Petition for Writ of Certiorari — Grimes v. Louisville & Nashville Railroad

R - Es h ¢ i k Supreme Cound. “2.

wos, & Dd

| ocT 22 1988

JOSEPH F. SPANIOL, JR.

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

KENNETH C. GRIMES

Ve

LOUISVILLE AND NASHVILLE R. CO.

4

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Kenneth C. Grimes

621 East Gum Street

Evansville, Indiana 47713

Date: 812-423-1600

04/21/86 Counsel as Pro Se

QUESTIONS PRESENTED

as Whether the District Court's

decision was "objectively reasonable", when

in its judgment, refused to confirm an NRAB

awards enforcement provision for damages in

violation of Conely v. Gibson, supra, 355

0.6. O€ €35 788.08. OC 02 When

enforcement was a matter of right under

Ind. Trial Rule Procedures 38(E).

2. Whether a sere of Appeals shall

waive a right to an enforcement claim for

damages as a remedy when (a) the District

Court did not receive a motion by the

defendant to waive the enforcement claim

for damages in violation of Johnson v. New

York HH. and H.R. Co., 1952. 344 U.S. 48,

50, 73 S.Ct. 125, 97, L.Ed. 77 and (b) when

the Court of Appeals weighted the evidence

and reassessed a conclusion reached in

District Court on the same subject matter

in violation of Hommel vy. Jackson Atlantic

Lines, Inc., 5 Cir. 1971 438 F.2d 307 and

Cone v Lnj or

(1947) 330 U.S. 212, 91 L.Ed. 849, 67 S.Ct,

752. Supreme Court Rule 17 l(a) (c).

3. Whether the District and Appeals

Courts abused judicial discretion.

Il

vc etl we elhe A pete

CITATION OF OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISION INVOLVED

STATEMENT OF CASE

REASONS FOR GRANTING THE PETITION

CONCLUSION

CERTIFICATE OF MAILING

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

Page

12, ai

20, 21, 28

33

la

2a - 36

6a

a = 26a

27a - 32a

Judgments sought to be reviewed, names,

(App A infra la)

Iil

a

Cases Page

Brown vy. Excel Brune, 1977

359 N.E. 2d 608, 172 Ind App 31 28

Conley v. Gibson Supra,

355 U.S. At 45, 47, 78 &.Ct.

at 102 13, 18, 26

Comes y. Vanosdol, 1853,

4 Ind, 248, Kintner v. State,

1851, 3 Ind, 86 8

Conder vy. Hull Lift Truck, Inc.,

N.E. 538 (Ind Ct. App 1980) 3

, (1947) 330 U.S. 212,

91 L.Ed., 849 67 S.Ct. 752 25

Chauffers, Teamsters, Warehousemen

and Helpers Local Union No. 135 v.

Jefferson Trucking Co,., CA 1980

628 F.2d 1023, Cert den 101 S.Ct.

942, 449 U.S. 1125, 67 L.Ed. 11l 16

Delaware and Hudson R, Co., et al

VY. Williams, 129 F.2d ll Lie 2a

F, P. Baugh, Inc. v. Little Lake

Lumber Co., CA Cal, 297 F2d 692,

696 9

Globe Liquor Co, vy. San Roman,

(1948) 332 U.S. 571, 92 L.Ed. 177,

68 S.Ct. 246, rel den 333 U.S. 830,

92 L.Ed. 1115, 68 S.Ct. 450 25

ori rote i Nashvil)

R, Co., 583 F. Supp 642 (1984) 6

IV

Jac! Atlantic tines

Inc., 5 Cir 1971 438 F.2d 307

Johnson vy. New York H,. Hand H.R.

Co., 1952, 344 U.S. 48, 50, 73

B.Ct. &25- FF bo BG. FF

Justice v. Lange, 42 NY, 493,

496 1 Am Rep 576 Langimble v. State,

4 Tex App, 312, 321; Ed v. Kearze

Y 96 U.S. 595, 599 24 L.Ed. 793

| hal ini

United States Dept, of the Interior,

624 F.2d 784. 788-89 (7th Cir. 1980)

Co., Me 1978, 395

A 2d 1107

Personnel Division v. Sightes,

App 1981, 416 N.E. 2d 445 at (5)

ReLott, 49 NY 2d 134, 138,

Pittsburgh Steel Co. ¥. Baltimore

Equitable Soc., 77 A 255, 256

113 Md 77; Heath v. Fenning, 40

N.E. 2d 329, 331, 219 Ind 629;

Murray v. Mossman Wash, 329 P. 2d

1089, 1092, Const Art § 24; Art 7,

§ 1, Hamlet Hosp. and Training

School v. Joint Committee N.C.

68 S.F.2d 862 (6), (9)

Rosenthal vy. New York Life Ins.

Co., CCA Mo 99 F.2d 578, 579

Turner v, Commonwealth Edison Co,,

35 Ill. App 3d 331, 341 N.E. 2d 488,

493; Georgia Power Co. v. Deese,

78 Ge App 704, 51 S.E.2d 724, 728;

Lewandowski v. Bakey, 32 I1l App

3d 26, 335 N.E. 2d 572, 574; Puget

V

22,

21,

26

25

20

28

16

20

23

Sound Painters v. State, 45 Wash 2d

819, 278 P. 2d 302, 303 4

University City v. Home Fire and

Marine Ins, Co.; (1940, CA 8 MO)

114 F.2d 288 10

Vassel_e]_v. Durning, (1945

CA 2 NY) 1952 F.2d 455, Marshal

v. Crotty, (1950 D.C. Mass) 88 F.

Supp 30 affd (CA 1 Mass) 185 F.2d

622 7

: baa

Const Art 1 S$ 24; Art 7, 1;

Heath v. Fenning, 40 N.E. 2d

329, 331, 219 Ind 629 20

Federal Statutes

28 U.S.C. 1651 (a) 31

45 0.S.C.A. § 153 Pircst (P) ee

45-0.6.C.A. $ 153) (nm) 4

45 U.S.C.A. § 153(R) 4

ee ee tivil E 5 ERCP)

FRCP 81 (b) 5

FRCP 69(a) 5

FRCP 41(b) 10, 14

FRCP 13 (b) 8

FRCP 8(a) (1) 8, 17

re. Tee

-- En’.

=

=

-

FRCP 8(c) 14, 26

FRCP 7 (b) (1) 26

Supreme Ct., Rule 17.1(a) (c) 22, 28

State Statutes, Indiana Code (IC)

IC 8-4-29-1--8-4-29-5 8, 15, 29, 31

IC 34-4-1-12 30

IC 34-4-1-13 30

IC 34-4-1-17 8, 30

IC 34-4-2-12 7, 16

IC 34-4-2-13 16, 22

IC 34-4-2-14 16

IC 34-4-2-16 6

IC 34-4-2-19 7, 30

IC 34-1-58-1 28

IRTP 38(E) hae 45

IRTP 8(C) 14, 15

IRTP 50(E) 26

IRTP 52(A) ai

IRTP 13(B) 8

IRTP 9(E) 8

IRTP 69(E) 34

VII

Local Rule

Local Rule 10

Local Rule 8(C)

Local Rule 19(J)

VIII

27

26

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

KENNETH C. GRIMES

V.

LOUISVILLE AND NASHVILLE R. CO.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Kenneth C. Grimes, as Plaintiff, hereby

petitions for a writ of certiorari to

review the judgment of The United States

Court of Appeals for the Seventh Circuit

and The United States District Court for

the Southern District of Indiana in this

case.

CITATION OF OPINION BELOW

Nashville Railroad Co; 583 F. Supp 642

(1984) (No. 84-2749 7th Cir., filed October

bap see) (NO. B1-130-C U.S. Dist. Ct., S.

Dist. Ind. filed June 11, 1981 adjudged

Sept. 14, 1984.)

r acai x

cit oe tant aes ie ee ee ied eal

JURISDICTION

The judgment of the court of appeals was

entered on June 12, 1985. A petition for

rehearing was denied July 25, 1985.

Submitted to this court October 22, 1985,

Ext. of Time Granted by Court. Resubmitted

April 21, 1986. The jurisdiction of this

court is invoked under 28 U.S.C. 165l(a).

CONSTITUTIONAL PROVISION INVOLVED

Const Art l 24; Art 7, 1,. Heath v.

Fenning, 40 N.E.2d 329, 331, 219 Ind 629.

STATEMENT OF THE CASE

On June 13, 19/9, the second division of

the National Railroad Adjustment Board

(NRAB) rendered a decision based on binding

arbitration by a referee. The disputed

issue, was whether the company impaired

Grimes's seniority rights upon

reinstatement July 9, 1979.1 The agent

with the responsibility of carrying out the

Lapp E infra at 32a

2

decision of the NRAB award, showed

indifference, in awillful, knowing act,

when he reinstated the petitioner (Grimes)

to a position that impaired his seniority

rights.2 The agent under oath in

deposition stated the following (A) "But I

do know that, of course, we left him at

apprenticeship status and we never made any

adjustments in his apprenticeship hours."

(B) Question: did the fact that he was

reinstated according to the National

Railroad Adjustment Board with his

seniority rights unimpaired play any part

in your decision whether or not to put him

in an apprenticeship status or an upgraded

Status? Answer: "No." (C) "Mr. Grimes

just wasn't able to accept the fact that,

that's the way as management we decided it

had to be. But I did advise him of his

2Ibid at 1 Conder vy, Hull Lift Truck,

Inc., N.E. 538 (Ind App 1980)

3

rights"..."then ultimately you know, it

could be appealed to a higher court, other

than myself."3 The company knew the

hazards involved, and was indifferent to

the conditions imposed by the arbitrator.4

This was a breach of a mutually assented

good faith agreement. This action caused

injury, damages, and suit in district

court.9 After exhausting all

administrative remedies counsel filed suit

for Grimes in district Court on the

entorcement issue in accordance with 45

USCA §153 first (p), (r).© Relief by this

statute is available by following FRCP

3u.S. Dist. Ct. Trial Transcript,

Plaintiff's Exhibit No. 1, Appellant's

Brief at P. 11, 12. Deposition filed April

1982 B. R. Montgomery P. 46-47

4Turner v. Commonwealth Edison Co.; 35

Ill. App 3d 331, 341 N.E.2d 488, 493;

Georgia Power Co. v. Deese, 78 Ga (Cont.

Table of Authorities)

545 U.S.C.A.§ 153(L) (M) (P) (R)

6Ibid at 5

81(b) and 69(a). Under the state statute

involved NRAB awards are treated as

"written verified instruments and construed

as prima facie evidence." "No proof is

required of the findings of the order is

required unless specially denied by

pleading under oath."’ On August 6, 1981,

the defendants responded in answer. The

response specially denied allegation (A-C)

of paragraph twenty-three (23) of the

petitioner's complaint. 8 On July 9, 1982,

summary judgment hearing was held on all

the issues. In response and support of

their special denial, the defendants

Claimed they retained a discretionary right

to reinstatement.9 The petitioner's second

7IC 8-4-29-1--IC 8-4-29-5

Spefendant's L and N R. Co. Answer to

Complaint at paragraph 17 filed August 6,

1981

Spist. Ct. Record, Summary Judgment

Hearing, Filed July 9, 1982. See P. 13

"

°

ie

a

4

attorney, provided express constructive

notice on seven different occasions at the

hearings.10 The language and motions were

consistant with what is asked of a pleader

under IC 34-4-2-16.11 Moreover, at the

hearing it was noticed by the defendant's

counsel that "the pre-trial order I think

was composed about the time that his

counsel withdrew from the case".12 on

February 10, 1984, the district court

issued a Summary Judgment order on counts

one through five.13 The judgment held a

retaliation claim for trial for the

plaintiff. But, the judgement did not

10tbid at 9, also see P. 20 Lines 6, 19,

P. 21 Lines 2, 3, 9, 13, P. 22 Line l7

llic 34-4-2-16 Application to Court for

awards is made upon notice provided by law

Or rule, Local Rule 8(c) and follows FRCP

7(b) (1) on notice.

12Tbid at 9, see P. 17 Lines 10, ll.

Co,, 583 F.Supp 642 (1984)

6

confirm the award.14 The effect on the

enforcement issue was: (1) The enforcement

claim became an anciiliary proceeding.15

(2) It settled the genuine material issue.

The Court ruled, "Grimes returned to work

on July 9, 1979, as an "electrician

apprentice” rather than an “upgraded

electrician apprentice” and although it is

not entirely clear, it appears that his

ver Meet b ; ‘req. 16

(3) This judgment removed the disputed

question of seniority rights impairment as

a bar. In effect, this allowed this part

of the awards decision to be construed as a

141¢ 34-4-2-12, 19 Confirmation of Award

by Court § 12, provides docketing under

19 recovery for damages, IC 8-4-29-2.

15PRCP 81(b) Vassel el v. Durning (1945

CA 2 NY) 152 F.2d 455; Marshal vy. Crotty

(1950 D.C. Mass) 88 F.Supp 30 Affd (CA i

Mass) 185 F.2d 622.

l6tbid at 13 see opinion.

7

| mn at eee 7 ee eee eS erry, Pe Te * a . m ™ a m "| a lies’ el Oo i da Ss pen. ae te a Pe

trial.17 For reasons that are unclear to

this petitioner, the second attorney

withdrew, leaving this litigant no choice

but to proceed pro se. After a failed

interlocutory appeal, the petitioner

entered into the record a stipulated

agreement, up to that point, of the cost

and damages dated June 15, 1984.18 on July

26, 1984, the retaliation claim came on for

trial. The enforcement claim, Dy

applicable law and evidence followed IC

8-4-29-1--IC 8-4-29-5, FRCP 8(a) (1) allowed

the claim to be a proceeding to enforce a

judaoment previously obtained in the same

court. Where as ITRP 13(b) and 9(E) in

permitting a permissive counter claim,

states that "it is sufficient to simply

l7Ibid at 7, Special denials as bar to

prima facia showing

18iocal Rule 19(J) and IC 34-4-1-17

Cones v. Vanosdol, 1853, 4 Ind, 248

Kintner v. State, 1851, 3 Ind. 86.

8

aver the judgment or decision." Upon

trial, the petitioner pleaded in motion to

confirm the award.

Mr. Grimes: ...I was...hoping...to show

that...efforts....

Court: Efforts to what?

Mr. Grimes: To oppose the acceptance of a

reduced and demoted status of (1) not

having or being reinstated with my

seniority rights unimpaired. As (2) the

judge had ordered in that order.

The Ccurt: Objection is overruled: show

that adjmitted.19 the motion sought

confirmation of the award showing specific

express notice and comment of the seniority

rights impairment dispute.29 This was a

19y.S. Dist. Ct. Trial Transcript filed

July 26, 1984 (retaliation) see p. 6 Lines

1-6, P. 7 Lines 10-15, P. 13 Lines 1-8, P.

16 Lines 7-9, P. 17 Line 25, P. 18 Lines

1-3

20F, p Baugh, Inc, v. Little Lake

Lumber Co,, C.A. Cal, 297 F.2d 692, 696

9

claim for a substantial right.21 This

enforcement claim for damages was provided

in complaint,?2 noticed seven times as a

live issue at the summary judgment hearing,

and made prima facie evidence at the

retaliation claim trial upon motion as the

"judge had ordered in that order." The

court refused to confirm the enforcement

Claim for damages. After, taking the

arguments under advisement, the court on

September 14, 1984, granted motion by the

defendant for an involuntary dismissal

under FRCP 41(b) on the grounds that, based

on the applicabie law and evidence

presented, the plaintiff had shown

21

University City v,. Home Fire & Marine

Ins. Co. (1940, CA 8 MO) 114 F.2d 288,

Harmless error...is not intended to deprive

a litigant of a substantial right.

22app D infra at 25a

10

no right to relief on the yetaliation

claim.23 The court's ruling, thereafter

followed the motion stating that, the court

can find nothing which lends support to

Grimes's argument that the railroad

retaliated. Both the court and defendant

responded exclusively to the retaliation

claim.24 This petitioner appealed the

decision to the seventh circuit court of

appeals.25 The petitioner, then argued

exclusively on the enforcement claim for

damages, in amain, reply, and rehearing

briefs.26 On June 12, 1985, the appeals

court, affirmed the district court

Liati Sein Mentos ‘ved t]

23pist. Ct. order issued Sept. 14, 1984,

P. 3 para 3, Ibid at 9, P. 12 Line 6

24Ibid at 23

25App C Infra at 6a

26App A at la and App Bat 2a-5a

11

enforcement claim. The appeals court

relying solely on Laketon which stated in

point, "an appeals court will not consider

an argument raised for the first time on

appeal." The court then denied the

enforcement claims on the following

grounds: (1) Grimes did not develop the

enforcement issue argument in the earlier

summary judgment hearing, (2) that the

enforcement issue was not raised before the

motion for involuntary dismissal by the

defendants, (3) and that there was not even

an oblique reference to the enforcement

issue. For these reasons the court based

its decision and "waived" the enforcement

claim for damages.2/7

REASONS WHY THE PEITION SHOULD ISSUE

The court should grant the peition to

settle the question raised by its decisions

27App B at 2a-5a.

is

of whether the district court's decision

was "objectively reasonable", when in its

judgment refused to confirm an NRAB awards

enforcement provision for damages in

violation of Conely v. Gibson supra, 355

U.es Se eee eee eeees BC CULO, )6CUlWhwhhen

enforcement was a matter of right under

Ind. Trial Rule Procedure 38(E).

The oral motion made by the plaintiff

for confirmation of the award at the

retaliation claim trial, in conjunction

with the motion in complaint and the award

attached made confirmation mandatory.28

The district court's refusal to confirm the

award for damages is uncertain in its

meaning, mainly because there was a ruling

in part on the award but the decision

refused confirmation of the award,

therefore denying damages of a substantial

28ITRP 38(E) "upon motion, the courts

have no right to refuse an enforcement

Claim for damages.

aa

right.29 This court has held in response

to this kind of decision the following

conclusion: "Findings of a Gieteset court

must be set aside by a reviewing court

where it is uncertain what they mean." See

Schine Chain Theatres v. United States, 334

U.S. 110, 68 S.Ct., 947. The district

court granted a motion by the defendant

under FRCP 41(b) motion of involuntary

dismissal, for failure to state a claim and

shown no right to relief based on the

applicable law and evidence on retaliation.

This was the court's cause for denying

damages to a confirmation of the award on

the enforcement provisions. The court's

conclusion was faulty based on the

following reasons: (1) The defendant did

not motion for waiver pursuant to FRCP 8(c)

Or under ITRP 8(c) as is required on an

29see District Court decision Sept. 14,

1984, record. Ibid, at 23

14

—-:”

affirmative defense. This is contrary to

the court's action of waiver on this issue.

A party in the suit has the burden of proof

On waiver under ITRP 8(c). In the instant

case ITRP 8(c) provides that "these rules

are subject to the rules of evidence or any

other statute fixing a different rule."

ITRP 38(E) under Title 34 provided such

different rule for enforcement. It states

"nothing in these rules shall deny the

parties by contract or agreement or--the

court's power to specially enforce such

agreements. This rule provided the

district court with no discretion to refuse

to enforce an enforcement claim for

damages, as required under IC 8-4-29-2.30

301¢ 8-4-29-2 "such suits shall proceed

in all respects like other civil suits for

damages; except that...findings and

Order...shall be prima facie evidence of

the facts."

bE

(2) The defendants failed to make a timely

motion to vacate the arbitration award and

was therefore precluded from raising an

affirmative defense.3l Ic 34-4-2-13

provides a 90-day time limit in which to

raise a ground to vacate an award under the

uniform Arbitration Act.32 A court,

pursuant to the uniform Arbitration Act

Shall affirm an award unless the other

party has filed an application to vacate,

modify or correct the award.33 Moreover,

3lchauffers, Teamster, Warehousemen and

Helpers Local Union No. 135 v. Jefferson

Trucking Co; CA 1980, 628 F.2d 1023, cert

den 101 S.Ct. 942, 449 U.S. 1125, 67 L.Ed.

Lil.

32Ibid at 31.

33personnel Division v. Sightes, App

1981, 416 N.E.2d. 445 at (5), "An

application to vacate IC 34-4-2-13 or to

modify or correct award, IC 34-4-2-14,

generally must be made within 90 days after

a copy of the award is mailed to the

appplicant. An application for

confirmation of an award may not be made

before 90 days after a copy of the award is

mailed to the parties. Ind. Code

34-4-2-12.

16

in Delaware vy. Willians, it was held that

denial of relief is justified on only one

of two grounds, namely (a) the fact

situation does not warrant the relief

(seniority rights impairment became a

proven fact) and (b) the statute does not

permit the relief being given. The

language of the controlling statute

provided damages as relief of this

complaint.34 The petitioner acquired

specific jurisdiction to enforce a judgment

previously obtained in the same court and

Showed that the district court had

jurisdiction within the meaning of FRCP

8(a) (1). Adoption of the motion at trial,

to confirm the award for damages is not

based on a demanding standard, when the

motion is based on prima facie evidence,

and represents a substantial right.3°

34p dq >

Williams, 129 F.2d ll.

35Ibid at 21

17

This court has held that a complaint should

not be dismissed for failure to state a

Claim unless it appears beyond doubt that

the plaintiff can prove no set of facts in

support of his claim which would entitle

him to relief. (Conley v. Gibson supra,

355 u.S. at 45, 78 S.Ct. at 102). Moore

indicates as well that a motion to dismiss

is not to be granted except when it appears

"to a certainty that the plaintiff can

prove no state of facts in support of his

Claim which would entitle him to relief.

This rule, which has been stated literally

hundreds of times precludes final dismissal

for insufficiency of the complaint except

in the extraordinary case where the pleader

makes allegations that show on the face of

the complaint some insuperable bar to

relief. This court has considered a

substantial right as such, as having more

value, and force than technical error. 36

36Tbid at 35

18

This tolerance with respect to claims for

relief as well as the correlative

intolerance with respect to motions to

dismiss rests upon the principle that

discovery and other pretrial procedures

serve to the purpose of more precise

disclosure of the facts, thereby narrowing

both the disputed facts and issues left for

trial. On the other hand, pleading to

respect, need only give the defendants

"fair notice of what the plaintiff's claim

is and the grounds upon which it rests.”

Based on this reasoning in Conley, it is

not being objectionably reasonable when the

action by the district court, knowingly

refused, to adopt a prima facie showing for

enforcement damages.3/7 This is a

misapplication of a rule that has been

37Abuse of Discretion Summary Judgment

July 1982, Sec P. 12 Line 6. The Court:

"h2 represented himself didn't he?"

19

stated hundreds of times. To waive relief

in damages in this case is akin to

abolishment of a remedy for NRAB awards,

and is contrary to the constitution which

holds: "To impose any additional

obligation upon a contract already existing

impairs obligation of contract in violation

of the Federal Constitution.38 The

district court denied a good faith

agreement of the NRAB its full

adjudication. 39 Rights in good faith

agreements should be upheld by the judicial

process not abolished. Any other view of

NRAB awards is to do injustice to the clear

intent of Congress. It would defeat the

object of the underlying legislation,

38Re Lott, 49 NY 2d 134, 138,...Const

Art. £ § 243 Ace 7, 3 @& see Table of

Authorities this Petition.

395Justice vy. Lange, 42 NY, 493, 496 1 AM

Rep 576; Langimble v, State, 4 Tex App,

312, 321. Ed v. Kearzey, 96 U.S. 595, 599,

24 L.Ed. 793.

20

nullify, the Railroad Labor Act and make

arbitration proceedings a farce .40 Namely,

by (1) excusing the defendant from a duty

imposed by binding arbitration, and (2)

render the remedy under the statute as

useless.41

The Court should grant the petition to

settle the question of whether a court of

appeals shall waive a right to an

enforcement claim for damages as a remedy

when (a) the district court did not receive

a motion by the defendant to waive the

enforcement claim in violation of Johnson

vy. New York H. H,. and H. Ra Co., 1952, 344

U.S. 48, 50, 73 S.Ct. 125, 97 L.Ed.77 and

(b). When the court of appeals weighted

the evidence and reassessed a conclusion

reached in district court on the same

40tpid at 34.

4lRe Ayers, 123 U.S. 443, 31 L.Ed. 216,

6 S.Ct. 164.

21

subject matter in violation of Hommel] vy,

Jackson Atlantic Lines, Inc, 5 Cir 1971,

438 F.2d 307 and Cone vy. West Virginia Pulp

and Paper Co. (1947) 330 U.S. 212, 91 L.Ed.

849, 67 S.Ct. 752, Supreme Court rule 17

l(a) (c).

The role of an appellate court, under

Indiana law is limited to determining

whether the defendant has established any

grounds for challenge permitted by the

Uniform Arbitration Act.42 In this case,

the grounds for vacating an award is

provided in IC 34-4-2-1343 Furthermore, a

defendant who has a valid ground for

Challenging the award but who fails to

raise that challenge within the 90-day time

limit should not be permitted to raise that

42qtbid at 33

43ICc 34-4-2-13 on vacating award by

court; also states "The fact that the

relief was such that it could not or would

not be granted by a court of law or equity

is not grounds for vacating or refusing to

confirm the award."

22

challenge when the plaintiff applies for

confirmation of his award.44 Based on the

grounds under IC 34-4-2-13, the reasoning

used by the court of appeals for waiver

would not be valid, notwithstanding the

absence of a motion to waiver by the

defendants in district court.45 Under the

rules of practice in Indiana and in the

federal courts waiver is an affirmative

defense which must be pleaded. Confirmation

of the award was pleaded on three occasions

by the plaintiff at the trial.46 In order

for waiver to occur against the plaintiff

he would have to (1) pursue such a course

of conduct with reference to the other

party as to evidence an intention to waive

his rights or the advantage to which he may

44Tbid at 42

45ITRP 8(c) Rosenthal y. New York Life

Ins. Co,, CCA MO 99 F.2d 578, 579

46tbid at 45.

23

be entitled, or (2) where the conduct

pursued is inconsistant with any other

honest intention than an intention of

waiver, (3) provided that the other party

concerned has been induced by such conduct

to act upon the belief that there has been

a waiver and has incurred trouble or

expense thereby (4) furthermore, to make

out a case of implied "Waiver" of a legal

right there must be a clear, unequivocal

and decisive act or the party showing such

purpose, or acts amounting to an estoppel

on his part.4/ The record will show this

was not done in this case. The right not

to seek an affirmative defense of waiver

should not be circumvented by an appellate

court.48 It was held in Johnson vy, New

47tbia at 45.

48The record will show there was no

motion by the defendants in the District

Court proceedings.

24

York that the appeals court may not grant a

final judgment in favor of a party who

failed to so move.49 In this unanimous

reversal, the Supreme Court has held that,

"such a circuitous method of determining

the issue would present the question

Latetnns | b] 1]

1 bs . ‘bili 3

its decision rests in the district

court."29 In a similar case, involving an

action for a breach of warranty this court

reversed unanimously on the grounds that

the appeals court had no power to order

such a judgment.°21l The motion for

involuntary dismissal had in response from

49 Johnson v. New York H. H. & Hs R. Coa;

1952, 344 U.S. 48, 50, 73 S.Ct. 125, 97

L.Ed. 77.

20tbid at 49 also see Cone vy. West

Virginia Pulp and Paper Co, (1947) 330 U.S.

2i2, 921 £.Bd., 8469 67 S.Ct. 752.

Slglobe Liquor Co. vy. San Roman (1948)

332 U.S. 571, 92 L.Ed. 177, 68 S.Ct. 246,

rel den 333 U.S. 830, 92 L.Ed. 1115, 68

S.Ct. 450

25

eVO”_O_OO.....LTLCLULUT

the plaintiff a prima facie showing from

motion on the evidence.°2 Moreover, the

conclusion reached by the appeals court,

that the plaintiff did not develop the

enforcement argument at the hearing on

summary judgment of July 9, 1982, was

faulty.23 The plaintiff's counsel provided

sufficient express, notice and comment in

accordance with FRCP 7(b)(1) and local rule

8(c). Fair noticewas provided.°4 This

appellate court's action is contrary to

rule reached in Homme] vy. Jackson which

states, "The appellate court may not view

the sufficiency of the evidence and grant a

final judgment in favor of a party who

failed to move." Waiver, in Indiana "is

92Ibid at 19, Conley v. Gibson Supra,

355 U.S. at 45 p. 78 S.Ct. a 103 also, see

ITRP 50(E) Motion for Judgment N.O.V.

motion in arrest of judgment, demurrer. To

evidence and venire de novo "abolished".

53App. B infra at 4a.

94tbid at 52.

26

subject to the rules of evidence."°2° To

say a party did not develop the enforcement

issue argument for damages at the earlier

summary judgment hearing is to weight

evidence and reassess conclusions reached

on specific notice and comment, presented

by plaintiff's counsel at the hearing. The

comment was based on local rule 10, as

supported therein by depositions, answers

to interrogatories, admissions and

affidavits filed.°6 Moreover, to

substitute waiver, as a different

conclusion reached by the district court,

that "Grimes's seniority rights may have

been impaired” is to differ on the subject

matter zhat is the basis for enforcement.

This action by the court, also violates

ITRP 52(A) "where due regard will be given

25Ibid at 45.

26District Court, Summary Judgment

Hearing p. i7 Line 24.

27

to the trial judge to judge the credibility

of witnessess."2/ This was not a position

the appeals court was in, notwithstanding

the difference of opinion on the subject

matter. Both the district and appeals

court failed to confirm the award which was

a clear legal right and a prerequisite for

damages on the enforcement claim.58 This

difference of opinion among other

violations is in need of this court's

Supervisory powers, pursuant to supreme

court rule 17.1l(a)(c). This peitioner has

exhausted all appeals and adequate relief

Cannot be had in any other forum from any

other court and that there are present

exceptional circumstance warranting the

exercise of this court's discretionary

powers.

S7ITRP 52(A).

98i1c 34-1-58-l1 at 12. See Brown v.

Excel Brune, 1977, 359 N.E. 2d 608, 172 Ind

App 31, ITRP 69(E); Maine Cent R,. Co v.

Bangor and Aroostook R, Co; ME 1978 395 A

2d 1107.

28

CONDITIONS PRECEDENT

Petitioner has complied with all

conditions precedent to all causes of

action within.

IRREPARABLE INJURY

The petitioner has no total, plain,

adequate or complete remedy at law to

redress the wrongs herein and monetary

damages authorized by Hamlet Hosp, and

Training School _v. Joint Committee, N.C. 68

S. F.2d 862(6)(9) is an only means of

securing relief. Petitioner is now

suffering and continues to suffer

irreparable injury from the defendant's

unlawful practices as set forth herein

unless enjoined by this honorable court.

PRAYER FOR RELIEF

WHEREFORE, petitioner respectfully prays

that the court:

(A) Grant monetary damages authorized by

IC 8-4-29-2 and included in complaint,

attached at App Infra at D. under section

29

A A RAE tt een

XII at (F) p. 25a . and monetary damages

allowed under rule 34, Infra App. at D, p.

10a; section XI p. 22(a) which was also

included in stipulation filed June 15,

1984.

B. Grant rule, excepting this petition

as application under IC 34-4-2-12, where as

"upon application of a party, but not

before ninety (90) days after the mailing

of a copy of the award to the parties, the

court shall confirm an award, "said ninety-

(90) day period expiring on or about

September ll, 1979.

ie Grant rule under IC 34-4-i-13,

"where the court shall grant rule thereon

against the adverse party,” and issue

judgment under IC 34-4-1-19 confirming

award, where judgment shall be given in

favor or any party to whom any sum of money

Or damages shall have been awarded that he

recover the same; adopting the file date of

September ll, 1981, as application date

30

under IC 34-4-2-16.

D. Issue a writ of execution pursuant

to ITRP 69(E), or in the alternative a writ

of mandamus, as authorized by 45 USCA 153

first (p), under the all writs act, 28 USC

- 1651(a), to if necessary compel the

district court to act 2£ no other

alternative is available.

E. Grant attorneys tees to the

petitioner as authorized under 45 USCA .

153 first (p) and IC 8-4-29-2, at Eighty

Dollars ($80.00) per hour as Pro Se on

study, labor, research on 28,000

(twenty-eight thousand) hours as amended

represents a twelve- (12) hour day.

F. Grant consideration that manifest

injustice would occur if reinstated to the

job site, against the defendants and this

petitioner's will. (See Trial Transcript

at plaintiff's exhibit 21 and p. 13, lines

2-8, p. 17-18, line 25.

31

G. Grant to the petitioner such further

and alternative relief as the court shall

deem just and reasonable in the premises.

CONCLUSION

For all of the above reasons, this

Petition should be granted.

Respectfully submitted

-

” 4 +»

MEL £ 2 A> fest’

Kenneth C. Grimes, Pro Se

621 East Gum Street

Evansville, Indiana 47713

Phone 1-812-423-1600

32

CERTIFICATE OF MAILING

The undersigned, counselor pro se,

hereby certifies that he caused to be

mailed, postage pre-paid, first class, or

personally served, on this 21st day of

April, 1986, the following copies of this

Petition for Certiorari:

Forty (40) copies to

Clerk, United States Supreme Court

Weshington, D.C. 20543; and

Three (3) copies to

Attorney Galen J. White, Jr.

Boehl, Stopher, Graves & Deindoerfor

United Kentucky Bank Bldg.

One Riverfront Plaza

Louisville, Ky. 40202

Telephone 1-502-589-5980;

Three (3) copies to

Attorney F. Wesley Bowers

Bowers, Harrison, Kent & Miller

Fourth Floor, Permanent Savings Bldg.

Evansville, Ind. 47708

Telephone 1-812-426-1231.

Kenneth Z Grimes, Pro Se

/ 621 East Gum Street

Evansville, Indiana 47713

1-812-423-1600

Counsel as Pro Se

33

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

July 25, 1985

Before

Hon. Walter J. Cummings, Chief Judge

Hon. John L. Coffey, Circuit Judge

Hon. Joel M. Flaum, Circuit Judge

KENNETH C. GRIMES, )Appeal from the

Plaintiff-Appellant, ) United States

District Court

Vs. for the Southern

District of

No. 84-2749 Indiana,

LOUISVILLE and NASHVILLE) Evansville

RAILROAD COMPANY, Division

_. oz C 130

Gene Brooks,

Judge

Defendant-Appellee.

ee ee ee ee ee ee ee ee ee

QRDER

On consideration of the petition for

rehearing filed in the above-entitled cause

by plaintiff-appellant Kenneth C. Grimes,

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.

la

JUDGMENT--WITHOUT ORAL ARGUMENT

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

June 12, 1985

Before

Hon. Walter J. Cummings, Chief Judge

Hon. John L. Coffey, Circuit Judge

Hon. Joel M. Flaum, Circuit Judge

KENNETH C. GRIMES, )Appeal From United

Plaintiff-Appellant,)States District

)Court for the

No. 84-2749 vs. )Southern District

)o£ Indiana,

LOUISVILLE & NASHVILLE) Evansville Div.

RAILROAD COMPANY, iwe. Ga € i3d

Defendant-Appellee. )Judge Gene E. Brooks

This cause came before the Court

for decision on the record from the United

States District Court for the Southern

District of Indiana, Evansville Division.

On consideration whereof, IT IS

ORDERED AND ADJUDGED by this Court that the

judgment of the said District Court in this

Cause appealed from be, and the same is

hereby, AFFIRMED, with cost, in accordance

with the order of this Court entered this

date.

2a

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

(Submitted June 10, 1985)*

Before

Hon. Walter J. Cummings, Chief Judge

Hon. John L. Coffey, Circuit Judge

Hon. Joel M. Flaum, Circuit Judge

KENNETH C. GRIMES, )Appeal From United

Plaintiff-Appellant)States District

)Court for the

No. 84-2749 vs. )Southern District

)of Indiana,

LOUISVILLE & NASHVILLE) Evansville Div.

RAILROAD COMPANY, )No. 81 C 130

Defendant-Appellee )Gene E. Brooks,

) Judge.

ORDER

Plaintiff Kenneth C. Grimes

brought suit against his employer and

union, charging in separate counts: (1)

that the employer breached its collective

bargaining agreement, (2) that the union

breached its duty of fair

representation, (3) that both the employer

and union discriminated against him, in

* After preliminary examination of

the briefs, the court notified the parties

that it had tentatively concluded that oral

argument would not be helpful to the court

in this case. The notice provided that any

party might file a "Statement as to Need of

Oral Argument." See Rule 34(a), Fed. R.

App. P.; Circuit Rule 14(f). No such

statement having been filed, the appeal has

been submitted on the briefs and record.

3a

violation of 42 U.S.C. § 2000e et seg., and

(4) that both the employer and union

conspired to deprive him of his civil

rights, in violation of 42 U.S.C. § 1985. A

fifth count concerned Grimes's appeal,

pursuant to 45 U.S.C. §153 First (p), of an

arbitration decision by the National

Railroad Adjustment Board (the "NRAB").

The district court granted summary judgment

in favor of the union on all counts, and

Summary judgment in favor of the employer

on all counts except the third. Grimes v.

Louisville and Nashville Ry, Co., 583 F.

Supp 642 (S.D. Ind. 1984). The court

concluded that genuine issues of material

fact remained az to whether the employer

violated 42 U.S.C. § 2000e-3(a) when it

allegedly retaliated against Grimes by

placing him on furlough because he filed a

charge of discrimination with the Equal

Employment Opportunity Commission.

Following a trial the court granted the

employer an involuntary dismissal on that

Claim. Fed. R. Civ. P. 41(b).

On appeal, Grimes challenges

neither the involuntary dismissal nor the

earlier grant of summary judgment. He

instead argues that the employer failed to

comply with the NRAB award. While Grimes,

in his prayer for relief, requested a

preliminary and permanent injunction

directing his employer to comply with the

NRAB decision, he failed to develop this

argument in the face of motions for summary

judgment and involuntary dismissal. Grimes

cannot blithely hold this argument in

reserve for appellate review in the face of

such motions. Considerations of orderly

Gispute resolution required him to do more

than rest silently on the language in his

complaint as the district court considered

the disposition of charges. Cf. lLaketon

4a

halt Ref ini ; ‘ted hes

Dept, Of the Interior, 624 F. 2d 784,

788-89 (7th Cir. 1980). And While Grimes

maintains that enforcement of the NRAB

decision is inextricably intertwined with

the "retaliatory furlough" issue tried

below, the trial record fails to disclose

even an oblique reference to the former

issue. This is not surprising since,

contrary to Grimes's assertion, the issues

are legally distinct. Finding the

enforcement question waived, the decision

of the district court is

AFFIRMED.

5a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

KENNETH C. GRIMES,

Plaintiff

CAUSE NO.

EV 81-130-C

VS.

LOUISVILLE AND NASHVILLE

RAILROAD COMPANY and

LOCAL 1353, INTERNATIONAL)

BROTHERHOOD OF ELECTRICAL)

WORKERS, )

Defendants )

ee eee ee ee ee

AMENDED TO CORRECT TYPOGRAPHICAL ERROR

Line 2 (b)

NOTICE OF APPEAL TO A COURT OF

APPEALS FROM A JUDGMENT OR

ORDER OF A DISTRICT COURT

Notice is hereby given that

Kenneth C. Grimes, Plaintiff above named

pursuant to 28 U.S.C. § 1291., hereby

appeals to the United States Court of

Appeals for the SEVENTH CIRCUIT (from the

final judgment) entered in this action of

the 14th day of September, 1984. Plaintiff

6a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

KENNETH C. GRIMES,

Plaintiff

CAUSE NO.

EV 81-130-C

VS.

LOUISVILLE AND NASHVILLE

RAILROAD COMPANY and

LOCAL 1353, INTERNATIONAL

BROTHERHOOD OF ELECTRICAL

WORKERS,

ee eee ee eee ee eee eee ee

Defendants

COMPLAINT FOR DAMAGES, DECLARATORY

JUDGMENT AND INJUNCTIVE RELIEF

I. JURISDICTION

l. This action presents special

Federal Questions and is instituted

pursuant to 28 USC $ 1331(b), 28 USC §

1343(1) and 28 usc § 1343(4). Jurisdiction

is founded upon Section 301 of the Labor

Management Relations Act, June 23, 1947, c.

121, Title III, Section 301, 61 Stat. 156,

as amended; Section 151 et seq. of the

Railway Labor Act. 1934, 48 Stat. 1185, 45

USC § 151 Chapter 8, as amended; Title VII

7a

of the Civil Rights Act of 1964, 78 Stat.

253, 42 USC § 2000e et seq.; and 42 USC §

1985, without respect to the amount in

controversy and without regard to the

citizenship of the parties.

II. NATURE OF THE PROCEEDING

2. This is a proceeding for back

pay and benefits, a Declaratory Judgment as

to the Plaintiff's rights and for a

permanent injunction enjoining the

Defendants from retaliating against the

Plaintiff in violation of Section 704(a) of

the Civil Rights Act of 1964, 42 USC §

2000e-3(a), discriminating against the

Plaintiff — of his race or color with

respect to his job classification,

seniority status, apprenticeship status,

assignments, promotions, and terms,

conditions and privileges of employment and

from conspiring together to do so.

3. This is also an action

8a

his classification who was assigned to the

Howell yards located in Evansville,

Indiana.

13. During the period of

Plaintiff's employement and subsequent

thereto, Plaintiff was subject to the

terms, conditions and provisions of a

Collective Bargaining Agreement between

"Company" and "Union" dated September l,

1943, with revisions thereto, a true and

correct copy of which is attached hereto

and marked "Exhibit A", hereinafter

referred to as "Agreement", which includes

the following sections:

Rule 39(f£) which provides that :

"Arn apprentice shall not be dismissed

except for just and sufficient cause

before completing his apprenticeship."

Rule 34 which provides that :

"No employee shall be disciplined

without a fair hearing by designated

officers of the carrier...."

And that:

"If it is found that an employee has

9a

been unjustly suspended or dismissed from

service such employee shall be reinstated

with his seniority rights unimpaired, and

compensated for wage loss, if any,

resulting from said suspension or

dismissal."

Rule 29(a) which provides that:

"Seniority of each employee covered by

this agreement will begin from the

date and time the emplcyee starts to

work."

Rule 26(a) which provides that:

"When it becomes necessary to reduce

expenses, the force at any point or in

any department shall be reduced,

seniority as per Rule 29 to

govern...."

14. On or about September 22,

1976, Plaintiff had a minor altercation

with one L. J. Fieber, his temporary

Supervisor, over the installation of a

Switch. On that date, Plaintiff was

unlawfully and unjustifiably suspended.

15. On or about September 27,

1976, the Defendant "Company" terminated

Plaintiff's employment and advised the

Plaintiff that he was being discharged for

insubordination.

10a

September 27, 1976, and despite Plaintiff's

continuing pursuit of this matter and

continuing pressure on the "Union", the

Plaintiff's appeal did not come before the

National Railroad Adjustment Board until

almost three (3) years after the incident,

though such appeal should have been heard

within nine (9) months from the date of the

last denial by the "Company".

20. This unlawful delay which

caused substantial hardship on the

Plaintiff's already overburdened financial

condition was in no way caused by or at the

instance of the Plaintiff; rather, this

delay was caused by or instigated, either

solely or jointly by the "union" and/or the

"Company" to further damage the Plaintiff

and deprive him of his rights.

21. Despite Plaintiff's

protestations to the "Union" that these

delays and improper representation were

greatly endangering the health and

lla

well-being of the Plaintiff and his family,

who, without the Plaintiff's income, were

able to "enjoy" only the barest sdaceunities

of life, "Union" took no action to pursue

the timely resolution of Plaintiff's

grievance.

22. Following the procedure set

forth in the "Agreement" in Article V of

Appendix D theretc and the Railway Labor

Act (45 USCS 151 et seq.), the Plaintiff

timely pursued his administrative remedies,

culminating in his appeal before the Second

Division of the National Railroad

Adjustment Board in June, 1979.

23. That on or before the 13th

day of June, 1979, almost three (3) years

after his wrongful dismissal, the National

Railroad Adjustment Board, Second District,

rendered a Decision and Award, numbered

7956, Docket No. 7776, a true and correct

copy of which is attached hereto and marked

"Exhibit B"; said Board's decision being:

l2a

(a) that the penalty of dismissal under the

circumstances was excesSive, (b) that the

Claimant (Plaintiff herein) was to be

reinstated to service with his seniority

rights unimpaired, but (c) denied him

compensation for the three years lost wages

and benefits since the date of his

dismissal; such decision was the final step

in the administrative remedies required to

be exhausted under the guidelines

estabdiished by the "Agreement" and the

Railway Labor Act.

24. From September 22, i976, when

the Plaintiff was wrongfully suspended and

later discharged, until July 9, 1979, when

the Plaintiff was reinstated to service,

Plaintiff was unable to obtain other

emplovment and received no income.

25. When Plaintiff was reinstated

to employment with the "Company", said

reinstatement was to a classification and

pay scale which were inferior to the

l3a

position and pay scale which he had held

prior to his wrongful discharge, in

violation of Section 34 of the "Agreement"

("Exhibit A" hereto) and contrary to the

Award of the National Railroad Adjustment

Board.

26. Plaintiff's reinstatement was

in an inferior position on the seniority

roster and apprenticeship program;

employees hired later than Plaintiff were

in higher positions and were promoted over

Plaintiff, in direct violation of Section

29(a) of the "Agreement" and the Award of

the National Railroad Adjustment Board.

27. Defendant "Union" again

failed to represent the Plaintiff in

pursuit of his seniority rights under the

"Agreement" and under the terms of Award of

the National Railroad Adjustment Board,

damaging Plaintiff further.

28. On or about March 16, 1981,

Plaintiff filed a charge of discrimination

l4a

against the Defendant "Company" with the

Equal Employment Opportunity Commission

alleging that the Defendant "Company" had

discriminated against the Plaintiff because

of his race. Thereafter, the "Company"

retaliated against the Plaintiff for having

filed such charge by, on March 30, 1981,

unlawfully and maliciously laying off the

Plaintiff, the only Black in the trade and

the only person to be so furloughed.

29. At the date of filing,

Plaintiff is still laid off, ana the

Defendant "Union" continues to fail to

represent the interests of the Plaintiff,

damaging him still further.

V. PLEADING PARAGRAPH 1

The Plaintiff, for his first

ctaie. alleges: |

30. Paragraph One through

Twenty-Nine are hereby incorporated in and

made a part of Pleading Paragraph l.

31. The suspension and discharge

of the Plaintiff by the Defendant

15a

"Company", as well as their reinstatement

of Plaintiff in an inferior position

and at an inferior salary, respect to his

position and salary at date of discharge

and his subsequent layoff represent direct

blatant violations and breaches by

Defendant "Company" of the aforesaid

"Agreement", and especially of Rule 39(f)

relating to discharge, Rule 34 relating to

discipline and reinstatement, Rule 29(a)

relating to seniority, and Rule 26(a)

relating to layoffs.

VI. PLEADING PARAGRAPH 2

The Plaintiff, for his second

Claim, alleges:

32. Paragraphs One through

twenty-Nine are hereby incorporated and

made a part of Pleading Paragraph 2.

33. The arbitrary and bad faith

failure of the Defendant "Union" to fairly,

adequately, and competently, properly and

timely reprsent Plaintiff without bias, in

l6a

regard to his unlawful suspension,

discharge and furlough, and to remedy the

inequity apparent in the manner of his

reinstatement represent blatant and willful

breaches of the Defendant "Union's" duties

to fairly represent the Plaintiff, which

duties arise under and constitute a

violation of the statutory mandate of the

National Labor Relations Act and of the

"Agreement".

VII. PLEADING PARAGRAPH 3

The Plaintiff, for his third

Claim, alleges:

34. Paragraphs One through

Twenty-Nine are hereby incorporated and

made a part of Pleading Paragraph 3.

*35. The unlawful and

discriminatory employment practices of the

Defendants, and each of them, have deprived

the Plaintiff of the same right to

employment opportunities as are enjoyed by

white persons. Such practices are

l7a

degrading to the Plaintiff and cause him

and his family severe financial, mental and

emotional distress. Such practices of

invidious racial discrimination against the

Plaintiff serve to stigmatize him solely on

the basis of his race.

36. The racially discriminatory

employment practices of the Defendants and

their retaliation toward the Plaintiff were

undertaken by the Defendants, and each of

them, consciously, intentionally, and

maliciously for the invidious purpose of

discriminating against the Plaintiff due to

his race, and had as their object to

deprive him of his civil right to equal

opportunity in violation of the Civil

Rights Act of 1964.

VIII. PLEADING PARAGRAPH 4

The Plaintiff, for his fourth

claim, alleges:

37. Paragraphs One through

Twenty-Nine are hereby incorporated and

18a

Twenty-Nine are hereby incorporated and

made a part of Pleading Paragraph 4.

38. The racially discriminatory

practices of Defendants, and each of them,

as described herein, as well as the

retaliation of "Company" combined with

"Union's" failure to defend and protect

Plaintiff's rights therefrom, were

undertaken consciously, intentionally and

maliciously for the invidious purpose of

discriminating against the Plaintiff solely

on the basis of race.

39. The practices and policies of

the Defendants "Union" and "Company"

constitute a conspiracy, the intentional

and malicious object thereof being to

deprive Plaintiff of his civil rights to

equal employment opportunity at the

Louisville and Nashville Railroad Company.

40. Each of the unlawful

employment practices, as described herein

and the retaliation against Plaintifé

19a

herein, were implemented intentionally by

Defendants, and each of them, in

furtherance of this unlawful conspiracy,

cauSing irreparable injury to Plaintiff,

including, but not limited to: loss of

equai promotional opportunity, salary,

wages, fringe benefits and pension

differentials, as well as causing extreme

emotional anguish and mental distress to

Plaintiff.

IX. PLEADING PARAGRAPH 5

The Piaintiff, for his fifth

claim, alleges:

41. Paragraphs One through

Twenty-Nine are hereby incorporated and

made a part of Pleading Paragraph 5.

42. Pleading Paragraph 5 is an

Appeal pursuant to 45 USC § 151 et seq.,

from the Award of the National Railroad

Adjustment Board, Second Division, numbered

7956, Docket No. 7776 ("Exhibit B" herein)

insofar as it denies Plaintiff compensation

20a

for lost wages, benefits and increments

from September 22, 1976, through July 7,

1979.

43. The National Railroad

Adjustment Board found that there were

mitigating and extenuating circumstances

such as the relative lack of experience of

Doth parties to the underlying incident and

that, this being the case, "the discipline

of dismissal was excessive..."

44, Having made said findings,

the National Railroad Adjustment Board, in

a decision contrary to the evidence,

proceeded to impose a harsh, unfair, and

discriminatory penalty upon the Plaintiff

by failing to compensate him for his

thirty-seven (37) months without wages or

benefits and during which time he suffered

extreme financial, mental and emotional

distress.

45. Section 34 of the "Agreement"

("Exhibit A" hereto) provides a specific,

2la

definite and exclusive remedy for unjust

suspension or dismissal of an employee as

set forth in Rhetorical Paragraph 13

herein.

46. The Order of the National

Railroad Adjustment Board denying Plaintiff

compensation for thirty-seven (37) months

of losses, in direct contradiction of its

own findings as well as of the mandates of

the Railway Labor Act (45 USC § 151 et

seq.) 1S excessive, harsh, discriminatory,

arbitrary, capricious and is in complete

Gisregard for the bargained-for explicit

and unambiguous provisions of the

"Agreement" ("Exhibit A” herein).

X¥. CONDITIONS PRECEDENT

47. Plaintiff has complied with

all conditions precedent to all causes of

action herein.

XI. IRREPARABLE INJURY

48. The Plaintiff has no total,

plain, adequate or complete remedy at law

22a

to redress the wrongs alleged herein and a

suit for back-pay and benefits, and

injunctive and declaratory judgment is his

Only means for securing adequate relief.

Plaintiff is now suffering and continues to

suffer irreparable injury from the

Defendant's unlawful practices as set forth

herein unless enjoined by this Honorable

Court.

XII. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully

prays that the Court:

A. Enter a Declaratory Judgment

that the practices of the Defendants

"Company" and "Union", in the acts,

practices, policies and procedures

complained of herein have violated and

continue to violate the rights of Plaintiff

as secured by Title VII of the Civil Rights

Act of 1964, as amended, 42 USC § 2000e et

seq., and 42 USC § 1985(3).

B. Grant to the Plaintiff a

23a

preliminary and permanent injunction

enjoining the Defendants and their agents,

successors, employees, attorneys and other

representatives acting in their behalf,

from engaging in any employment practice or

policy which discriminates against the

Plaintiff on the basis of his race.

C. Order that a preliminary and

permanent injunction issue directing that

Defendant "Company" comply with the

decision of the National Railroad Appeals

Board and restore to him all of his

seniority rights and apprenticeship status

unimpaired, and directing full and complete

compliance with the said decision and award

as to those provisions.

D. Enter a Declaratory Judgment,

vacating, setting aside and declaring void

and unenforceable that section of the Award

of the National Railroad Adjustment Board,

number 7956, Docket No. 7776, insofar as it

constitutes an excessive penalty and that

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it unjustly, arbitrarily and discriminately

denies to Plaintiff his lost wages,

benefits and increments for the period from

Setpember 22, 1976, until July 9, 1979.

E. Grant to the Plaintiff a

judgment against the Defendant "Company"

for all wages, benefits and increments

which the Plaintiff would have received had

he not been unlawfully terminated;

reimbursement for loss of promotional

Opportunity, apprenticeship experience and

education, and other benefits which he

might have received had he not been

discriminated against.

F. Grant to the Plaintiff

compensatory damages in the amount of One

Million Dollars ($1,000,000.00), and

punitive damages in the amount of Three

Million Dollars ($3,000,000.00).

G. Allow to Plaintiff an

allowance and reimbursement for all

attorney fees and expenses occasioned by

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Pe Te

Defendant's deliberate and malicious

policies and practices, and Plaintiff's

costs herein.

H. Grant to Plaintiff such

further and alternative relief as the Court

shall deem just and reasonable in the

premises.

Respectfully Submitted,

KENNETH C. GRIMES

By

KATHARINE VAN OST

Attorney for Plaintiff

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Form l

Award No. 7956

Docket No. 7776

2-L&N-EwW-'79

NATIONAL RAILROAD ADJUSTMENT BOARD

SECOND DIVISION

The Second Division consisted of the

regular members and in addition

Referee Abraham Weiss when award was

rendered.

7 , D; ine

(System Federation

(No. 91,

( Railway Employees'

( Department,

( A..F. of L.=-C.1.0.

( (Electrical

( Workers)

(Louisville and

(Nashville

(Railroad Company

That the Louisville and

Nashville Railroad Company

removed Upgraded Electrician

Apprentice K. C. Grimes from

service without just and

sufficient cause and in so doing

deprived him of his rights to

earnings from September 21,

1976, until such time as he is

restored to service.

That, accordingly, the

Louisville and Nashville

Railroad Company be ordered to

restore Upgraded Electrician

Apprentice K. C. Grimes to the

Carrier's service with seniority

rights unimparied and

compensated for all wage loss

commencing with the date of his

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discharge, September 21, 1976, :

and continuing thereafter until |

such time as he is restored to

service.

Ss That the Louisville and

Nashville Railroad Company be

further ordered to make Upgraded

Electrician Apprentice K. C.

Grimes whole with respect to all

rights, privileges and benefits

associated with his railroad

employment, such as, but not

limited to vacation, health ard

welfare and insurance benefits.

Findings:

The Second Division of the

Adjustment Board, upon the whole record and

all the evidence, finds that:

The carrier or carriers and the

employee or employees involved in this

dispute are respectively carrier and

employee within the meaning of the Railway

Labor Act as approved June 21, 1934.

This Division of the Adjustment

Board has jurisdiction over the dispute

involved herein.

Parties to said dispute were

Given due notice of hearing thereon.

Claimant was dismissed for

insubordination, Carrier charging that on

August 15, 1976, he failed to apply an

electric switch on Cab 6428 and that he

refused to comply with the instructions of

his Foreman to surrender the switch after

having refused to apply it to caboose 6428.

Claimant entered Carrier's service on

February 26, 1976, as an electrician's

apprentice. At the time of the incident,

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about 6 months later, he was working as an

Upgraded Electrician.

On the day of the incident,

Claimant reported to his foreman that

Caboose 6428 would not be serviceable

because of a bad light switch and that a

replacement switch was not in stock. The

foreman found a switch and gave it to

Claimant with instructions to use it. The

replacement switch given Claimant was a

Single-pole on and off t:'"pe, whereas the

defective light switch in the caboose was a

3-way switch.

Claimant indicated to his foreman

that the installation of the replacement

switch would be unsafe. The foreman

assured him that the switch was safe and

instructed him to use it. Claimant refused

and also refused to turn over the switch to

the foreman.

At the investigation, Claimant

testified that he did not apply the switch

because the amperage ratings on the two

Switches differed; that he was unsure of

the results; that he wished to avoid

responsibility for damaging company

property; that he felt it was his

responsibility since he had signed the

caboose sheet; and that he retained the

Switch because he thought it might be used

in proceedings against him.

A reading of the record discloses

that the foreman told Claimant that he

would take responsibility for directing

Claimant to use the switch. At the

investigation, the follo. ing colloquy took

place between the Hearing Officer and the

foreman:

"Q. Did you observe the amperage

reading on the new switch?

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A. Yes, I did. The switch was a

Bryant single pole toggle switch, with

an amperage reading of 10 amps, 125

volts, 5 amps, 250 volts. I handed

him the switchand showed him

(Claimant) where it read 10 amps, 125

volts and he stated that this was the

first time he had seen the 10 amps,

125 volts. He also stated he did not

apply the switch because it read only

5 amps, 250 volts.

Q. Isn't the rating of this new

Switch the same as the switches that

are to be applied to all cabooses?

A. The amperage reading on both of

these switches are similar.

Q. Is there any reason why this

Switch could not have been applied to

the caboose 6428 from your electrical

experience and background?

A. No, with a wiring change the

Switch that he did not apply could be

wired up in the on position and worked

on the caboose effectively.

It is not clear from the record

that an apprentice with less than 6 months

service would know that the new switch

could work with a wiring change or that the

foreman instructed him at the time that a

wiring change would make the switch

Operable and safe.

No showing has been made that

installation of the switch given Claimant

by the foreman would be unsafe, or that it

placed Claimant in physical jeopardy. It

is well understood that in case of personal

danger to his health or safety, an employee

is not obliged to comply with a

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Supervisor's instructions, but the record

is barren of evidence of personal danger to

Claimant.

We find in this case that

although Claimant failed to comly with the

foreman's instructions, we must recognize

certain mitigating circumstances. Both the

Claimant and the foreman overreacted to the

Situation, no doubt due in part to the fact

that both were relatively new and

inexperienced on their respective jobs.

Claimant had been in the Company's employ

for less than 6 months at the time of the

incident. Moreover, although hired as an

apprentice, he was working at the time as

an Upgraded Electrician. The foreman was

not Claimant's regular foreman but was

filling a vacation vacancy.

Claimant's response and reaction

to the Foreman's instructions were

misguided, but not malicious. Even if he

honestly believed that the switch given him

was not safe he should have installed it

when so directed by the foreman,

particularly when the foreman advised him

that he would take responsibility.

Generally speaking, it is the

duty of employees to obey others. A

Cardinal principle in the law of the shop

-~ unless there is threat to an employee's

life or limb -- is to "obey now, grieve

jater". Claimant should have complied with

the foreman's request.

Based on a reading of the record,

we have reached the following conclusion:

Claimant's refusal was misguided, rather

than capricious, stemming from his

inexperience as an Upgraded Electrician

which left him unsure and uncertain as to

the safety risks involved in substituting

one type of switch for another. The record

3la

teil

indicates that he did try to seek advice

from nearby employees concerning the

difference in the switches. Given that he

had less than 6 months service at the time,

having been hired as an apprentice, and the

other factors hereinabove cited, we find

mitigating and extenuating circumstances

leading us to conclude that the discipline

or dismissal was excessive, and that a

lesser penalty is appropriate.

In reaching this conclusion, we

do not condone Claimant's conduct. We

Caution Claimant that by this decision he

is put on notice that he must comply with

reasonable instructions from his

Supervisors and that he has no right to

refuse to comply with such instructions in

the absence of any probative evidence or

valid reason that such instruction or order

is arbitrary, unreasonable, discriminatory,

Or would subject him to clear and evident

danger. His failure to do so will make him

Subject to discipline.

Carrier is to be commended for

providing an opportunity for apprentices to

upgrade themselves, but in our judgment

this case emphasizes the need to consider

an apprentice's capability to respond to

the needs, requirements, and

responsibilities of an upgraded position

before such assignments are made.

Our decision then, is that the

Claimant shall be reinstated to service

with seniority rights unimpaired, but

without compensation for time lost

subsequent to the date of his dismissal.

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