Opposition Brief — Woodrum v. Southern Railway Co.

Wice-Supreme Vourt, ©

FILED

JUN 24 1985

No. 84-1840 ALEXANDER L STEVAS,

| CLERK

In The

Supreme Court of the United States

October Term, 1984

ro

es

LONNIE M. WOODRUM,

Petitioner,

v.

SOUTHERN RAILWAY COMPANY,

Respondent.

Ly

——

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Wa ter H. Buss, Jr.

Hai, Biocu, Gartanp & Meyer

P. O. Box 5088

577 Mulberry Street

Suite 1500

Macon, Georgia 31213

June, 1985

Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 233

TABLE OF CONTENTS

Page

Statement of the Case 1

Reasons for Denying the Writ 2

Introduction 2

I. The District Court lacked subject matter

jurisdiction to review the Public Law

Board decision on the grounds alleged by

Petitioner 3

II. Federal R. Civ. P. 60(b) does not afford a

basis of review of the Public Law Board

decision 6

Ill. There is no cause of action under 45 USC

§ 60 ceed

Conclusion ae

li

TABLE OF AUTHORITIES

CITATIONS

CASES:

Jones v. St. Louis -San Francisco Railway Co.,

728 F.2d 257 (6th Cire. 1984)

Page

Merchants Dispatch v. System Federation, 447 F.

Supp 799

Pitts v. National Railroad Passenger Service,

(N.D. Ill. 1985) 484 C 6486 decided 3/8/85 cnn

Stanton v. Delta Air Lines, Inc., 669 F.2d 833 (1st

Cire. 1982)

Union Pacific v. Sheehan, 439 US 89, 99S Ct 399,

58 L.Ed.2d 354 C 1978

eosese 0

STATUTES:

Fed. R. Civ. P. 60(b)

45 U.S.C. § 60

STATEMENT OF THE CASE

Respondent has steadfastly denied that its claim agent

Bill Piper procured the perjury of Robinson.

Even though this case was decided on Summary Judg-

ment, it was not the usual setting for Summary Judgment.

Rather the trial courts decision dealt with statutory con-

struction, with its own jurisdiction, and with whether the

award of a Public Law Board was ‘‘indisputably without

foundation in fact.’’ Each of these is more an issue of

law than of fact.

A brief chronology is in order.

(1)

(2)

(3)

(4)

(5)

The meeting at the Hilton occurred on March

15, 1978.

The hearing on the property at which Robinson

allegedly lied occurred on May 16, 1978. The

alleged lies had to do with Woodrum’s conduct

and for that reason he well knew whether the

statements were lies. Woodrum was discharged

for disloyalty, a proper ground for discharge

under the collective bargaining agreement.

The Public Law Board upheld Woodrum’s dismis-

sal on July 30, 1979.

On May 20, 1980, Robinson (who now had ein-

ployed Attorney Burge in his own F.E.L..\. case

against Southern) gave an affidavit that he had

lied at the hearing and that Mr. Piper had pro-

cured those lies. Woodrum admits that he knew

of the recantation at this time.

Piper died in August 1980.

(6) This law suit was filed on June 5, 1981—more

than three years after Woodrum “knew” that

Robinson had lied, nearly two years after the

Public Law Board decisions, and more than one

year after Woodrum admits that he knew every-

thing.

There is no allegation that the original hearing con-

ducted ‘‘on the property” was not properly conducted

under the terms of the applicable collective bargaining

agreement. The record demonstrates that petitioner was

unrestricted in his proof and that he was afforded an

opportunity to disprove the allegations of Mr. Robinson

at the hearing.

The record also shows that the proceeding before the

Public Law Board was conducted in accordance with its

usual procedures and that it was composed as it custom-

arily is—i.e. by one representative of labor, one of man-

agement, one neutral. There was no objection to the com-

position of the Board. To date petitioner has made no

allegation that any member of the board was guilty of

fraud or corruption.

—

Vv

REASONS FOR DENYING THE WRIT

INTRODUCTION

Contrary to petitioner’s contention this case does not

fall within any of the categories set forth in Supreme

Court Rule 17 governing review or certiorari.

Petitioner has not cited a case from any other circuit

in conflict with the decision in this case. He says there

3

is a conflict between this case and other cases applying

the *‘indisputably without foundation in fact” rule, but

in fact, this opinion applied that rule to this case. In all

respects the Eleventh Circuit correctly applied well set-

tled principles of law and there is no matter of sufficient

gravity presented here to merit grant of the writ.

I.

The District Court lacked subject matter juris-

diction to review the Public Law Board decision

on the grounds alleged by Petitioners.

Employment is generally at will with the employee

having no recourse for his firing whether just or unjust.

The Railway Labor Act was designed to reduce labor-

management tensions that existed in the railroad indus-

try. The original act provided for some review of man-

agement decisions. The machinery broke down because

ol delay caused by judicial review at the District Court

level. Congress decided in 1966 to speed up the process

by providing for substantial finality of the Public Law

Board decisions with District Court review only upon

narrow grounds.

It is well recognized that the scope of judicial review

under the act is ‘‘among the narrowest known to the law”

Union Pacific v. Sheehan, 439 US 89, 91-94, 99 S Ct 399,

401-2, 58 L.Ed.2d 354 (1978). The grounds stated in the

act are

(1) ‘‘failure of the division to comply with the re-

quirements of this chapter,”

(2) ‘‘for failure of the order to conform or, confine

itself, to matters within the seope of the divi-

sion’s jurisdiction, or”

4

(3) ‘‘for fraud or corruption by a member of the

division making the award”’

A fourth ground recognized by several Court of Appeals

decisions is that review may be had if the award is ‘‘actu-

ally and undisputably without foundation in reason and

fact.”

Both the District Court and the Court of Appeals

considered each of these grounds and found each non-

existent.

As to the ground 3 both courts found that the lan-

guage restricted review to fraud by a member of the

tribunal as opposed to fraud by a party. This is what

the language clearly says. The differences in this lan-

guage and that of other similar statutes which give broad-

er grounds of review merely show that Congress con-

sciously selected the narrower language. Merchants Dis-

patch v. System Federation, 447 F Supp 799 is in agree-

ment. Only fraud by a member of the division, as op-

posed to fraud by a party, was intended to be reviewable

and there was no evidence or even allegation that the

member knew of the fraud.

Nor did either court accept the notion that fraud by

the railroad party should be imputed vicariously to the

railroad representative on the board. It is well recog-

nized that the Public Law Board is composed of two

advocates and only one ‘‘neutral”. Stanton v. Delta Air

Lines, Inc. 669 F.2d 833, 837-8, (1st Cire. 1982); Jones v.

St. Louis -San Francisco Railway Co. 728 F.2d 257, 260

(6th Cire. 1984). This partiality is fully expected and

does not constitute fraud or corruption. In the absence

of proof that the railroad representative actually knew of

the fraud (and there is no such proof here) knowledge of

fraud by the party will not be attributed to the repre-

sentative. See Pitts v. National Railroad Passenger Serv-

ice, (N.D. Ill. 1985) #84 C 6486 decided March 8, 1985.

Regardless of whether ground 4 is simply a restate-

ment of ground 2 or whether it is actually a fourth ground

of review, it was considered by both the trial court and by

the Court of Appeals.

Both courts determined that regardless of the effect

of the recantation there was substantial evidence which

continued to support the board’s decision and which kept

it from being ‘‘actually and indisputably without founda-

tion in fact or law’’. For example, the undenied appear-

ance of Mr. Woodrum’s name and phone number on the

back of Mr. Burge’s business card and the giving of that

ecard to Robinson shows more than testimony the role

that Woodrum was playing for Burge.

In addition the court rejected the notion that recant-

ing of testimony obliterates that testimony. The totality

of the fact situation is summarized by the Court of Ap-

peals showed an ample basis to believe that Robinson was

telling the truth the first time. Furthermore, the testi-

mony of Mr. Piper was never recanted and remains as

substantive evidence.

All of this remains ample to support a finding that

the award was not ‘‘indisputably without foundation in

fact or law.”

6

II.

Federal R. Civ. P. 60 (b) does not afford a basis

of review of the Public Law Board decision.

F.R.C.P. 60(b)(3) seems to give a district court the

authority to review a judgment obtained by ‘‘fraud .. .

of an adverse party’’ but it ‘‘shall be made within one

year of the judgment, order or proceeding was taken or

entered.’’ Yet, this action was not taken within one year

of the Public Law board award or even within one year

of the date he admitted ‘‘discovering” the fraud. for

this reason Woodrum denominated his action as an “in-

dependent action”.

Both the trial court and the Court of Appeals ruled

that neither 60(b) in general nor the provision for inde-

pendent actions contained in 60(b) were meant to give a

district court jurisdiction over matters which it did not

otherwise have. There is ample authority for this propo-

sition cited by the Court of Appeals at Petitioner’s App.

17. Both the trial court and the Court of Appeals recog-

nized that Rule 60(b) did not authorize a district court

to engraft an additional ground of review upon a con-

gressional scheme allowing review only for specified

grounds.

Il.

Y

There is no cause of action under 45 USC § 60.

45 USC §60 voids any device intended to prevent

employees of a common cause from furnishing informa-

tion ‘‘as to the facts incident to the injury or death of any

employee”. It is a criminal statute and must be strictly

construed. Woodrum was not disciplined for furnishing

information “‘as to the facts incident to the accident.”

The Court of Appeals correctly determined that there was

no evidence even in Robinson’s second version of the facts

that 460 was violated.

The Court of Appeals did not reach the statute of

limitations problem on which the trial court ruled. Yet

it is inescapable that if Southern violated § 60 it did so

the moment it caused the hearing to be scheduled and

that this occurred beyond the three year statute of limi-

tations period. If it was the lying of Robinson that ere-

ated the cause of action this occurred the moment Robin-

son lied because Woodrum had to know that Robinson's

testimony about Woodrum’s own conduct was false. This

too ialls outside the three year limitation period.

°

CONCLUSION

For the foregoing reasons, the Petition for Certiorari

should be denied.

Respectfully submitted,

/s/ Water H. Busn, Jr.

Hau, Biocu, Gartanp & Meyer

1500 Charter Medical Building

P. O. Box 5088

Macon, Georgia 31213

Attorneys for Respondent