;’’ in refusing to appear for

and represent petitioner in the proceedings before the National

Railroad Adjustment Board (the ‘‘Board’’) on remand; in tak-

ing positions ‘‘contrary to the best interest of petitioner’? with

respect to interpretation of the collective bargaining agreement;

and in withholding support and representation from petitioner,

‘*knowing that such withholding would have an adverse effect

on petitioner’s cause,’’ before the Board. (Appendix D)

On March 10, 1982, the District Court granted the Summary

Judgment motions filed by Railroad and Union on all Counts

(Appendix D). Peterson filed a Motion for New Trial conten-

ding that the judgment so rendered erroneously deprived him of

his right to trial by jury against both Railroad and Union. The

District Court denied the Motion for New Trial on May 12,

1982.

Peterson appealed the District Court’s Summary Judgment

Order to the United States Circuit Court of Appeals, Seventh

Circuit. On May 10, 1983, the Seventh Circuit entered an Order

affirming the District Court, and on July 21, 1983, denied

Peterson’s timely filed Petition for Rehearing (Appendix A,

Appendix B, Appendix C).

The facts relied on by Peterson supporting his right to trial by

jury against Railroad and Union in the Seventh Circuit Court of

Appeals are set forth in Appendix E, inasmuch as no analysis of

the evidence, taken in the light most favorable to Peterson, ap-

pears in the Court’s Order, thus necessitating the reciting of

those facts in the appendix due to their length.

_ po

REASONS FOR GRANTING WRIT

Peterson Has Been Erroneously Deprived

Of His 7th Amendment Right To A Trial

By Jury And In Violation Of

Fed.R.Civ Proc. 56

Forty years ago, Mr. Justice Black called attention to the

‘*gradual process of judicial erosion which in one hundred fifty

years has slowly worn away a major portion of the essential

guarantee of the Seventh Amendment.’’ Galloway v. United

States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458, 1474 (1943)

(dissenting opinion).

Forty years later, the erosive process continues. It is apparent

from the Order entered by the United States Court of Appeals

for the Seventh Circuit in this case that the Court erred in mak-

ing highly significant factual conclusions that should have been

left for jury determination (Appendix A, pages A-2 - A-4).

Unless rules preventing such factual determination by judges

in summary judgment proceedings are followed and enforced,

the Seventh Amendment will one day stand only as a curiosity

piece—not a guaranteed right but as a watered down right

available only by way of judicial discretion.

Especially is this so in cases involving motive, intent and bad

faith acts and omissions of advocates, including unions charged

with representing people whose rights are at stake. This union

member, Peterson, was entitled to a good faith representation

by his union and the jury, not the judges, should determine the

motive of Union in its refusal to represent him.

Here, the significant facts establish that Peterson, a union

member, had a serious grievance with his Railroad employer

that involved his right to a position he fulfilled for a number of

years. In labor parlance, he owned the job as long as he could

i at

properly perform it. Who is to be the arbiter of his performance

and Railroad’s actions? Certainly not Union or Railroad. The

National Railroad Adjustment Board is supposed to be the ar-

biter un/ess Peterson's Union breached its duty of fair represen-

tation, tainting the Board’s decision, thus removing its bar of

finality. In such case, the jury becomes the arbiter of Peterson’s

performance and Railroad's actions. Vaca v. Sipes, 386 U.S.

171, 187, 17 L.Ed.2d 842 (1966); Hines v. Anchor Motor

Freight, Inc., 424 U.S. 554, 566, 47 L.Ed.2d 231 (1976).

Who is to determine whether the Union breached its duty?

Certainly not the Union, Railroad or Board. Shall it be the

judge or the jury?

The Seventh Amendment requires the District Court, the

Court of Appeals, and this Court to afford Peterson the right to

a trial by jury on this issue unless, under a proper determina-

tion, it can be said that no genuine issue remains for trial. As

stated in Poller vy. Columbia Broadcasting System, 368 U.S.

464, 82 S.Ct. 486, 7 L.Ed.2d 458, 461, speaking of Rule 56(c),

Fed.R.Civ.Proc.”’

** «the purpose of the rule is not to cut litigants off

from their right of trial by jury if they really have issues to

try.’ ”

Here, there really is an issue to try. It involves the motive of the

Union in its actions and nonactions toward Peterson. No Judge

should make a determination of Union's motives when a jury

trial has been demanded. As stated in Poller at page 464:

**...We believe that summary procedures should be used

sparingly in complex antitrust litigation where motives and

intent play leading roles,...’’

This is no less true in a case wherein a Union is charged with the

breach of its duty to fairly represent a union member. Motive

and intent play leading roles in determining whether Union

acted in good faith or bad faith in twice refusing to represent

Peterson before the Board and in its actions and maneuvers

designed to assist Railroad to bring about Peterson’s defeat

before the Board, thus hopefully rendering moot the Union’s

neglect in permitting the 9 month appeal limitation to run.

As stated by the Seventh Circuit in Ba/dini v. Local Union

No. 1095, Intern. U., etc., 581 F.2d 145 (7th Cir. 1978) at page

1S]:

**...Where a choice of inferences is possible from sum-

mary judgment materials, the inference must be drawn

that favors the party resisting summary judgment.... We

note also in this regard the sound axiom that questions of

motive, design and intent are particularly inappropriate for

summary adjudication...."’

The Seventh Circuit in the instant case neglected to follow its

own decision. Rather than according Peterson his Seventh

Amendment right to have the jury draw the inferences as to

Union’s motives, the Seventh Circuit erroneously decided, as a

matter of law, that the Union ‘‘clearly had the right to decide

not to pursue Peterson's grievance when it decided in good faith

that the grievance was not a meritorious one....’’ (Order, Ap-

pendix A, page A-5). (emphasis ours)

The facts presented to the Circuit Court of Appeals set forth

in Appendix E, pages A-40 - A-57, establish a factual basis from

which reasonable inferences could be drawn by a jury that the

Union’s decision to not appeal Peterson’s case was a bad faith

determination. The Seventh Circuit’s conclusion that Union’s

motives were good does not sweep away the counter-indicators

that conflict with that conclusion.

The jury could draw reasonable inferences from the

chronology of Union’s activities and comparison of Union’s

positions at different stages of this saga in determining the real

reason why Union discarded Peterson and withdrew its

representation at the most crucial time of his claim against

i Yee

From the facts, the jury could reasonably conclude that the

final decision of Union not to appeal to the Board was dictated

by Union’s motive of a self-interest cover-up rather than by a

good faith appraisal of the merits of Peterson’s claim against

Railroad. When the Union’s President Leighty, by his letter of

January 26, 1966 to General Chairman Hayes (Appendix G,

Exh. J-44), directed him to withdraw from further representa-

tion of Peterson, the nine months time limitation for appeal to

the Board on the disqualification claim had long since expired.

The November 16, 1965 deadline for filing the appeal could

therefore not be complied with by Peterson when he attempted

in vain to process his own appeal after being informed that his

Union would not do so. The Union knew this rule and knew it

had negligently permitted the time to elapse under the rule then

applicable.

Peterson had been informed by Hayes at the conclusion of

the disqualification hearing that he had a fifty-fifty case on ap-

peal (Appendix E, page A-50).

On September 7, 1965, he wrote to Leighty advising that he

wanted his case appealed and that there were many facts he

needed to give him at a personal conference. On September 10,

1965, Leighty replied that, ‘*...The decision to progress your

case to the Third Division will be made by this office, based

upon the facts and circumstances involved in the matter itself.’’

(Appendix E, page A-53). On October 12, 1965, Peterson went

to the Union office in St. Louis, Missouri to see Leighty, who

was not available, and talked to Dysert, a Union Official at the

Union office, and left an account of the facts in Leighty’s office

with Dysert. He again informed Dysert at that time that he

wanted his case appealed and requested to be informed whether

Union was with him or not. He heard nothing until January 28,

1966, when informed by Hayes at Leighty’s instructions that the

Union would no longer represent him, which message came long

after the Union had negligently permitted the time limit for an

appeal to expire on the disqualification claim (Appendix E, page

A-54).

—_. von

From these facts, the jury could draw the reasonable in-

ference that the Union made no good faith effort to plead plain-

tiff’s case and had arbitrarily and capriciously and in bad faith

refused to represent him before the Board after lulling him into

the belief that Union would appeal or notify him in time so that

he could do so himself.

It was in this context that the Union President Leighty

rewrote the facts in a self-serving effort to bolster and lend

credence to the Union’s reasoning for not proceeding further. It

indicates that the Union decision was colored by the self-interest

of the Union to avoid going forward with the case when Union

knew that it had negligently allowed the time limit to expire and

knew it would have been subject to public rejection by the

Board had the Union carried the matter forward. The hope of

the Union was that Peterson would not appeal. Union thought

he would quit—but he didn’t. The Court erred in ignoring this

rea, unable inference which the jury could have drawn from the

evidence.

The betrayal of Peterson by Union clearly appears from

Union's switch from initial support of Peterson to its ultimate

opposition against him. Such fast footwork of the Union is not

for the Court to ignore but for the jury to consider.

One example of the many switches in Union’s position ap-

pears in the comparison of the statements of General Chairman

Hayes and Union President Leighty as to Peterson’s refusal to

sign the ultimatum prepared by the Railroad January 4, 1965,

prior to the disqualification hearing of January 11, 1965, as a

condition for its restoration of Peterson to his first shift posi-

tion of employment.

Hayes, at the time of the hearing and before the appeal time

had been permitted by Union to expire, stated on behalf of

Peterson that any reasonably intelligent person would refuse to

sign the agreement since by signing, he would have ‘‘admitted

he was guilty of some wrongdoing”’ that would have ‘‘permant-

‘~

Pye...

ly disqualified him for any reason, even one over which he had

no control.’’ (Statement of the Case page 4). Again, on Hayes’

appeal of March 3, 1965 to the Railroad Official Lyons, Hayes

supported Peterson in his refusal to sign such an agreement in

even the modified form since ‘‘it would have committed him to

admitting guilt of some wrongdoing which he emphatically

denies, and we maintain that there was no evidence submitted to

prove him guilty of any offense.’’ (Appendix E, page A-52).

Leighty, on the other hand, in his letter of January 26, 1966

to Hayes instructing him to cease representation of Peterson,

made a false statement concerning the proposed agreement,

claiming that, ‘‘Carrier agreed to withdraw this condition from

their offer, leaving only the condition that Peterson cooperate

with the Carrier’’ (Exhibit J-44, Appendix G).

The jury could reasonably conclude that Leighty, in his haste

to wash the Union’s hands of Peterson, made a bad faith ap-

praisal of Peterson’s claim by completely ignoring the facts of

the wrongful disqualification and the Union’s position taken by

General Chairman Hayes at the January 11, 1965 hearing, and

through all appeals on the Railroad premises before Railroad

officials.

At that stage, long before Union had negligently permitted

the time limitation to expire, Hayes strongly supported Peter-

son, stating that Peterson ‘‘was suspended from his position

and declared unqualified even though he was not at fault’’ and

that ‘‘we can only conclude that without question, there is pre-

judice against him.’’ and ‘“‘therefore,...Carrier is not only in

violation of the discipline rule when it suspended him without a

hearing under the disguise of disqualification, but violated the

suspension from work rule; the Guarantee rule; the seniority

rule, as well as related rules, and is liable for wages lost and

penalties for each day that he is held off his rightfully owned

assignment.’’ (Statement of the case pages 4, 5, Appendix E,

page A-45).

Likewise, the jury could draw the inference that Leighty

made a bad faith appraisal of the Peterson grievance for

wrongful discharge. Leighty ignored the Union’s position stated

by Hayes on appeal of the dismissal charge to the Railroad Of-

ficials in his letter of August 7, 1965 that ‘‘Peterson’s dismissal

for ‘failure to report for work’, is not only unreasonable and

harsh, but all out of proportion...’’ and ‘‘that he himself can

determine his fitness for work, and the fact that during his twen-

ty years of service he was never disciplined for the same cause, is

evidence of his willingness to work when he is well.’ ’’, and ad-

vising that this was a bona fide claim and that the Union ‘‘can-

not accept your declination of this claim,...’’ (Hayes’ letters to

Railroad of August 7, 1965 (Exhibit J-39, Appendix H), August

18, 1965 (Appendix I), and October 26, 1965 (Exhibit J-42, Ap-

pendix J)).

Another self-serving position not dictated by a good faith ap-

praisal of the merits was Leighty’s argument that Peterson

refused to assume his obligation as an extra employee (Exhibit

J-44, Appendix G). There was not such obligation. Neither

Union nor Railroad could point to any provision of the Collec-

tive Bargaining Agreement that required Peterson to sign up on

the Extra Board while his wrongful disqualification claim was

being appealed.

Therefore, Leighty in his letter of January 26, 1266,

misrepresented the facts to suit the Union’s purposes when he

stated, ‘‘For reasons known only to Brother Peterson, he has

refused to return to work on his regular assignment and has also

refused to assume his obligation as an extra employee.’’ (Ap-

pendix G). Peterson had no regular assignment. He had been

wrongfully banned from performing his duties by the Railroad

and had been given no order to perform any other job.

Moreover, D. E. Lyons, the Assistant Director of Personnel

for the Railroad, admitted that there was no rule that required a

man of higher seniority t> bid in a job over a man of less seniori-

—15—

ty, and admitted that he knew of no telegrapher’s job open to

Peterson prior to his discharge in April, 1965 (Appendix E, page

A-47).

It is in such context that Union’s actions in thereafter slanting

everything against Peterson must be considered in its attempt to

cover and protect itself by adopting positions contrary to the in-

terest of Peterson, whereas prior to the expiration of the time

limit, General Chairman Hayes had stated the Union position

strongly in favor of Peterson (Statement of ihe case pages 4 and

5, Appendix E, pages A-44 - A-45).

The Union President Leighty’s self-serving contention that

Peterson’s claim lacked merit, contrary to the previous state-

ment of General Chairman Hayes favoring Peterson, is relied

on by Union as the reason for not appealing to the Board (Ap-

pendix G, Appendix E, page A-54, Appendix D, page A-23).

This contention presents the key issue of the case which shouid

be determined by the jury, not the judges.

Union’s situation is no different than that of a lawyer who

originally stated a strong belief that his client’s cause was

meritorious, but upon negligently allowing the Statute of

Limitations to run, conceals such fact from the client and turns

the case back with a lecture to the client that the case totally

lacked merit.

If the lawyer claimed that such a switch of opinion

represented his good faith appraisal of the client’s cause after

negligently allowing the Statute to run, he would be laughed out

of court.

If the real reason behind the Union’s evaluation of Peterson’s

claim against Railroad in refusing to take the appeal for him

was to bury the case so that its mistake in permitting the limita-

tion period to run would not be discovered, then the jury could

reasonably infer that the Union was not only negligent but also

was guilty of extreme bad faith in its failure and refusal to fairly

represent Peterson.

—

Such bad faith would then set the stage rendering suspect and

tainting all subsequent actions and non-actions of Union regar-

ding Peterson and his claim against Railroad. The Seventh Cir-

cuit clearly missed this point.

The Order states: ‘‘...this failure amounts at most to

negligence on the part of the Union, which does not suffice to

support a breach of the duty of fair representation in this cir-

cuit. Graf v. Elgin, Joliet & Eastern Railway, No. 82-1864, slip

op. at 11 (7th Cir. Jan. 7, 1983)....’’ (Appendix A, page A-5).

The Court then disposed of whatever Union error it found by

an erroneous rationale demonstrating the Court’s misconcep-

tion of its prerogative in the fact finding field. It drew inferences

from facts that should have been left for jury deliberation when

it concluded as follows:

**...Moreover, Peterson’s disqualification grievance

although it was initially dismissed by the Board as untime-

ly, was ultimately remanded by the district court for

rehearing; the Board then considered it upon the merits

and denied it. Thus the mistaken information which the

Union conveyed to Peterson about the period for an ap-

peal cannot be said in any way to have tainted the arbitral

process.’’ (Appendix A, pages A-5 - A-6)

In coming to this conclusion, the Court erroneously judged

Union’s motives rather than leaving such judgment to the jury.

The Court ignored the obvious effort of Union to bring about a

Peterson defeat of his claims against Railroad for the self-

interest of Union by the remarkable 180 degree switch from in-

itial support of Peterson to biatant support of Railroad.

How can it be said as a matter of law that the arbitral process

was not tainted under the facts and inferences favorable to

Peterson in this case? The issue presents a classic jury question

rather than an issue to be swept away by the Court in a flat

statement that the arbitral process was not tainted.

aie tT we

In the District Court action, Union was confronted with

potential liability for breach of its duty of fair representation to

Peterson growing out of the failure to appeal his case in time.

The facts before the Seventh Circuit (Appendix E, pages A-40 -

A-57),establish the basis for a reasonable inference that Union

embarked upon a bad faith effort to bring about the ultimate

defeat of Peterson in his claims against Railroad with intent to

render moot the case against Union.

First, the Union successfully persuaded the Court to realign

Union as plaintiff along with Peterson in the review hearing on

the Board’s denial of Peterson’s claim against Railroad. This

resulted in the Court’s order remanding both the disqualifica-

tion and discharge claims to the Board for a de novo hearing on

the merits (Appendix D).

Second, upon achieving that goal, the Union then succeeded

in removing itself from the direct line of fire in the common law

action of Peterson against Union by obtaining a stay of pro-

ceedings pending the Board’s determination on the merits of

Peterson’s claim against Railroad (Appendix D).

Third, the Union then refused to join with Peterson before

the Board against Railroad, although realigned as plaintiff with

Peterson and requested by Peterson to do so (Appendix A, Ap-

pendix E, page A-5S5).

Fourth, Union then pursued an adversary course against

Peterson and in favor of Railroad on the wrongful disqualifica-

tion and discharge issues—a wholly improper switch in position

from that which Union initially took while representing Peter-

son against Railroad in the grievance procedures on the

Railroad premises (Appendix E, pages A-55 - A-57).

Fifth, no sooner had Board denied Peterson’s claim in its se-

cond award of January 11, 1980, than Union, as predicted, took

the position that Peterson’s claim against it was moot. (Union

Motion for Summary Judgment, Record Vol. Ill, Document

—

103, Conclusion pages 23 and 24), and argued to the District

Court in support of its Motion for Summary Judgment that,

‘**The proximate cause of his disqualification from the first shift

telegrapher position was his failure to send certain reports to the

Carrier’s Chicago Office on December 22, 1965.’’, which

represents a complete change from its position stated by M. J.

Hayes, Union General Chairman, on the premises (Record Vol.

III, Document 104) (A 141, 142, 158) (Appendix E, page

A-57).

What was the Union’s motive in all this manipulation? The

jury could reasonably infer a bad faith motive designed to bring

about Peterson’s defeat before the Board on his claim against

Railroad, for the purpose of insulating Union from liability for

its initial neglect.

If this type of Union manipulation is to be rewarded, then the

entire process governing grievance procedures is a cruel charade

deserving nothing but scorn. Such Union conduct wouid never

persuade a jury that Union had fulfilled its duties of fair

representation.

After Union had, for its own self-interest, realigned itself as

plaintiff with Peterson against Railroad and obtained a stay of

proceedings of all claims against itself, the jury couid conclude

that Union, by its voluntary realignment, owed Peterson a duty

to appear with him and represent him before the Board on re-

mand so as not to prejudice him in the eyes of the Board.

After the Union’s realignment, Peterson requested Union to

appear with him before the Board. Notwithstanding the re-

quest, Union, however, again abandoned Peterson and refused

to appear for him before the Board on the issue that did not

then constitute a threat to the Union, but only to the Railroad,

namely, the disqualification and dismissal of Peterson by

Railroad, whi_i: Union had originally contended was wrongful.

Had Union appeared for Peterson in a good faith effori to help

him and not hurt him against Railroad, no detriment would

have resulted to the Union.

Once the Union realigned itself and made the successful at-

tempt to remand the case to the Board, it became duty-bound to

assist Peterson against Railroad before the Board. Any refusal

to do so after joining Peterson against Railroad would have the

same prejudicial effect on the Board against Peterson as if

Union had taken affirmative action designed to damage him.

This was not a conflict between Peterson and Union, but

rather a conflict between Peterson and Railroad which Union

should have continued to support before the Board as it had on

the Railroad premises.

There is a principle well stated in Kesner v. National Labor

Relations Bd., 532 F.2d 1169 (1976 7th Cir.), at page 1175, that:

**...It is venerable tort law that purporting to take action

where duty is nonexistent creates in itself certain duties, or

as the Board puts the matter, ‘it is a common-place of our

jurisprudence that those who act where they are not oblig-

ed to are nevertheless liable for misfeasence (sic) in the

course of their undertaking.’...’’

As stated in Kesner (page 1175):

**...When one’s own representative who has been willing

to assume that status proclaims a lack of merit, it is indeed

likely to be a coup de grace to the claim....”’

Silence oft times speaks louder than words. Where one is ex-

pected to speak if he supports the man and then withholds com-

ment, a reasonable inference can be drawn that he does not

believe in the man or his cause. This was the message Union in-

tended to signal the Board.

The jury could therefore conclude that the arbitral process

was tainted by Union’s arbitrary bad faith withholding of its

weight, prestige and assistance from Peterson, while at the same

time having realigned itself with him, thus indicating to the

Board the Union’s opposition to Peterson by its absence. It can-

— eo

not be said that such posture would be harmless to Peter-

son—nor can it be denied that harm was intended.

It is common sense that Peterson’s position would have been

enhanced by the presence of the Union on his side when his case

was considered by the Board made up of Union and Railroad

representatives. It is common sense that Peterson’s case was

damaged by Union’s indicated opposition by an absence and

silence which was the ‘‘coup de grace’’ to the claim. Therefore,

when Union voluntarily realigned with Peterson, the jury could

conclude that it had no right to then back off from him, know-

ing that such action would damage him.

Both the District Court and Court of Appeals misapprehend-

ed the inherent prejudice that resulted.

In erroneously rejecting Peterson’s contention that he was

prejudiced by Union’s absence, the District Court misap-

prehended the issue as is reflected by its rationale that, ‘‘He was

already represented by his present, very able counsel....’’ and

that, ‘Second, the claims were ultimately referred to an impar-

tial referee when the Board became deadlocked. It is apparent

that the plaintiff had the backing of his union in the voting, and

thereby obtained the further benefit of the referee.’’ (Appendix

D, page A-37).

The fact that Peterson had his own counsel is no answer to

this problem. Daniel Webster himself could not fill the void

created by Union’s absence nor overcome the signal given to the

Railroad Board members that the Union did not believe in

Peterson or his cause.

On the second point, an obvious dilemma arises from the

District Court’s rationale which Union adopted in its brief filed

in the Circuit Court of Appeals wherein it states:

“Obviously, the Union supported him before the Board

since without its vote the case would not have been

deadlocked and sent to the neutral referee.’’ (Union Brief,

page 39)

One of two results must necessarily follow. As stated in Peter-

son’s Petition for Rehearing in the Court of Appeals:

‘First, the inference arising from the vote of Union board

members supports Peterson’s contention that the case was

worthy of appeal and that such fact should be considered

by the jury, not the Court, in determining whether or not

the Union made a bad faith determination not to appeal on

behalf of Peterson. Secondly, in the event the acknowledg-

ment of Union hespeaks the fact that in all cases there is an

automatic deadlock between Railroad members of the

Board and Union members of the Board, then Peterson

did not receive a due process hearing inasmuch as the

Railroad board members would automatically deadlock

against Peterson. It necessarily follows in such event that

the whole system of hearings under 45 U.S.C.A. Sec. 153

represents an indefensible charade operating under the

guise of due process and that Peterson should therefore be

entitled to a jury trial irrespective of the holding of the

Board and irrespective of the position stated by Union and

Railroad concerning the statutory law governing the Board

since it is obvious that he has been denied a fair hearing

and due process as contemplated by the Fifth and Four-

teenth Amendments to the Constitution of the United

States....’’ (Appendix B, pages A-18 - A-19).

Union cannot have it both ways. Either the votes of Board

members were legitimate or they were the product of an ar-

bitrary deadlocking procedure violating due process and the

right to a fair hearing. Assuming that the Board’s voting pro-

cedure was legitimate, the jury could also conclude that had

Union not in bad faith withheld its support, at least one

Railroad Board member would have joined the Union Board

members, thus resulting in a favorable award for Peterson.

The Court of Appeals, in denying the Petition for Rehearing,

gave no answer to this dilemma. Either way it is determined, the

jury may draw inferences supporting Peterson’s position.

There is yet another factor that the jury should have the right

to consider. After Union had joined Peterson as a realigned

plaintiff, numerous depositions were taken at the insistence of

Union, the testimony of which was part of the record before the

Board. Union’s advocacy for Railroad and against Peterson on

the issue of disqualification and dismissal is apparent from these

depositions.

The jury could consider the contrast in Union’s position with

respect to R. O. Cable, who was the key witness for Railroad

against Peterson. General Chairman Hayes took a strong posi-

tion at the hearing on disqualification January 11, 1965,

favorable to Peterson and contrary to Cable. Years later on

September 28, 1977, Union’s counsel, however, throughout the

deposition of Cable, sought to bolster and support him as a

believable witness (Cable deposition filed November 4, 1977) in

the face of the obvious impeachment of Cable on his cross ex-

amination by counsel for Peterson. The jury could reasonably

infer from this switch that the Board would consider Cable’s

testimony in a much more favorable light than if Union had

maintained the critical position that General Chairman Hayes

had taken against Cable at the January 11, 1965 hearing. This

could not fail to prejudice Peterson’s case before the Board,

which prejudice, the jury could conclude, was the intent of

Union.

Other instances of Union’s assistance to Railroad and pre-

judicial conduct against Peterson is disclosed in Appendix E,

pages A-55 - A-57).

During Peterson’s cross examination of Burkhart at his

deposition on October 11, 1977, counsel for Union attempted to

prevent disclosure for use in cross examination of a discoverable

written memorandum in the possession of Burkhart containing

Burkhart’s conversation with counsel for Union, Alan B. Hoff-

man, prior to his testifying on deposition (pages 219-291,

Burkhart depo. filed Nov. 2, 1977). After the Memorandum

was finally produced, the following questioning took place:

— an

Q: And didn’t you tell Mr. Hoffman at that time—and

Mr. Hoffman is the attorney appearing on behalf of the

Union—with regard to the Petitioner, ‘It was unheard of

for someone to be taken off the job in this fashion?"’

A: Let me see that. Yes, I used those words.

Q: That was with regard to the disqualification of Peter-

son?

A: Yes. (Burkhart deposition p. 228)

Q: Now, at the time of your conversation with Mr.

Hoffman, did you tell him that after the disqualification

hearing January 11, 1965, that ‘‘hy this time Peterson did

seem to be in bad shape physically.’’?

A: That was my opinion. (Burkhart Deposition P 230)

Also, he admitted that on the second page of the memoran-

dum, he stated to Mr. Hoffman that there were two telegraph

wires to Chicago from Wansford, one was down about 10% of

the time and the other was dow'n about 40% of the time and that

on occasion, there were outages for a few hours at a time

(Burkhart deposition P. 228, 229). All of these facts were ob-

viously favorable to Peterson on his claims against Railroad.

Why should Union, through its counsel, seek to hide the

evidence from Peterson? The answer is clear. The Union, once

again, actively sought to defeat Peterson’s claim against the

Railroad by making a 180 degree switch of position from that

taken by Hayes in support of Peterson to one of balatant op-

position.

Also, during the Union’s questioning of D. E. Lyons, Assis-

tant Personnel Director of Railroad, counsel for Union stated

into the record with reference to Peterson: ‘‘Indeed if you are

going to sue for wrongful discharge, | hardly know how else

Carrier can argue to the response other than with the testimony

of the man who made the decision.’’ (Lyons deposition P. 43),

and later stated into the record that a man must ‘‘Obey first,

grieve second.’’ (Lyons Deposition P. 139) (Appendix E, page

A-55). This interjection was on an issue in dispute between

Railroad and Peterson and was clearly designed by Union to

assist Railroad and damage Peterson.

Later, Union's counsel asked if it wasn’t possible for

Railroad to have discharged Peterson for insubordination

rather than simply disqualifying him (Appendix E, page A-55).

This conduct of Union’s counsel was a clear indication to the

Board of Union's active opposition to Peterson in his claim

against Railroad which the jury could certainly believe had an

adverse effect on the Board against Peterson, thus tainting the

arbitral process.

The persistence of Union counsel’s antagonistic positions

against Peterson while formally realigned with him on issues in-

volving only his claim against Railroad, required objections

during the depositions by Peterson's counsel in protest of such

tactics, but to no avail. They continued unabated adding to

Union’s intended undoing of Peterson before the Board (Ap-

pendix E, pages A-55, A-56).

In its Order, the Seventh Circuit concluded that ‘‘adversary

behavior by the Union in its own defense surely cannot be con-

demned if entered into in good faith’’ (Appendix A, page A-5).

Here again, the Court erroneously assumed that such Union ac-

tions were done in ‘‘good faith’’. It is for the jury, not the

Court, to determine whether Union’s actions were good faith

efforts to defend itself or bad faith actions to damage Peterson

against Railroad.

The Court misapprehended the circumstances under which

Union would be entitled to conduct itself in an adversary man-

ner toward Peterson. Only in those matters wherein Peterson

and Union were at issue over Union's neglect in allowing the

time limitation to expire could Union legitimately attempt to op-

pose Peterson. This obviously does not involve the 180 degree

switch in positions heretofore referred to. In regard to the

wrongful disqualification and discharge claim of Peterson

against Railroad however, Union's efforts on behalf of the

Railroad cannot be characterized as good faith defensive actions

as a matter of law. The jury, not the judges, should determine

this issue.

The Seventh Circuit also misapprehended Vaca v. Sipes, 386

U.S. 171, at 191-193, referred to at page 3 of its Order, wherein

it characterizes Vaca as holding:

‘* . .unions are not required to press each grievance to

arbitration; rather, they are expected to evaluate and

screen grievances based upon assessments of their

SUIEy o:6ce”

This is not supportive of Union’s discard of Peterson if

Union did not make its assessment of the merits in good faith. It

cannot be said that all reasonable men would conclude, as did

the Court of Appeals, that Union ‘‘decided in good faith’’ that

the grievance was not a meritorious one,

The jury, from a consideration of the evidence taken in the

light most favorable to Peterson, cou'd reasonably find that

Union breached its duty of fair representation to Peterson, thus

undermining the integrity of the arbitral process, tainting the

Board’s decision and removing the bar of finality of the Board’s

Award against Peterson, thus precluding summary judgment.

As far as Railroad is concerned, the facts considered in the

light most favorable to Peterson regarding the Railroad’s

wrongful disqualification of Peterson from his first shift

telegrapher’s position and Railroad’s subsequent wrongful

discharge of petitioner from employment, clearly precludes

summary judgment on these two issues (Appendix E, pages

A-40-A-49). Those facts present a jury question.

The United States District Court, in granting Railroad’s Mo-

tion for Summary Judgment, did so on the ground that first, the

Union as a matter of law did not breach its duty of fair represen-

tation so as to taint the arbitral process, and second that the

Board’s award against Peterson precluded Peterson’s claim

against Railroad in the District Court (Appendix D, page A-39).

Thus, the District Court did not properly consider the facts ex-

clusive of the Board’s award in determining Peterson’s

wrongful disqualification and discharge claims against the

Railroad. To say that the denial of Peterson’s claims by the

Board puts an end to the case against Railroad ignores the fact

that both the issue of Union’s breach of duty and Railroad's

wrongful acts musi be considered simultaneously with no con-

sideration to be given to the Board’s award since its validity and

finality depends upon the determination of the Union’s breach

of duty.

The Court of Appeals likewise gave no consideration to this

phase of the case since it erroneously found, as a matter of law,

that the Board’s process was not tainted, and therefore did not

reach the issue or comment in its Order on evidence pertaining

to the wrongful acts of Railroad. The fact that the Board denied

Peterson’s claims is not to be considered in determining the

issues presented in this case. If the jury finds that the arbitral

process was tainted by Union’s breach of its duty of fair

representation, the Board’s decision is then clearly irrelevant

and should receive no consideration whatsoever in determining

whether Peterson is entitled to a jury trial against Railroad and

Union in this action.

The Seventh Circuit Has Adopted An Erroneous

Standard To Determine Whether Union Breached Its

Duty Of Fair Representation To Peterson

This case is far different than Graf v. Elgin, Joliet & Eastern

Railway Co., and Brotherhood of Railway Carmen, Local No.

— . oa

882, Case No. 82-1864, decided January 7, 1983 in the United

States Court of Appeals for the Seventh Circuit (unpublished

copy, Appendix F), cited by the Court in its Order (Appendix

A). Graf purports to follow Hoffman v. Lonza, 658 F.2d 519

(7th Cir. 1981). In each of those cases, the only action complain-

ed of was the Union’s simple forgetfulness of a deadline. No

contention was made in Graf or Hoffman that the Union acted

arbitrarily or perfunctorily or in bad faith or in any other way

than mere forgetfulness. Even in Hoffman, the concurring opi-

nion of Circuit Judge Cudahy held the question to be close.

The Seventh Circuit cases, namely, Miller v. Gateway

Transport Co., Inc., 616 F.2d 272 (7th Cir. 1980), Ba/dini v.

Local Union No. 1095, Intern. U., etc., 581 F.2d 145 (7th Cir.

1978), as well as those from other circuits, namely, Ruzicka v.

General Motors Corp., 523 F.2d 306 (6th Cir. 1975), Ruzicka v.

General Motors Corp., 649 F.2d 1207 (6th Cir. 1981), Robesky

v. Quantas Empire Airways, Ltd., 573 F.2d 1082 (9th Cir.

1978), Beriault v. Local 40, Super Cargoes & Check, of 1. L. &

W.U., 501 F.2d 258 (9th Cir. 1974); and Griffin v. United Auto

Workers, 469 F.2d 181, 183 (4th Cir. 1972); Foust v. Interna-

tional Brotherhood of Elec. Workers, 572 F.2d 710, 715 (10th

Cir. 1978); and Farmer v. ARA Services, Inc., 660 F.2d 1096,

1103 (6th Cir. 1981), establish standards that preclude summary

judgment on the issue of fair representation when there is any

evidence taken in the light most favorable to plaintiff upon

which a reasonable inference could be drawn that a union ar-

bitrarily ignored or perfunctorily processed a grievance. As

stated in Hoffman, concurring opinion, page 524:

‘* *Fgregious’ behavior (not necessarily intentional),

Robesky, 573 F.2d at 1089-91, apparently constitutes the

triggering level of conduct for a union’s breach of its duty

of fair represeriation... .’’

Also, as stated at page 524:

a vo

‘* . .The. . .appropriate standard, as set out by this

court in Baldini, is whether the union has been ‘guilty of

malfeasance and [whether] its conduct was within the

range of acceptable performance by a collective-bargaining

agent.’ (Baldini, 581 F.2d at 151 (quoting Hines, 424 U.S.

at 568, 96 S.Ct. at 1058)... .)”’

and as stated in Robesky, page 1090:

‘* . ,acts or omissions by union officials may be ar-

bitrary if they reflect reckless disregard for the rights of the

individual employee. . .’’ and ‘‘severely prejudice the in-

jured employee.”’

These are the standards that should have been, but were not,

followed by the Seventh Circuit.

It is apparent from the opinion in Graf (Appendix F, page

A-58), which is cited by the Court in its Order (Appendix A,

page A-S5), that the standard now applied by the Seventh Circuit

is more favorable to the Union than the standard previously

followed by the Seventh Circuit in the cases of Baldini v. Local

Union No. 1095, Intern. U., etc., 581 F.2d 145 (7th Cir. 1978),

and Miller v. Gateway Transport Co., Inc., 616 F.2d 272 (7th

Cir. 1980), as well as the standard followed by other circuits in

the cases heretofore cited. The Graf standard reads as follows:

‘**. . .The union has a duty to represent every worker in

the bargaining unit fairly but it breaches that duty only if it

deliberately and unjustifiably refuses to represent the

worker. .. .”” (Appendix F, page A-68)

In view of this obvious difference in the standards applied by

the Circuits, petitioner respectfully suggests that this Court’s

supervisory action is needed to resolve the conflict. This is par-

ticularly so in this case in view of the fact that here, the Presi-

dent of a large Union, not an hourly paid part-time Union

griever, was the person causing the damage to the Union

member Peterson. Surely the duty to be imposed on such a

union speaking through its President should require more of the

Union than the new Seventh Circuit test requires.

Nothing in Vaca v. Sipes, 386 U.S. 171, 191-193, 17 L.Ed.2d

842 (1966), and Hines v. Anchor Motor Freight, Inc., 424 U.S.

554, 566, 47 L.Ed.2d 231 (1976), indicates this Court’s intent

that such be the test. The Seventh Circuit, in announcing its new

standard in Graf, first cited and then avoided following Vaca.

At page 10 of the Graf decision (Appendix F, page A-67), the

Seventh Circuit stated:

‘*Vaca v. Sipes, 386 U.S. 171, 194 (1967), the Supreme

Court’s fullest discussion of the duty of fair representa-

tion, contains a pregnant dictum: ‘In a case such as this,

when [the worker with the grievance] supplied the Union

with medical evidence supporting his position, the Union

might well have breached its duty had it ignored [his] com-

plaint or had it processed the grievance in a perfunctory

manner.’ The dictum was repeated in Hines v. Anchor

Motor Freight, Inc., 424 U.S. 554, 568-69 (1976), ...”

One prime purpose of ceriiorari jurisdiction is to bring about

uniformity of decisions among Federal Courts of Appeal when

such conflicting tests between the circuits arise. Petitioner

therefore prays that this Court, under the provisions of

Supreme Court Rule 17(1)(a) grant review on Writ of Certiorari

sO as to establish a uniform standard to be followed in determin-

ing whether a union has breached its duty of fair representation

in representing members in disputes with the employer.

CONCLUSION

As stated in Margetta v. Pam Pam Corp., 501 F.2d 179 (9th

Cir. 1974) at 180:

‘* . ,it makes little difference whether the union subverts

the arbitration process by refusing to proceed as in Vaca or

follows the arbitration trail to the end, but in so doing

—_

subverts the arbitration process by failing to fairly repre-

sent the employee. In neither case, does the employe*

receive fair representation. The grievance procedure is

nothing less than a ‘sham’.

Such is the case here. The jury could clearly conclude the ar-

bitra! process was tainted by Union’s acts or omissions.

Thus far, Peterson has been erroneously deprived of a trial by

jury, to which he is entitled under the facts and law of this case.

He prays that this Court grant certiorari and then grant him the

right to a jury trial by reversing the summary judgment entered

by the District Court and Court of Appeals and remand the case

with directions that defendants be required to file their answers

so the case may proceed to trial before a jury against both

Railroad and Union.

Petitioner further prays that this Court grant certiorari so as

to review the conflict between the Seventh Circuit and other cir-

cuits and announce the proper test to be followed in determin-

ing whether a union has breached its duty of fair representation

to its member.

Respectfully submitted,

JAMES B. WHAM

WHAM & WHAM

212 East Broadway

P. O. Box 549

Centralia, Illinois 62801

(618) 532-5621

Attorneys for Petitioner-Plaintiff-

Appellant, Paul W. Peterson

— * pen

APPENDIX A

Unpublished Per Curiam Order

JUDGMENT — ORAL ARGUMENT

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

May 10, [983

Before

Hon. Wilbur F. Pell, Jr., Circuit Judge

Hon. Richard D. Cudahy, Circuit Judge

Hon. Richard A. Posner, Circuit Judge

No. 82-1895

Paul W. Peterson,

Petitioner-plaintiff-appellant,

Chicago And Eastern Illinois Railroad Company,

Transportation-Communication Employees Union,

System Division No. 34 And Transportation-

Communications Division, Brotherhood Of

Railway, Airline And Steamship Clerks, Freight

Handlers, Express And Station Employees,

Respondents-defendants-appellees.

Appeal from the United States

District Court for the Eastern

District of Illinois,

East St. Louis Division.

No. 68 C 99

Judge James L. Foreman

—_—

This cause was heard on the record from the United States

District Court for the Eastern District of Illinois, East St. Louis

Division, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND AD-

JUDGED by this Court that the judgment of the said District

Court in this cause appealed from be, and the same is hereby,

AFFIRMED, with costs, in accordance with the order of this

Court entered this date.

ORDER

Plaintiff-appellant, Paul W. Peterson, is a former employee

of defendant, Chicago and Eastern Illinois Railroad Co. (the

**Railroad’’), now merged with the Missouri Pacific Railroad

Company. After being disqualified from his position as first-

shift telegrapher and subsequently discharged by the railroad,

he grieved, appealed and ultimately lost his claim for reinstate-

ment and back pay. Peterson then asked the district court to

reopen and review the results cf the arbitration proceeding, on

grounds that his union, now renamed and merged with the

defendant Brotherhood of Railway, Airline and Steamship

Clerks, Freight Handlers, Express and Station Employees (the

**Union’’), had breached its duty of fair representation and thus

seriously undermined the arbitral process. The district court

granted summary judgment for the defendants. We affirm.

The plaintiff-appellant, Paul W. Peterson, was employed as a

telegrapher by the defendant railroad at the Wansford Yard

near Evansville, Indiana from 1945 to 1965. At the end of 1964,

he was disqualifi-d from the post of first-shift operator, on

grounds that he had failed properly to fulfill the duties of the

position by repeatedly delaying transmission of consist reports

to the Chicago office. A hearing on the disqualification was

scheduled for January 4, 1965, but then postponed in an at-

tempt at settlement. The railroad offered Peterson a letter

a po

agreement which wovu!d give him the right to return to his posi-

tion, on condition that the railroad had the right to remove him

if his performance continued to be unsatisfactory. He refused to

sign the proposed agreement. After the failure of these settle-

ment efforts, a hearing was held on January 11, 1965, at which

Peterson was represented by the Union. His disqualification was

nonetheless affirmed by the railroad. Thereafter, the Union fil-

ed a grievance, which was denied; the denial was appea’d, but

the grievance was again denied. In April of 1965, the Union

notified Peterson that it had decided not to submit his grievance

to the arbitration process provided by the Railway Labor Act,

and advised him to settle with the railroad.

After being disqualified from his position as first-shift

operator, Peterson was instructed by the railroad to perform

other duties. He refused. He did not reiurn to work, despite

several instructions to do so and without submitting medical

evidence of his inability to work. Consequently, a dismissal

hearing took place on April 15, 1965. Mr. Peterson represented

himself at this hearing, apparently not having asked the Union

to represent him. On April 15, 1965 he was dismissed for failure

to report to work. In May 1965, the Union grieved his dismissal,

seeking reinstatement and back pay for him. The grievance was

not resolved, however, through the internal grievance pro-

cedures; and on January 28, 1966, the Union told Peterson that

the Union had decided not to appeal his claim to the Railroad

Adjustment Board (‘‘Board’’), although he could do so in-

dividually by May 8, 1966. The Union’s decision was based on

its conclusion that Peterson’s grievance lacked merit.

The Railway Labor Act provides that disputes which are not

resolved between carriers and their employees (or employees’

representatives) may be referred to the Board for arbitration.

See 45 U.S.C. §§$ 152, 153 (1976). If the employee’s union does

not pursue the grievance on his behalf, moreover, the employee

is free to prosecute it on his own. See 45 U.S.C. § 153 First(i);

Essary v. Chicago & N.W. Transport. Co., 618 F.2d 13, 17.6

(7th Cir. 1980). However, the collective bargaining contract

governing Peterson at that time required that any appeal to the

Board be initiated by the employee or his representative within

nine months of denial of the grievance by the carrier. Thus,

although May 8, 1966, would have been timely for an appeal of

the dismissal, Peterson’s disqualification grievance had to have

been appealed by November 16, 1965. On May 5, 1966, Peter-

son appealed the denial of both grievances to the Board. The

disqualification grievance was denied on the grounds that the

appeal was not timely filed, and the dismissal grievance was

denied on the merits.

On July 11, 1968, Peterson appealed these denials to the

district court, and in May 1971 amended his appeal to include a

duty of fair representation suit against the Union. In an order of

May 4, 1976, the district court ordered the case remanded to the

Board for a hearing of both claims on their merits, realigning

the Union as a party plaintiff. On January 11, 1980, the Board

denied both the disqualification and the dismissal grievances on

their merits. Peterson then appealed again to the district court,

which entered summary judgment against him.

Il.

In his appeal, Peterson attempts, first, to reargue to us the

merits of his two grievances. However, in the absence of the

statutory grounds for judicial review of an Adjustment Board

award (none of which has been alleged here, see 45 U.S.C. § 153

First(q)), such awards are to be considered final and binding. 45

U.S.C. § 153 first(m); Kotakis v. Elgin, Joliet & Eastern

Railway, 520 F.2d 570 (7th Cir.), cert. denied, 423 U.S. 1016

(1975). A court will reweigh the outcome of a final and binding

arbitration only if the arbitral process has been tainted, or

seriously undermined, dy union conduct which is ‘‘arbitrary,

discriminatory, or in bad faith.’’ Hines v. Anchor Motor

Freight, Inc., 424 U.S. 554, 566-71 (1976); Vaca v. Sipes, 386

U.S. 171, 190 (1967); Baldini v. Local 1095, UAW, 581 F.2d

145, 150 (7th Cir. 1978).

a) pe

Thus the only way for Peterson to escape the finality of the

arbitration award in this case is to show that his Union breached

its duty of fair representation in such a way as to taint the ar-

bitral process. In this respect, Peterson argues, variously, that

the Union deceived him about the deadline for an appeal to the

Board, refused to take his appeal in order to cover up its earlier

mistake, changed its position at several times about his claim

(for example, by first supporting his refusal to sign the letter

agreement of January 4, 1965, and later advising him to sign it)

and actively opposed his claim at various points—by advising

him to report to work rather than supporting his refusal to do

so, by refusing to represent him on remand although realigned

as a plaintiff, and by various kinds of conduct during the

defense of the duty of fair representation suit. Most of these

claims are wholly devoid of merit. As the Supreme Court em-

phasized in Vaca v. Sipes, 386 U.S. at 191-93, unions are not re-

quired to press each grievance to arbitration; rather, they are ex-

pected to evaluate and screen grievances based upon

assessments of their merit. The Union here clearly had the right

to decide not to pursue Peterson’s grievance when it decided in

good faith that the grievance was not a meritorious one. After

the Union had made that decision, its inactivity on his behalf

was to be expected. Moreover, once sued for breach of the duty

of fair representation, adversary behavior by the Union in its

own defense surely cannot be condemned if entered into in good

faith.

The only colorable claim that the Union breached its duty to

Peterson is based on the Union’s failure to inform him of the

correct deadline for an appeal of the disqualification greivance.

However, this failure amounts at most to negligence on the part

of the Union, which does not suffice to support a breach of the

duty of fair representation in this circuit. Graf v. Elgin, Joliet &

Eastern Pailway, No. 82-1864, slip op. at 11 (7th Cir. Jan. 7,

1983). Moreover, Peterson’s disqualification grievance,

although it was initially dismissed by the Board as untimely, was

ultimately remanded by the district court for rehearing; the

Board then considered it upon the merits and denied it. Thus the

mistaken information which the Union conveyed to Peterson

about the period for an appeal cannot be said in any way to

have tainted the arbitral process.

In sum, plaintiff-appellant has failed to show that there are

any issues of material fact which might be resolved at trial show-

ing that the Union breached its duty to him, thus lifting the bar

of a final and binding arbitration award. Under such cir-

cumstances, the defendant’s motion for summary judgment was

properly granted. The order of the district court is therefore

hereby AFFIRMED.

FEDERAL RULES OF APPELLATE PROCEDURE

Rule 39. Costs

(a) To Whom Allowed. Except as otherwise provided by law,

if an appeal is dismissed, costs shall be taxed against the ap-

pellant unless otherwise agreed by the parties or ordered by the

court; if a judgment is affirmed, costs shall be taxed against the

appellant unless otherwise ordered; if a judgment is reversed,

costs shall be taxed against the appellee unless otherwise

ordered; if a judgment is affirmed or reversed in part, or is

vacated, costs shall be allowed only as ordered by the the court.

(b) Costs For and Against the United States. In cases involv-

ing the United States or an agency or officer thereof, if an

award of costs against the United States is authorized by law,

costs shall be awarded in accordance with the provisions of sub-

division (a); otherwise, costs shall not be awarded for or against

the United States.

Uniess otherwise provided by local rule, the cost of printing, or

poms. Fem

otherwise producing necessary copies of briefs, appendices, and

copies of records authorized by Rule 30(f) shall be taxable in the

court of appeals at rates not higher than those generally charged

for such work in the area where the clerk’s office is located.

(d) Bill of Costs; Objections; Costs to be Inserted in Mandate

or Added Later. A party who desires such costs to be taxed shall

state them in an itemized and verified bill of costs which he shall

file with the clerk, with proof of service, within 14 days after the

entry of judgment. Objections to the bill of costs must be filed

within 10 days of service on the party against whom costs are to

be taxed unless the time is extended by the court. The clerk shall

prepare and certify an itemized statement of costs taxed in the

court of appeals for insertion in the mandate, but the issuance

of the mandate shall not be delayed for taxation of costs and if

the mandate has been issued before final determination of costs,

the statement, or any amendment thereof, shall be added to the

mandate upon request by the clerk of the court of appeals to the

clerk of the district court.

(e) Costs on Appeal Taxable in the District Courts. Costs in-

curred in the preparation and transmission of the record, the

cost of the reporter’s transcript, if necessary for the determina-

tion of the appeal, the premiums paid for cost of supersedeas

bonds or other bonds to preserve rights pending appeal, and the

fee for filing the notice of appeal shall be taxed in the district

court as costs of the appeal in favor of the party entitled to costs

under this rule.

(As amended April 30, 1979, effective August 1, 1979.)

APPENDIX B

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS

60604

Cause No. 82-1895

Paul W. Peterson,

Petitioner-Appellant,

VS.

Chicago and Fastern Illinois

Railroad Company,

Respondent-Appellee.

and

Paul W. Peterson,

Plaintiff-Appellant,

VS,

Transportation-Communication

Employees Union, System Division No.

34, and Transportation-Communications

Division, Brotherhood Of Railway,

Airline And Steamship Clerks, Freight

Handlers, Express And Station Employees,

and Chicago And Eastern Illinois

Railroad Company,

Defendants-Appellees.

Appeal From the United

States District Court

For the Southern

District of Illinois

NO. CV 68-99

Honorable James L.

Foreman, Judge

Presiding

PETITION FOR REHEARING OF PETITIONER-

PLAINTIFF-APPELLANT

Plaintiff-Appellant, Paul W. Peterson, respectfully petitions

for a rehearing to reconsider the }:dament entered in this action

on May 10, 1983.

This Petition is of exceptional importance because material

issues raised in Peterson’s brief and reply brief were incorrecily

determined in that the evidence was considered in the light most

favorable to Defendants rather than Plaintiff as required by

rules of law governing summary judgment procedure thus

depriving Plaintiff-Appellant of his right to trial as g\ aranteed

by the seventh, fifth and fourteenth amendments to the Con-

stitution of the United States of America rendering the judg-

ment in conflict with the following decisions:

Baldini v. Local Union No. 1095, Intern. U., etc., 581

F.2d 145, 151 (1978 7th Cir.)

Miller v. Gateway Transport Co., Inc., 616 F.2d 272 (7th

Cir. 1980)

Kesner vy. National Labor Relations Bd., 532 F.2d 1169,

1175 (1976 7th Cir.)

Concurring opinion in Hoffman v. Lonza, 658 F.2d 519

(7th Cir. 1981)

—_.

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 566,

47 L.Ed.2d 231 (1976)

Vaca v. Sipes, 386 U.S. 171, 186, 17 L.Ed2d 842 (1966)

Impossible Elec. Tech. v. Wackenhaut Prot. Systems, 669

F.2d 1026, 1031 (Sth Cir. 1982)

Margetta v. Pam Pam Corp., 501 F.2d 179, 181 (9th Cir.

1974)

Robesky « Quantas Empire Airways Ltd., $73 F.2d 1082,

(9th Cir. 1978)

Wyatt v. Interstate & Ocecn Transport Co., 623 F.2d 888,

891 (4th Cir. 1980)

Tenorio v. N.L.R.B., 680 F.2d 598, (9th Cir. 1982)

Beriault vy. Local 40, Super Cargoes & Check, of 1.L. &

W.U., 501 F.2d 258 (9th Cir. 1974)

This Petition is based on the following grounds:

1. In the opinion of the Petitioner Peterson, the Court has

misapprehended and overlooked the rules of law governing con-

sideration of the evidence on Motion for Summary Judgment

and has drawn the fotlowing erroneous conclusions in favor of

Defendants and against Plaintiff on material issues which Peter-

son is entitled to have determined by a jury, not a Judge:

(a) The Court’s finding at page 2 of the Order that the

Union’s decision not to appeal Peterson’s claim to the

Railroad Adjustment Board ‘‘was based on ifs conclusion

that Peterson’s grievance lacked merit’’.

(b) The Court’s finding at page 4 of the Order that:

**... The Union here clearly had the right to decide

not to pursue Peterson’s grievance when it decided in

good faith that the grievance was not a meritorious

one....””

— All —

the Union made the decision not to appeal Peterson's

claim ‘‘its inactivity on his behalf was fo be expected”’.

(d) The Court's finding at page 4 of the Order that:

**..once sued for breach of duty of fair representa-

tion, adversary behavior by the Union in its own

defense surely cannot be condemned if entered into in

good faith.”’

(e) The Court's finding at page 4 of the Order that:

**The on/y colorable claim that the Union breached

its duty to Peterson is based on the Union’s failure to

inform him of the correct deadline for an appeal of

the disqualification grievance. However, this failure

amounts at most to negligence on the part of the

Union...”’

(f) Fhe Court’s finding at page 4 of the Order that such

failure set forth in (e) above ‘‘does no’ suffice to support a

breach of the duty of fair representation in this circuit.

Graf v. Elgin, Joliet & Eastern Railway, No. 82-1864, slip

op. at 11 (7th Cir. Jan. 7, 1983)’’.

(g) The Court’s finding at page 4 of the Order that the

Board’s denial of Peterson’s disqualification claim on

rehearing cure. ‘e Union’s error and:

‘*...Thus the mistaken information which the

Union conveyed to Peterson about the pe™od for an

appeal cannot be said in any way to have. -inted the

arbitral process.”’

(h) The Court's finding at page 3 of the Order that:

most of the claims referred to by the Court in the last

paragraph of page 3 ‘‘are wholly devoid of merit’’.

Peterson believes these are substantial errors for the following

reasons:

The issue of Union’s bad faith throughout the events involved

in this action is a paramount issue. Nevertheless, both the

District Court and this Court tailed to follow this Court’s

holding in Ba/dini vy. Local Union No. 1095, Intern. U., etc.,

581 F.2d 145, 151 (1978 7th Cir.) wherein the Court stated:

‘*...Where a choice of inferences is possible from sum-

mary judgment materials, the inference must be drawn

that favors the party resisting summary judgment.... We

note also in this regard the sound axiom that questions of

motive, design and intent are particularly inappropriate for

summary adjudication....”’

If the decision of Union to not appeal Peterson’s case was a

bad faith determination, the jury can consider such evidence in

making its determination of whether Union breached its duty of

fair representation in the first instance. The Court in its finding,

however, referred to in (a) and (b) above misapprehended and

overlooked the inferences of bad faith that could reasonably be

drawn by the jury as suggested in Peterson’s brief at page 38-43.

The Court misapprehended and overlooked the test set forth

in the case cited by Peterson at page 31 and 32 of his brief being

the case of /mpossible Elec. Tech. v. Wackenhaut Prot.

Systems, 669 F.2d 1026, 1031 (Sth Cir. 1982) which requires the

moving party, Union and Railroad—not Peterson, to

‘‘demonstrate that the facts underlying all the relevant legal

questions raised by the pleadings or otherwise are not in dispute,

or else summary judgment will be denied...’’

It cannot be said that all reasonable men would conclude, as

did the Court in (b) above that the Union ‘‘decided in good faith

that the grievance was not a meritorious one’’. It is for the jury,

not the Court, to weigh the Union’s self-serving contention that

it did make a good faith appraisal of the merits.

— A-13 —

As recently stated by the Supreme Court of the United States

in United States Postal Service Board of Governors, Petitioner

v. Louis H. Aikens, -US-, 75 L.Ed.2d 403, 411 in a Title VI! of

the Civil Rights Act case:

“All courts have recognized that the question facing

triers of fact in discrimination cases is both sensitive and

difficult.... There will seldom be ‘eyewitness’ testimony as

to the employer’'¥ mental processes.... The law often

obliges indy to inquire into a person's state of

mind. As 6rd Justice Bowen said in treating this problem

in an action for misrepresentation nearly a century ago:

‘The state of 4 man’s mind is as much a fact as the

state of his digestion. It is true that it is very difficult

to prove what the state of a man’s mind at a par-

ticular time is, but if it can be ascertained it is as much

as fact as anything else.’ Eddington vy. Fitzmaurice,

29 Ch Div 459, 483 (1885).’’

The Court overlooked Peterson's contention at page 38 of his

brief that:

“The question of motive and design in the Union's

handling of this case involve thought processes locked into

the minds of Union officials.’’

The Court further misapprehended the test governing its deter-

mination as to whether Union’s motive and designs were based

on good or bad faith. The Court made the determination itself

rather than following the rules set forth in /mpossible Elec.

Tech. wherein it states at page 1031:

**...All reasonable doubts about the facts should be

resolved in favor of the non-moving litigant.... A court

must not decide any factual issues it finds in the record,

but if such are present, the court must deny the motion and

proceed to trial.... Summary judgment may be inap-

propriate even where the parties agree on the basic facts,

— A-l4 —

but disagree about the factual inferences that should be

drawn from these facts....’’

The Court misapprehended and overlooked its holding in

Miller v. Gateway Transport Co., Inc., 616 F.2d 272 (1980 7th

Cir.), 276-277 that:

‘*... The union’s duty includes more than merely a ‘per-

functory’ processing of a grievance. ‘[A] good faith effort

to plead plaintiff's case’ is required....”’

It is for the jury rather than the Court to determine whether

the Union perfunctorily processed the grievance in connection

with its determination of the merits.

All of the cases cited above, namely, Miller, Baldini, Robesky

v. Quantas Empire Airways Ltd., 573 F.2d 1082, (9th Cir.

1978), Beriault v. Local 40, establish standards that preclude

Summary Judgment on the issue of fair representation where

there is any evidence taken in the light most favorable to the

Plaintiff upon which a reasonable inference could be drawn that

a Union arbitrarily ignored or perfunctorily processed a

grievance. As stated in Hoffman v. Lonza, 658 F.2d 519 (7th

Cir. 1981) in the concurring opinion at page 524:

‘* *Egregious’ behavior (not necessarily intentional),

Robesky, 573 F.2d at 1089-91, apparently constitutes the

triggering level of conduct for a union’s breach of its duty

of fair representation...’’

Also, as stated at page 524:

‘*...The...appropriate standard, as set out by this court

in Baldini, is whether the union has been ‘guilty of

malfeasance and [whether] its conduct was within the

range of acceptable performance by a collective-bargaining

agent.’ Baldini, 581 F.2d at 151 (quoting Hines, 424 U.S.

at 568, 96 S.Ct. at 1058)....’’

— A-lS —

and as stated in Robesky, page 1090:

**...acts or omissions by union officials may be arbitrary

if they reflect reckless disregard for the rights of the in-

dividual employee...’’ and ‘‘severely prejudice him."

See also Tenorio v. N. L. R. B., 680 F.2d $98, (9th Cir. 1982) at

601-603.

The Court overlooked the fact that a reasonable inference

may be drawn that Union's decision was not the result of the

good faith appraisal but was dictated by improper motives of

Union to cover up its mistake in hopes that Peterson would

never carry his case to the present.

The Court also overlooked Margetita v. Pam Pam Corp., 501

F.2d 179 (9th Cir. 1974) at 180 cited at page 44 of Peterson's

brief that:

‘it makes little difference whether the union subverts

the arbitration process by refusing to proceed as in Vaca or

follows the arbitration trail to the end, but in so doing

subverts the arbitration process by failing to fairly repre-

sent the employee. In neither case, does the employee

receive fair representation. The grievance procedure is

>- 9F

nothing less than a ‘sham’.

The Court misapprehends Vaca v. Sipes, 386 U.S. 171, at

191-193 referred to at page 3 of the Order wherein it

characterizes Vaca as holding:

** ,,unions are not required to press each grievance to ar-

bitration; rather, they are expected to evaluate and screen

grievances based upon assessments of their merit....”’

It is not supportive of Union’s discard of Peterson if Union

did not make its assessment of the merits in good faith. It can-

not be said that all reasonable men would conclude, as did the

Court, that Union ‘‘decided in good faith’’ that the grievance

was not a meritorious one.

— A-16 —

Also the Court in its finding as set forth in (e) above

overlooked the reasonable inferences that a jury could

legitimately draw from the facts set forth in Peterson’s brief at

pages 24-26 and the analysis in Peterson’s argument (Brief page

45-49 and Peterson’s reply brief pages 17-21). The Union’s

failure to inform Peterson of the correct deadline is not the

‘tonly colorable claim’’ that the jury could reasonably infer

from these facts. Therefore, Petitioner respectfully submits that

the Court overlooked these inferences which could be drawn in

concluding that it was for the Court to make the determination

rather than for the jury.

The jury had the right to conclude that once an inference was

drawn by the jury that the Union’s motive was bad in refusing

to take the appeal, that every action thereafter was motivated in

self interest by the Union in its continual attempt to make cer-

tain Peterson was ultimately defeated before the Board in his

claim against Railroad.

The Court overlooked its holding in Kesner v. National

Labor Relations Bd., 532 F.2d 1169 (1976 7th Cir.), at page

1175, wherein the Court stated:

** It is venerable tort law that purporting to take action

where duty is nonexistent creates in itself certain duties, or

as the Board puts the matter, ‘it is a commonplace of our

jurisprudence that those who act where they are not oblig-

ed to are nevertheless liable for misfeasence [sic] in the

course of their undertaking.’...’’

As stated in Kesner (page 1175):

‘*..,When one’s own representative who has been willing

to assume that status proclaims a lack of merit, it is indeed

likely to be a coup de grace to the claim....’’

The jury, not the Court, should draw the inference that

Union’s motive in first, moving to realign as Plaintiff along

— Al? —

with Peterson in his attempt to obtain a rehearing before the

Board on both the disqualification and dismissal charges, was

again a motive of selt interest so that Peterson would be forced

to a hearing in front of the Board withcut the assistance of

Union. The Court in concluding at (d) above that Union could

not be considered as violating its duty by its ‘‘adversary

behavior’’, overlooks the fact that qualifying phrase is append-

ed by the Court to its Order, namely, if that representation is

**entered into in good faith’’. Here again the Court misap-

prehends the forum that is to make that determination of good

or bad faith. Petitioner respectfully submits that such deter-

mination can only be made by a jury, not a Judge, when taken

in context with all of the facts viewed in the light most favorable

to Plaintiff.

The same can be said with reference to the numerous in-

cidents referred to in Peterson’s brief and reply brief pertaining

to Union’s conduct during the course of the litigation between

Peterson and Railroad.

The Court misapprehended the circumstances under which

Union would be entitled to conduct itself in an adversary man-

ner toward Peterson. It is not in all matters, but only in those

matters wherein Peterson and Union were at issue over Union’s

conduct in allowing the time limitation to expire.

When Union successfully became realigned as a result of its

own efforts, with Peterson in obtaining a remand of the dis-

qualification and dismissal charge against the Railroad to the

Board, the jury could draw the inference that the Union ac-

quired a duty to Peterson after interjecting into a matter that

did not concern itself. The Court misapprehended and

overlooked this factor in stating at page 3 and 4 of its Order ad

relying on Vaca:

**...unions are not required to press each grievance to ar-

bitration..."’

— A-18 —

This holding in Vaca did not contemplate or involve such a set

of facts as in the instant case.

The Court at (g) above misapprehends the effect of the

Board’s denial of Peterson’s claim on rehearing. The mere fact

that the Board considering the case on its merits upon remand

held against Peterson does not resolve the question of Union’s

conduct inasmuch as the jury, not the Court, should draw the

inferences from the facts as to whether or not the arbitral pro-

cess of the Board had been tainted by the Union’s actions and

nonactions in connection with its Union member Peterson.

Here again, Petitioner respectfully submits that the Court

misapprehended the rule governing the Court in Summary

Judgment matters as set forth in /mpossible Elec. Tech. quoted

at pages 31 and 32 of Peterson’s brief.

2. In the opinion of the Petitioner the Court has misap-

prehended and overlooked the issue raised by Peterson with

regard to the Railroad at pages 34 and 35 with respect to the

claim that Railroad blackballed Peterson on each occasion that

he attempted to obtain employment from other railroads after

his discharge. The Court in overlooking this claim misap-

prehended the facts set forth which are sufficient to raise a jury

question on the issue.

3. In the opinion of the Petitioner the Court has misap-

prehended and overlooked Peterson's contention referred to at

pages 21 and 22 of his brief. There it is set forth that the Union

acknowledged it knew the Union board members had voted for

Peterson on his wrongful disqualification and discharge claims

before the Board on rehearing. One of two results must follow.

First, the inference arising from the vote of Union board

members supports Peterson’s contention that the case was wor-

thy of appeal and that such fact should be considered by the

jury, not the Court, in determining whether or not the Union

made a bad faith determination not to appeal on behalf of

Peterson. Secondly, in the event the acknowledgment of Union

— A-l9 —

bespeaks the fact that in all cases there is an automatic deadlock

between Railroad members of the Board and Union members of

the Board, then Peterson did not receive a due process hearing

inasmuch as the Railroad board members would automatically

deadlock against Peterson. It necessarily follows in such event

that the whole system of hearings under 45 U.S.C.A. Sec. 153

represents an indefensible charade operating under the guise of

due process and that Peterson should therefore be entitled to a

jury trial irrespective of the holding of the Board and irrespec-

tive of the position stated by Union and Railroad concerning the

statutory law governing the Board since it is obvious that he has

been denied a fair hearing and due process as contemplated by

the fifth and fourteenth amendments to the Constitution of the

United States. Petitioner respectfully submits that the Court’s

Order did not make any determination on this element of the

case.

WHEREFORE, Plaintiff-Appellant, Paul W. Peterson,

respectfully requests that this Court grant a rehearing.

Dated this 23rd day of May, 1983.

Respectfully submitted,

JAMES B. WHAM

WHAM & WHAM

212 East Broadway

P.O. Box 549

Centralia, Illinois 62801

(618) 532-5621

Attorneys for Plaintiff-Appellant,

Paul W. Peterson

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

July 21, 1983

No. 82-1895

Before

Hon. Wilbur F. Pell, Jr., Circuit Judge

Hon. Richard D. Cudahy, Circuit Judge

Hon. Richard A. Posner, Circuit Judge

Paul W. Peterson,

Petitioner-Plaintiff-Appellant,

VS.

Chicago and Eastern Illinois Railroad

Company, Transportation-Communication

Employees Union, System Division No. 34

and Transportation-Communications

Division, Brotherhood of Railway,

Airline and Steamship Clerks, Freight

Handlers, Express and Station Employees,

Respondents-Defendants-Appellees.

Appeal from the United

States District Court for

the Southern District of

Illinois.

No. CV 68-99

James L. Foreman, Judge.

— A2j] —

ORDER

On consideration of the petition for rehearing filed in the

above-entitled cause by Paul W. Peterson, all of the judges on

the original panel having voted to deny the same,

IT IS HEREBY ORDERED that the aforesaid petition for

rehearing be, and the same is hereby, DENIED.

—_—~ wa

APPENDIX D

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF ILLINOIS

Civil No. 68-99

Paul W. Peterson,

Petitioner,

vs.

Chicago And Eastern Illinois

Railroad Company,

Respondent.

Paul W. Peterson,

Plaintiff,

vs.

Transportation-Communications

Employees Union, etc., et al,

Defendants.

ORDER

(Filed March 10, 1982)

FOREMAN, Chief Judge:

Before the Court are four motions: (1) Motion for Summary

Judgment or in the Alternative Answering Supplemental Count

\ I, filed by the Missouri Pacific Railroad Company, successor by \

merger to named respondent-defendant Chicago & Eastern Il-

linois Railroad Company (C&EI), on August 10, 1981; (2) Mo-

tion (to file additional counts to supplemental petition), filed by

plaintiff on August 17, 1981; (3) Motion for Summary Judg- “a

ment on Counts II, III, [V and V of plaintiff’s First Amended 4

Petition and Counts II, Ill and IV of the Amended, Supplemen- /

tal Petition, filed bv defendant Transportation- ar

Communications Division, Brotherhood of Railway, Airline

and Steamship Clerks, Freight Handlers, Express and Station

Employes (BRAC) on September 9, 1981; and (4) Motion to

Dismiss the Amended, Supplemental Petition, filed by BRAC

on September 9, 1981.

1. Brief History

Because this litigation spans over a decade and sports a com-

plex procedural pedigree, a brief history is in order. Petitioner-

plaintiff Peterson (‘‘plaintiff’’) was ‘‘disqualified’’ from his

position as a first shift telegrapher at the Wansford Yard of the

Chicago & Eastern Illinois Railroad Company (C&EI), near

Evansville, Indiana, on December 23, 1964. Various discussions

between union representatives and management followed,

culminating in a denial of his claim by the highest responsible

company official. In the meantime, because plaintiff refused to

return to another job with the railroad under conditions

negotiated for him by the union (which he deemed unaccep-

table) and did not justify his absence with a medical reason, the

railroad dismissed him on April 15, 1965. After more discussion

and an affirmance of the dismissal by railroad General Manager

Vierling on August 10, 1965, the union, per Mr. General Chair-

man Hayes, informed plaintiff on January 28, 1966 that the

union would not longer handle his case, but that he could refer

it to the National Railroad Adjustment Board (‘‘the Board’’).

The union reached this decision apparently because it felt the

claim would be unsuccessful before the Board.

On May 5, 1966, plaintiff referred his disqualification and

dismissal to the Board. He relied in filing on the union’s advice

that to be timely he must file before May 8, 1966. On October

31, 1967, the Board entered its Award No. 15924 in the appeal.

Tie Board denied plaintiff's disqualification claim for failure to

file within the nine morth time limit afforded by the collective

bargaining agreement, denied the claim for wrongful

dismissal on the merits. Board concluded that there was no

support for the allegation ‘‘that Carrier has abused its authority

by acting in an arbitrary, capricious or discriminatory manner.’’

Dissatisfied with this result, plaintiff filed a petition for

judicial review in this Court on July 11, 1968,' which allows for

review of Board decisions, but also provides that findings of the

Board are conclusive on the parties. Since the only exceptions to

this conclusivity provision are (1) failure of the Board to comply

with the requirements of the statute, (2) failure of the order to

remain confined within the Board’s jurisdiction and (3) fraud or

corruption of a Board member, plaintiff alleged that the Board

exceeded its jurisdiction when it deprived him of his due process

rights and exceeded its statutory authority. On April 22, 1969,

the Court allowed plaintiff to amend his complaint and add the

union and the railroad as parties defendant.

On May 6, 1971, the plaintiff filed his First Amended Peti-

tion, consisting of five counts. The First Amended Petition

sought the following relief: (1) Count I sought administrative

review of the Board decision of October 31, 1967, pursuant to

45 U.S.C. §153 (c); (2) Count II, directed against the

Transportation-Communication Employees Union, System

Division No. 34, plaintiff’s union at the time of discharge and

predecessor of BRAC, sought relief for breach of the duty of

fair representation; (3) Count III sought relief on the same

grounds as Count II, but was leveled at both the union and the

railroad; (4) Count IV sought relief on the same grounds as

Count II, but was directed at BRAC, the successor union; and

(5) Count V also reiterated Count II, but sought relief from

both BRAC and the railroad.

' Plaintiff filed his original petition in the old Eastern District of Il-

linois. By order of Congress dated October 2, 1978, the case came

within the jurisdiction of the new Southern District of Illinois, effec-

tive March 31, 1979.

In the years between 1971 and 1976, the parties presented the

Court with motions, including those for summary judgment and

for dismissal, which the Court denied. The Court scheduled

final pre-trial proceedings for November 20, 1975, and trial for

December 8. At the scheduled pre-trial, the Court ordered, by

suggestion of the union, that it be realligned as a plaintiff as to

Count I, only. The union thought that the litigation could be

resolved best by putting plaintiff's entire claim, both dis-

qualification and discharge, before the Board once again for

full determination on the merits of both. Plaintiff, who sought

by virtue of Count I the same thing, objected to the reallign-

ment. A two day trial was held on December 10 and 18, 1975, on

Count I only. On May 4, 1976, this Court remanded the claim to

the Board, on grounds that the arbitrary and uncertain appeal

procedures rendered Award No. 15924 ‘‘arbitrary, capricious,

actually and indisputably without foundation in fact or reason

and in violation of the statutory requirements of Section 3, First

(i) and (m): of 45 U.S.C. §15 First (i) and (m). The Court set

aside the award in full and ordered a new hearing on both

claims. At the same time the Court stayed proceeding on Counts

II through V of the First Amended Petition.

The Board rendered its new decision on January 11, 1980,

and delivered it to the Court on January 28, 1980. In Award No.

22697, the Board denied both claims on the merits. The decision

was rendered on the basis of a 791-page record which the Board

delivered to the Court on April 7, 1980. By order of June 24,

1981, the Court allowed plaintiff to file a Supplemental Count |

attacking the new Board decision, since Count | of the First

Amended Petition had been rendered nugatory by the May 4,

1976 remand order. The Court lifted the stay on Counts Il

through V of the First Amended Petition and ordered respon-

sive pleadings. Pinianiel cong on Duly 37, 1981 to file an addi-

an AG ens

order. For the first time, plaintiff included against the railroad

allegations of deprivation of third party beneficiary rights

vested in him by the collective bargaining agreement. The Court

denied this motion on July 29, 1981, for failure to comply with

the Local Rules.

Before plaintiff could refile his amended supplemental peti-

tion, the C&EI moved for Summary Judgment, on August 10,

1981. A week later, on August 17, 1981, plaintiff moved again

to file his amended supplemental petition, this time by moving

to file additional counts to the Supplemental Petition already

allowed by the Court on June 24, 1981. On September 9, 1981,

BRAC moved for Summary Judgment on Counts II, III, ['V and

V of plaintiff's First Amended Petition and Counts II, III and

IV of his Amended, Supplemental Petition. The motions just

described are those currently before the Court.

II. Motion (To File Additional Counts

to Supplemental Petition)

At the status conference of December 2, 1981, counsel for

plaintiff, while arguing his Motion to File Additional Counts to

Supplemental Petition, indicated that he did not intend to aban-

don Counts II through V of his First Amended Petition. This

makes good sense, since the allegations of the latter involve acts

occuring prior to 1971 and those of the former acts occurring

since the remand order of May 4, 1976. Considering the age of

this litigation, the fact that both defendants have already

responded to the supplemental counts, the liberal amendment

standards of Rule 15 and the absence of any pr° iudice to the

defendants, the Court hereby GRANTS plaintiff's motion.

Ill. C&EI’s Motion for Summary Judgment

In its Motion for Summary Judgm nt, the C&EI argues that

the full hearing before the Board on the merits of both claims is

the ultimate relief plaintiff has been seeking and, now that it has

ig te

been granted, must be affirmed since none of the grounds for

reversal are present. It further argues that since summary judg-

ment is proper on Count I, it must be granted on the remaining

counts as well. Plaintiff contends that it is apparent from the

record that the Board did not confine itself to matters within the

scope of its jurisdiction and that plaintiff did not receive a due

process hearing, either ‘‘on the premises’’ or before the Board.

The statute allowing review of the Board’s decision provides

as follows:

On such review, the findings and order of the division shall

be conclusive on the parties, except that the order of the

division may be set aside in whole or in part, or remanded

to the division to comply with the requirements of this Act,

for failure of the order to conform or confine itself, to

matters within the scope of the division’s jurisdiction, or

for fraud or the corruption by a member of the division

making the order.

45 U.S.C. §153 First (q). As the Supreme Court of the United

States has stated, judicial review is limited to three grounds: (1)

failure of the Board to comply with the Railway Labor Act; (2)

. failure of the Board to conform or confine itself to matters

} within its jurisdiction; and (3) fraud or corruption. Union

Pacific R.R. Co. v. Sheehan, 439 U.S. 92 (1978). Awards may

not be disturbed on the grounds that the Board disregarded

evidence, misinterpreted contract provisions or was clearly er-

roneous. The Seventh Circuit Court of Appeals in Kotakis v.

Elgin, Joliet & Eastern Ry. Co., $20 F.2d $70, $74 (7th Cir.),

ceri denied, 423 U.S. 1016 (1975), held that a denial of due pro-

cess in the hearing can be grounds for reversal of the Board's

order. Denial of due process falls under exception number two,

the Board's jurisdiction. Denial of due process in this

context is an award ‘‘actually and indisputably without founda-

tion in reason or fact,’’ or ‘‘wholly baseless and without

teason.”’ /D. at 574-75.

SS Lee ee

a oe i

- aw . 4 3

sae Ri as

In his Supplemental Count I, plaintiff does not allege failure

of the Board to comply with the Act, nor does he allege corrup-

tion or fraud. His attack is solely limited to one based on due

process. It seems fairly clear from plaintiff’s arguments that he

misunderstands the nature of review under 45 U.S.C. §153 First

(q). He deems it ‘‘essential that the record be examined upon

which the Board rendered its award in order to determine

whether or not it should be set aside or affirmed by this Court.’’

Further,

{i]t is not a sufficient answer for the Railroad to say, ‘‘He

had a hearing before the Board.’’ This is not an end-all of

the question. Such a philosophy preferring form over

substance would legitimatize a miserable charade - an-

nouncing to the world that the phrase ‘‘due process’’ is

nothing but a hollow sound, and that the constitutional

guarantee of due process is nothing but the pious platitude

of an empty promise.

Plaintiff’s Memorandum in Opposition to Motion for Summary

judgment, August 26, 1981, at 4. Of course, in a limited sense,

he is correct. The Court must examine enough in the record to

determine whether the award is without foundation in reason or

in fact. But, the Court may not, as plaintiff seems to suggest,

read the record and weigh the testimony for itself.

The Court has made a review of the 791 p ge record and has

found, to say the very least, more than enough evidence to show

that there is foundation in both reason and fact for the Board’s

decision. Appearing at pages 439 through 497 of the record is a

transcript of an investigation hearing held at Chicago Heights

on January 11, 1965, for purposes of deciding the disqualifica-

tion claim. There was ample testimony from Mr. Maddock, Mr.

Cable, Mr. Huffaker, Mr. Pickering and Mr. Jett that plaintiff

Peterson, whatever his technical telegraphy skills, was not

fulfilling properly the duties assigned to him. Many testified

that when Peterson was absent, the work was ‘‘cleared’’ and

—. wae

completed at an early hour of the morning but that when he was

on the job, the work was not finished. The testimony depicts an

obstinate man who telegraphers in other stations had difficulty

accommodating. Several testified that he was a poor or extreme-

ly poor sender. While this may or may not have been entirely

true, it was for the Board to decide. At any rate, it is clearly

enough to remove this aspect of the award from the wholly

without foundation in fact or reason category.

The same is true with respect to the investigation hearing held

April 9, 1965 at Danville, Illinois for purposes of deciding the

dismissal claim. Mr. Pape testified as to his efforts to contact

plaintiff and inform him that he must return to work or provide

a valid reason for tailure to do so. At page 516 of the record,

plaintiff acknowledged that he had received the letters inform-

ing him to return to work, but retorted that ‘‘any thinking per-

son should know [he] was sick.’’ R.516. When asked for a letter

from a doctor, he stated he was ‘‘not sick physically - or mental-

ly - just sick at heart...’’ /d. He also explicitly stated that he

would not return to work on anything other than the C&EI first

trick (from which he had been disqualified). Plaintiff did at-

tempt at pages 516-17 to paint a picture that he was being

‘*railroaded,’’ so to speak, by company officials since he had

displeased chief Telegrapher Cable with his performance, which

suffered from what he felt was a crushing workload at

Wansford Yard. Yet, again, weighing these arguments was the

Board’s task, and not that of this Court. It is more than obvious

that the record contained evidence on which to base its January

11, 1980 denial on the dismissal claim which removed the deci-

sion from the category of without basis in fact or reason.

The rest of plaintiff’s brief offers nothing supportive of its

position. Plaintiff argues that the awards are based on facts not

in evidence, but never states what those supposed facts are. His

seventy-eight page ‘‘ExParte Submission,’’ already a part of the

Board record, argues that he never received notice of his poor

performance or that he should sign up on another work board.

—_*

Not only does the above review of the evidence contradict this

line of argument, but it demonstrates that plaintiff actually

desires that this Court do something the Supreme Court has

repeatedly said it may not do, that is, reweigh the evidence. See,

Sheehan, supra, 439 U.S. at 93. The exlusive, primary jurisdic-

tion of adjustment boards established under the Act to deter-

mine the merits of grievances has been long established under

federal law. Slocum v. Delaware Lackawanna & W. R.R., 239

U.S. 225 (1950). Congress amended the Act in 1966 to provide

flatly that awards of he Board ‘‘shall be final and binding.’’ 45

U.S.C. §153 First (m).

Plaintiff has alleged the existence of no disputed issue of

material fact which casts doubt on the validity of this holding.

He has only urged this Court to reweigh evidence and second

guess the standards employed by the Board in its decision. Ac-

cordingly, entry of summary judgment pursuant to Rule 56 is

proper on Supplemental Count I.

The C&EI also seeks summary judgment on the remaining

counts. Since this issue is intertwined with that of the alleged

breach of the union’s duty of fair representation, the Court

shall consider it with the latter, below.

The C&El also seeks summary judgment on its ‘‘counter-

claims.’’ The Court is unable to find in this voluminous file any

counterclaims filed by C&EI against the plaintiff or the other

defendants (although the two unions involved, T-CEU and

BRAC, did file cross-claims against the C&EI on March 1, 1972

and the C&EI answered on August 29, 1972). Accordingly, the

C&E] is entitled to nothing on the non-existent counterclaims.

— A3l —

IV. BRAC’s Motion for Summary Judgment on

Counts II, III, I[V and V of Plaintiff's

First Amended Petition and Counts I], Ill

and IV of the Amended, Supplemental Petition

A. Counts II, III, [V and V of Plaintiff's First Amended

Complaint.

For purposes of ruling on the summary judgment motion as it

relates to these counts, the Court makes the following findings

of fact:'

i. In Counts II through V of the First Amended Complaint, it

is alleged that officials of the Transportation-Communication

Employees Union (plaintiff’s union representative at the time of

the events in question, which was merged into BRAC and ceas-

ed to exist in 1969) were guilty of various acts of negligence in

representing plaintiff in connection with his claims, and breach-

ed its duty of fair representation by ‘‘arbitrarily, capriciously

and without just reason or ‘‘cause’’ refusing to carry his claims

to the Board, and that plaintiff was ‘‘wrongfully deprived of an

appeal’’ to the Board on the merits of hiscJaims by reason of

the alleged acts and omissions of his union representative. The

gravamen of plaintiff’s claims against BRAC in all counts is the

allegation in paragraph 22 of the First Amended Petition

(paragraph 18 of the Amended Supplemental Petition), that,

had petitioner’s grievances ‘‘been processed in a proper man-

ner’’ by BRAC, the Board would have entered an award in

plaintiff's favor on the merits, and would have ordered his

reinstatement to his position as first shift telegrapher at

Wansford Yard and reimbursed him for all lost wages.

' In Counts II through V of the First Amended Complaint, Count I

for administrative review is incorporated by reference. Inasmuch as

the Court has already granted summary judgment on Count I, it will

not be considered in the course of this discussion.

—*

2. As a result of discussions between counsel for the parties

and the Court at a pre-trial conference held on November 20,

1975, the Court granted a motion by BRAC to be realigned as

co-petitioner with plaintiff on Count I only, ordered that Count

I be severed for separate trial, and ordered that the issues with

regard to Counts II through V pend further action or order of

the Court. BRAC, as co-petitioner on Count I, then filed a mo-

tion for order remanding proceedings to the Board. In this

posture, the cause was heard by the Court on Count I and on

the motion for order of remand, and on May 4, 1976, this Court

entered an order granting the motion of remand and directing

the Board to consider petitioner’s claims for both wrongful dis-

qualification and wrongful discharge de novo. At that time,

proceedings in this case on Counts II through V were stayed.

3. In September 1977, plaintiff initiated a new submission to

the Board pursuant to the Court’s order of May 1976, on both

the disqualification and discharge claims. Both plaintiff and the

Railroad filed lengthy ex parte and rebuttal submissions which

included extensive excerpts from deposition testimony taken in

this action. The carrier and labor representatives on the Board

reached deadlock, and a neutral referee was named to determine

the issues. Plaintiff was accorded the opportunity to appear

before the neutral referee in person and by counsel, pursuant to

the order of this Court, and fully availed himself of that oppor-

tunity. On January 11, 1980, the referee entered his award, de-

nying both the disqualification and dismissal claims on the

merits, as follows:

The Board finds the carrier had substantial grounds for

disqualifying claimant from the position of first shift

telegrapher at Wansford Yard. It further finds that clai-

mant’s refusal to perform service for the carrier, other

than the position from which he had been disqualified, was

insubordination and therefore carrier had just cause for

dismissing him from its service.

ain i

The award further stated that, even if the disqualification claim

had been meritorious, the wrongful discharge claim would still

have been denied because of plaintiff's refusal to return to work

and make himself available for service other than in the position

from which he had been disqualified:

When carrier directed him to make himself available for

service, he was required to do so. Reliance on asserted in-

justice and impropriety in his disqualification from the

first shift telegrapher’s position is misplaced. His recourse

lay in the grievance procedure, not in self-help.

4. Following receipt of the Board’s award of January 11,

1980, plaintiff sought leave of court to file an amended sup-

plemental petition, seeking a further order of remand to the

Board. On June 24, 1981, the Court entered an order granting

plaintiff’s motion for leave to file his petition as a supplemental

Count I (Petition for Review). The Court further ordered the

secretary of the Board to file a true or certified copy of the en-

tire record of the proceedings for the Board on remand with this

Court (which was done on July 20, 1981), ordered the Railroad

to file responses to supplemental Count | within twenty days

thereafter, and vacated the stay of proceedings on Counts I

through V of the First Amended Petition. On July 24, 1981,

plaintiff filed a further motion for leave to amend his pleadings

to add supplemental Counts II through IV

5. The affidavit of Dean T. Echols, the man who, in 1965

handled the administrative processing of plaintiff’s grievance,

establishes that the union refused to process further plaintiff’s

claims solely based on their opinion that it had no merit and that

the Board would find that the C&EI had just reason for

discharge.

6. The affidavit of Echols and the letters sent by union presi-

dent Leighty to General Chairman Hayes, attached to the af-

fidavit as Exhibits A and B, establish that the union president,

Mr. Leighty, did not think the claim had merit.

an S00 an

Based on the following facts, BRAC should prevail on its

summary judgment motion with respect to Counts II through

The elements of the duty have been set forth by the Supreme

Court. Under the decisions, a union breaches its duty when its

conduct is ‘‘arbitrary, discriminatory, or in bad faith, as, for ex-

ample, when it arbitrarily ignores a meritorious grievance or

process[es] it in [a] perfunctory fashion.’’ /BEW v. Foust, 442

U.S. 42, 46 (1979); Vaca v. Sipes, 386 U.S. 171, 191 (1967).

There is no right to have meritless grievances processed, and

there is no breach of the duty of fair representation arising from

any act or omission to act by a union in connection with such a

claim. Whittier vy. Anchor Motor Freight, Inc., 521 F.2d 1335,

1341 (6th Cir. 1975); Patterson v. Teamsters, 405 F.Supp. 980,

987 (S.D. Ill. 1976). As the high court has stated ‘‘[i]f an in-

dividual employee could compel arbitration of his grievance

regardless of its merit, the settlement machinery...would be

substantially undermined...’’ Vaca, supra, 386 U.S. at 191.

**The union need not arbitrate every grievance... The union has

a duty to screen grievances and to arbitrate only those the union

believes are meritorious.’’ Melendy vy. United States Postal

Serv., 589 F.2d 256, 259 (7th Cir. 1978). ‘‘Even if an employee

claim warrants arbitration, a union may properly reject it unless

its action is arbitrary or taken in bad faith.’’ Moore v. Sunbeam

Corp., 459 F.2d 811, 820 (7th Cir. 1972).

In this case, BRAC has demonstrated with the Echols af-

fidavit and the attached exhibits that the union refusal to pro-

cess the claim was based solely on a good faith assessment of its

merit. Furthermore, the subsequent denial of plaintiff’s claims

by the Board and affirmance of that decision by this Court in-

' dicate that the claim in fact was meritless. Plaintiff on the other

hand, has introduced nothing to controvert these established

facts, but instead, relies upon his pleadings. This he may not do

successfully for Rule 56(e) provides:

—_

When a motion for summary judgment is made and sup-

ported as provided in this rule, an adverse party may not

rest upon the mere allegations or denials of his pleading,

but his response, by affidavits or as otherwise provided in

this rule, must set forth specific facts showing there is a gen-

uine issue for trial. If he does not so respond, summary

judgment, if appropriate, shall be entered against him.

Fed.R.Civ.P. 56(e). Here, the union has established good faith

conduct and the Board, backed by this Court, has determined

the grievance to be meritless. Clearly, summary judgment is

proper on these Counts.

B. Counts Il, III and 1V of the Amended Supplemental

Petition

For purposes of ruling on the summary judgment motion on

Counts II, II] and IV of the Amended Supplemental Petition,

the Court makes the following findings of fact:

1. Count I of the Amended Supplemental Petition is the same

supplemental Count I which plaintiff was permitted to file by

the Court’s order of June 24, 1981, and seeks no relief against

defendant BRAC. Paragraphs | through 18 of Counts II, Ill

and IV merely restate the matters alleged in Counts II through V

of the First Amended Petition and add nothing further thereto.

The matters contained in these paragraphs are subject to the

motion of defendant BRAC for summary judgment on Counts

II through V of the First Amended Petition. For purposes of

this motion, the Court will therefore consider only the allega-

tions of paragraphs 19 through 26 of Count II and in

paragraphs 27 through 33 of Counts III and IV of the Amended

Supplemental Petition, which relate to matters allegedly occurr-

ing during the pendency of this suit.

2. Counts II through IV of the Amended Supplemental Peti-

tion seek to assert ‘‘further and additional’’ breaches of duty of

fair representation arising from actions by said defendant dur-

ing the pendency of this lawsuit. Specifically, plaintiff alleges in

paragraph 22 of each of said counts that said defendant was

guilty of further breaches of its duty of representation by

assisting the C&EI in examination of witnesses in depositions

‘tin an adversary manner against petitioner;’’ in refusing to ap-

pear for and represent petitioner in the proceedings before the

National Railroad Adjustment Board (the ‘‘Board’’) on re-

mand; in taking positions ‘‘contrary to the best interest of peti-

tioner’’ with respect to interpretation of the collective bargain-

ing agreement; in disclosing information which the union had

received from petitiom * and others; and in withholding support

and representation from petitioner, ‘‘knowing that such

withholding would have an adverse effect on petitioner’s

cause,”’ before the Board.

3. The affidavit of Dean T. Echols, the man who, in 1965

handled the administrative processing of plaintiff's grievance,

establishes that the union refused to process further plaintiff’s

claims solely based on their opinion that it had no merit and that

the Board would find that the C&EI had just reason for

discharge.

4. The affidavit of Echols and the letters sent by union presi-

dent Leighty to General Chairman Hayes, attached to the af-

fidavit as Exhibits A and B, establish that the union president,

Mr. Leighty, did not think the claim had merit.

Based on the foregoing facts, BRAC should prevail on its

summary judgment motion with respect to Counts II through

If plaintiff’s claims were meritorious, or if the union had

acted arbitrarily, discriminatorily or in bad faith, plaintiff might

possibly succeed on Counts II through IV of the Amended Sup-

plemental Petition. However, as noted above, affidavits, ex-

hibits, and the decision of the Board demonstrate that the

claims lacked merit and the union acted in candid fairness.

Thus, any claim based on bad faith or the meritorious quality of

the grievance is vitiated.

— A-37 —

Plaintiff has also noted that the union, by not representing

him before the Board, somehow prejudiced him before the

Board by its conspicuous absence. The argument here is that, if

the man’s own union will not support him, neither will the

Board. This position is without merit. First, at the time this

Court remanded the case for de novo consideration before the

Board, it was certainly not contemplated that the union would

represent plaintiff before the Board. He was already represented

by his present, very able counsel. The union, which was a party

defendant in plaintiff’s suit since 1971 and exposed to potential

liability of $600,000, could hardly have represented plaintiff

without a severe conflict of interest. Second, the claims were

ultimately referred to an impartial referee when the Board

became deadlocked. It is apparent that the plaintiff had the

backing of his union in the voting, and thereby obtained the fur-

ther benefit of the referee. Finally, as was implicit in this

Court’s remand order of May 4, 1976, the Court does not share

plaintiff's suspicion of the Board’s impartiality in a hearing

where the union has refused to represent the plaintiff. Neither

does the Supreme Court, for as it stated in Vaca v. Sipes, 386

U.S. 171 (1967), ‘‘an order compelling arbitration should be

viewed as one of the available remedies when a breach of the

union’s duty is proved.’’ /d. at 196. Here, the union breach was

never even established, and the plaintiff, for reasons stated in

the May 4, 1976 order, received another hearing. Thus, plaintiff

cannot now complain that the very relief he requested was in-

herently unfair, especially where ine has neither alleg-* or

shown any particular facts to support his bias allegation. ee,

Del Casal v. Eastern Air Lines, 634 F.2d 295 (Sth Cir. 1981),

reh. denied, 638 F.2d 1234 (Sth Cir. 1981).

Plaintiff complains, too, of litigation related activity engaged

in by the union after May 4, 1976, including taking depositions

of witnesses and disclosing information obtained from plaintiff. .

In the Court’s opinion, these allegations are not even ac-

. tionable. The union was defending itself in the lawsuit in which,

aay Tee

as noted above, the potential exposure was $600,000. Moreover,

the union, of necessity, needed depusitions of witnesses before

they became unavailable, through death or otherwise. These

allegations are, in essence, as BRAC points out, tantamount to

alleging that defending a lawsuit is a breach of the duty of fair

representation, regardless of the merits of the claim and the

good faith of the union. Such a position is untenable. See,

Vaca, supra, 386 U.S. at 193. Accordingly, since there is no

disputed issue of material fact, and plaintiff has failed to con-

trovert in any way the affidavit and letters establishing union

good faith, summary judgment for the union is proper on these

counts.

C. The Motion for Summary Judgment of the C&EI on

Counts II, III, 1V and V of the First Amended Peti-

tion

As noted in section II above, the C&EI has also sought sum-

mary judgment on Counts II through V of the First Amended

Petition, maintaining without elaboration that, if it prevails on

Count I, the remaining counts must be dismissed. The C&EI

has, of course, prevailed on Count I.

In Vaca v. Sipes, 386 U.S. 171, 186 (1967), the Supreme

Court held that ‘‘the wrongfully discharged employee may bring

an action against his employer in the face of a defense based

upon the failure to exhaust contractual remedies, provided the

employee can prove that the union as bargaining agent breached

its duty of fair representation in its handling of the employee’s

grievance.’’ 386 U.S. at 186. In Hines v. Anchor Motor Freight,

Inc., 424 U.s. 554 (1976), the high court held that if employees

can prove an erroneous discharge by the employer and the

union’s breach of duty of fair representation tainting the ar-

bitration committee’s decision, they are entitled to an ap-

propriate remedy against the employer as well as the union.

There is authority extending the rule of Vaca from the National

Labor Relations Act context to that of the Railway Labor Act.

See, Schum v. South Buffalo Ry., 496 F.2d 328 (2d Cir. 1974);

see also, Hennebury v. Transport Workers, 485 F.Supp. 1319

oy = eee ( - ge aS

a S. m

(D. Mass. 1980) (exhaustion requirement no defense to action

against employer when wrongful union conduct is alleged to

have caused employee to fail to process his grievance); Prati v.

United Air Lines, 468 F.Supp. 508 (N.D. Cal. 1978).

Assuming the action for wrongful discharge and wrongful

disqualification lies against the employer under the Railway

Labor Act when the union has allegedly violated its duty of fair

representation, it cannot possibly succeed here. First, since the

union has prevailed upon its Motion for Summary Judgment,

the union breached no duty preventing plaintiff from ad-

judicaiton of his underlying grievance. Second, and more im-

portantly, plaintiff has had his underlying grievances ad-

judicated by the Board. Thus, the C&EI is correct in arguing

that the remaining counts must fail. With respect to the claims

for deprivation of third party beneficiary rights, the Court is

aware of no authority supporting this novel theory. At any rate,

plaintiff could hardly be third party beneficiary to a contract to

which he is a party.

VI. Conclusion

In accordance with the above discussion, plaintiff's Motion

(to file additional counts to supplemental petition) is hereby

GRANTED: defendant BRAC’s Motion for Summary Judg-

ment is hereby GRANTED on all counts of both the First

Amended Petition and the Amended Supplemental Petition,

with the exception of Count I of each, and defendant C&EI’s

Motion for Summary Judgment is hereby GRANTED on all

counts of both petitions. The action is hereby DISMISSED, and

the Clerk shall enter judgments in defendants’ favors.

Since the above disposes of the case in all respects, BRAC’s

Motion to Dismiss the Amended, Supplemental Petition is

DENIED as moot.

IT IS SO ORDERED.

DATED: March 10, 1982

James L. Foreman

Chief Judge

Sw Al ae

APPENDIX E

STATEMENT OF FACTS

FACTS SUPPORTING PETERSON'S RIGHT TO

TRIAL BY JURY AGAINST

RAILROAD AND UNION

Railroad's Disqualification Of Peterson

The Railroad’s action disqualifying Peterson followed im-

mediately in the wake of a highly critical letter about Peterson

from R.O. Cable, Railroad Telegrapher at Chicago Heights Of-

fice, to D. E. Lyons, Assistant Personnel Director of Railroad,

dated December 23, 1964. The letter accused Peterson of not

sending messages promptly and particularly complaining about

the prior day, December 22 (A 147-149). The decision was made

by Railroad Officials in Chicago Heights to immediately remove

and disqualify Peterson from his first shift position at

Wansford Yard without his knowledge or presence (A 67, 112,

113, 147-149, Lyons deposition P. 49-52, 192). These officials

included Lyons, Chief Rules Examiner Q. D. Pickering, and

Assistant General Chairman John T. Warren, with no union

representative present (Q. D. Pickering deposition P. 12, filed

December 31, 1975).

No steps had been taken before December 23, 1964, to dis-

qualify him from his position (Asst. Gen. Mgr. John T. Warren

depo. P. 329-330), nor was there any discussion with Chief

Dispatcher C. E. Dowdy, who was Peterson’s and Cable’s

Supervisor. He knew nothing of the decision until contacted by

Lyons, who instructed him to notify Peterson (A 77, 78, 112,

113). Peterson had never been given a letter of warning, and his

first knowledge that he was being disqualified was December 23,

1964, when Dowdy informed him (A 112).

—. ee

George J. Nixon, Jr., Director of Research for the American

Train Dispatchers Association, a witness at the second Board

hearing in September, 1978, testified he knew both Peterson

and Cable and was familiar with the Railroad’s Chicago GO

Telegraph Yard and the Office at Wansford Yard, he having

worked for the C&EI Railroad as a telegrapher and in other

capacities from 1945 to 1972. He stated that Cable had no

supervisory authority over Peterson, the two being co-eqi al

employees of the C&EI Railroad, and that C. E. Dowdy, Chief

Dispatcher, was the immediate supervisor over both of them.

With reference to Peterson, he stated that he was a competent

telegraph operator, was cooperative to work with, and that he

experienced no difficulty in sending and receiving telegraph

messages from and to him (A 193).

With reference to Cable, he stated that Cable insisted that the

telegraphers in the Chicago GO Office continually prod

operators in other telegraph offices along the line to immediate-

ly transmit anticipated reports and consists, regardless of the

work load and other duties of the operators (A194).

Nixon also described the respective duties of Cable at the

Chicago GO Office and Peterson at Wansford Yard.

The only duties of Cable and the other telegraphers assigned

to the GO Telegraph Office in Chicago were to send and receive

messages by telegraph. Peterson and the telegraph operators at

Wansford had many other duties, including working with two

Trains Dispatchers on the telephone, operating a small CTC

Board, working with various C&EI and other Railroad

employees on the telephone, contacting trains and yard engines

by radio at the request of yardmasters and Train Dispatchers,

and others, handling the switch-board connecting calling parties

to other lines; handing train orders received from Train Dispat-

chers to trains passing Wansford, telegraphic transmission of

detailed reports on freight trains and loads and sending by

telegraph numerous other messages and reports of various kinds

to not only the GO Office in Chicago but other offices on the

line (A 194, 195).

Lp ORT a eee

Sometime after Peterson had commenced working at

Wansford Yard, Railroad reduced the operations at the GO Of-

fice in Chicago from three shifts to one shift. This caused com-

plications for the reason that all messages accumulated over 24

hours at Evansville had to be sent to Chicago on the first shift.

Moreover, inasmuch as there was no uniformity in the running

of trains, every day was different and it was necessary for Peter-

son to get the messages to Chicago between the rest of the work

he had to do (A 99, 100). The problem created by the system

was that messages were sometimes delayed due to interruptions

caused by the multiple duties required at Wansford and the cut-

ting down of the shifts and personnel at the GO Office (A

99-107).

Peterson attempted to acquaint Railroad Management with

the problems and the impossibility of telegraphing to Chicago

steadily (A 102, 103). Cable also recognized the deficiency in the

system. He protested to the Railroad Officials when the services

and personnel in the Chicago GO Office was curtailed (Cable

Deposition P. 107-133) (A 74-75). He felt he did not have

enough telegraphers (Cable deposition P. 110) (A 75, 76).

The system remained unchanged with one attempted solution

by Railroad Management through Q. D. Pickering, Chief Train

Rules Examiner, that consisted of a suggested plan to establish a

quiet period at Wansford during which Peterson was not to be

disturbed by anyone for 2 or 3 hours each day so that he could

send messages to Chicago without interruption. Such was an im-

practical suggestion and would have complicated rather than

solved the problems. Each day was different with respect to the

demands on the time of Peterson required by his other duties

and by the irregularity in the running of the trains (A 110, 111).

The demands and insistance of Cable that Peterson telegraph

with Chicago when Cable desired without regard to Peterson’s

other duties added to the problems (A 101-109). On one occa-

sion, in the middle of the year of 1964, Peterson was contacted

by Assistant to General Manager, R. H. Spicer, who requested

“ baa Sms , ~—

Peterson to keep a record when and why he could not work with

Chicago, but no one looked at the record (A 109). At that time

Peterson informed Spicer he was having trouble trying to get

then: to receive him and also informed him that he could not

send when he was doing something else, but would do so as

soon as he possibly could (A 109). On another occasion, when

Trainmaster at Wansford, J. F. Jett, informed Peterson of

Cable’s complaints, Peteron inquired as to which of his duties

should deserve priority, but received no response from Railroad

management (A 108). On yet another occasion, while speaking

with Assistant General Manager John Warren as to a message

delay, Peterson informed him that the message had not yet been

filed with him for sendingebut that even so, the work he was

then doing would prevent the prompt sending of it, to which

Warren responded, ‘‘What do they think you are down there

Pete”’ (A 106, 107).

During the 4 years that Peterson performed the Ist shift posi-

tion at Wansford, Warren visited Wansford 3 or 4 times a year

and saw Peterson on each visit and observed nothing that would

cause a disqualification (Warren deposition P. 130, 131, filed

December 10, 1975). Cable had complained about Peterson to

Warren in December 1964 (Warren deposition P. 113), and it

was not until he spoke with Lyons on December 23, 1964, that

Warren decided to disqualify Peterson (Warren deposition

Pages 178, 198, 329, 330).

On December 22, 1964, the date complained of by Cable in

December 23rd letter to Lyons (A 67, 147), wire trouble had

prevented Peterson from sending messages to Cable (A 68, 69,

145, 146).

After being notified of the disqualification action and before

the scheduied hearing on January 4, 1965, Peterson, at the sug-

gestion of Union, attended a meeting with Railroad Manage-

ment in Chicago Heights on January 5, 1964. Participating in

the meeting for Railroad were Lyons, Pickering and Warren (A

—

114). At this meeting, he was given a letter agreement to sign

prepared by Railroad, which imposed upon him unacceptable

conditions, including the provision that: ‘‘If your subsequent

performance disproves our belief that you can by properly ap-

plying your talents fulfill the duties and responsibilities of the

position in question, you will automatically be disqualified

therefrom....’’ (A 5, 116, 117, 154).

Peterson declined to sign the letter agreement, which was

subsequently modified by Railroad to provide that he had 30

working days after resuming work to qualify for the position (A

120-125, 156, Exhibit 18). Assistant Personnel Director, D. E.

Lyons, testified on deposition that the signing of such letter

would constitute an admission of guilt as a matter of record for

subsequent referral (Lyons Deposition P. 360, filed December

10, 1975). Chief Train Dispatcher Rules Examiner, 'Q. D.

Pickering, testified on deposition that the letter contained no

guarantee of a hearing (Pickering Deposition P. 117, Filed

December 31, 1975).

The hearing on disqualification was held January 11, 1965, at

Chicago Heights. Peterson, represented by Union, testified at

length concerning his duties and the difficulty caused by Cable

(A 131-140).

At the conclusion of the hearing, General Chairman Hayes

for Union summed up in support of Peterson (A 141, 142), in-

cluding the following statements:

**Peterson was suspended from work on December 23rd,

two days before the Christmas Holidays, without any war-

ning or reason, presumably account the Piggyback consist

was not transmitted promptly that day. Yet; as Peterson

informed Mr. Cable, he could not send it until the

Lineman completed repairs to the equipment. So, he was

suspended from his position and declared unqualified even

though he was not at fault.

‘*Mr. Peterson has been an employee of this railroad for

nearly twenty years. Needless, to say, Peterson was shock-

ed by the notice that he was disqualified, knowing that he

hadn’t done anything to merit it. It was at his represen-

tative’s suggestion that he went to Chicago Heights on

Januar. “th, to ascertain what the trouble was and to try

and sex _.t couldn’t be disposed of. However, as a condi-

tion of his return to his assignment, he was presented with

an affidavit to sign that not only would have admitted he

was guilty of some wrongdoing, but would have per-

manently disqualified him for any reason, even one over

which he had no control. He did not sign the affidavit as

any reasonable intelligent person would refuse to do.

**Therefore, by the carrier’s action in suspending him from

work two days before Christmas for something over which

he had no control, and without endeavoring to ascertain

why the consist was not sent*promptly on December 22,

and by not permitting him to resume work after being ap-

prised of the facts without his signing a binding affidavit,

we can only conclude that without question, there is pre-

judice against him.

‘*It is, therefore, the position of the Employees that the

carrier is not only in violation of the discipline rule when it

suspended him without a hearing under the disguise of dis-

qualification, but violated the suspension from work rule;

the Guarantee rule; the seniority rule, as well as related

rules, and is liable for wages lost and penalties for each day

that he is held off his rightfully owned assignment.’’ (A

141, 142) (Amended Supplemental Petition Exhibit ‘‘M’’,

A 44).

This hearing was held under the provisions of the Collective

Bargaining Agreement (Exhibit M, A 44) and resolved by

Railroad against Peterson, who was advised of same on January

15, 1965, by the Hearing Officer, C. E. Dowdy (Exhibit J-9,

Record Vol. Il, Document 80). Although D. E. Lyons was not

present at the January 11th hearing, he participated after the

hearing in determining what should be done and then drafted

the decision for Dowdy to sign. He then, as the highest

designated officer of the Railroad under the terms of the Collec-

tive Bargaining Agreement, heard Peterson’s appeal submitted

by Hayes and denied it on February 16, 1965. This was the final

decision of the Railroad on the disqualification of Peterson (A

157-159, Exhibit J-19, Record Vol. Il, Document 80, Lyons

deposition P. 206-211).

The witness, Robert V. Burkhart, Local Chairman of Union,

testified that the Collective Bargaining Agreement provided for

impartial hearings and impartial appeals from the first hearing

by an impartial examination of the record by another person. It

was never the Union’s belief that the agreement should allow

merely a rubber stamping of management’s first impression by

the second hearing level. As Local Chairman of the Union, he

would expect the next level to pass on it independently

(Burkhart deposition P. 165-168, filed November 2, 1977).

Railroad’s Dismissal Of Peterson

After the disqualification hearing of January 11, 1965, at

Chicago Heights, Peterson returned to Evansville arriving on

Train No. 1 on January 12th at 2:00 a.m. He received a call to

go to Wansford that night on the third shift but did not feel up

to it and so advised Lawrence Pape, Railroad Clerk of the Chief

Dispatcher’s Office, that he had been under terrific strain and

was sick and unable to work that night (A 48, 125, 126,

Employee’s Ex Parte Submission, page 14, Record of Pro-

ceedings before the National Railroad Adjustment Board,

Document 92 of the Court Record, p. 29).

Peterson next received a letter from C. E. Dowdy, Chief

Dispatcher, dated February 1, 1975, asking him to report for

a ee

duty before February 5, 1965, but giving no directions of where

to report or what duty to perform (A 126).

He also received a telephone call from Q. D. Pickering on

February 1, 1965, advising that Burkhart had bid in Peterson’s

first shift position and that Peterson could bid in the Wansford

third shift position, to which Peterson replied he was not in-

terested (A 126).

Lyons, on his deposition, admitted that there was no rule that

required a man of higher seniority to bid in a job over a man of

less seniority. He also admitted that aftger Peterson’s first shift

position had been filled by Burkhart, even in the absence of

Burkhart, Peterson would not have been permitted by Railroad

Management to have taken the position due to the action of

Railroad is disqualifying him from the first shift. He further ad-

mitted he knew of no telegrapher’s job open between February

1 and February 5, 1965, nor between February 5 and the date of

Peterson’s discharge in April 1965 (Lyons Deposition P.

234-249) (A 49).

The dismissal hearing was held on April 9 at Danville, Illinois

conducted by Q. D. Pickering on the issue of Railroad’s conten-

tion that Peterson failed to report to work as instructed

(Transcript of hearing, Exhibit PWP-11, attached to

Employee’s Ex Parte Submission, Document 92 of the Court

Record, pages 175-183).

Burkhart, as local Union Chariman, appeared on behalf of

Peterson at the hearing and was told by Peterson that he felt he

was entitled to the first shift position at Wansford because he

had been wrongfully disqualified (Burkhart Deposition P.

178-180).

Burkhart testified on deposition that in Union parlance, the

words, ‘‘He owns the job’’ has significance in that it means

through seniority, he has acquired the right above anyone else

to perform the job as long as he is not sick and unable to per-

form it, he is entitled to remain in that job until he is properly

removed from the position through exhausting of all procedures

(Burkhart deposition P. 170-172).

He also testified that since the disqualification hearing of

January 11, 1965, Peterson appeared to be in bad shape

physically and in his opinion, he did not think Peterson was well

(Burkhart deposition P. 230, 231).

Peterson, at the dismissal hearing of April 9, testified that he

was sick, although not under a doctor’s care and not physically

sick, but sick at heart (Exhibit PWP-11, Employee’s Ex Parte

Submission, Document 92 of Court Record, pages 175-183). At

the same hearing, Peterson’s daughter, Jeniel Peterson, testified

that although she was not a qualified doctor, she felt qualified

to say that since December 23rd, her father was unable to think

with a clear mind or to work for any company (Exhibit

PWP-11, Employee’s Ex Parte Submission, Document 92 of

Court Record, pages 175-183) (Pages 63-66 of Ex Parte Submis-

sion, attachment to Motion for New Trial, Document 116, Vol.

IV).

Peterson, toward the conclusion of the hearing, testified, ‘‘As

far as I am concerned, the Wansford end was never at any time

checked out. It is any man’s inherent right to have his side of the

story thoroughly checked out. That is no more than simple

justice. That is all I ever wanted.’’ (Exhibit PWP-11,

Employee’s Ex Parte Submission, Doc92 of Court Record,

pages 175-183).

Pickering, the Railroad Hearing Officer, later testified by

deposition that even if he had known of the difficulty Peterson

was having on December 22, 1964, as testified to by Peterson on

disqualification hearing, he would have disqualified him

without discussing the matter with Peterson (Pickering Deposi-

tion P. 185-186).

aa pe

The dismissal of Peterson followed the April 9 Pickering-

conducted hearing on April 15, which was during the 9-month

appeal period (A 6), while Peterson was engaged in cor-

respondence with his Union pertaining to an appeal of

Railroad’s disqualification action (A 161, 165-168).

The dismissal decision executed by C. E. Dowdy was written

by Lyons, as was the decision on the subsequent appeals of the

dismissal action, which appeals were taken by Hayes on behalf

of Peterson to Warren, and finally to H. S. Vierling, General

Chariman of the Railroad (Lyons deposition P. 240-247,

Employee’s Ex Parte Submission pgs. 58-62, Document 92,

Memorandum in Opposition to Motion for Summary Judg-

ment, attached to Motion for New Trial, Record Vol. IV, Docu-

ment 116).

Hayes, in his appeal to Dowdy, Warren and Vierling,

reitereated Union’s position on behalf of Peterson that, ‘‘It is

the position of the employees that Peterson’s dismissal for

charges ‘failure to report for work’, is not only unreasonable

and harsh, but all out of proportion even if he had no legitimate

reasons for not working. We maintain that he himself can deter-

mine his fitness for work, and the fact that during his twenty

years of service he was never disciplined for the same cause, is

evidence of his willingness to work when he is well.’’ (A 174)

In Hayes’ letter of August 18, 1965, to Lyons, it is stated:

**...we maintain that this is a bonafide claim progressed

for submission to the Adjustment Board;...’’ (A 175)

Hayes’ letter of October 26, 1965, to. Vierling, stated:

**.. this is to advise that we cannot accept your declina-

tion of this claim, and are forwarding it to the office of the

President of our Organization for further handling.’’ (A

180)

General Manager Vierling denied the appeal August 10, 1965

(Exhibit J-39, Record Vol. Il, Document 80).

— A-50 —

Union Representation Of Peterson On Railroad Property

General Chairman Hayes, on January 2, 1965, agreed to

represent Peterson at the disqualification hearing which was

then scheduled for January 4. On January 3, he told Peterson

that the Railroad officials said they thought the matter could be

worked out with a friendly discussion in Chicago, which Peter-

son attended with the results heretofore described (Brief Page

13). Hayes did not attend the meeting (A 113, 114).

On January 2, Peterson sent Hayes a fourteen-page letter set-

ting forth the background and facts (A 117-119).

On January 5, 1965, Hayes and Peterson conferred by

telephone concerning the agreement the Railroad had tendered

to Peterson for signature. Hayes informed Peterson that he had

raked Warren over the ccals for expecting Peterson to sign such

an agreement (A 120). On January 7, during a further discus-

sion of the agreement, Hayes never told Peterson that he should

agree to the settlement (A 125).

On January 11, Peterson met Hayes prior to the hearing in

Chicago Heights and gave him the fourteen page summary

made on January 2nd. Hayes had no discussion with him before

the hearing. At the hearing, Peterson told Hayes he had records

from different days showing what had been going on. Hayes did

not call for any of the records (A 125).

After the hearing, Hayes told Peterson he thought he had a

fifty-fifty case (A 129). He told him that he had a pretty good

case and that these things are long, drawn out affairs and it

would probably be a year or two before he heard anything.

There was no discussion at that time as to whether or not Peter-

son should sign the agreement (A 125).

Hayes never told Peterson he would be required to protect his

seniority (A 127).

— A-51 —

On February 18, 1965, Peterson wrote Hayes advising him he

wanted his case appealed and offered his assistance in any way

possible to show how Cable operated. He suggested affidavits

from various operators up and down the line that knew of

Cable’s method of operation (A 161).

On February 23, 1965, Hayes advised that his appeal to Lyons

had been denied on February 16, 1965, and that ‘‘in the mean-

time I am preparing the case for submission to the Adjustment

Board, as I feel it is extremely unlikely that any settlement can

be reached.’’ and advised that ‘‘When your case is submitted to

the Adjustment Board, there isn’t anything else I can do until a

decision is rendered.’’ and that in these cases ‘‘the Board’s rnain

concern is if the employee had a fair and impartial hearing.’’ He

further advised that, ‘‘Unless you hear otherwise from me, you

can assume the case has been submitted to the Adjustment

Board, and it will be from one to two years before a decision is

rendered.’’ (A 165)

On March 3, 1965, Hayes wrote Lyons regarding Peterson,

Stating:

**...Since there was no evidence submitted that he refus-

ed to perform the work without any reason, it is a natural

assumption that any delays in performing preferential

work was account of insufficient time or because the wires

were inoperative. We cannot accept the notion than an

employee, who has worked a job for some four years, sud-

denly becomes disqualified except by physical handicap.

**... Trainmaster ett admitted at the hearing that he

didn’t know anything about what work has to be perform-

ed first, and also testified that Peterson’s explanations

were satisfactory to him. Therefore, since Mr. Jett was

satisfied that any delays in sending consists, etc., was caus-

ed by Mr. Peterson doing oftier preferential work indicates

that Peterson’s work was satisfactory.

— A-52 —

‘*In connection with the agreement offered Peterson as a

condition to permit him to return to his position any

modificaitons in the original agreement proposed, is im-

material. In any event, it would have committed him to ad-

mitting guilt of some wrongdoing which he emphatically

denies, and we maintain that there was no evidence submit-

ted to prove him guilty of any offense.

‘* ..this is to advise that we are forwarding the claim to

the President of our Organization for further

handling....’’ (A 167)

The disqualification claim was then forwarded by Hayes to

G. E. Leighty, President of the Union, for consideration ‘‘and

appeal to the Adjustment Board if found to have sufficient

merit.” (A 166-168).

On May 5, 1965 Leighty wrote Hayes and directed him to at-

tempt settlement on the property (A 171).

On May 3, Hayes wrote Peterson inquiring whether he would

be willing to go back on a leniency basis if the company would

give it consideration (A 169).

Peterson, in letter of May 6 to Hayes, advised Hayes that he

wanted the best appeal possible. Peterson heard from Hayes on

May 14th inquiring whether he would be willing to sign the

original conditional agreement (A 173). He testified that Hayes

never asked him to sign the original agreement until after he was

dismissed (A 128).

On September 7, Peterson wrote to Leighty advising that he

felt Hayes did not intend to proceed with his case and that he

therefore felt it necessary to confer with Leighty direct in seek-

ing to have his case appealed. He advised Leighty there were

many facts to his case that Leighty would want to know, and in

order to acquaint him with them, a personal conference would

be mutually beneficial (A 176, 177).

— A-53 —

Leighty replied to Peterson on September 10, 1965, advising

that Hayes anticipated a conference with Railroad for further

discussion sometime after_.the Ist of October and further stated:

**You also stated in your letter that General Chairman

Hayes does not appear to have the slightest intention of

progressing your case to an appeal board. I presume you

mean by the board to be the Third Division of the National

Railroad Adjustment Board. This is to advise you, Brother

Peterson, that if General Chairman Hayes is unable to set-

tle your case on the Division, it is his intention to submit it

to this office for further handling. The decision to progress

your case to the Third Division will be made by this office,

based upon the facts and*circumstances involved in the

matter itself.’’ (A 178, 179)

He concluded by stating:

‘“*It is your opinion that a personal conference with me

would be mutually beneficial. Let me say to you, Brother

Peterson, you are quite welcome to come to headquarters

at any time to discuss your case with me or a member of

my staff should I not be available.’’ (A 178, 179)

On October 12, 1965, Peterson went to the Union Office in

St. Louis, Missouri. He could not see Leighty but talked to Mr.

Dysert, a Union Official at the Union Office, and left three

copies of the account of the events in Leighty’s Office with

Dysert. This was a resume of facts prepared January 2, 1965 for

Hayes. Peterson informed Dysert that he was interested in his

case being appealed and wanted to know if the Union was with

him, and if not, he would take the appeal in person. He asked

that he be advised, but heard nothing from him (A 128, 129).

On October 26, 1965, Hayes wrote Railroad General Manager

Vierling that the claim was being forwarded to the Office of the

President of the Union for further handling (A 180), and on

November 4, 1965, Leighty wrote Hayes acknowledging receipt

— > eR

of his file and that the case would be handled as promptly as

possible (A 181).

Peterson heard nothing until January 28, 1966, when he

received the letter from Hayes advising that the Union would no

longer process his grievance and therefore, Peterson could in-

dividually submit the grievance to the Third Division of the Na-

tional Railroad Adjustment Board within the applicable time

limit, which would expire May 10, 1966 (A 184). In Leighty’s

letter to Hayes, January 26, 1966, advising that Union wou

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