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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 1160

## Text

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

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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

24a

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

25a

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?

29a

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

30a

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1754%3A1. Public record. Not legal advice.