Appendix — Grimes v. Louisville & Nashville Railroad

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. ; Suprem '

SI-Sug RJ

| DEC 4 7989

NO. f] JOser ‘

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

KENNETH C. GRIMES

PETITIONER

VERSUS

LOUISVILLE AND NASHVILLE R. CO.

RESPONDENT

ON WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

FROM THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

APPENDIX

Date:

12/04/89

Kenneth C. Grimes

621 East Gum Street

Evansville, Indiana 47713

1-812-423-1600

if » _ } _oC te

VOUNSCL aS FIFO se

em eeeesy I

J-I

EXHIBITS AND APPENDIX INDEX

Date

9/6/89

1/27/89

2/26/89

2/17/88

9/15/87

9/18/86

6/25/86

6/23/86

6/2/86

4/22/86

6/25/85

6/12/85

10/18/84

Title

Den rehear app.

Affirm Dist Ct. Judge.

Cre ci codec eens ow eeeeue

of Appeal (Notice).........-.

Den Plt Mo To Vacte

Cte GORMEE Jac ccccccescesoss

Den

Supreme Ctrcceceseveecees

Order Den Writ of Cert

PUDT ORD Glas cccceceewcavess

Order of Docket,

Supreme Ct....... erry

Order Den Rehearing ...eeee

Order Aff Dist Ct.

Judge, App. Cter.wwseseeee eo

Ammend Notice of Appeal....

ct.(Order)..

Mot To Conf (Order).....

Suspend of Effect(Order)

15-17

18-25

Rehear Supreme Ct.(Order) 26

Rehear Supreme Ct.(Order)

see 29

M 10/12/84

N 9/14/84

0 4/24/84

P 3/9/84

Q 2/10/84

R 5/6/82

S 6/13/79

T 6/11/81

Y 6/11/87

Z 7/9/82

I 7/2/87

II 7/16/87

III 4/9/88

Notice of Appeal....

Order Dist Cout.

Order Interloc Appeal, App.~

BOCTCOe OF AOWccicces

Order Dist Ct.

Order Summary Judge Endsley

Da a's ue ee 6 eevnve?e#?e

Complaint....

Art III

7th Amend Const,

45 USCS

45 uSCS

a GORE kc kc

Ret Claim.

Bee FUPSS CF) a cevc

153 Second,

PELICION C6 COATIFMicccevcce

Transcript, of Near Summary

were mee CO BISNtS8iccceces

PLT ROSDONSC.. cccess

PLT Main Appeal Brief......

Page

36-51

34+39

55-92

207-20!

93-98

181-20

105-101

100-10:

101-10:

107-15:

211-21.

152-15

157-16

161-16

Page

IV 5/20/88 PLTT Reply Brief, cciccacces 167°k70

V 2/9/89 PLT Rehear Brief. wccccccces 173h9e

VI Exhibit (A) Agreement,..... 207-210

VII Exhibit (B) Docket Entries,

VIII Exhibit (C) Transcript..... 211-212

IX Exhibit (D) Award.......... 93-98

X NRAB Decision One 153 (M). 180

XI Job Abolishment.......e062- 178

XII Pur 1OGERs 6660020604 ba8ate0n OTe

Exhibit F. Affadavit

XIV : Exhibit E. Motion to Confirm

Exhibit G. Response to Deft

Motion to strike Jury Demand

mm me EE mE He Fe & & EF < eo et 2 oS a

—

—"

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

september 6 , 1989,

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. JOEL M. FLAUM, Circuit Judge

Hon. DANTEL A MANION. Circuit Judge

KENNETH C. GRIMES,

Plaintiff-Appellant,

) Appeal from the

) United States

) District Court

) for the Southern

No. 88-1381 VS. ) District of Indiana

) Evansville Division.

LOUISVILLE & NASHVILLE )

RAILROAD COMPANY, )

)

Defendant-Appellee.

No. 81-C-130

Gene E. Brooks,

Judge.

OR ER

On Consideration of the petition for re-

hearing filed in the above-entitled cause, the

judges on the original panel have voted to

deny a rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition

for rehearing -be, and the same is hereby,

DENIED.

JUDGMENT--WITHOUT ORAL ARGUMENT

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

January 27 , 1989.

Before

Hon. RICHARD A POSNER, Circuit Judge

Hon. JOEL M. FLAUM, Circuit Judge

Hon. DANIEL A MANION, Circuit Judge

KENNETH C. GRIMES,

Plaintiff-Appellant, Appeal from the

United States

District Court No.

88-1381

for the

Southern District

of Indiana

Evansville Division

No. 81 C 130

Judge Gene E. Brooks

VS.

LOUISVILLE AND NASHVILLE

RAILROAD COMPANY,

Defendant-Appellee

Se i ee See” See See”

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 costs, in accordance with the order of

this Court entered this date.

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 18, 1989*

January 27 » 1989.

Before

Hon. RICHARD A POSNER, Circuit Judge

Hon. JOEL M. FLAUM, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

KENNETH C. GRIMES,

Plaintiff-Appellant,

) Appeal from the

) United States

) District Court for

) the Southern

) District of

No. 88-1381 vs. ) Indiana,

) Evansville Division.

)

) No. 81-C-130,

) Gene E. Brooks,

)

Judge

LOUISVILLE & NASHVILLE

RAILROAD COMPANY,

Defendant-Appel lee.

ORDER

Plaintiff-appellant Kenneth Ce Grimes

appeals from the district court dismissal, on

the basis of res judicata, of his petition to

confirm and enforce National Railroad

Adjustment Board (NRAB) Award No. 7956. We

affirm,

as 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

On September 21, 1976, Louisville & Nash-

ville Railroad Company (L&N) dismissed Grimes

for alleged . insubordination. Grimes then

initiated a grievance procedure pursuant to

an employer-employee agreement negotiated by

L&N and the International Brotherhood of

Electrical Workers, of which Grimes was a

member, On June 13, 1979, the NRAB issued

Award No. 7956, which held (1) dismissal was

an excessive punishment for Grimes' actions;

(2) L&N must reinstate Grimes without impair-

ment to his seniority rights; and (3) Grimes

was not entitled to compensation for lost

wages and benefits for the three years

following his dismissal. L&N then reinstated

Grimes as an electrician apprentice. Grimes

believed his seniority had been impaired, as

his former position was that of an "“upgraded"

electrician apprentice. He requested arbi-

tration on the matter, but apparently no

action was taken. Grimes then filed a charge

of racial discrimination against L&N with the

Equal Employment Opportunity Commission.

On March 30, 1981, Grimes was furloughed by

L&N, as the position he held was abolished.

On June 11, 1981, he filed suit in federal

court against L&N and his union, His

complaint raised four claims with respect to

L&N: (1) L&N had breached the collective

bargaining agreement during his discharge,

reinstatement and _ furlough; (2) L&N had

committed racial discrimination in his dis-

missal, reinstatement and furlough, and the

furlough was invoked in

to Need of Oral Argument." See Fed. R. App.

P. 34(a); Circuit Rule 34(f). No such state-

ment having been filed, the appeal has been

submitted on the briefs and record.

retaliation for Grimes’ filing of charges with

the EEOC; (3) L&N conspired to deprive him of

his civil rights; and (4) a request for review

of the NRAB award denying him compensation for

lost wages and benefits. Grimes' prayer for

relief also requested that the court direct

L&N to comply with the NRAB award and restore

his seniority rights and original apprentice-

ship status. on L&N's summary judgment motion,

the court dismissed all four of these claims,

with the exception of the claim of

retaliation. Grimes v. Louisville & Nashville

Railroad Company, 583 F. Supp. 642 (S.D. Ind.

i984), After a trial, the court also

dismissed the retaliation claim. Grimes

appealed, requesting this court to make a

determination on his request for confirmation

of the NRAB a-ward. On June 12, 1985, we held

that the confirmation issue had been waived

for purposes of appeal because Grimes had not

raised it adequately at trial. Grimes v.

Louisville & Nashville Railroad Company, No.

84 2749 (/th Cir. 1985) (unpublished order).

On June 11, 1987, Grimes filed the present

suit for confirmation of the NRAB award plus

damages for L&N‘'s alleged noncompliance with

that award. The case was assigned to the same

district court judge and under the same docket

number as his first filing. The district

court denied Grimes' claim on the basis of res

judicata, imposed sanctions under Rule 11, and

dismissed the suit with prejudice. The

district court also denied Grimes' motion to

vacate its decision. Grimes appeals, claiming

his request to confirm and enforce the NRAB

award is not barred by res judicata.

CESARE

Res judicata, or claim preclusion, operates

as a bar to litigants when there has been a

final judgment on the merits in ae prior

action, and there is an identity of the cause

of action and the parties in the two suits.

Lee v. City of Peoria; 685 F. 2d 196, 199 (7th

Cir. i¥sd). The decision in Grimes, 583 F.

Supp. 642, was final, on the merits, and

between the same parties as this action. The

major issue in this case therefore is whether

the causes of action in the two suits are the

same.

The first suit is conclusive "not only as

to every matter which was offered and received

to sustain or defeat the claim or demand, but

as to any other _ admissible matter which might

have been offered for that purpose." Magnus

Electronics, Inc. v. La Republica aroekttan

830 F. 2d 1396, 1400 (7th Cir. 1987) (quoting

Nevada v. United States, 463 U.S. 110, 129-30

(1983). Thus, a party cannot split one cause

of action or use several theories of a

to bring separate suits. Shaver Vv.

Woolworth Company , 840 F.2d [361, 1365 ro

Cir. 1988). In determining whether a second

suit is engaging in such prohibited ‘claim

splitting,’ courts have sought to discover

whether the claims ‘arise out of the same

basic factual situation.'" Gasbarra v. Park-

Ohio Industries, Inc., 655 F.2d 119, 121 (/th

Cir. 1981) (quoting Himel v. Continental

Illinois National Bank & Trust Company, 596

F2d 205, 209 (7th Cir. 1979). This circuit

applies the “operative facts" or “same trans-

action" test to define what is one cause of

action, In re Energy Cooperative Inc., 814

F.2d 1226, 1230 (/th Cir. 1987), following the

approach of the Restatement (Second) of

Judgments (1982) Section 24:

[

(1) When a valid and final judgment

rendered in an action extinguishes the

plaintiff's claim pursuant to the rules

of merger or bar . . . the claim

extinguished includes all rights of the

plaintiff to remedies against the

defendant with respect to all or any part

of the transaction, or series of

connected transactions, out of which the

action arose.

(2) What factual grouping constitutes a

"transaction," and what grouping

constitutes a “series,” are to be deter-

mined pragmatica!lly, giving weight’ to

such considerations as whether the facts

are related in time, space, origin, or

motivation, whether they form a

convenient trial unit, and whether their

treatment as a unit conforms to the

parties’ expectations or business under-

standing or usage.

We hold that the frist district court decision

here operates as a bar to Grimes‘ present

suit, as the claim that L&N failed to comply

with the NRAB award should have been raised in

the previous proceeding.1/

There are two transactions underlying the

present suit, both of which were also the

operative facts in Grimes' first action. The

first is the NRAB award itself. Grimes

challenged the denial of back pay in his first

action, and argued for its reversal in his

opposition to appellee's summary judgment

motion. Grimes could have, but did not,

sufficiently raise his motion for enforcement

of his seniority rights. The NRAB- award

clearly constituted the same operative event

for both claims.

Grimes’ dismissal, reinstatement and fur-

lough constitutes a second set of facts under-

lying both suits. In his first suit, Grimes

argued that his reinstatement and later fur-

lough by L&N constituted a breach of the

bargaining agreement, racial discrimination,

and a conspiracy to deprive him of his civil

rights. These claims were based on the same

actions by L&N which form the basis of Grimes'

present suit for confirmation of the NRAB

award. "Since the two lawsuits involve this

Single core of operative facts, they con-

stitute identical causes of action for res

judicata purposes." Shaver, 840 F.2d at 1365.

Grimes himself apparently realized his con-

firmation cliam should have been brought with

the others, as he raised it in his prayer for

relief in his initial complaint to the court.

He failed, however, to sufficiently present it

to the court for a determination.2/ The fact

that he raised the issue but never pursued the

claim is further justification for invoking

res judicata.

1/ Contrary to L&N*'s main argument, there is

no res judicata effect from the decision of

this court in Grimes‘ previous appeal. L&N

interprets that decision as finding a waiver

of any future claims that were not raised in

the district court, viewing the holding as one

grouped in res judicata terms. That was not

the basis for this court's holding. We did

hold that Grimes had waived the compliance

issue, but only in respect to that particular

appeal, on the basis that an appellate court

cannot rule on an issue that has not been

raised in the courts below. We cited Laketon

Asphalt Refining, Inc. v. United States Dept.

of the Interior, 624 F.2d 784, 788-89 (7th

Cir. 1980 , a case dealing with the proposi-

tion that an issue raised for the first time

on appeal cannot be the basis for a reversal.

That is a different rule than the res judicata

doctrine which acts as a permanent bar to the

future raising of such a claim. We therefore

must address the res judicata issue for the

first time on this appeal. The only

Significance of that holding to the present

case is that it shows Grimes’ failure to raise

the compliance issue in the first district

court proceeding.

2/ Grimes incorrectly argues that there was a

ruling in his favor in the first district

court proceeding on the issue of whether his

seniority rights had been impaired at his

reinstatement. What the court actually stated

there was “although it is not entirely clear

it appears that his seniority rights may have

been impaired." Grimes, 583 F. Supp. at 645.

This is not a determinative ruling by the

court, and was not necessary to its ultimate

hoiding.

Finally, Grimes argues that the decision by

the judge in the first case to limit the

triable issue to only the retaliation claim

precluded him from adequately presenting the

confirmation issue. Res judicata can only be

invoked where the party had a full and fair

Opportunity to litigate his claims in _ the

first action. Brown v. J.I. Case Company, 813

F. 2d 848, 854 (/th Cir. 1987). Grimes has a

fair opportunity to present his request for

confirmation and enforcement of the award. He

had the Opportunity to do so during the

summary judgment proceedings, just as_ he

presented his other claims at that time.

Moreover, all of the facts necesary for such

an allegation--the award provision, Grimes’

reinstatement to an allegedly inferior posi-

tion, and his later furlough which was

possibly a result of his lost seniority

status--has occurred at the time of his first

suit.

oneal

—

The district court decision denying Grimes'

petition for enforcement and compliance with

the NRAB award, and its $300 sanction against

Grimes pursuant to Rule 1l, 3/ is therefore

AFFIRMED. i

3/ Grimes has not challenged the district

court invocation of sanctions against him, and

therefore we will not address this issue on

appeal, other than to summarily affirm that

sanction.

L&N requests on appeal that we issue an

injunction prohibiting Grimes from’ filing

further pleadings on any claims which could

have been brought in his first district court

action. L&N also made such a request below,

but the district judge did not grant this

injunctive relief. We need not address L&N's

claim, as “the filing of a cross-appeal is

rendered in whole or in part in its favor.”

Winstead v. Indiana Insurance Company 855 F.2d

430, 435 (/th Cir. 1988). Even if this does

not amount to a jurisdictional bar, see i5 C.

Wright, A. Miller, & E. Cooper, Federal

Practice & Procedure § 3904 (1976) (discussing

conflict on this question) we find no good

reason for suspending this requirement here.

At any rate, the district judge apparently

believed the damages invoked under Rule 11

were a sufficient sanction against Grimes, and

we hold that his failure to also grant an

injunction against further related filings was

not based on factual or legal errors amounting

to an abuse so discretion. United States v.

Kaun, 827 F.2d 1144, 1148 (7th Cir. 1987).

UNITED STATES DISTRICT COURT -

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

KENNETH C. GRIMES, )

Plaintiff (Appellant) ) Filed Feb.26, 1988

)

VS. No. EV 81-130-C

LOUISVILLE and NASHVILLE )

RAILROAD COMPANY, )

Defendant (Appellee) )

NOTICE OF APPEAL T0 THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Kenneth C. Grimes, the Plaintiff, appeals

to the United States Court of Appeals for the

Seventh Circuit pursuant to USC 28 1291.

This appeal is from a final judgment denying

confirmation of National Railroad Adjustment

Board Award No. 7956, Docket No. 7776, entered

in this case September 15, 1987, and further

denied in an order issued February 17, 1988,

from Plaintiff's Motion to Vacate the Order

issued September 15, 1987, pursuant to FRCP

59(e).

na mee ee HF SS &

I herby certify that on or before Feb-

ruary 26, 1988, I served copies of the fore-

going by First Class Mail upon the above coun-

sel of record.

/S/ Kenneth C. Grimes

Kenneth -. Grimes

621 East Gum Street

Evansville, IN 47713

Telephone: 1-812-423-1600

Date: February 29, 1988

Two es pages

S/ Kenneth C. Grimes

Kenneth C. Grimes, Appellant, Pro Se 621

East Gum Street

Evansville, IN 47713

Phone: 1-812-423-1600

Galen J. White, Jr.

Attorney for Appellee

Boehl, Stopher, Graves, & Deindoerfer

One River Front Place, Suite 2300-

Louisville, KY 40202

Phone: 1-502-589-5980

F. Wesley Bowers

Attorney for Appellee

Bowers, Harrison, Kent, & Miller

Permanent Savings Bldg., 4th Floor

Phone: 1-812-426-1231

CERTIFICATE OF SERVICE

Galen J. White, Jr.

Boehl, Stopher, Graves & Deindoerfor

United Kentucky Bank Building

One River Front Plaza

Louisville, KY 40202

Telephone: 1-502-589-5980

F, Wesley Bowers

Bowers, Harrison, Kent & Miller

Fourth Floor Permanent Savings Building

Evansville, IN 47708

Telephone: 1-812-426-1231

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

KENNETH C. GRIMES

)

Plaintiff )

)

VS. ) CAUSE NO.

) EV 81-130-C

LOUISVILLE AND NASHVILLE )

RAILROAD COMPANY )

ORDER

This matter comes before the Court on

plaintiff's Motion to Vacate. Based on

the record, the Court DENIES plaintiff's

Motion. Plaintiff's Motion to Vacate is

DENIED.

IT IS SO ORDERED at Evansville,

Indiana this 17th day of February,

1988,

/ S/ Gene E. Brooks

Gene E. Brooks, Chief Judge

United States District Court

Southern District of Indiana

cc: Distribution to all counsel of record.

MEMORANDUM

Plaintiff's case was disposed of by Order

of this Court on September 15, 1987, entered

on October 16, 1987. Plaintiff filed a Motion

to Vacate the Judgment, apparently pursuant to

Fed. R. Civ. P. 60(b). The Court has thoro-

ughly reviewed plaintiff's briefs in support

of this Motion and is confident that plaintiff

is simply re-arguing the issues upon which

this case was previously disposed. Those

issues were thoroughly briefed prior to the

Court's order entering Judgment in favor of

defendants.

By its express terms, relief from a judg-

ment, pursuant to Fed. R. Civ. P. 60(b), is in

the discretion of the Court. Plaintiff's

Motion to Vacate is DENIED.

IT IS SO GRDERED at Evansville, Indiana

this day of February, 1988.

/S/ Gene e Brooks

Gene E. Brooks, Chief Judge

United States District Court

Southern District of Indiana

cc: Distribution to all counsel of record.

NITED STATES DISTRICT COURT

OUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

KENNETH C. GRIMES

Plaintiff

)

VS. ) CAUSE NO. EV

) 81-130-C

LOUISVILLE & NASHVILLE)

RAILROAD COMPANY )

)

Defendant

ORDER

This matter is before the Court upon the

motion to dismiss filed by defendant, Louis-

ville & Nashville Railroad Company ("L&N").

L&N raises four grounds in support of its

motion, and a general claim for injunctive

relief enjoining plaintiff from filing further

pleadings arising out of the claims made or

which could have been made in plaintiff's

Original complaint. Plaintiff, Kenneth C.

Grimes, ("“plaintiff" or "Grimes"), has re-

sponded and the Court notes the matter ripe

for ruling.

Grimes, on 11 June 1987, filed a petition

for confirmation with the Court under the same

docket number as his original complaint here-

tofore filed. Grimes is attempting to enforce

an award of the National Railroad Adjustment

Board ("NRAB") rendered on 13 June 1979.

The Court and L&N are experiencing deja

vu, for plaintiff is attempting to relitigate

issues that were or could have raised in the

first round of litigation. This Court, in

Grimes v. Louisville and Nashville R. Co., 583

F. Supp. 642 (S.0. Ind. 1984), entered an

order dismissing plaintiff's action against

the local union and dismissing all the claims

against L&N except for a claim of retaliation.

Grimes was represented by counsel in this

matter until his appeal at which time he pro-

ceeded pro se. The retaliation claim was

tried before this Court and ultimately decided

on 14 September 1984. The Court's ruling was

adverse to plaintiff and, hence, caused him to

appeal to the United States Court of Appeals

for the Seventh Circuit. Plaintiff neither

appealed his involuntary dismissal or the

grant of summary judgmnet. Rather, plaintiff

merely contended that L&N failed to comply

with the NRAB award. The Court of Appeals on

12 June 1985 issued an unpublished order af-

firming this Court. The appellate court de-

termined that the issue on appeal was asserted

for the first time, for the trial record fail-

ed to disclose any reference to this issue

that was appealed.

L&N seeks to dismiss the instant petition

on four grounds, one of which is res judicata.

The doctrine of res judicata applies “not

only to those matters actually determined in

the prior case, but also to matters properly

involved which could have been raised in the

prior suit." Gasbarra v. Park-Ohio Industries,

aes. eo Ff. C6 L319, 23 (7th Cir. 9S},

Moreover, the essential elements of the doc-

trine are as follows:

1. A final judgment on the merits in an

earlier action;

2. an identity of the cause of action

in both the earlier and the later

Suit; and

3. an identity of parties of their pri-

vies in the two suits.

Lee v. City of Peoria, 685 F.2d 196 (7th Cir.

1982). <A final consideration under res judi-

cata and the Due Process Clause is whether the

plaintiff was given a full and fair opportun-

ity to litigate his claim.

Plaintiff is attempting to confirm the NRAB

award in this instant matter when he had ample

opportunity earlier to pursue this claim.

Plaintiff refused and is now barred from pur-

Suing his claim. This Court's orders have

been rendered final just as the Seventh Cir-

cuit unpublished order was. All the elements

of res judicata having been satisfied, the

Court holds that plaintiff's motion to confirm

is hereby DISMISSED.

Ths Court shall not address the other argu-

ments presented by L&N, for res judicata is

properly invoked to warrant a dismissal.

SANCTIONS

Rule 11 of the Federal Rules of Civil Pro-

cedures governs the signing of pleadings,

motions, and other papers. The Rule requires

that each pleading or motion be signed by an

attorney or the party if the party is proce-

eding pro se. The Rule further provides as

follows:

"*** The signature of an attorney or party

constitutes a certificate by the signer

that the signer has read the pleading,

motion, or other paper; that to the

best of the signer's knowledge, inform-

ation, and belief formed after reason-

able inquiry it is well grounded in

fact and is warranted by existing law

or a good faith argument for the ex-

tension, modification, or reversal of

existing law, and that it is not inter-

posed for any improper purpose, such as

_to harass or to cause unnecessary delay

or needless increase in the cost of

litigation, *** If a pleading, motion,

or other paper is signed in violation

of this rule, the court, upon motion or

upon its own initiative, shall impose

upon the person who signed it, a repre-

sented party, or both, an appropriate

sanction, which may include an order fo

pay to the other party or parties the

amount of the reasonable expenses in-

curred because of the filing of the

pleading, motion, or other paper, in-

cluding a reasonable attorney's fee.

(Emphasis added.)

The Rule's purpose is to "discourage dila-

tory or abusive tactics and [to] help stream-

line the litigation process by lessening friv-

Olous claims or defenses." Hilgeford v. Peo-

ples Bank, Inc., 113 F.R.D. 161, 164 (N.D.

Ind. 1986). Although the concerns of Haines

. werner, 466 U.3. SiS, 92 3.tt. 334. 2

L.Ed.2d 652 (1972) may be taken into account

when dealing with pro se litigant, Rule 1l

applies to anyone who signs. A pro se suit is

frivolous when it has no basis, either in fact

or in law. Tarkowski v. County of Lake, 775

F. 2d 173, 176 (7th Cir. 1985). The test under

Rule 11 is no longer subjective, rather it is

an objective test. Indianapolis Colsts v.

Mayor and City of Baltimore, 775 F. 2d 175,

181 (7th Cir. 1985).

Ets a

The case at bar fails squarely within the

purview of Rule 11, for the pleadings, mo-

tions, and other papers filed by plaintiff are

not well grounded in fact and are not warrant-

ed by existing law. The foregoing analysis

demonstrates that plaintiff has violated Rule

ll. The Court finds that Three Hundred Dol-

lars ($300.00) payable to the Clerk of the

Court is an appropriate sanction in this mat-

ter.

Accordingly, the defendant's motion to

dismiss is GRANTED and the plaintiff's peti-

tion is hereby DISMISSED with prejudice.

This Court further cautions the plaintiff

that, in the event his appeal should be deemed

frivolous by the Court of Appeals, that Court

may impose sanctions under Fed. R. App. 38,

Farnum vy. U.$., 813 F. 2d 114, F16 (7th Ctr.

1987).

IT IS ORDERED at Evansville, Indiana this

15th day of September, 1987.

/S/ Gene E. Brooks

Gene E. Brooks, Chief Judge

United States District Court

Southern District of Indiana

cc: Distribution to all counsel of record.

ee 5 nia NATE

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D. C. 20443

September 18, 1986

Mr. Kenneth C. Grimes

621 East Gum Street

Evansville, IN 47713

Re: Kenneth C. Grimes v. Louisville and

Nashville Railroad Company,

No. 85-1711

Dear Mr. Grimes:

Your apparent second peition for rehearing

and check in the amount fo $50.00 were rece-

ived September 13, 1986, and are returned

pursuant to Rule 51.4 of the Rules of the

Court which prohibits the Clerk from filing

consecutive petitions for rehearing.

This Court denied your petition for rehear-

ing on August 19, 1986, and accordingly this

Case is considered ciosed by the Court.

Very truly yours,

JOSEPH F. SPANIOL, JR., Clerk

/S/ Francis J. Lorson

Francis J. Lorson

Chief Deputy Clerk

vjr

Enc.

cc: Joseph E. Stopher, Esq.

Suite 2300

One Riverfront Plaza

Louisville, KY 40202

Clerk, U.S. Court of Appeals for the

Seventh Circuit (Your No. 84-2749)

SUPREME COURT OF THE UNITED STATES

5 OFFICE OF THE CLERK

WASHINGTON, D. C. 20543

June 23, 1986

Kenneth C. Grimes

621 East Gum Street

Evansville, Indiana »~47713

Re: Kenneth C. Grimes V. Louisville and

Nashville Railroad Company,

A-990 (85-1711)

Dear Mr. Grimes,

Your application for a suspension of the

effect of the order denying the petition for a

writ of certiorari in the above-entitled case

has been presented to Justice Stevens, who

endorsed thereon the following:

"6/22/86

Deny

John Paul Stevens

Very truly yours,

JOSEPH F. SPANIOL, JR

/S/ Edward L. Turner, Jr.

os Stare

Edward L. Turner, Jr.

Assistant Clerk

ELT/elt

cc: Galen J. White, Jr.

F. Wesley Bowers

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D. C. 20543

June 2, 1986

Mr. Kenneth C. Grimes

621 East Gum Street

Evansville, IN 47713

Re: Kenneth C. Grimes,

v. Louisville and Nashville Railroad

Company

No. 85-1711

Dear Mr. Grimes:

The Court today entered the following

order in the above entitled case:

The petition for a writ of certiorari

is denied.

Very truly yours,

Joseph F. Spaniol, Jr., Clerk

/S/ Joseph F. Spaniol, Jr.

OFFICE OF THE CLERK

SUPEREME COURT OF THE UNITED STATES

WASHINGTON, D. C. 20543

April 22, 1986

Mr. Kenneth C. Grimes

621 East Gum Street

Evansville, IN 47713

RE: Kenneth C. Grimes v. Louisville and

Nashville Railroad Company

No. 85-1171

Dear Mr. Grimes:

The petition for writ of certiorari in the

above entitled case was docketd in this Court

on October 22, 1985 as No. 85-1711.

Very truly yours,

JOSPEH F. SPANIOL, JR., Clerk

/S/ Ruth J. Butler

Ruth J. Butler

Assistant Clerk

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

for the Southern-—

District of

Indiana

Evansville

Division

No. 81 C 130

Gene Brooks,

Judge

VS.

No. 84-2749

LOUISVILLE and NASHVILLE

RAILRQAD COMPANY,

Defendant-Appellee.

ee Se See Stee See Nee See See Stee” See See”

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 origianl panel having voted

to deny the same,

IT IS HEREBY ORDERED that the aforesaid

petition for rehearing be, and the same is

hereby, DENIED.

mn mH HE ae Eee we ee ee SFE SF SF SF & =

La)

UNITED STATES COURT OF APPEALS

~For the Seventh Circuit

Chicago, Illinois 60604

(Submitted June 10, 1985)*

G-12~-PS

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

Plainti<f-Appellant)States District

)Court for the

No. 84-2749 vs. )Southern District

)o£ Indiana,

LOUISVILLE & NASHVILLE) Evansville Div.

RAILROAD COMPANY, )No. 81 C 130

Defendant-Appellee )Gene E. Brooks,

) Judge.

ORDER

Plaiasiff 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.

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 as 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 grayer 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 dispute

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

Asphalt Refini - United Stat Devt

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.

UNITED STATES DISCTRICT COURT

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

KENNETH C. GRIMES,

Plaintiff FILED

OCT.12, 1984

CAUSE NO.

LOUISVILLE AND NASHVILLE EV 81-130-C

RAILROAD COMPANY and

LOCAL 1353, INTERNATIONAL

BROTHERHOOD OF ELECTRICAL

WORKERS,

em i ee ee ee See Se ee” See See Se

Defendants

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(b), hereby appeals to the United

States Court of Appeals for the SEVENTH CIR-

CUIT (from the final judgment) entered in this

action on the 14th day of September, 1984.

/S/Kenneth C. Grimes

Kenneth C. Grimes, Pro Se (Appellant)

621 East Gum Street

Evansville, Indiana 47713

1-812-423-1600

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

KENNETH C. GRIMES, FILED

Plaintiff OCT. 18, 1984

VS. CAUSE NO.

EV 81-130-C

LOUISVILLE AND NASHVILLE

RAILROAD COMPANY and

LOCAL 1353, INTERNATIONAL)

BROTHERHOOD OF ELECTRICAL)

WORKERS, )

Defendants )

AMENDED TO CORRECT TYPOGRAPHICAL ERROR

Line 2 (b)

NOTICE TO 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 CIR-

CUIT (from the final judgment) entered in this

action of the 14th day of September, 1984.

ATMS IS gait ‘ saat tia

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

KENNETH C. GRIMES

Plaintiff

vs. CAUSE NO.

EV 81-130-C

LOUISVILLE AND NASHVILLE

RAILROAD COMPANY and a on

LOCAL 1353, INTERNATIONAL) 7 lY F7

BROTHERHOOD OF ELECTRICAL)

WORKERS, )

Defendants )

QRREB

This action came on for trial

before the Court, Honorable Gene E. Brooks,

District Judge, presiding, and the issues

having been duly heard and a decision having

been duly rendered,

IT IS ORDERED and ADJUDGED

that the plaintiff take nothing,

that the action be DISMISSED cn the merits

and that each party is to bear his own costs

of the action.

Judge Gene E. Brooks

United States District Court

Southern District of Indiana

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

KENNETH C. GRIMES

Plaintiff£

vs. CAUSE NO.

EV 81-130-C

LOUISVILLE AND NASHVILLE

RAILROAD COMPANY and

LOCAL 1353, INTERNATIONAL)

BROTHERHOOD OF ELECTRICAL)

WORKERS, )

Defendants )

MEMORANDUM ORDER

This cause came on before the Court

for trial without a jury on the 26th day of

July, 1984. At the close of the plaintiff's

case, defendant, Louisville and Nashville

Railroad Company, (hereinafter "Railroad")

moved for an involuntary dismissal of

plaintiff's complaint pursuant to Rule 41(b)

Federal Rules of Civil Procedure on the

grounds that based upon the evidence

presented and the applicable law plaintiff

had shown no right to relief. The Court,

however, declined to render any judgment on

the motion until after the close of all the

evidence. After the close of its case, the

defendant Railroad renewed its 41(b) motion

and the Court at that time*took the matter

under advisement.

The Court has now had an

Opportunity to review the exhibits and

testimony presented as well as the applicable

law in this case. And the Court now being

duly advised in the premises hereby finds

that the motion of the defendant, Louisville

and Nashville Railroad Company, for an

involuntary dismissal of plaintiff's

complaint pursuant to Rule 41(b) Federal

Rules of Civil Procedure should be, and

hereby is, GRANTED.

Plaintiff originally commenced this

action in June 1981. The complaint, as to

the two named defendants, was brought in four

(4) counts alleging: (1) that the defendant

Railroad had breached the collective

bargaining agreement, (2) that the cefendant

Union had breached its duty of fair

representation, (3) that both defendants had

A -

ae ae ¢

discriminated against plaintiff because of

his race in violation of 42 U.S.C. 2000e et

seq, and (4) that both defendants had.

conspired to deprive plaintiff of his civil

rights in violation of 42 0.86.C. i985. Count

V of the complaint was an appeal under 45

U.S.C. 153 First (p) of a decision of the

National Railroad Adjustment Board.

Both defendants thereafter filed

motions for summary judgment as to all claims

presented in the complaint including the

appeal of the decision of the Railroad

Adjustment Board. On February 18, 1984, the

Court, in a lengthy order, granted the

defendant Union's motion for summary judgment

as to all claims against the Union. The

Court also granted, in part, the defendant

Railroad's motion for summary judgment as to

all claims including the appeal of the

Railroad Adjustment Board's decision, finding

that the Railroad had failed to show that

there were no genuine issues of material fact

as to GrimeS's claim of retaliation, thereby

precluding the grant of summary judgment as

to that issue alone. | .

Thereafter, on July 26, 1984, this

Cause came on for trial on the sole issue of

whether the defendant Railroad had retaliated

against Grimes because of his filing of a

charge with the Equal Employment Opportunity

Commission (hereinafter "EEOC") when they

placed him on furlough on March 30, 1984.

At the trial of this issue Grimes,

who had previously been represented by

counsel, elected to proceed pro se. Despite

having previously filed a list of some thirty

(30) potential witnesses who might be called

upon to testify, plaintiff failed to present

any witnesses at trial. Grimes did, however,

introduce approximately thirty (30) exhibits

which he contended supported his claim of

retaliation. Defendant, Railroad, called one

witness, Billy Ray Montgomery, to testify in

its behalf, and introduced four (4) exhibits.

Title 42 United States Code Section

2000e-3(a), the provision of Title VII of the

discriminated against plaintiff because of

his race in violation of 42 U.S.C. 2000e et

Ske and (4) that both defendants had

conspired to deprive plaintiff of his civil

rights in violation of 42 U.S.C. 1985. Count

V of the complaint was an appeal under 45

U.S.C. 153 First (p) of a decision of the

National Railroad Adjustment Board.

- Both defendants thereafter filed

motions for summary judgment as to all claims

presented in the complaint including the

appeal of the decision of the Railroad

Adjustment Board. On February 18, 1984, the

Court, in a lengthy order, granted the

defendant Union's motion for summary judgment

as to all claims against the Union. The

Court also granted, in part, the defendant

Railroad's motion for summary judgment as to

all claims including the appeal of the

Railroad Adjustment Board's decision, finding

that the Railroad had failed to show that

there were no genuine issues of material fact

as to Grimes's claim of retaliation, thereby

precluding the grant of summary judgment as

to that issue alone. |

Thereafter, on July 26, 1984, this

cause came on for trial on the sole issue of

whether the defendant Railroad had retaliated

against Grimes because of his filing of a

charge with the Equal Employment Opportunity

Commission (hereinafter "EEOC") when they

placed him on furlough on March 30, 1984.

At the trial of this issue Grimes,

who had previously been represented by

counsel, elected to proceed pro se. Despite

having previously filed a list of some thirty

(30) potential witnesses who might be called

upon to testify, plaintiff failed to present

any witnesses at trial. Grimes did, however,

introduce approximately thirty (30) exhibits

which he contended supported his claim of

retaliation. Defendant, Railroad, called one

witness, Billy Ray Montgomery, to testify in

its behalf, and introduced four (4) exhibits.

Title 42 United States Code Section

2000e-3(a), the provision of Title VII of the

Civil Rights Act which governs retaliation,

provides in pertinent part that:

It shall be an unlawful employment

practice for an employer to

discriminate against any of his

employees . . . because he has made

a charge .. . under this title (42

USC 2000e-17).

It is clear that in order for a plaintiff to

establish a violation of the above section he

must prove (1) that there was some statutory

protected participation under Title VII known

by the alleged retaliator; (2) that an

adverse employment action occurred, and (3)

that there was some cauSal connection between

the participation and the adverse employment

action. r 2 2 vse Gas

F2d 43 (2nd Cir. 1980); Equal Employment

: , Ya - i , TRY 115,

bj 1_uni 6 bj Sraineers,

438 F.Supp 876 (S.D.N.Y. 1977). Failure of

plaintiff to carry his burden of proof as to

any of the above elements will defeat his

claim. See, McDonnell Douglas Corp, v.

Green, 411 U.S. 792 (1973); Burris v. United

Telephone Co, of Kansas. Inc., 683 F.2d 339

(10th Cir. 1982). |

From the exhibits and testimony

presented at trial the following may be

found. Grimes was employed by L & N Railroad

in 1981 as an apprentice electrician assigned

to the mechanical department of the

Evansville Division. At that time, he was

the only apprentice electrician in that

department. The supervisor of the department

during that period and continuing until late

1983, was Billy Ray Montgomery. During March

of 1981, Montgomery had a series of

discussions with his supervisors concerning

proposed personnel reductions in his

department due to the threatened nationwide

coal strike. On or about March 20th,

Montgomery was advised to carry out the

necessary personnel reductions, and on March

23, Montgomery caused to be sent out a notice

furloughing Grimes effective March 30, 1981.

According to the testimony of Montgomery,

business both during and after the coal

strike continued to decline, and it became

necessary to furlough other employees as

well. To date, some of these employees have

been recalled, while others, including

Grimes, have not. It is undisputed that in

the event business increases necessitated it,

these employees, and Grimes would be recalled

according to their seniority. It may be

inferred that Grimes, having not obtained the

requisite number of hours for journeyman

status, will not be recalled until after all

journeyman electricians are recalled.

At trial, it was uncontested that

Grimes filed a charge of discrimination with

the Evansville Human Relations Commission and

the Equal Employment Opportunity Commission

On March 16, 1981, seven (7) days prior to

his receipt of notice from Montgomery that he

was being placed on furlough effective March

30, 1981. However, plaintiff's own exhibits

reflect that the Railroad did not receive

notice of Grimes's charge until March 26,

1981, three (3) days after Grimes had

received notice of his furlough.

Furthermore, Montgomery testified that at the

time Grimes was furloughed he had no

knowledge of the fact that Grimes had filed a

charge of discrimination with the Equal

Employment Opportunity Commission, and

plaintiff presented no evidence which

contradicts this testimony.

From the evidence presented, it is

Clear that Grimes's claim of retaliation must

fail for a number of reasons. The first

element which Grimes is required to establish

is that he participated in some activity

under Title VII and that the Railroad had

Knowleage of that participation. There is no

doubt that filing of an EEOC charge is a

protected activity under Section 704(a) of

Title VII, 42 U.S.C. 2000e-3(a). Equal

emp] EC ) J, 5 zane - j

14 and 15, supra; Pettway v. American Cast

Iron Pipe Co., 4ll F.2d 998 (5th Cir. 1969).

However, Grimes presented no evidence that at

the time of the filing of the EEOC charge or

at the time the decision was made to place

him on furlough that the Railroad had any

knowledge that Grimes had filed a charge of

discrimination, thereby negating the

retaliatory motive which is a part of the

first element.

While it is true, that the Railroad

did become aware of Grimes's EEOC charge on

Marcn 26th, no evidence was presented that

Montgomery, who was responsible for

determining who to furlough, became aware of

the charge before March 30th, the date on

which the furlough became effective. What

Grimes asks the Court to infer from the

timing alone is that he was discharged in

retaliation for filing charges. However,

that is something the Court is unable to do.

See, Downey v. A,II. Belo Corporation, 402 F.

Supp 1368 (N.D. Tex. 1975).

Assuming that Grimes's furlough is

an employment action disadvantaging a person

who has engaged in a prvetected activity,

thereby satisfying the second element of

Section 704(a), Grimes has still failed to

establish a causal connection between the

first and second elements, that is, a

retaliatory motive playing a part in the

adverse employment action. Here, the

Railroad furloughed employees in the various

crafts as the need arose, Grimes as the only

apprentice electrician was furloughed first,

and it is undisputed that that decision was

made prior to Grimes's filing of a

discrimination charge. Plaintiff is unable

to point to any facts which would indicate a

causal connection between the EEOC charge and

his furlough, and in light of the Court's

earlier finding of no retaliatory motive, the

Court is of the opinion that Grimes has

failed to carry his burden of proof as to the

third element of Section 704(a).

It is clear from the vigor with

which Grimes has pursued this case that he

feels that the Railroad has treated him

unfairly. It is equally clear, however, that

ln order to prevail upon his claim of

—_~< —-— = ™

retaliation that something more need be

presented than sane aliweatiens of

retaliation based upon inferences to be drawn

from timing alone. The Court has carefully

reviewed the exhibits introduced by

plaintiff, most of which have no bearing upon

plaintiff's retaliation claim, and can find

nothing which lends support to Grimes's

argument that the Railroad retaliated against

him for his filing of an EEOC charge.

Accordingly, the Court finds that

defendent, Louisville and Nashville Railroad

Company's motion for an involuntary dismissal

pursuant to Rule 41(b) Federal Rules the

Civil Procedure should be GRANTED.

IT IS SO ORDERED

DATED this 14th day of September,

1984,

Judge Gene E. Books

United States District Court

Southern Districts of Indiana

NOTE: THE CLERK OF THE UNITED STATES

DISTRICT COURT, SOUTHERN DISTRICT

OF INDIANA, EVANSVILLE DIVISION,

SHALL MAKE DISTRIBUTION TO ALL

COUNSEL OF RECORD

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

APRIL 24, 1984

Before

HON. RICHARD DBD. CUDAHY, Circuit Judge

HON. RICHARD A. POSNER, Circuit Judge

HON. JOHN L. COFFEY, Circuit Judge

KENNETH C. GRIMES, )

Plaintiff-Appellant) Appeal from the

) United States

) District Court for

) the Southern

) District of Indiana,

) Evansville Division

)

No. 84-1392 vs. ) No. 81 c 130

) Judge Gene E. Brooks

LOUISVILLE AND )

NASHVILLE RAILROAD

COMPANY and LOCAL 1353)

INTERNATIONAL BROTHER-

HOOD OF ELECTRICAL

WORKERS, )

Defendants-Appellees)

This matter comes before the court for its

consideration of the following documents:

1. "MOTION TO BISMISS APPEAL" filed herein

on April 9, 1984, by counsel for the appel-

lees, with brief in support thereof.

2. “RESPONSE TO ‘MOTION TO DISMISS APPEAL'

FILED APRIL 9,1984 BY COUNSEL FOR THE DEFEN-

DANT-APPELLEE" filed herein on April 18, 1984,

by counsel for the plaintiff-appellant.

3. "MOTION FOR APPEAL CERTIFICATION" filed

herein on April 9, 1984, by pro se appellant.

An order entered by the district court

disposing of fewer than all of the issues or

parties before it is a grant of partial sum-

mary judgment, which is not a final order for

purposes of appeal. Accordingly

IT IS ORDERED that appellees’ motion is

hereby GRANTED and this appel is hereby OIS-

MISSED.

IT IS FURTHER ORDERED that appellant's

"MOTION FOR APPEAL CERTIFICATION" is denied on

the ground that Federal Rule of Civil Proce-

dure 54(b) certification must be sought in the

district court. See Federal Rule of Appellate

Procedure 5(a).

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

KENNETH C. GRIMES )

Plaintiff ) FILED

) MARCH 9, 1984

VS.

LOUISVILLE AND NASHVILLE )

RAILROAD COMPANY, AND ) CAUSE NO...

LOCAL 1353, INTERNATIONAL) EV 81-130-C

BROTHERHOOD OF ELECTRICAL

WORKERS (Defendants)

NOTICE OF APPEAL

Notice is hereby given that Kenneth C.

Grimes Plaintiff herein, appeal to the United

States Court of Appeals to the Seventh Circuit

Court of Appeals to the Seventh Circuit Court

from Summary Judgment entered in this action

on the 10th day of February 1984, in the Unit-

ed States District Court Southern District of

Indiana, Evansville Division.

/S/Kenneth C . Grimes

621 East

Gum Street

Evansville, Indiana 47713

‘

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

KENNETH C. GRIMES,

Plaintiff CAUSE NO.

EV 81-130-C

VS.

LOUISVILLE AND NASHVILLE 2-/o- SY

RAILROAD COMPANY and LOCAL

1353, International

Brotherhood Electrical

Workers,

Defendants

em a Se et ee See ee See See Se

This matter comes before the Court upon

the motions of the defendants Louisville and

Nashville Railroad Company and Local 1353,

International Brotherhood of Electrical Work-

ers for Summary Judgment pursuant to Rule 56,

Federal Rules Civil Procedure,. For the rea-

sons stated below the motions are GRANTED in

part and DENIED in part.

MEMORANDUM

Kenneth C. Grimes (Grimes) is a black male

who was employed by Louisville and Nashville

Railroad Company (Railroad) in February 1976

as an “electrician apprentice." He was a

member of Local 1353 International Brotherhood

of Electrical Workers (Union) and his terms of

employment were covered by a collective bar-

gaining agreement between the Railroad and the

Union. One of the provisions of the collec-

tive bargaining agreement is that “an employee

(who) has been unjustly suspended or dismis-~-

sed. . . shall be reinstated with his senior-

ity rights unimpaired, and compensated for the

wage loss ... resulting from said suspension

or dismissal." See, Rule 34 of Agreement.

In late August or early September of 1976

Grimes was involved in an altercation with a

temporary supervisor concerning the installa-

tion of an electrical switch. A disciplinary

hearing ensued in September 1976 at which a

The defendant, Local 1353 International

Brotherhood Electrical Workers’ motion for

Summary judgment is GRANTED as to pleading

Paragraphs Two, Three, and Four. The defen-

dant L&N Railroad Company/s motion for summary

jdugment is GRANTED in full as to pleading

Paragraphs One, Four, and Five, and GRANTED in

part and DENIED in part as to pleading Para-

graph Three.

IT IS SO ORDERED.

Dated at Evansville, Indiana this 10th

day of February, 1984.

/S/ Gene E.Brooks

Judge Gene E.Brooks

United States District Court

Southern District of Indiana

Union representative was present to represent

Grimes but participated minimally. Subsequent

to the hearing Grimes was suspended from his

employment; and then discharged. At the time

of his dismissal, his position was that of an

"upgraded electrician apprentice." After the

discharge the Union processed Grimes‘ griev-

ance through a hearing before the National

Railroad Adjustment Board (Board).

On June 13, 1979 the Board rendered its

decision and ordered the Railroad to reinstate

Grimes without loss of seniority or position

but without back pay. The decision explained

that, while Grimes had improperly refused to

obey an order from a supervisor, mitigating

circumstances made dismissal an excessive form

of discipline. Grimes returned to work on

July 9, 1979 as an “electrician apprentice"

rather than an “upgraded electrician appren-

tice" and although it is not entirely clear it

appears that his seniority rights may have

been impaired. After his return to work

Grimes complained to Union representatives

about his loss of position and seniority, but

it appears that no action was taken.

On March 16, 1981 Grimes filed a charge of

racial discrimination against the Railroad

with the Equal Employment Opportunity Commis-

sion (EEOC). On March 30, 1981 Grimes was

laid off and placed on furlough, a status

which still existed at the time of the filing

of this action. Thereafter, on June ll, 1981

Grimes filed suit against the Railroad and the

Union invoking jurisdiction of this Court

pursuant to 28 U.S.C. § § 1331 and 1343.

The Complaint states five (5) claims desig-

nated as pleading paragraphs, which are as

follows:

(1) A claim against the Railroad for

breach of the collective bargaining

agreement arising out of Grimes‘

discharge, reinstatement, and subse-

quent furlough.

(2) A claim against the Union for breach

of its duty of fair representation

under Section 301 of the Labor Man-

agement Relations Act, 29 U.S.C. §

185.

(3) A claim against both the Railroad and

the Union for racial discrimination

in employment in violation of Title

aa ee ome 6UCTVIE | 6UCRights «€Act, 42

U.S.C. § 2000e et seq.

(4) A claim against both the Railroad and

the Union for conspiring to deprive

Grimes of his civil rights in viola-

tion of 42 U.S.C. § 1985.

(5) An appeal under 45 Bese. § §153

Pires (0). (9g), 153, Second, of the

Board decision which refused to order

back pay for the period of time dur-

ing which Grimes had been

unemployed.

In March and April of 1982 each of the

defendants filed a motion for summary judgment

as to all claims made against them and as to

the appeal of the Board's decision. Since

defendants’ motions encompass all of Grimes'

claims the Court will address each claim sep-

arately and in order with the exception of the

claims which are set forth in pleading para-

tiscain ae

let

ran

graphs one and two which, becaue of their

nature, are interdependent and are thus best

addressed together.

BREACH OF COLLECTIVE BARGAINING AGREEMENT

AND BREACH OF THE DUTY OF FAIR

REPRESENTATION CLAIMS

Grimes claims that, by discharging him

without just cause and then reinstating him in

a lower rated position with loss of seniority

and back pay, the Railroad breached the col-

lective bargaining agreement with the Union

and that the Union breached its duty of fair

representation by failing to adequately and

timely represent him in his disputes with the

Railroad. Defendants argue that Grimes’ claims

should be dismissed since such claims are,

based upon the undisputed facts, without merit

and are barred by the applicable statute of

limitations. The Union relies on the two (2)

year statute of limitations for actions relat-

ed to employment provided for in Indiana Code

§34-1-2-1-5, while the Railroad contends that

the appropriate limitations period is_ the

ninety (90) day period proveded for in Indiana

Code §$ 34-4-2-13 which governs actions to

vacate arbitration awards. Plaintiff in his

response to the motions relies alternatively

on the two (2) year statute of limitations set

forth in the Federal Railway Labor Act, 42

U.S.C.§ 153(R), or if the state statute of

limitation is to be applied then upon Indiana

Code §34-1-2-1.5.

The United States Supreme Court recently

addressed the question of what statute of

limitations should apply in an employee's suit

against an employer and a union alleging the

employer's breach of the collective bargaining

agreemtn and the union's breach of its duty of

fair representation. Del Costello v. Interna-

tional Brotherhood of Teamsters, U.S. 51 USLW

4693 (1983). In that case, the Court found

that they should adopt the six (6) month sta-

tute of limitations embodied in 810(b) of the

National Labor Relations Act, 29 U.S.C.

$160(b0 for suits against both the employer

and the union. This view has been followed in

recent Seventh Circuit decisions. See e.g.

Metz v. Tootsie Roll Industries, No 82-2945

(7th Cir. Aug. 16, 1983); Storck V. Interna-

tional Brotherhood of Teamsters, Nos. 82-1925,

82-1926 (7th Cir. July 25, 1983). Thus, based

upon the above authorities any claim which

Grimes has that arose from activity prior to

December 11, 1980 would be time-barred since

this suit was commenced on June ll, 1981. -

However, while a suit brought by an employ-

ee against an employer for breach of the col-

lective bargaining agreement and against a

union for breach of the duty of fair repre-

sentation is generally brought pursuant to

8301 of the Labor Management Relations Act,

the Seventh Circuit has recently found that

Section 301 does not apply to employers sub-

ject to the Railway Labor Act, and that no

other statute purports to give federal courts

jurisdiction to enforce collective bargaining

agreements with such employers. Graf v. Elgin,

Joilet and Eastern Railway Company and Bro-

therhood of Railway Carmen, Local No. 882, No.

82-186A. Site Op. et 3 {7ta Ctr. den Ff,

1983). The Court, in Graf did find, however,

that a contract claim against an employer

could be brought under a federal common law of

railroad collective bargaining contract inter-

pretation since it made sense to do so in as

much as the common law was already being ap-

plied _in_workers' suits against unions. ld.

at 7.8.»

The question that the Seventh Circuit did

not face in Graf (since the only issues pre-

sented dealt with the jurisdiction of the

federal courts) and the one that still remains

to be answered is. ~ (What is the applicable

statute of limitations for an employee's suit

against an employer and a union which alleges

the employer's breach of the collective bar-

gaining agreement and the Union's breach of

the duty of fair representation, w'»re_ the

employer is not subject to $301 of the Labor

Management Relations Act?)

As already noted, the Supreme Court in Del

Costello held that the six (6) month statute

of limitations of $'0(b) should be applied in

$301/fair representation cases. (The Court

therein noted that while there is no federal

Statute of limitations expressly applicable to

this type of suit, that §301/fair represen-

tation claims are akin to charges of unfair

labor practices which are subject to_ the

statutory limitation period of §10(b).) Thus,

the Court concluded that "(t)he need for uni-

formity among procedures followed for similar

Claims. « «+ @8 well 6s the clear congres-

Sional indication of the proper balance be-

tween the interests at stake, counsels the

adoptoin of 10(b) of the NLRA as the appro-

priate limitations period for lawsuits such as

this." Id. at 4698.

This Court finds the reasoning in Del Cos-

tello to be persuasive. (The Court also notes

that Del Costello was decided after the Seven-

th Circuit's decision in Graf, and that the

Supreme Court did not expressly limit its

decision to breach of contract/ fair represen-

tation claims brought pursuant to §301.)

Thus, although Grimes‘ claims against the

Railroad and the Union can't be brought as a

§301/fair representation action, the Court is

of the opinion that they are sufficiently

similar to that type of action such that the

six (6) month statute of limitations enunci-

ated in Del Costello should be applied.

As noted earlier, Grimes' discharge occur-

red in 1976. His reinstatement came in July

1979. Both events are alleged to have been

breaches of the collective bargaining agree-

ment and the Union's duty of fair representa-

tion. From these facts. defendants argue that

it is unquestionable that plaintiff's com-

plaint as to these two events is time barred.

The Court is of the opinion that defendants

are correct in as much as both events occurred

Substantially before the limitations period

that the Court has found applicable to this

case. Although it is not abundantly clear from

the response, Grimes, however, seems to con-

tend that his discharge, subsequent reinstate-

ment, and furlough constitutes a continuing

series of wrongs which toll the running cf any

statute of limitations. Under this view since

Grimes is currently furloughed the alleged

breaches continue to occur and damages con-

tinue to accrue.

The court does not agree that the “continu-

ing violation" doctrine proposed by Grimes has

application in this case. The only activity

which occurred within the limitations period

is Grimes’ furlough in March 1981. Clearly,

the simple act of being laid off due to a lack

of seniority is not of itself unlawful or a

breach of the collective bargaining agreement.

(Apparently Grimes does not dispute this fact

Since there is no indication that he ever

filed a grievance with regard to the furlough

itself, or that an effort to comply with the

grievance mechanism would have been futile.)

Therefore, the only way in which the March

1981 furlough can be charged to be a breach of

the contract is through reliance on what are

alleged to be earlier breaches. However, to

allow Grimes to cloak with illegality his fur-

lough by reliance upon earlier events which

are now time barred would result in the revi-

val of what are now’ legally defunct claims.

Local Lodge No. 1424, International Associa-

tion of Machinists v. N.L.R.B., 362 U.S. 411

(1960); Metz v. Tootisie Roll Industries,

Supra.

Based upon the foregoing, the Court is of

the opinion that Grimes' discharge and rein-

statement claims against both defendants are

barred by the limitations period set out in

Del Costello. Additionally, since the alleged

wrongful conduct of the defendants with regard

to Grimes furlough is predicated upon the

earlier events, that activity cannot consti-

tute a "continuing violation." Nor can Grimes

claim that the furlough itself is a breach of

the contract, since before an employee may

litigate the merits of his contract claim he

must prevail on the unfair representation

Claim against the Union, United Parcel Ser-

vice, Inc. v. Mitchell, 415 U.S. 56, 101 5S.

Ct. 1559 (1981), a claim which cannot be

brought in this case since no grivance has

ever been filed with respect to the furlough.

Therefore, defendants’ motion for summary

judgment as to pleading paragraphs one and two

fo plaintiff's complaint are herby GRANTED.

TITLE VII - DISCRIMINATION CLAIM

Grimes contends in pleading paragraphs

three (3) that the defendants intentionally

engaged in discriminatory employment practives

on the basis of race that deprived him of the

right to the same employment opportunities

enjoyed by white persons. The defendent Rail-

road contends that in so far as Grimes' charge

ef discrimination is predicated upon his dis-

charge and reinstatement that the claim is

untimely because both events occurred substan-

tially more than One hundred Eighty (180) days

prior to the complaint Grimes filed with EEOC.

As to Grimes' charge that he was furloughed

in retaliation for his complaint to the EEOC

the Railroad argues that since no charge of

retaliation has been filed with the EEOC

Grimes may not assert for the first time that

Claim in this action. The Union's basis for

summary judgment as to pleading paragraph

three(3) is less complicated. It is the

Union's contention that since it has never

been the subject of an EEOC charge that the

Court lacks jurisdiction over it as to this

claim.

It should be noted that Congress has pro-

vided explicit jurisdictional requirements in

Title VII cases before a plaintiff may main-

tain a suit - See, 42 U.S.C. §2000e-5. First,

a plaintiff must, absent exceptional circum-

stances, file a timely charge of discrimina-

tion with the EEOC. Second, the plaintiff must

receive a right to sue letter from the EEOC

and acted upon it. Alexander v. Gardner-

Denver Co., 415 U.S. 36, 94 S. Ct. 1011

(1974); McDonnell Douglas Corp v. Green, 411

U.5. 792, 93 S$. CT. 1647 (1973). Fatlere te

satisfy both requirements deprives the Court

of jurisdiction over the Title VII claims

Movement For Opportunity, Etc. v. General

Motors, 622 F. 2d 1235 (7th Cir. 1980); Gibson

v. Kroeger Co., 506 F. 2d 647 (7th Cir. 1974).

In the case sub judice Grimes has failed to

allege in his complaint compliance with the

above requirements. Nor does Grimes in his

response to defendant's motions indicate that

he received a right to sue letter from the

EEOC. On that basis it would appear that the

Court is without jurisdiction to entertain

Grimes’ Title VII claims. However, from a

reading of the motions as well as all the

other documents filed in this cause, there is

little doubt that Grimes did in fact file a

complaint with the EEOC on March 16, 1981, and

it appears that the EEOC issued a right to sue

letter on June 3, 1981. See, Plaintiff's List

of Witnesses and Exhibits, Item 5(c). Thus,

the Court is satisfied that Grimes has com-

plied with the second requirement for filing

suit.

However, it is the first requirement (that

of filing a timely charge before the EEOC)

that the defendant Railroad contends Grimes

has not complied with the second requirement

for filing suit.

However, it is the first requirement (that

of filing a timely charge before the EEOC)

that the defendant Railroad contends Grimes

has not compiled with. Section 2000e-5 re-

quires that a complaint be filed with the EEOC

within One Hundred and Eighty (180) days after

the alleged unlawful employment practice oc-

curred. It is undisputed in this case that no

such charge was filed within One Hundred Ejigh-

ty (180) days of either Grimes* discharge in

1976 or his reinstatement in 1979. Thus, any

claim based solely on these two events is

barred. Grimes contends however that there is

a continuing violation in. that the Railroad

failed to accord him the proper seniority

status, thus giving present effect to the

Railroad's past conduct.

There is no doubt in the Court's mind

that the Railroad's seniority system gives

present effect to what is alleged to have been

a past act of discrimination (i.e. Grime's

reinstatement in 1979 without seniority cre-

git}. Moreover, it is clear that seniority

can, and oftentimes does, govern which em-

ployees will be furloughed or laid off and

which will be recalled. But in the case before

the Court Grimes does not attack the bona

fides of the Railroad's seniority system. He

merely argues that the past wrongful conduct

has a continuing effect.

It is clear that past acts of discrimina-

tion which have not been made the basis for a

timely charge before the EEOC are the legal

equivalent of discriminatory acts which oc-

curred before the statute was passed. United

Air Lines .v. Evens, 433 $.Ct. $53 {1977}.

Therefore, the Railroad is entitled to treat

their actions in 1976, and 1979 as lawful

since Grimes' EEOC complaint was not filed

until 1981. And past events, which have no

legal significance can not now support an

argument that the violation is a continuing

one. United Air Lines, supra.

Grimes further contends, however, that he

was furloughed in retaliation for his March

16, 1981 EEOC charge. The Railroad argues

that since no charge of retaliation has ever

been filed with the EEOC Grimes may not now

for the first time assert such claim. With

this the Court cannot agree. While it is true

that a Court may not generally exercise juris-

diction over claims not encompassed within the

EEQC charge, Plummer v. Chicago Journeymen

Plumbers, Local Union Etc., 452 F.Supp. 1127

(0.C. I11. 1978), the Court may exercise

jurisdiction over like or related matters

which mfght reasonably be expected to be sub-

ject to EEOC investigation growing out of the

Charge. Flescr v. Eastern Pennsylvania Psy-

chiatric Institute, 434 F.Supp. 963 (E.D. Pa.

1977). On the basis of the record before the

Court, it is impossible to sey that Grimes'

charge of retaliation is not related to the

Charges that were pending before the EEOC at

the time that Grimes was furloughed. Further-

more, retaliation for participating in the

EEOC process can exist even if the claims

contained in the EEOC charge are without merit

or are based upon activity which is found to

be lawful. Abramson v. Univeristy of Hawaii,

594 F.2d 202 (9th Cir. 1979). It is the nature

of retaliation claims that they arise only

after the filing of an EEOC charge. To re-

quire a plaintiff to resort to the EEOC pro-

cess before bringing such a charge would mean

that in every case where retaliation is an

issue the plaintiff would have to file a sec-

ond EEOC charge. The Court is of the opinion

that such requirement would have the effect of

erecting an unnecessary procedural barrier to

the maintenance of a Title VII suit which

could discourage employees from exercising

their rights under the Civil Rights Act. See,

National Organization for Women v. Sperry Rand

Corp., 457 F.Supp. 1338 (D.C. Conn. 1978);

Berstein v. National Liberty International,

407 F.Supp. 709 (D.C. Pa. 1976); Held v. Mis-

souri Pacific Railroad Company, 373 F.Supp.

996 (D.C. Tex. 1974.

Based upon the foregoing, the Court finds

that the defendant Railroad's motion for sum-

mary judgment as to pleading paragraph three

of plaintiff's complaint should be GRANTED in

part and DENIED in part. In so far as Grimes’

claims relate to his 1976 discharge, his 1979

reinstatement, and his contention of a con-

tinuing violation, such claims are barred due

to untimely filing with the EEOC. The Court

therefore lacks jurisdiction over such claims

and the defendant Railroad's motion, with

respect to those claims is GRANTED. With

regard to Grimes' claim of retaliation, the

Court finds that the averments in defendant's

motion are insufficient to show that there are

no genuine issues of material fact as to the

reason for Grimes' furlough thereby precluding

the granting of defendant Railroad's motion.

Thus, as to that issue the Railroad's motion

for summary judgment is DENIED.

As noted earlier, the defendant Union also

filed a motion for summary judgment as_ to

pleading paragraph three. At a pre-trial

conference held on April 5, 1982 before the

Honorable Patrick Endsley, United States

Magistrate, the plaintiff, and plaintiff's

counsel agreed that pleading paragraph three

of the complaint was without merit as to any

claim against the Union, The Magistrate at

that time found that the Union's motion for

summary judgment as to that claim should be

granted. The Court having examined the record

in this cause, concurs with the finding of the

Magistrate, and hereby GRANTS the defendant

Union's motion for summary judgment as_ to

pleading paragraph three.

§ 1985 CONSPIRACY CLAIM

Pleading paragraph four (4) of Grimes'

complaint alleges that the defendants conspir-

ed to deprive Grimes of his right to equal

employment opportunities in violation of Title

42 United States Code Section 1985. Both

defendants have moved for summary judgment as

to this claim on two separate grounds: (1)

that the applicable statutes of limitations

for this type of action is a bar to recovery

for any events occurring prior to June ll,

1979, and (2) that the conspiracy claim is a

wholly speculative claim which lacks any fac-

tual basis. Grimes attempts to resist defen-

dants' second contention by stating that the

alleged discriminatory practices of the defen-

dant Railroad, occurring as they did in a

union ship, could not have occurred without

the tacit and actual consent of the Union,

thus giving rise to more than a mere suspicion

that a consipiracy existed.

The Seventh Circuit has had occasion to

address the question of what is the appropri-

ate statute of limitations for actions brought

pursuant to the Civil Rights Enforcement Sta-

tutes, Secs. 1981, 1983, 1985, and 1986. See,

Movement For Opportunity Etc., supra (§

1981 Action); Hill v. Trustees of Indiana

University, 537 F.2d 248 (7th Cir. 1976),

(§ 1983 Action). In both cases, the appel-

late court found that the two year statute of

limitations in Indiana Code § 34-1-2-2

should be applied to the civil rights actions

then under consideration. Grimes has cited

the Court to no authority, and indeed failed

to even address the issue in his brief, which

would justify applying a different statute of

limitations to the present § 1985(3) action.

The Court is therefore of the opinion that in

light of the decisions in Movement For Oppor-

tunity, Etc. and Hill that the appropriate

statute of limitations to be applied to

Grimes' conspiracy claim is two (2) years.1l

Thus, any claim that Grimes could assert that

arose before June 11, 1979 is time barred.

Application of this period of limitations,

then leaves Grimes only with the claim of

conspiracy as to his reinstatement in July

1979, and his furlough in March 1981.

1/ (1) Indiana has enacted Indiana Code §

34-1-2-1.5 which provides specifi-

cally for a two (2) year statute of

limitations for all employment

related actions.

Examination of Grimes’ complaint with re-

spect to his conspiracy claim reveals that the

only allegation supporting his claim that,

"[t]he practices and policies of Defendants

"Union" and "Company" constitute a conspiracy

o 6 « ~ See, Complaint 39. In essence Grimes

seems to be saying that the alleged wrongful

acts could not have occurred but for the

existence of a conspiracy. However, when

Grimes was asked in his deposition to deline-

ate what evidence he possessed which supported

the existence of the conspiracy he answered

that:

[T]he Union and the Company were

both involved in either seeing that

I did or did not have what I am

supposed to have. And beyond that, its

very difficult for me to give you an

accurate statement about what particular

specifics, because I don't know.

Grimes Deposition 36-37.

While the Court agrees with the Seventh

Circuit's statement in Cohen v. Illinois In-

stitute of Technology, 524 F.2d 818 (7th Cir.

1975) cert. denied 425 U.S. 943, 96 S.Ct. 1683

(1976) that:

[P]Jlaintiff is entitled to the fullest

opportunity to adduce evidence in support

of (his) claim. But (he) is not entitled

to a trial, or even to discovery, merely

to find out whether or not there may be a

factual basis for a claim...

it must appear from the complaint that there

is at least sufficient minimal factual support

of the existence of a conspiracy. It is,

: {[njot sufficient to allege that defend-

ants merely acted in concert or with a

common goal. There must be allegations

that the defendants had directed them-

selves toward an unconsitutional action

by virtue of a mutual understanding.

Even were such allegations made, they

must further be supported by some factual

allegation suggesting such meeting of the

minds. (Emphasis added)

Sparkman v. McFarlin, 601 F.2d 261 (7th Cir.

1979) (alleged conspiracy under § 1983).

eel

SSS ee oe ee ee ee a ee ee

Perusal of the complaint does not reveal

any allegation or factual basis to support a

finding of mutual understanding or of a meet-

ing of the minds between the Union and the

Railroad. Nor can Grimes point to anything

which would support such a finding. He simply

requests that this Court infer from his dis-

Charge, reinstatement, and furlough that there

was some sort of agreement to discriminate

against him. This the Court is unwilling to

do. Moreover, Grimes asserts his claims as

violation of Title VII, see, Complaint 1, 36.

However, it is clear that 1985(3) may not be

invoked to redress violations of Title VII.

Great American Federal Savings and Loan Asso-

ciation, 442 U.S. 366 (1979).

Therefore, for the reasons given above the

Court is of the opinion that pleading para-

graph four (4) of the complaint fails to suf-

ficiently allege the esixtence of a 1985(3)

violation. And in as much as the alleged

violations are based upon violation of Title

VII, 1985(3) action is not the appropriate

remedial action. The defendant Railroad's

motion for summary judgment as to pleading

paragraph four (4) is herby GRANTED. Like-

wise, defendant Union's motion for summary

judgment as to the same claim is also

GRANTED.

APPEAL OF DECISION OF THE NATIONAL

RAILROAD ADJUSTMENT BOARD

Pleading paragraphs five (5) of the com-

plaint is an appeal of the June 13, 1979 de-

cision of the National Railroad Adjustment

Board (No. 7956 Second Division in so far as

the decision denied Grimes compensation for

lost wages, benefits, and increments’ from

September 22, 1976 through July 7, 1978.

Grimes contends that the decision was contrary

to the evidence and the Board's own findings,

discriminatory, arbitrary, capricious, and in

complete disregard of the provisions of the

collective bargaining agreement.

The defendant Railroad has moved for sum-

mary judgment as a matter of law as to this

claim on the basis that the scope of review of

this Court is limited by the Railway Labor Act

and that Grimes has not demonstrated that the

decision should be set aside.

The National Railroad Adjustment Board is

essentially an arbitration panel established

and governed by 45 U.S.C. 151 et seq. Courts

reviewing decisions of the Board have an ex-

tremely marrow standard of review. Union

Pacific Railroad Co. V. Sheehan, 439 U.S. 89

(1978); Kotakis V. Elgin, Joliet, and Eastern

Railway Co., 520 F. 2d 570 (7th Cir. 1975).

The decision of the Board may be set aside

only for failure of the Board to comply with

the requirements of the chapter; for failure

of the order to conform or confine itself to

matters within the scope of the divis

ions

jurisdiction; or for fraud or corruption

by a

member of the division making the order.

45 U.S.C. 153 First (q).

Pleading paragraph five (5) of the

See,

com-

plaint does not allege that the Second (D

ivi-

sion failed to comply) with the requirem

ents

of the Railway Labor Act, or that there

was

any fraud or corruption by any member of

the

Board. Instead, Grimes essentially all

that the Board's decision did not con

itself to or conform with matters within

scope of the Board's jurisdiction since

decision failed to award him back pay.

eges

fine

the

order for the Court to find that the Board's

decision is outside the scope of the divi-

ee PEE es? ee ae

Sion s jurisdiction, the decision must

“without foundation in reason or fact" Laday

v. Chicago Milwaukee, St. Paul and Pacific

Railroad Co., 422 F. 2d 1168 (7th Cir. 1970),

or “wholly baseless and without reason." Gun-

discharge, September 21, 1976,

and continuing thereafter until

such time as he is restored to

service.

3 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 and

welfare and insurance benefits.

bal

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 inciaent,

- ae ~T""_¢ eer oe eee —— «

ther v. San Diego & Arizona Eastern Railway

Co., 382 U.S. 257 86 S.Ct. 368 (1965). And it

is clear that the Court on review may not open

up the Board's findings on the merits, or

interpret the collective bargaining agreement,

Gunther, supra, Edwards v., St. Louis-San

Francisco Railway Co., 361 F.2d 946 (7th Cir.

1966).

In the case sub judice Grimes contends that

the failure of the Board to award backpay is

"baseless" and "without reason". However,

there is authority for the proposition that an

award or reinstatement without back pay is not

so baseless or wholly without reason as to

require reversal of the arbitrator's decision.

See, Air Lines Pilots Ass'n Intern., V. East-

ern Airlines, 632 F. 2d 1321 (5th Cir. 1980);

Amoco Oil Co. V. Oil, Chem. & Atomic Wkrs.

Sees, o8e F. £6 1288 (7th Cir. 1977) cert.

denied 97 S.Ct. 1697 (1977); Rinker V. Penn

Central Transportation Co., 350 F. Supp. 217

(E.D. Pa. 1972). As the Court noted in Rink-

er:

~ « e« (T)here is nothing at all

inconsistent about an award of re-

instatement without back pay...

the Board's consideration was not

confined solely to whether disci-

plinary action by the raiload was

warranted, it extended also to de-

termining the propriety of the dis-

ciplinary action inposed. Quite

obviously the Board here concluded

that disciplinary action was war-

ranted, but that complete dismissal

was not. The refusal to award back

pay amounts to a reduction of the

penalty from dismissal to a period

of suspension.

Such is the case here. While the Board speci--_

fically found that Grimes should be disciplin-

ed, mitigating circumstances made dismissal

excessive, and a lesser penalty appropriate.

The Court can not say that such decision was

wholly baseless, or without reason so as to

require reversal of the Board's decision.

Although Grimes in his complaint did not

attack the proceedings before the Adjustment

Board, in his response to the Railroad's mo-

tion he argues that the proceedings before the

Board were tainted by the Union's breach of

its duty of fair representation. While the

Court notes that in some cases the breach of

the duty of fair representation may undermine

the arbitral process, see e.g. Miller V. Gate-

way Transportation Co. 616 F.2d 272 (7th Cir.

1980) the Court is not of the opinion that

this is such a case. Here, Grimes’ grievance

was processed by the Union, and although there

appears to be some question as to the adequacy

of his representation at the initial discharge

hearing, it is clear from the record filed by

the Board that they were aware of these short-

comings. It is also important to note that

the Board did find in Grimes’ favor albeit not

to the degree that either he or the Union

sought.

Looking at the record as a whole, as well

as the numerous exhibits made part of the

Board's record of decision, the Court cannot

testis

say that the Union breached its duty of fair

representation so as to undermine the fairness

of the arbitral process. That being the case

the Court finds that the motion for summary

judgment as to the appeal of the decision of

the National Railroad Adjustment Board should

be GRANTED

Based upon the foregoing the Court hereby

ORDERS that:

(1) Summary Judgment as to pleading para-

graph One (1) of the complaint be and

herby is GRANTED in favor of the

defendant Railroad.

(2) Summary Judgment as to pleading para-

graph Two (2) of the complaint be and

herby is GRANTED in favor of the

defendant Union.

(3) Summary Judgment as to pleading para-

graph Three (3) of the complaint with

respect to the defendant Union is

GRANTED in favor of the Union, With

(4)

(5)

regard to the defendant Railroad the

motion is GRANTED in part and DENIED

in part. Plaintiff may pursue again-

st the Railroad only his claim of

retaliation in violation of Title

VII, 42 U.S.C. §2000e et. seq.

Summary Judgment as to pleading para-

graph Four (4) of the complaint is

GRANTED in favor of both the defen-

dant Railroad and the defendant Un-

ion.

Summary Judgment as to pleading para-

graph Five (5) of the complaint is

GRANTED in favor of the defendant

Railroad.

IT IS SO ORDERED.

DATED at Evansville, Indiana this LO day of

February,

1984,

Judge Gene E. Brooks

United States District Court

Southern District of Indiana

————

Form 1

Award No. 7956

Docket No. 7776

2-L&N-EW-'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.

(System Federation

(No. 91,

( Railway Employees'

( Department,

( A..F. of L.--C.I1.0.

( (Electrical

( Workers)

(Louisville and

(Nashville

(Railroad Company

Dispute: Claim of Employees:

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

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 type, 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 following colloquy took

place between the Hearing Officer and the

foreman:

"Q. Did you observe the amperage

reading on the new switch?

~%¥=a

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

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 Foremzn'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

later". 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

tnan capricious, stemming from his

inexperience as an Upgraded Electrician

which left Fr : unsure and uncertain as to

the safety risks involved in substituting

one type of switch for another. The record

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.

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing has

been served upon Michael S. Wolly, 1125-15th

sT. N.W. Suite 400, Washington, D.C. 20005,

(202) 833-8855, Rodney H. Grove, 220 N.W.

Fourth St., P.O. Box 3261, Evansville, Indiana

47731 (Local 1353) (812) 423-4433, F. Wesley

Bowers, Bowers, Harrison & Kent, 49 Permanent

Savings Blidg., Evansville, Indiana 47708,

426-1231 and Galen J. White, Jr., Boehl, Sto-

pher, Graves & Deindoerfer, Louisville Trust

Bank Bldg., One Riverside Plaza, Louisville,

Ky. 40202

UNITED STATES CONSTITUTION

AMENDMENT VII [1791]

In Suits of common law, where the value in

controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and

no fact tried by jury, shall be otherwise

re-examined in any Court of the United States,

than according to the rules of the common law.

"The right to trial by jury is neither

extended nor restricted but is preserved in-

violate under rules. This right, as hereto-

fore, is dependent upon The Seventh Amendment

to the Constitution, the pertinent provision

of which reads:

"In suits at common law, where the value in

controversy shall exceed twenty dollars, the

right to trial by jury shall be preserved"

As used in (Fitzpatrick v Sun Life Assur.

Co. of Canada 1 F.R.D. 713)

TITLE 45 § 153 First (P)

100

(p) If a carrier does not comply with an

order of a division of the Adjustment Board

within the time limit in such order, the peti-

tioner, or any person for whose benefit such

order was made, may file in the District Court

of the United States for the district in which

he resides or in which is located the princi-

pal operating office of the carrier, or

through which the carrier operates, a petition

setting forth briefly the causes for which he

Claims relief, and the order of the division

of the Adjustment Board in the premises. Such

suit in the District Court of the United

States shall proceed in all respects as other

civil suits, except that on the trial os such

suit the findings and order of the division of

the Adjustment Board shall be conclusive on

the parties, and except that the petitioner

shall not be liable for costs in the district

court nor for costs at any subsequent stage of

the proceedings, unless they accrue upon his

appeal, and such costs shall be paid out of

the appropriation for the expenses of the

courts of the United States. If the petition-

er shall finally prevail he shall be allowed a

reasonable attorney's fee, to be taxed and

collected as a part of the costs of the suit.

The district courts are empowered, under the

rules of the court governing actions at law,

to make such order and enter such judgment, bu

writ of mandamus or otherwise, as may be ap-

propriate to enforce or set aside the order of

the division of the Adjustment Board: Pro-

vided, however, that such order may not be set

aside except for failure of the division to

comply with the requirements of this chapter,

for failure of the order to conform, or con-

fine itself, to matters within the scope of

the division's jurisdiction, or for fraud or

corruption by a member of the division making

the order.

101

(q) If any employee or group of employees,

Or any carrier, is aggrieved by the failure of

any division of the Adjustment Board to make

an award in a dispute referred to it, or is

aggrieved by any of the terms of an award or

by the failure of the division to include

certain terms in such award, then such em-

ployee or group of employees or carrier may

file in any United States district court in

which a petition under paragraph (p) could be

filed, a petition for review of the division's

order. A copy of the petition shall be forth-

with transmitted by the clerk of the court to

the Adjustment Board. The Adjustment Board

shall file in the court the record of the

proceedings on which it based its action. The

court shall have jurisdiction to affirm the

order of the division, or to set it aside, in

whole or in part, or it may remand the proce-

edings to the division for such further action

as it may direct. On such review, the find-

ings and order of the division shall be con-

Clusive on the parties, except that the order

of the division may be set aside, in whole or

in part, or remanded to the division, for

failure of the division to comply with the

requirements of this chapter, for failure of

the order to conform, or confine itself, to

matters within the scope of the division's

jurisdiction, or for fraud or corruption by a

member of the division making the order. The

judgment of the court shall be subject to

review as provided in sections 1291 and 1254

of title 28.

Second, System, group, or regional boards:

establishment by voluntary agreement; special

adjustment boards: establishment, composi-

tion, designation of representatives by Medi-

ation Board, neutral member, compensation,

quorum, finality and enforcement of awards

102

Nothing in this section shall be construed

to prevent any individual carrier, system, or

group of carriers and any class or classes of

its or their employees, all acting through

their representatives, selected in accordance

with the provisions of this chapter, from

mutually agreeing to the establishment of

system, group, or regional boards of adjust-

ment for the purpose of adjusting and deciding

disputes of the character specified in this

section. In the event that either party to

such a system, group, or regional board of

adjustment is dissatisfied with=such arrange-

ment, it may upon ninety days‘ notice to the

Other party elect to come under the jurisdic-

tion of the Adjustment Board.

If written request is made upon any indi-

vidual carrier by the respresentative of any

craft or class of employees of such carrier

for the establishment of a special board of

adjustment to resolve disputes otherwise re-

ferable to the Adjustment Board, or any dis-

pute which has been pending before the Adjust-

ment Board for twelve months from the date the

dispute (claim) is received by the Board, or

if any carrier makes such a request upon any

such representative, the carrier or the repre-

sentative upon whom such request is made shall

join in an agreement establishing such a board

within thirty days from the date such request

is made. The cases which may be considered by

such board shall be defined in the agreement

establishing it. Such board shall consist of

one person designated by the carrier and one

person designated by the representative of the

employees. If such carrier or such represent-

ative fails to agree upon the establishment of

such a board as provided herein, or to exer-~

cise its rights to designate a member of the

board, the carrier or representative making

the request for the establishment of the spec-

ial board may request the Mediation Board to

103

designate a member of the special board on

behalf of the carrier or representative upon

whom such request was made. Upon receipt of a

request for such designation the Mediation

Board shall promptly make such designation and

shall select an individual associated in in-

terest with the carrier or representative he

is to represent, who, with the member appoint-

ed by the carrier or representative requesting

the establishment of the special board, shall

constitute the board. Each member of the

board shall be compensated by the party he is

to represent. The members of the board so

designated shall determine all matters not

previously agreed upon by the carrier and the

representative of the employees with respect

to the establishment and jurisdiction of the

board. If they are unable to agree such mat-

ters shall be determined by a neutral member

of the board selected or appointed and com-

pensated in the same manner as is hereinafter

provided with respect to situations where the

members of the board are unable to agree upon

an award. Such neutral member shall cease to

be a member of the board when he has determin-

ed such matters. If with respect to any dis-

pute or group of disputes the members of the

board designated by the carrier and the rep-

resentative are unable to agree upon an award

disposing of the dispute or group of disputes

they shall by mutual agreement select a neu-

tral person to be a member of the board for

the consideration and disposition of such

dispute or group of disputes. In the event

the members of the board designated by the

parties are unable, within ten days after

their failure to agree upon an award, to agree

upon the selection of such neutral person,

either member of the board may request the

Mediation Board to appoint such neutral person

and upon the selection of such neutral person

and upon receipt of such request the Mediation

Board shall promptly make such appointment.

104

The neutral person so selected or appointed

Shall be compensated and reimburesed for ex-

penses by the Mediation Board. Any two mem-

bers of the board shall be competent to render

an award. Such awards shall be final and bind-

ing upon both parties to the dispute and if in

favor of the petitioner, shall direct the

other party to comply therewith on or before

the day named. Compliance with such awards

shall be enforcible by proceedings in the

United States district courts in the same

manner and subject to the same provisions that

apply to proceedings for enforcement of com-

Dliance with awards of the Adjustment Board.

FEDERAL RULES OF CIVIL PROCEDURE

Costs, see rule 54 and notes of Advisory

Committee under the Rule, Title 28, Appendix,

Judiciary and Judicial Procedure.

Federal Rules of Civil Procedure as govern-

ing the procedure in all suits of a civil

nature whether cognizable as cases at law or

in equity, see rule l.

Mandamus as abolished but relief yet avail-

able by appropriate action or motion under

Federal Rules of Civil Procedure, see rule 81

and Notes of Advisory Committee under the

rule,

One form of action, see rule 2,

Pleadings allowed, see rule 7.

105

UNITED STATES CONSTITUTION

ARTICLE III

Section 1. The judicial Power of the

United States, shall be vested in one supreme

Court, and in such inferior Courts as the

Congress may from time to time ordain and

establish. The Judges, both of the supreme

and inferior Courts, shall hold their Offices

during good Behaviour, and shall, at stated

Times, receive for their Services a Compens-

ation, which shall not be diminished during

their Continuance in Office.

Section 2. [1] The judicial Power shall

extend to all Cases, in Law and Equity, aris-~-

ing under this Constitutiion, the Laws of the

United States, and Treaties made, or which

shall be made, under thier Authority;-to all

Cases affecting Ambassadors, other’ public

Ministers and Consuls;-to all Cases of admir-

alty and maritime Jurisdiction;-to Controvers-

ies to which the United States shall be a

Party;-to Controversies between two or more

States;-between a State and a Citizen of an-

other State;-between Citizens of different

States;-between Citizens of the same State

claiming Lands under the Grants of different

States, and between a State, or the Citizens

thereof, and foreign States, Citizens or Sub-

jects.

[2] In all Cases affecting Ambassadors,

other public Ministers and Consuls, and those

in which a State shall be a Party, the supreme

Court shall have original Jurisdiction. In

all other Cases before mentioned, the supreme

Court shall have appellate Jurisdiction, both

as to law and Fact, with such Exceptions, and

under such Regulations as the Congress shall

make,

LS LS EES AE ES et

| | az ®

106

[3] The trial of all Crimes, except in

Cases of Impeachment, shall be by Jury; and

such Trial shall be held in the State where

the said Crimes shall have been committed; but

when not committed within any State, the Trial

shall be at such Place or Places as the Con-

gress may by Law have directed.

Section 3. [1] Treason against the United

States, shall consist only in levying War

against them, or, in adhering to their Ene-

mies, giving them Aid and Comfort. No person

shall be convicted of Treason unless on the

Testimony of two Witnesses to the same overt

Act, or on Confession in open Court.

[2] The Congress shall have Power to de-

clare the Punishment of Treason, but no At-

tainder of Treason. shall work Corruption of

Blood, of Forfeiture except during the Life of

the Person attained.

Under USCA Constitution Article IFI, § 2

distinction between Law and Equity is to be

observed. (Phillip Petroleum Co. v Johnson

(1946, CA 5 Tex) 155 F 2d 185, Cert. den 329

Ueae FIG, Fi & EG GSE, GF S. GE. BF.

107

FOR THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

KENNETH C. GRIMES Gg-ll-F 7

PETITONER &

V "RETURNED" FROM

)

) APPEAL OF

LOUISVILLE AND NASHVILLE )

RAILROAD COMPANY )

RESPONDENT )

CIVIL ACTION NO.

EV 81-130-C

PETITION OR APPLICATION--FOR ORDER

CONFIRMING AWARD--

TRADE ASSOCIATION ARBITRATION AGREEMENT

I. JURISDICTION

1. Jurisdiction is founded upon the Rail-

way Labor Act, 1934 45 USC § 151 et seq.,

Chapter 8, as amended; Federal Rules of Civil

Procedure 81(b), 69(a), 8(a) (1), 9 USCA § 1

et seq., Indiana Statute, Uniform Arbitration

Act Chapter 1 and 2, 34-4-1-1 et. seq, 34-4-

N ec a

— - : eee |

108

2-1 et seq., and Chapter 29 Indiana Statute

8-4-29-1 et seq., without respectd to the

amount in controversy and without regard to

the citizenship of the parties. (See Exhibit

"C" paragraph I.)

II. NATURE OF THE PROCEEDING

i This is a proceeding for order con-

firming award of the National Railroad Adjust-

ment Board numbered 7956, Docket No. 7776.

Attached is a copy and marked Exhibit "A".

ae This is also a proceeding for compen-

sation and benefits with respect to job class-

ifications, seniority status, apprenticeship

status, assignments, promotions, and terms,

conditions and privileges of employment agreed

to. Attached is a true and correct copy of

the Agreement and is marked Exhibit "B".

4. This is also an action brought by an

employee against his employer, Louisville and

Nashville Railroad Company (herein known as

Respondent). The Respondent as party to a

109

binding decision of a referee, impaired the

Petitioner's seniority rights in a breach upon

the decision of the aforementioned award when

the Respondent refused to abide by the award.

as This is also a proceeding, appealed

from the United States District Court, for the

Southern District’ of Indiana, Evansville

Division Complaint No. EV-81-130-C, filed June

Li, 1981.

_- Enforcement on the award was appealed

to the 7th Circuit Court of Appeals’ in

Chicago, Illinois. Then from the 7th Circuit

Court of Appeals to the Supreme Court of the

United States.

7. The award is now returned to the named

District Court herein within the meaning of

U.S.-Sheet Metal Workers' Intern. Union, AFL-

CIO, Local Union 17 vy. Aetna Steel Products

Corp., D.C. Mass, 246 F. Supp. 236, affirmed,

C.A., 359 F. 2d 1, certiorari denied 87 S.Ct.

ee, PSS

igi cake ERR TT

110 ‘

86, 385 U.S. 839, 17 L.Ed. 2d 72--Columbian

Fuel Corp. v. Warefield National Gas Co.. D.C.

W. Va., 72 F. Supp.839. (cases).

IIIT. THE PARTIES

8. The Petitioner is a black male indi-

vidual residing in the city of Evansville,

county of Vanderburgh, state of Indiana, who

at all times material to this proceeding,

complied with condition precedent, as an em-

ytevns of the Respondent, or as a wrongfully

discharged employee.of the Respondent and was

a member of the union.

a, The Respondent, Louisville and Nash-

ville Railroad Company, is a corporation main-

taining its principal place of business at 908

West Broadway, Louisville, Kentucky 40203 and

is doing business in the state of Indiana.

10. Respondent "Company" is an employer

within the meaning of 42 USC § 2000 e-(b), 45

USC § 151 and is engaged as a carrier within

the meaning of 45 USC § 151 in an industry

111

affecting interstate commerce within~ the

meaning of 42 USC § 2000 e-(h), and has main-

tained fifteen (15) or more employees at all

times relative to this action.

ll. See Exhibit "C" paragraphs 8, 9 and 10

on the union as a party to the complaint as

filed June 1l, 1981. On 5/6/82, Mag Endlsey

entered a Summary Judgment, "by agreement of

parties the Court ordered and decreed that the

plaintiff take nothing by way of VII pleading

para 3 of complaint with respect to the deft.,

local 1353, etc." Attached is a copy of said

proceeding marked Exhibit "XB".

IV. STATEMENT OF THE CASE

12. Petitioner is a party to the entitled

arbitration proceeding herein and makes this

application for order confirming the award of

the referee made herein and directing the

entry of judgment in its favor upon said

award,

112

& * In arbitration proceedings a referee,

pursuant to rules of the General Arbitration

Council of the National Railroad Adjustment

Board Second Division, an award, duly

acknowledged and certified, was made on the 13

day of June, 1979. The award is attached and

marked Exhibit "A".

14. The said arbitration proceedings were

had pursuant to provisions of a contract de-

Signated agreement between Louisville. and

Nashville Railroad Company and its electrician

helpers and apprentices, (represented by)--The

International Brotherhood of Electrical

Workers, (operating through) System Federation

No. 91, Railway Employees Department American

Federation of Labor, Mechanical Section there-

of, (covering) rules and working conditions

effective September 1, 1943 (with revisions

through January 1, 1966), entered into between

113

Petitioner's representative and Respondent.

Attached is a true and correct copy marked

Exhibit "B" and made a part thereof.

‘5. The aforementioned contract between

Petitioner and Respondent contains the fol-

lowing provisions in respect to arbitration:

Rule 32 of the Agreement:

32(a) Should an employee subjected ‘to

this agreement believe he has been un-

justly dealth with, or any of the pro-

visions of this agreement have been

violated, the case shall be handled in~-

accordance with the provisions contained

in Appendix "D", Article V, by the duly

authorized committee or their’- repre-

sentative. It a stenographic report of

investigation is taken, the committee

shall be furnished a copy. If the result

still be unsatisfactory, the duly

authorized representative shall have the

right of appeal, preferably in writing,

11!

with the higher officials designated to

handle such matters in their respective

Order, and conference will be granted

within 15 days of application unless

otherwise agreed upon.

Rule 32(a): Appeals:

Should the highest designated railroad

official or his authorized representa-

tive, and the duly authorized representa-

tives of the employer, as provided in

Rule 32 fail to agree, the case may then

be handled in accordance with the Railway

Labor Act.

Pursuant to the agreement at Appendix "D"

Article V at (c), it provides that:

All claims or grievances involved in a

decision by the highest designated

officer shall be barred unless within

nine months from the date of = said

officer's decision, proceedings are in-

stituted by the employee or his duly

16.

115

authorized representative before the

appropriate division of the National

Railroad Adjustment Board or a _ system,

group or regional board of adjustment

that has been agreed to by the parties

hereto as provided in Section 3 Second of

the Railway Labor Act.

Moreover, the mutual obligation of the

agreement at Appendix "D" Article V following

section 3 second of the Railway Labor Act

provides that:

“Nothing in this section shall be con-

strued to prevent any individual carrier,

system, or group of carriers and any

class or classes of its or their em-

ployers, all acting through their repre-

sentatives, selected in accordance with

the provisions of this Chapter’ from

"mutually agreeing to the establishment

of system, group, or regional boards of

baad e Ve Z

116

adjustments, for the purpose of adjusting

and deciding disputes of the character

specified in this section,"

Accordingly, it is provided under Section

3(h) of the Railway Labor Act that:

"Second Division: To have jurisdiction

over disputes involving...electrical

workers, carmen, the helpers and ap-

prentices of all the foregoing coach

cleaners, power house employees, = and

railroad shop laborers."

As provided for under Section 3 first

(3):

The second division is located at the

National Railroad Adjustment Board 175 W.

Jackson Street, Chicago, Illinois 60604.

In accord with the aforementioned provi-

Sions of the Railway Laobr Act at Section 3

second it states:

"Such awards shall be final and finding

upon hoth parties to the dispute."

117

ay A mutual promise to abide by the

award, when there is agreement to follow the

Railway Labor Act and the rules of the

National Raiiroad Adjustment Board as_ shown

herein:

18. Petitioner and Respondent consent to

the agreement followed herein and the Railway

Labor Act, which provides at Section 3 first

(P) jurisdiction of the District Court of the

Southern District of Indiana, Evansville

Division.

"If a carrier does not comply with an

order of a division of the adjustment

board within the time limit in_= such

order, the Petitioner or any person for

whose benefit such order is made, may

file in the District Court of the United

States for the district in which he

resides...a petition setting forth

briefly the causes for which he claims

relief."

118

19, The Petitioner and Respondent

consented in the agreement to follow Section 3

second of the National Railway Labor Act which

provides statutory process as it relates to

Federal Rules of Civil Procedure as governing

the procedure in all suits of a civil nature

whether cognizable as case at law or _ in

equity, see rule 1 Section 3 Second further

provides that “relief... is available by ap-

propriate action or motion under Federal Rules

of Civil Procedure, see rule 81 "Rule 81(b),

69 (a) (See in particular cases “as to which

practice and procedure of the state is re-

quired to be followed."

Accordingly, Indiana Statute 32-4-2-16 Sec

16(a) as to process or notice of motion or any

application to the court including application

for judgment upon an award, it is provided:

"Except as otherwise provided, an appli-

cation to the court under this chapter

shall be by motion and shall be heard in

119

the manner and upon the notice provided

by law or by rule of court for the making

and hearing of motions unless the parties

have agreed otherwise, notice of an

initial application for an order shall be

served in the manner provided by law for

the service of a summons in civil cases.

(See Indiana Rules of Trial Procedure,

Rule 4 et seq.)

20. The arbitration proceedings afore-

mentioned were duly initiated under the terms

of the agreement and in accordance withthe

terms thereof by Petitioner herein. (See

Exhibit I-9(a)" and Ind. Jacobs V. Moffatt, 3

Black F. 395; Wis-Brace V. Stacy. 14 N.W. 51,

6 Wis, 148.

aes The Respondent participated in said

arbitration by agreeing to the submission,

appointing an arbitrator and asserting a

counterclaim. Annexed hereto and marked Ex-

hibits "D through R(b) et. seq." and made a

120

part hereof is the letter of the Respondent

submitting to the arbitration and appointing

an arbitrator, (See Exhibits "P(a)", "P(b)"

and R(b) attached and marked.) (Also see

Exhibits J and I-12(c) attached hereto and

marked).

22. The grievance procedure was initiated

by an informal investigation by Mr. B. Jd.

Allerellie, General Foreman as designated in

Appendix "D" Article V 7(c) of the agreement.

Known as Exhibit "B".

The investigation was held August 18, 1976.

(See the formal investigation transcript at

p. 3 third ans, a true and correct copy is

attached and marked Exhibit "D".)

ED From the informal investigation, Mr.

Allerellie acted on the difference of opinion

investigated with a letter of reprimand to the

Petitioner for insubordination. (See Exhibit

"D" third answer.)

nema

121

After the letter of reprimand initiated by

General Foreman Allerellie for the insubordi-

nation charge.

24. On August 25, 1976 Master Mechanic E.

M. Baskette preferred charges from the letter

of reprimand issued by General Foreman

Allerellie as a matter appealed. (See Exhibit

"Shs

23s. The action to prefer charges against

the Petitioner by EE. N. Baskette Master

Mechanic was exceptance of the appeal, for

process by the Master Mechanic. The preferred

Charges caused the formal investigation dated

September 8, 1976, that represented the con-

tents of Exhibit "E".

26. The formal investigation was conduted

on September 8, 1976, with Master Mechanic E.

N. Baskette as the presiding representative

for the carrier. The Petitioner was repre-

122

sented by the Local Chairman B. E. Knight. The

formal investigation is attached and marked

Exhibit "D". :

27. From the investigation Master Mechanic

Baskette appealed the decision to the super-

intendent of the division, Mr. A. C. Jones,

Jr., and upon the recommendation initiated by

Exhibit "E", it was decided that:

"For this offense, you are hereby dis-

missed from service of the L&N Railroad

Company"

The letter was issued September 21,~-1976.

(A true and correct copy is attached and here-

by known as Exhibit "F")

28. Following the dismissal of the

Claimant, a claim was inititated in behalf of

the Petitioner by the local chairman. The

claim stated:

"In view of the foregoing, we herewith

institute claim on behalf of Mr. Grimes

that he be restored to service with all

i123

rights, privileges and benefits unim-

paired and that he be compensated for all

time lost as a result of the action taken

against him by the carrier."

A true and correct copy is attached and

marked Exhibit "G".

29. Thereafter a counterclaim was issued

by Superintendent A. C. Jones, Jr. Attached is

a copy and marked Exhibit "H",

After the initial claim, the dispute as

handled by the Petitioner's representative was

timely presented and progressed to the highest

designated mechanical officer pursuant’ to

Appendix "D" Article V 7(c) a Mr. C. O.

Leddon.

30. Ina letter dated January 24, 1977, C.

D. Leddon denied the claim for the Petitioner

presented in letter December 27, i976. The

letters are attached and marked Exhibits

"aeg” "ioe".

Ben

124

31. The aforementioned denial of the

Petitioner's claim culminated the final step

to the designated Chief Mechanical Officer

provided under the agreement at Appendix "D"

Article V 7(c).

32. The Chief Mechanical Officer's refusal

to adjust the dispute (1) evoked appeal pur-

Suant to the accepted and established proce-

dure to arbitrate before the National Railroad

Adjustment Board, and (2) provided a basis for

sufficient consideration to support the pro-

cedure established by this agreement.

ao% Thereafter, the Petitioner's duly

authorized representative submitted a letter

to C. D. Leddon providing sufficient notice

that:

"Be advised that we do not accept your

decision and/or declination of the here-

involved claim and consequently will take

125

the action necessary to make further

appeal pursuant to the accepted and es-

tablished procedure."

34. Again the established procedure is to

arbitrate the dispute before the National

Railroad Adjustment Board. A copy of the

letter is attached and marked Exhibit "I-5".

a3. Following sufficient consideration

Chief Mechanical Officer C. OD. Leddon sub-

mitted to arbitrate before the N.R.A.B. As

mutual assent in behalf of a mutual obligation

agreed upon with full knowledge of the pro-

cedure provided for in the agreement and the

Railway Labor Act.

36. Pursuant to the agreement of Appendix

"D" Article V at 7(c). The highest designated

officer of personnel was W. C. Moore. Mr.

Moore was provided with a letter dated

February 28, 1977, from the Petitioner's duly

authorized representative, C. C. Williams,

Jr., General Chairman of System Council No. 6,

126

Internationa Brotherhood of Electrical

Workers. (A copy of the letter is annexed

hereto and marked Exhibit's "I-6(a)" and

I-6(b)."

ars The letter was an appeal from Mr. C.

D. Leddon, Assistant Vice President, Mechan-

ical by General Chairman Williams to Mr. W. C.

Moore, Assistant Vice President, Personnel and

Labor Relations. The letter asserted:

"In view of the foregoing, we respect-

fully request that you take the action

necessary to cause Mr. Grimes to be re-

Stored to service with all_ rights,

privileges and benefits unimpaired and

that he be compensated in full for all

time lost as a result of the unfair and

unwarranted action taken against him by

the carrier."

38. In response, after sufficient con-

sideration, a letter dated April 26, 1977, and

hereby known as Exhibit “I-7" which = is

127

attached, was initiated by W. C. Moore to C.

C. Williams, General Chairman. The letter in

response to Mr. William's February 28, 1977

letter declined a claim by Williams to adjust

the dispute on the property. The letter said

in pertinent part:

"In the circumstances, the claim appealed

by you is respectfully declined in its

entirety."

39. Thereafter, following sufficient con-

sideration, on October 31, 1977, a letter

initiated by General Chairman Williams was

presented to Mr. W. C. Moore, Assistant Vice

President of Personnel and Labor Relations. (

A true and correct copy is attached and hereby

known as Exhibit "I-8(a)" "I-8(b)."

40. The letter referenced the April 26,

1977 letter declining the disputed claim by W.

C. Moore.

eH eee Se F&F F&F & &F GF

128

ah. Moreover, it stated that, following

several conferences said claim was still de-

clined by W. C. Moore. The letter gave notice

that the dispute would be appealed to the next

Step which is arbitration before the National

Railroad Adjustment Board. The letter said:

“Let this serve to advise that under no

Circumstances do we accept your decision

in this matter and will take the action

necessary to give further handling to

this case and/or claim in accordance with

the established and accepted procedure,

as set forth in Rule 33(a) of the current

controlling agreement."

Rule 33(a) provides that:

"Should the highest designated railroad

official or his authorized representative

and the duly authorized respesentative of

the employees, as provided in Rule 32

129

fail to agree, the case may then be

handled in accordance with the Railway

Labor Act."

Pursuant the the Railway Labor Act at §

153 Second, it provides that:

"Nothing in this section shall...pre-

vent...for the purposes of adjusting and

deciding disputes of the character

specified in this seciton." If “dis-

satisfied with such arrangement, it may

upon ninety days notice to the other

party elect to come under the juris-

diction of the Adjustment Board." (See

Power of Attorney exhibit "I-9(a)".) The

letter dated April 26, 1977, as exhibit

"I-7" was a final decline by Respondent,

and notice to file submission by Peti-

tioner's respresentative was dated

December 28, 1977, and herein called

Exhibit "I-12(a)" and I-12(b)".

130

42. The appeal to W. C. Moore culminated

the final step purusant to the agreement at

Appendix D Articie V 7(c) and the procedure

described under Section§153 first (I).

43. Mr. W. C. Moore in declining the

Claim, submitted to arbitration before the

National Railroad Adjustment Board. The sub-

mission followed participation and sufficient

consideration while mutually assenting to a

mutual obligation agreed upon with full know-

ledge of -the procedure, after declining the

Claim.

44, The Respondent participated in the

said arbitration by agreement (see Exhibit

"B", Appendix D Article V) to the submission

through mutual assent. Attached to this ap-

plication are the Exhibits "D" through "I-20"

showing said mutual assent as progressed to

the National Railroad Adjustment Board.

131

44, The Respondent participated in the

said arbitration by agreement (see Exhibit

"B", Appendix D Article V) to the submis-sion

through mutual assent. Attached to this ap-

plication are tne Exhibits "D" through "I-20"

showing said mutual assent as progressed to

the National Railroad Adjustment Board.

45. Moreover, Respondent participated in

said arbitration by asserting a counterclaim

within the proceeding. Annexed hereto and

marked Exhibit "J(a) -J(b)". The Petititioner

asserted a claim within the proceeding that

herein is known, attached and marked as Ex-

hibit "I-12(c)" and Exhibit "R(b)."

46. Respondent participated in said ar-

bitration by appointing an arbitrator. (See

attached copies marked Exhibit "“P(a)" and

"P(b)" and made a part hereof is a letter of

the National Railroad Adjustment Board (1)

acknowledging notice in a January 19, 1979

letter that stated that the board was “dead-

132

locked"; (2) that request for hearing before

the division with the referee present on this

case has been granted; (3) showing copies

mailed to the selected “Referee Weiss"; (4)

and as Exhibit "“P(a)" shows, the selection of

a referee was by mutual assent.

Accordingly § 153 First (L) Provides that:

"Upon failure of any division to agree

upon an award because of a deadlock or

inability to secure a majority vote of

the division members as provided for in

paragraph (N) of this section, then such

division shall forthwith agree upon and

select a neutral person to be known as

"referee," to sit with the division as a

member and make an award."

47. Ouring the arbitration procedure, the

Arbitration Board selected individual repre-

sentatives in accordance with this Section 3

EEO

{

133

second of the Railway Labor Act to form a

committee and arbitrate in accordance with 153

First (K). (See Exhibit "R(b)".

48. The committee messengers were Mr. J.

G. Hayes for the Railway Employees Associa-

tion, and Mr. Vernon for the carrier. The

results were:

"Your committee, Messrs. Hayes and

Vernon, being unable to agree on an award

in this dispute."

49, The Petitioner participated in the

hearing before the referee pursuant to 153

First (J) of the Railway Labor Act. (See

Exhibit "M" attached hereto.)

50. The referee was duly elected and ap-

pointed pursuant to the rules of the National

Railroad Adjustment Board. (See § 153 second

Railway Labor Act.) The referee was duly

sworn (by affirmation) the hearing held, (see

Exhibit "M" attached hereto) and the award

Number 7956, Docket 7776 duly made. (See

134

Exhibit "A".) The referee was selected in

accordance with the affirmation clause under

§ 153 first (L) of the Railway Labor Act. See

page 2 of the award, Exhibit "A", where it

states:

"The Second Division consisted of the

regular members and in addition Referee

Abraham Weiss when the award was

rendered."

51. Thereafter, on June 13, 1979, an order

and award was issued by the National Railroad

Adjustment Board, Second Division. (See Rail-

way Labor Act, Section 3 First (N), (0). The

decision award, numbered 7956, Docket No.

7776 is attached and marked Exhibit "A". The

Board's decision being (a) that the penalty of

dismissal under the circumstances was exces-

sive, (b) that the claimant (Petitioner here-

in) was to be reinstated to service with his

seniority rights unimpaired, but (c) denied

him compensation for three years wages and

nH aeHe ee ese ee FE HF Se SE ES & & EF

135

benefit since the date of the Petitioner's

dismissal. Such decision was the final step

in the administrative remedies required to be

exhausted under the guidelines established by

"Agreement" and the Railway Labor Act.

+ -e Upon reinstatement July 9, 1979, the

Petitioner's seniority rights were impaired,

when the Respondent refused to abide by the

award, (See Memorandum Decision Exhibit "W"

attached herto.)

k This action by the Respondent was a

breech of the decision on the award.

54. Following the July 9, 1979 reinstate-

ment the Petitioner timely presented the

breach to his duly authorized representative.

(A letter of the presentation is attached and

marked Exhibit "P(a)".)

55. Thereafter, the breach was progressed

to the National Railroad Adjustment Board

Second Division. Copies of all

136

correspondence, making a request to the ap-

propriate parties and to the Board is attached

and known as “Exhibits P(a) -p(g)".

56. The National Railroad Adjustment

Board's answer to the Petitioner's request for

interpretation of the award was that:

“Please be advised that the Railway Labor

Act. Section 3 First (m) states in

part...the awards shall be final and bind-

ing upon both parties to the dispute...."

(See Exhibit "P(G)".)

Whereas section 3 first (nn) provides in its

entirety: "The awards of the several di-

visions of the Adjustment Board shall be

Stated in writing. A copy of the awards

Shall be furnished to the and binding upon

the parties to the dispute. In case a

dispute arises involving an interpretation

of the award, the division of the board

143

for any harm he may have suffered," and

award 10541 (attached as Exhibit "MMM" )

“Claimant shall be comoensated for... the

amount he would have received based on his

usual asigned working hours." No doubt, the

Petitoner was permanently “harmed by the

abolished job and loss of remedy. (See Rus-

sell v. Bankers Life Co., 46 Cal App. 3d 405,

120 Cal Rptr. 627, 633.)

62. On June ll, 1981, the Petitioner

timely filed complaint on the award pursuant

to section 3(r), (p) and (q) of the National

Railway Labor Act. ( A copy of the complaint

is annexed herto and marked Exhibit "C") and

Ind. Trial rule Procedure 2, 3, 4

= hon eis

Section 3 first (P) provides:

"..eeany person for whose benefit such order

is made, may file in the District Court of

the United States for the disctrict in

137

upon request of either party shall inter-

pret the award in the light of the dis-

pute."

57. On March 23, 1981, the Petitioner was

provided notice that he would be furloughed on

March 30, 1981. A true and correct copy of

the notice is attached and is marked Exhibit

"T(b)". On March 30, 1981, Master Mechanic B.

R. Montogmery, as one who initiated Exhibit

"T(b), abolished the Petitioner's job on March

30, 1981. Attached is a copy and marked Ex-

WIGtt *T(e)”.

58. Based on sworn testimony before a

district court judge, Master Mechanic 8B. R.

Montgomery testified as follows: (See Exhibit

Triple "U" filed October 17, 1984, here in

pertinent part.)

Direct Examination by Mr. White

CAttorney for the Defendent)

nan Ea EE a aE ese ee Ee eS SS SS SS SS & Gs

138

“Directing your attention specifically,

Mr. Montgomery, to the events of

March,1981, I want to show you a docu-

ment previously introduced as

Defendant's exhibits B and C and ask

you if you caused those documents to be

sent out on or about March 23, 1981?"

"Yes

"Why did you furlough Mr. Gimes?"

"Because my superior officers advised

me that we would be making forced re-

duction because of the impending coal

Strike which was projected for March

23rd.”

see Exhibit “XD",. p. $3 also.

99.

The Respondent's action in abolishing

the Petitioner's job affected the cause of the

Petitioner the following ways:

139

be Impaired seniority rights that were

initially impaired upon reinstatement in July

9, 1979, and subsequently, thereafter were

made worse by affecting them in an injurious

manner.41

Zs Job abolishment, caused a loss to the

first part of the remedy known as rule 34 in

the agreement (Exhibit "B").

The Petitioner cannot have that which does

not exist.

Rule 34 states:

"No employee shall be disciplined without a

fair hearing by designated officers of the

Carrier. Suspension in proper cases pend-

ing a hearing, which will be prompt, shall

not be deemed a violation of this rule. At

a reasonable time prior to the hearing,

such employee and his local chairman will

be apprised to the precise charge and given

reasonable opportunity to secure the

presence of necesary witnesses. if 3 98

140

found that an employee has been unjustly

Suspended or dismissed from the service,

such employee shall be reinstated with his

seniority rights unimpaired."

a. However, the last sentence in rule 34

represents, based on the standards of the

National Rialroad Adjustment Board, a total,

plain, adequate and complete remedy to redress

the wrongs herein.

"and compensated for the wage loss, if any,

resulting from said suspension or dismis-

sal."

4. A plain, adequate and complete remedy

exists in the "Make Whole Principle, as ap-

plied in the instant case. The Petitioner with

certainty would maximize the working period

guaranteed by Public Congressional Law 95-256

through Public Law 93-445 and that is guaran-

teed by Indiana Code 22-9-2-1 et seq. "Make

Whole Principle". (See Hughson Condensed Milk

Co. v. State Board of Equalization, 23 Cal.

141

App. 24281 73 p. 2d 290, 292 and Russell v.

Bankers Life Co., 46 Cal App. 3d 405, 120 Cal.

Rptr. 627, 633.

os In response to Mr. B. R. Montgomery's

statement that the coal strike, pending for

March 23, 1981, was his exclusive reason sug-

gested by his superiors.

Pursuant to a case in point: Island Ter-

ritory of Curacao v. Solitron Devices, Inc.

356 F. Supp. 1 (1973).

It was pointed out that "an isolated in-

cident (p. 10, 11) “is not a standard by which

to judge the 20 year contact period."

In the instant case, the “coal strike that

was pending" was an isolated incident. It

does not represent a standard by which to

judge a "continuing contract".

Moreover, by agreeing to a continuing con-

tract (1980 or 1981), the respondent could not

have under the current and controlling agree-

ment “not have expected coal strikes." With

142

30% or more of the local business hauling

local coal, a coal strike (as pointed out in

Exhibit Triple "U") that is “impending" can

never be "force majeure” an external cause not

foreseeable at the time “of the abolished

job." Ibid see Island Territory of Curacao v.

Solitron, 356 F. Supp. 1 (1973).

60. The coal strike does not alter the

fact that the Petitioner's seniority rights

were impaired upon reinstatement from July 9,

1979.

61. Nor does the abolished job diminish

the fact that the place of submission and

arbitration over a long line of case precedent

has allowed compensation. As award 10652

points out in reference to "lost work op-

portunity" "from a breach of contract" "we

follow the long line of award and court de-

cisions that the breach of contract entitled

the wronged party" (See Exhibit "W", District

Court Memorandum Decision) “to compensation

144

which he resides"..."A petition setting

forth the causes for which he claims

relief."

Section 3 first (q) provides:

"any employee...is agrieved by any of the

terms of an award...may file in any United

States District Court in which a petition

under paragraph (P) could be filed."

Section 3 (r) provides:

"Allocations at law based upon the provi-

sions of this section shall be begun within

two years from the time the cause of action

accrues under the award of the division of

the Adjustment Board and not after."

63. Moreover, pursuant to Indiana's Uni-

form Aribitration Act, under Statute 34-4-2-12

and 16 it provides:

“concerning confirmations and objections to

awards the Federal Act (9 USCA 81 et seq.)

and the Indiana Act (this chapter) follow

the same general scheme."

145

Indiana Statute 34-4-2-16 provides:

—

two

Sec. 16. "Except as otherwise provided an

application to the court under this chapter

shall be by motion and shall be heard in

the manner and upon the notice provided by

law or rule of court for the making and

hearing of motions. Unless the parties have

agreed otherwise, notice of an _ initial

application for an order shall be served in

the manner provided by law for the services

of a summons in civil cases."

64. In the complaint filed June 11, 1981,

issues were raised on the award by motion,

Indiana Trial Rule Procedure 8(A).

(1) “Vacate, set aside and declare void and

unenforceable, that section of the

award...that... denies to the plaintiff

lost wages, benefits and increments for the

period from September 22, 1976, until July

9, 1979. ("See Exhibit "C" paragraph D

under prayer for relief.")

146

(2) "C. Order that a preliminary and perma-

nent injunction issue directing that De-

fendant "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

provision."

65. On August 6, 1981, the Respondent

herein filed an answer to the complaint. The

response "“specailly denied" (see Ind. Code:

8-4-29-2, Indiana rules of Trial Procedure

8(B), 7 A(1), allegations (A-C) of paragraphs

23 of the Petitioner's complaint. (See para-

graph 17 of the Respondent's answer attached

as Exhibit "U" filed and dated August 6, 1981.

66. The answer in part denied the fol-

lowing sections of paragraphs 23 of the com-

plaint: (See Indiana Trial Rule Procedure

8(B).)

147

"(a) that the penalty of dismissal

under the circumstances was excesive,

(b) that the Claimant (Petitoner herein)

was to be reinstated to service with

his seniority rights unimpaired but

three years lost wages and benefits

Since the date of his dismissal."

67. The issues on the award raised the

following questions concerning (b) of para-

graph 23 of the complaint in the Respondent's

special denial. When the awards decision

states "claimant (Petitioner herein) shall be

reinstated to service with his~ seniority

rights unimpaired" it raised the following

question: (1) Did the Respondent herein upon

reinstatement to service follow the awards

decision, reinstate the Petitioner and not

impair his seniority rights? And did the

National Railroad Adjustment Board in its

decision confine itself or conform with mat-

148

ters within the scope of the Board's juris-

diction by its failure to award the Peitioner

his lost wages in view of the excessive penal-

ty as construed by the arbitrator under the

circumstances of the award?

68. On September 17, 1981, the Executive

Secretary of the National Railroad Adjustment

Board filed a true and correct copy of the

record upon which the award herein was based.

(See Exhibit "XB" attached.)

69. On July 9, 1982, notice was provided

on the award 7 times in a summary judgment

hearing held on the defendant's motion to

Count V of the complaint. See summary judg-

ment hearing transcript filed March 22, 1984.

See Indiana Rules of Trial Procedure 8(A)(1)

(2) (FF). (Attached is a copy of said tran-

script and marked Exhibit "V".)

149

70. On May 6, 1982, Magistrate Endsley ina

Summary judgment dismissed all claims against

the union's Local 1353. (See Exhibit "XB")

pleading under local rule 10.

a On February 10, 1984, District Court

issued order on the issues raised on the

award. (Attached is a copy of the order and

marked Exhibit "W".)

72. On issue (2) th eappeal of NRAB deci-

sion, the court granted a motion to the De-

fendant (Respondent herin), "for summary judg-

ment as a matter of law as to this claim on

the basis that the scope of review of this

court is limited by the Railway Labor Act and

that the "Petitioner, Grimes" has not demon-

Strated that the decision should be set

aside."

ie 7 On issue (1) the first issue of im-

pairing the Petitioner's seniority rights upon

reinstatement to service, it was concluded in

memorandum decision:

150

"At the time of his (the Petitioner's)

dismissal, his position was that of an

“upgraded electrician apprentice." “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 seniority rights may have

been impaired."

74, Pursuant to the decision on the award,

impairment of the Peitioner's seniority rights

is a “refusal to abide by the award" (See Cal-

Wetsel_v. Garibaldi. 23 2d 5 24, 159 C.A.

2d.), when the awards decision states:

"Claimant (Petitioner) is to be reinstated

to service with his seniority rights un-

impaired."

75. Following the Feburary 10, 1984 order,

the Petitioner filed notice pursuant to 28

U.S.C. 1292(b), 7th Cir. Rul 1. 4(b), 5(a),

151

5(b) for interlocutory appeal of the February

10, 1984 order denying paragraph (0D) of the

complaint of a:

“declaratory judgment, vacating, setting

aside and declaring void and unenforce-

able that section of the award of the

National Railroad Adjustment Board,

numbered 7956, Docket No.7776, insofar as

it constitutes an excessive penalty and

that it unjustly arbitrarily and dis-

criminately denies to Plaintiff (Peti-

tioner) his lost wages, benefits and

increments for the period from September

22, 1976, until July 9, 1979"

76. Notice was filed March 9, 1984. (A

copy of the notice is attached and marked

Exhibit "X".)

152

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

KENNETH C. GRIMES,

FILED

PLAINTIFF

JULY 2, 1987

CAUSE NO.

EV 81-130-C

LOUISVILLE AND NASHVILLE

RAILROAD COMPANY

DEFENDANT

DEFENDANTS MOTION TO DISMISS AND

~~ MOTION FOR INJUNCTIVE RELIEF

Defendant, Lousiville and Nashville Rail-

road Company, by counsel, moves the Court to

dismiss plaintiff's "Petition for Confirma-

tion" filed in this Court on June 11, 1987 on

the following grounds:

be The Petition is defective under Fed.

R. Civ. P. GS.

2. The doctrine of res judicata and law

of the case.

3. The petition is barred by the two (2)

year statute of limitations under the Rail-

way Labor Act.

153

4. The Court lacks jurisdiction over the

person of this defendant.

Defendant, by counsel, further moves the

Court for an Order permanently enjoining the

plaintiff from filing in this Court any fur-

ther pleadings alleging any matters asserted

or which could have been asserted in his Com-

plaint and in the Petition without an Order of

the Court, and further directing the Clerk of

this Court not to accept any such pleadings

for filing without an Order of this Court.

for failure to comply with the Rule. See

Crumpacker v. Civiletti, 90 F.R.D. 326, 329-

334 (8.0. Ind. 19861).

For the reasons that follow, he should not

be allowed to plead over.

II. Grimes is Barred by Res Judicata and

Law of the Case from Petitioning this

Court to Confirm the NRAB Award.

154

The doctrine of res judicata bars Grimes

from asserting in this action or in any separ-

ate action that the award of the NRAB of June

13, 1979 is now subject to judicial enforce-

ment against the L&N. Under the doctrine of

"claim preclusion" Grimes is barred from rais-

ing claims or issues that were raised or could

have been raised in this action or any prior

action between the parties. The complaint of

Grimes has been dismissed by final judgment of

this Court. That dismissal has been affirmed

by a decision of the Seventh Circuit Court of

Appeals which stated affirmatively, with re-

spect to the issue Grimes now seeks to re-

assert, that Grimes waived that issue.

The Seventh Circuit did not remand the case

for further proceedings in this Court. The

matter cannot now be re-opened, even if Grimes

has started a separate action and caused a

summons to be issued against the L&N. For

discussion of the principles of res judicata

——

1 ean

155

in this Circuit, see Gasbarra v. Park-Ohio

Industries, Inc., 655 F. 2d 119, 121 (7th Cir.

1981); Diaz v. Indian Head Inc., 686 F. 2d

558, 562 (7th Cir. 1982). See also 1B Moore's

Federal Practices 0.405 (1984). In the

prior proceeding, the principle of res judi-

cata should apply with equal force in this

case. Further, if this Court were to view

this issue as one of law of the case, under

that doctrine this Court would be required to

conclude, as did the Seventh Circuit, that

Grimes has waived any claim for enforcement of

the NRAB award. See Gertz v. Robert Welch,

Inc., 680 F. 2d 527 (7th Cir. 1982).

III. Grimes is Barred by the Statute of

Limitations from Seeking Enforcement

of the NRAB Award.

Under the Railway Labor Act an action to

enforce an award of the National Railroad

Adjustment Board must be begua within two

years from the time the cause of action ac-

crues. 45 U.S.C. § 153 (first) (r). The NRAB

156

decision was rendered June 13, 1979. Grimes

was reinstated shorthly thereafter ana com-

plained that he was not being granted his

seniority rights.

His original complaint was timely filed,

but that action was dismissed in a final judg-

ment rendered by this Court in .September 1984

and affirmed by the Seventh Circuit Court of

Appeals in 1985.

In filing the instant Petition, Grimes

neither obtained an order of the Court which

would allow him to relate back his Petition

under Fed. R. Civ. P. 15; nor did he cause a

summons to be issued. Fed. R. Civ. P. 4

This case on the docket is closed.

a one

157

FOR THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

KENNETH C. GRIMES ) FILED

PETITIONER ) July 16, 1987

)

V ) "RETURNED" FROM

APEAL OF

LOUISVILLE AND NASHVILLE ) CIVIL ACTION

RAILROAD COMPANY ) NO. EV 81-130-C

RESPONDENT )

RESPONSE TO: DEFENDANT'S MOTION TO DISMISS

AND MOTION

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

AND FOR INJUNCTIVE RELIEF.

FILED JULY 2, 1987

RESPONSE TO: INTRODUCTION

Contrary to the Defendant's assertion “no

order of this court allowed this petition to

be filed and no summons was issued."

This Court issued on February 10, 1984,

and September 14, 1984, memorandum decision in

Summary and final judgment, which proveded a

basis for “jurisdiction, to enforce a judgment

previously obtained in the same Court." (See

paragraph 2, p. 27 of this petition filed June

158

11, 1987, and Exhibits "W", "EE" attached to

petition and this response; also see Klarges

v. Cohen, 1945, C.A. 2 NY 146 F. 2d 641.)

A summons was issued as part of the com-

Dlaint filed on the enforcement issue on June

11, 1981. (See the record, also attached is a

true and correct copy of the summons herby

known as Exhibit "XE".)

The confirmation petition is a part of

the process that sought enforcement initially

in complaint. (See Exhibit "C" under Prayer

for Relief at paragraph C attached to the

petition filed June 11, 1987.)1

159

RESPONSE TO: ARGUMENT

I, THE PETITIONER VIOLATES F.R.C.P. 8.

The Respondent asserts: "The Petitioner

fails to comply with Rule 8 of the Federal

Rules of Civil Procedure which require that

such a pleading give notice of the claim and

its grounds simply, concisely and directly."

"In a statutory arbitration proceeding,

no notice need be given of the filing of the

award or entry of juegment thereon, where the

statutes merely provide for the filing of the

award with the clerk of court and authorize

him to enter judgment thereon without imposing

any requirements of notice." (Colo - West v.

Duncan, 210 p. 699, 72 Colo. 253.)

In this case, a summons was issued with

complaint.3 The complaint as an initial step

is to seek affirmation of the award.4 The

procedure thereafter is “continuous (including

160

confirmation), not separate."2 THus, entry of

judgment to confirm the award is clerical,

without imposing any requirements of notice.6

State law, under the Federal Arbitation

Act is to be applied to confirmation of an

award only when-"there was a scarcity of Fed-

eral case. in point, state practice would be

considered in construing this section and

sections 10 and 11 of this title” 9 et seq.

eH FF FS

161

UNITED STATES COURT

OF APPEALS

FOR THE SEVENTH CIRCUIT

File No. 88-1381

KENNETH C. GRIMES, APPELLANT

LOUSIVILLE & NASHVILLE RAILROAD COMPANY,

APPELLEE

Appeal From the United States District

Court

Southern District of Indiana

Evansville Division

Honorable Gene Brooks

Presiding Judge

BRIEF FOR APPELLANT

KENNETH C,. GRIMES

Pro Se For Appellant

621 East Gum Street

Evansville, IN 47713

1-812-423-1600

April 9, 1988

162

Claim when there is no basis in fact to sup-

port it is an error and an abuse of the

Court's discretion,

II. Reasons the District Court's

Equitous Ruling Violated the Parties Legal

Basis When the Court's Judgment Dismissed

Plaintiff's Motion to Confirm in a Abuse

of Discretion

The District Court's acceptance of the

Defendant's res judicata Claim, in dismissing

the Plaintiff's motion to confirm the award

gave cause to a judgment in equity.

The primary reason the judgment is one of

equity is that there is no basis in fact or

law.

If there is no basis in fact or law to

support the judgment, it is more than highly

probably that the Court's judgment was inten-

ded to be one in equity.

163

The Court's intent is apparent in several

inconsistant acts following the February 10,

1984 judgment where the Court's action estab-

lished rule, on the seniority rights impair-

ment issue. Rule, the final step wefore a

motion to confirm the award in judgment for

monetary damages.

That Court's intent is as follows:

(1) From February 10, 1984, to September

14, 1984, two issues existed simultaneously in

the District Court in this case: (1) the

retaliation claim, 91 and enforcement issue.92

The Court restricted the proceeding to the

sole issue of retaliation. (See September 14,

1984 judgment, pages 3 and 8.)93

In spite of the Plaintiff's aver to judg-

ment on the award and numerous exhibits filed

in support, the Court's ruling on September

14, 1984, was without confirmation of the

164

award. This caused the Plaintiff to appeal.

The intent to deny confirmation of the award

was apparent from the Court's silence.94

FotTlowing appeal, where the Plaintiff as-

serted his arbitrational right, the Plaintiff

on June ll, 1987, filed a petition in District

Court pertaining exclusively to confirmation

of the award as a judgment for damages.99

(2) On September 15, 1987, the Court ac-

cepted a res judicata claim that was without a

basis in law or fact in dismissing the Plain-

tiff's motion to confirm.

This apparent improvident use of discre-

tion was purely intended to give equity ef-

fect to the judgment. This action was without

any basis of support in logic and represented

only what some individual! or others, though

personally fair in this particular situation,

without regard to the underlying controlling

law. 96

165

The judgment was arbitrary and taken with-.

Out proper consideration of facts and law

pertaining to matter submitted.

The law that governs in these matters does

not support equity97 unless there is no ade-

quate relief at law 98 or the facts shown

cannot be taken advantage of by law. 99 The

facts shown in the Plaintiff's petition can be

taken advantage of by law. The place of sub-

mission and the agreement govern cost.100

(1) Rule 34, of the agreement, that has

been used extensively in this case provides a

plain adequate relief in the form of compensa-

tion of any lost wages.101

(2) 45 USC §153 first (P)-Provides the

Petitioner with fees in the form of attorney

fees as a form of relief,102

(3) The National Railroad Adjustment Board

as place of submission does not have equity

jurisdiction, 103

166

To impose equity interference on a situa-

tion where there is adequate relief by law

violates that law.!04 That, law embodied in

the agreement, Railway Labor Act and NRAB is

law agreed to by the parties in dispute. To

impose equity is to violate both parties'

rights, a position the Court as judiciary

should not be in through its judgment.

The fact that the Court chose to make a

decision in equity is an abuse of the Court's

discretion and an error. The end or purpose

from this judgment was not justified by and

Clearly against reason and evidence.

167

UNITED STATES COURT

OF APPEALS

FOR THE SEVENTH CIRCUIT

File No. 88-1381

KENNETH C. GRIMES, APPELLANT

LOUISVILLE & NASHVILLE RAILROAD COMPANY,

APPELLEE

Appeal From the United States District Court

Southern District of Indiana

Evansville Division

Honorable Gene Brooks

Presiding Judge

REPLY BRIEF FOR APPELLANT

KENNETH C. GRIMES

Pro Se For Appellant

621 East Gum Street

Evansville, IN 47713

1-812-423-1600

May 20, 1988

168

decision" of the NRAB award which is a refer-

ence to back pay, not enforcement. For a more

specific description of which issue the order

was referring to, see the February 10, 1984

order, pages 19 and 20. (See App. XII, Exhibit

W.)

The appellant's first appeal was an as-

sertion of arbitrational rights to have the

award confirmed in judgment. This appeal is

from the dismissal in the District Court Judg-

ment September 15, 1987, of the appellant's

right to have the award confirmed in judgment

from defendant's res judicata claim. This is

not a reargument of an earlier right to be

heard on the matter, although the appellant

seeks restoration of his right and judgment.

Unless waiver debars a party from assert-

ing his arbitration right, it has not been

completed. The appellant reasserted his arbi-

trational right, thereby leaving waiver incom-

plete.

169

The arbitration right asserted by the

appellant is one which was agreed to by the

appellee defendant undre Rule 33(a) of the

agreement.

There is a distinction between reargument

and asserting an arbitration right in comple-

tion of a litigated process that has not been

decided or completed in accordance with jus-

tice and precedence. The Court's Order also

stated:

"The Court shall not address the

other arguments presented by L & N, for

res judicata is properly invoked to war-

rant a dismissal."

The District Court hel exclusively to the

res judicata defense asserted by the defen-

dant, an argument from the defendant's July 2,

1987 Brief, that had no basis in fact or law

as applied.

Se ee ee ee ee ee ee ee ee ee

170

What the defendant (appellee) claimed

happen did not happen. (1) They claimed the

District Court dismissed the enforcement

claim. This dismissal does not exist in ex-

press terms in the September 14, 1984, or

February 10, 1984 judgments. (2) They claim

the appellant could have raised the argument

to confirm but didn't. This ignores (a) the

restrictions placed on the litigants to hold

exclusively to the retaliation claim, and (b)

it ignores the actual notice provided on ap-

peal and at the retaliation claim trial.

Action that is sufficient pursuant to Indiana

Rule of Trial Procedure 9(E) and the Supreme

Court. (c) Silence created at the hands of

the District Court is no ground in which a

litigant should lose an arbitrational right.

171

The District Court failed to make the

distinction between asserting an arbitrational

right as a means to a just and litigated end

at law from determing litigated issue on the

award at equity.

The seniority rights impairment issue is

settled, as to whether or not the appellee

impaired the appellant's seniority rights,

they did. Confirming the award for judgment

and damages in the proper amount is what rep-

resents the appropriate end at law and is not

settled.

The appellant has been arguing to have

judgment on the award, not whether the defen-

dant impaired his seniority rights or not.

But, rather than make appropriate judg-

ment, the District Court dismissed the award's

confirmation, claiming the appellant is re-

arguing issue, when he obviously seeks judg-

ment on the award with damages.

172

RESPONSE TO: Fae Counter Statement of

Questions Presented

Although abuse of discretion has been

raised in the appellant's brief, the appeal is

from a F.R.C.P. 59(e) motion which states:

"Appellate Courts may consider...and

treat appeal as being from underlying judg-

ment"...(Peabody Coal Co. v. United Mine Work-

ers (1973, CA 6 Ky) 484 F.2d 78, 84 BMA LRRM

2249 73 CCNLC 1396217 FR Serv. 2d 12/76 cases.

173

UNITED STATES COURT

OF APPEALS

FOR THE SEVENTH CIRCUIT

File No. 88-1381

KENNETH C. GRIMES, APPELLANT

LOUISVILLE & NASHVILLE RAILROAD COMPANY

APPELLEE

Appeal From The United States

District Court

Southern District Of Indiana

Evansville Division

Honorable Gene Brooks

Presiding Judge

PETITION FOR REHEARING

February 9, 1989 KENNETH C. GRIMES

Pro Se For Appellant

621 East Gum Street

Evansville, IN 47713

1-812-423-1600

)

174

PETITION FOR REHEARING

Introduction

Comes now the Appellant to seek a rehearing

of Case No. 88-1381, where this court on Jan-

uary 27, 1989 affirmed the District Court of

Southern Indiana's Judgment to dismiss the

Plaintiffs motion to confirm Award 7956 Docket

No. 7776 of the Railroad Adjustment Board,

second division.

Materialk to this brief are the following

citations: (1) Thorgaard Piumbing & Heating

Co. Ind., v. County of King, State of Washing-

ton, 426 P. 2d 828. (2) Lesser Towers, Inc.

v. Roscoe Ajax Construction co. 258 T. Supp.

1005 (1966).

ARGUMENT

RESPONSE TO: "Resjudicata, or claim preclu-

Sion, operates as a bar to litigants when

there has been a final judgment on the merits

in a prior action, and there is as identity of

the cause of action and the parties in the two

175

suits. Lee v. City of Peoria, 685 F. 2d 196,

199 (7th Cir. 1982). The deci

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