Petition for Writ of Certiorari — Thompson v. Moore
Supreme Court brief1955
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SUBJECT INDEX
HISTORY OF CASE . vite ae
JURISDICTION OF SUPREME COURT .
QUESTIONS PRESENTED .
STATUTES INVOLVED .
STATEMENT OF CASE . ;
JURISDICTION OF TRIAL COURT
CONSIDERATIONS GOVERNING REVIEW .
ARGUMENT
Case should not have been considered on its merits .
The Adjustment Board had exclusive jurisdiction .
Respondent did not exhaust administrative remedies
Dispute involved interpretation of agreement .
Acceptance of re benefits barred er for
the same period _. ‘
Findings of ee hed Board are pagan on re-
spondent . ;
On the merits, respondent should not recover .
Respondent was not discharged .
Respondent did not apply for work at the time he
was physically qualified _. :
He did not report for examination .
His failure to be examined defeats his claim .
Since he did not apply te work there is no discharge
SIGNATURE OF COUNSEL
Appendix
Railroad Retirement Board letter to Moore of August 8,
Pe! Ua hs airek Wo Shisd nbs vhe AOA NERO RERRE EK den ee eae
Railroad Retirement Board letter to Moore of December
ON Wawasan Ses crea eu eka shad Se hbk e eh Ce ee ee
PAGE
aon r FD YD
©
Il
PAGE
Railroad Retirement Board letter to Moore of August 19,
ee ras Oe Ee Vue ue aRESE KCK ONS Too eH ORA ES ENT OS 36
Trial judge’s memorandum of April 29, 1953 .....-..----: 37
Trial judge’s memorandum of November 10, 1063 ......... 50
Trial judge’s memorandum of April 6, 1954 .......-----+>: 54
Opinion of Court of BRON oo iad ces reece eee eee eine 57
Adjustment Board Awards
A Lindy ck pte ee i 4 + Kagawa ae sa He vee 8 Ns 61
OS ey Peer rpetemere es Crrer Oe. Bik ena 62
RI MMI 5, 6. 5 c55 ah vves sm ea ks seam ses ess Sen geee 64
Interpretation of Award 14987 .......---:::s5seeseee 67
Excerpts from Railway Labor Act .......-.---sseeeeerees 70
Excerpts from Railroad Retirement Act .......-------:-*> 72
AUTHORITIES
CASES
Cousins v. Pullman Company, Tex. Civ. App., 72 S.W. 2d
BS Nes en cele ance raenesaeeer tardies naneess te > so >** 13
Glass v. Hoblitzelle, Tex. Civ. App., 83 S.W. 2d 796, er 13
Matlock v. Gulf C. & S.F. Ry. Co., Tex. Cv. App., 99 S.W.
Ee eet Aal She h wee Na We cone sends stsns ts >t 13
Order of Railway Conductors v. Pitney, 326 U.S. 561, 66 S.
Ct. SBR, OO L. Wd. SIS ........ eee eee r enn 17
St. Louis, B. & M. v. Booker, Tex. Civ. App., 5 S.W. 2d 856,
Cert. Den. 279 U.S. 852 .......----- se err 13
Scarano v. Central Railway Co. of New Jersey (3rd Cir.),
OE OE I as os komo thes sed rons tues ses 9,18
Slocum v. Delaware L. & WR. Co., 339 U.S. 239, 70 S. Ct.
OP WE a BO ag pac ay cvs ds eames sere eeeee sts: 17,29
Southwestern Associated Tel. Co. v. City of Dalhart, Tex.
Civ. App., 254 S.W. 2d RR eS, es eee eNe wane es 13
T. & N.O. v. McCombs, 183 Ss Go: See ere 8
Transcontinental & Western Air, Inc. v. Koppal, 345 U.S.
653, 73 S. Ct. 906, 97 L. OR: BO ooh cates 8, 9, 10, 13, 26, 29
Wilburn v. Missouri-Kansas-Texas R. Co. of Texas, Tex.
Civ. App., 268 S.W. 2d ee ay beats dey bree ba 8, 10, 12, 27
J. E. Wyatt v. Kansas City Southern Ry. Co., Tex. Civ. App.,
OUR Me POE, cn y ec swe nd cen nee re cet en rss a sae> es 13
TEXTS
PAGE
19 American Jurisprudence 682... 17
42 American Jurisprudence, 428... 18
STATUTES
co ERS ESSER SPREE oe tole arg eee ae 2
45 U.S.C. A—
Meta ak etch ce te ae ee 4,10, 11
EIR ts Tiss Cuvee ciisies sakes face 11
5 ESSA Aaa RST arate yer ri tte 11
SESE SERS ee ate eee s 11
NINE eS. k ys acs ve sued phd euadc cen on 4
PN ieee esd bt gy oa ny 21
PERU Ricca cn net yh cg gue ie ae x 21
PEI cic ets Saar is ccs axe oe 22
ca RRS SS ey ana ee NEAR 22
PP ME SERS sv das thew ssh uie bora cpetee ea 22
DECISIONS OF THE NATIONAL RAILROAD
ADJUSTMENT BOARD
First Division
Order of Railway Conductors vy. The Delaware and
Hudson Railroad Corporation, appendix page 62 .... 15,30
Interpretation of Award 14987, Order of Railway Con-
ductors v. Union Pacific Railroad Company, appen-
ee Ee ixccths Gnas iescib etc. nee oe 19
Third Division
Order of Railway Telegraphers vy. Pennsylvania Rail-
ns Se OO OO ee 19
DECISIONS OF SPECIAL BOARD OF ADJUSTMENT
NO. 24
Order of Railway Conductors v. Missouri Pacific Lines in
Texas and Louisiana, appendix page 61 a 14, 28
No.__
Supreme Court of the Rnited States
October Term, 1954
Guy A. THompson, TRUSTEE, THE Sr. Louts,
BROWNSVILLE & MEXIco Raitway Co., DeEBTor,
Petitioner
v.
GEORGE C. Moore, Sr., Respondent
PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals for the
Fifth Circuit (and Brief in Support of Petition)
To the Honorable Earl Warren, Chief Justice of the United
States, and the Associate Justices of the Supreme Court
of the United States:
Your Petitioner respectfully shows:
Opinions of the courts below:
This case originated in the United States District Court,
Southern District of Texas, and was appealed to the United
States Court of Appeals, Fifth Circuit. The trial judge filed
three memorandum opinions, dated April 29, 1953 (Ap-
pendix p. 37), November 19, 1953 (Appendix p. 50), and
2
April 16, 1954 (Appendix p. 54). The opinion of the Court
of Appeals is at page 57 hereof. The Court of Appeals opin-
ion was published at —— F. 2d ——. The memorandum
opinions of April 29, 1953 and of November 19, 1953
(without footnotes) were attached to the opinion of the
Court of Appeals and published with it.
Jurisdiction of the Supreme Court
The judgment of the trial court was entered April 12,
1954. The judgment of the Court of Appeals was dated
and entered April 22, 1955. Petition for rehearing in the
Court of Appeals was denied by that court May 24, 1955.
Jurisdiction to review, by writ of certiorari, the judg-
ments of the trial court and Court of Appeals is conferred
on this court by section 1254 of Title 28 of the United States
Code.
Questions Presented for Review
(1) Whether the law of Texas required respondent to
exhaust his administrative remedies before filing suit against
his employer.
(2) Whether this suit involved interpretation of the
collective bargaining agreement between the railroad and
the union representing plaintiff’s group of employees so
that exclusive jurisdiction was vested in the Adjustment
Board under the Railway Labor Act.
(3) Whether an employee of a railroad subject to the
- Railroad Retirement Act who has accepted annuity under
that Act, paid because he was physically disabled to perform
the duties of his employment, can sue the railroad for not
allowing him to work during the time for which he has
accepted the annuity.
3
(4) Whether a railroad employee who requested the Rail-
road Retirement Board to determine his physical ability to
perform his duties was bound by the Board’s findings of
physical disability (which findings were not set aside upon
a direct attack as provided by law) and was precluded from
showing he was able to work and from seeking damages
against the railroad for not allowing him to work during
the time the Retirement Board had found he was disabled.
(5) Whether respondent was discharged, and if so,
whether such was arbitrary.
(6) Whether respondent was entitled to damages for
wrongful discharge if the claimed wrongful discharge was
an offer by the railroad to allow him to return to work if he
would report to the doctor for examination and the doctor
found him physically qualified, but respondent did not re-
port for that examination.
(7) Whether respondent, an employee who was found
by the company doctor and the trial court jury to be physi-
cally disabled for work on the day he applied to resume
work, who unsuccessfully appealed to a higher official for
reversal of the disqualification, for restoration to duty and
for compensation for wages lost after the disqualification,
who was found by the trial court jury to have been physi-
cally disqualified at the time of the decision of the higher
official, and who further appealed to a different official,
resulting in an affirmance of the original disqualification,
which latter affirmance was made at a time the jury found
the employee physically able to work, was entitled to dam-
ages for wages lost after the date the jury found he was
able to work; that is, whether respondent’s rights are to be
determined as of the time he applied to resume work or
as of the time of the decision on appeal.
4
Statutes Involved
The statutes which this case involves are various sections
of the Railway Labor Act, 45 U.S.C.A. 151, et seq. and of
the Railroad Retirement Act, 45 U.S.C.A. 228a, et seq.
These are lengthy and are set out in the Appendix, pp. 70, 72.
Statement of the Case
G. C. Moore, Sr., respondent here, was employed by
petitioner as a conductor. In 1947 he applied for disability
annuity under the Railroad Retirement Act, 28 U.S.C.A.
228a, et seq., but such was denied since he was not disabled
from any regular employment. His then length of service
was only sufficient to entitle him to disability benefits if
he was incapacitated as to amy regular employment. In
August 1949 judgment was entered in a damage suit filed
by him against petitioner awarding him damages for personal
injuries. Right after the entry of this judgment Moore
voluntarily “laid off” work and either made a new appli-
cation, or renewed his previous application, for disability
benefits under the Retirement Act. By that time his length
of service was such as to entitle him to disability benefits
if he was disabled for work in his regular employment. In
December 1949 the Railroad Retirement Board found he
was disabled for work in his regular employment and he
was awarded benefits. This was found and awarded as of the
date he “laid off”. He continued to receive and accept
these benefits up to the time of the trial of this case.
Moore stayed off railroad work until February 16, 1951,
some 18 months, at which time he applied to A. F. Judd,
petitioner’s superintendent, to resume service, stating that
he felt he had recovered to the extent he was able to work.
Judd sent Moore to petitioner’s chief surgeon, Dr. C. M.
5
Sublett. The doctor examined Moore and reported to Judd
that he found certain specified disabilities and since these
were the conditions for which Moore had been retired, the
doctor recommended against Moore’s resumption of duty.
On the basis of this, Judd declined to allow Moore to re-
sume work.
Moore was examined by other doctors. He secured re-
ports thereof and he offered these to Judd but the latter
relied on the chiet surgeon’s report.
Moore appealed to Ralph Johnson, assistant general man-
ager of petitioner, as to Judd’s refusal to return him to
service but Johnson said he would be governed by Dr.
Sublett’s disqualification.
Moore then wrote to E. C. Sheffield, successor to Johnson
as assistant general manager of petitioner, presenting his
appeal of his claim for reinstatement with seniority rights
unimpaired and compensation for time lost following Judd’s
refusal to allow him to work. Sheffield wrote Moore stat-
ing that his claim for time lost was declined, but that if
Moore would again report to the doctor and after examina-
tion if the doctor advised thac Moore was then physically
fit to resume duty as conductor, it would be satisfactory
for him to return to service if he passed the safety rules
examination. This letter appears in the Appendix, p. 34.
Moore did not report to the doctor for examination. This
letter was written fifteen months after Dr. Sublett’s prior
examination.
Moore then wrote T. Short, chief personnel officer of
petitioner, appealing, “as provided by the Railroad Labor
Act”, from Sheffield’s decision (R. 326). Short denied the
appeal. He referred to Sheffield’s letter to Moore as to the
steps necessary for Moore to return to service and stated
6
that the offer made by Sheffield “still stands.” Moore did
not attempt to secure the medical examination by the
doctor.
During the above proceedings, Moore was communicating
with the Railroad Retirement Board as to his physical con-
dition and the disability payments. In August, 1951, Moore
wrote the Board that Dr. Sublett had disqualified him for
work March 2, 1951 but that other doctors found he could
do his job. He requested that the “Board have me examined
to see if I am still entitled to my annuity” (R. 44-45).
The Board had Moore examined and in December 1951
advised him that they found he was still physically dis-
abled. This letter is in the Appendix, p. 33. This was after
Johnson’s affirmance of Judd’s refusal to return Moore
to service.
In July 1952, the Board had Moore examined at the
Veteran’s Administration Hospital by many specialists so
that it could reconsider his eligibility for disability bene-
fits. After the examinations, the Board advised Moore
that their records showed he had been granted an annuity
principally upon the basis of arthritis, that the specialized
examinations showed substantially the same disability which
had been present when the claim for benefits was approved
and that there was no change of status as to his right to
the disability benefits. This letter appears in the Appendix,
p. 36. This was in August 1952 some 18 months after he
applied to Judd to return to service and about two and
one-half months after Sheffield’s denial of the appeal and
offer to allow his return to service of the doctor found
him physically qualified.
This suit was filed in February 1953 for damages for
several alleged wrongful discharges. It was claimed that
Judd’s requirement of a physical examination, the chief
7
surgeon’s examination and report, being wrongful, and
Judd’s reliance thereon, and each of the decisions of the
other officials were wrongful discharges.
Defendant moved for summary judgment by two
separate motions. These were over-ruled, but one ground
was carried along with the case.
The jury found that Moore was not physically able to
work on: (1) the date the chief surgeon examined him;
(2) the date Judd did not consider the reports of the
outside doctors and, relying on Sublett’s report, refused
to return him to service; and (3) the date Johnson did
not allow him to return to service. The jury found Moore
was able to work on the date of Sheffield’s letter which
denied his claim for time lost but offered to allow him to
return to work if the doctor passed him for service. The
jury found that Dr. Sublett did not act arbitrarily in
finding Moore disabled but that petitioner’s refusal to re-
turn him to service was arbitrary on the date of Sheffield’s
letter. Damages from the date of this letter to the trial
were found to be $6,960.
Petitioner moved for judgment on the verdict but the
court entered judgment against petitioner for the amount
of the jury verdict. On appeal, the Court of Appeals af-
firmed that judgment and over-ruied petitioner’s motion
for rehearing.
Grounds of Jurisdiction of the Trial Court
The trial court had jurisdiction by virtue of the amount
in controversy and (1) diversity of citizenship and (2)
rights under federal statutes, particularly the Railway
Labor Act and the Railroad Retirement Act. The Court
of Appeals held that jurisdiction existed only by virtue
of diversity of citizenship.
8
Considerations Governing Review Under Supreme
Court Rule 19 Section 1 (b)
The decision of the Court of Appeals is in conflict with
the law of Texas as announced by the state courts:
1. The Circuit Court of Appeals and the trial court
held that respondent was not required to exhaust his
administrative remedies, under the laws of Texas. The
Texas Court of Civil Appeals in January of 1954 de-
cided the case of Wilburn v. Missouri-Kansas-Texas
Railroad Company of Texas, 268 S.W. (2d) 726,
holding, on rehearing of that case reported at Page
731, et sequentia, that a railroad employee was required
to exhaust his administrative remedies in a suit for al-
leged wrongful discharge. That Court, in the original
opinion, which was overruled on a motion for rehear-
ing, cited the case of T&NO v. McCombs, 183 S.W.
(2d) 716 which was relied on by the trial court and
by the Circuit Court of Appeals in the present case.
However, on rehearing the Court obviously disregarded
the opinion of the Supreme Court of Texas in the
McCombs case because of the decision of the Supreme
Court of the United States in Transcontinental and
Western Air Lines v. Koppal, 345 U.S. 653, the de-
cision in which intervened between the time of decision
in the McCombs case and the time of decision in the
Wilburn case, and was decided long after the case of
Moore v. Illinois Central, 312 U.S. 630, which the
Supreme Court of Texas had followed, according to
its interpretation of that case, purportedly for the sake
of uniformity.
2. The Court of Appeals held that respondent, who
was not allowed to resume performance of duties be-
cause petitioner’s chief surgeon disqualified him, was
discharged. The Wilburn case, 268 S.W. 2d at 734, |
held in a similar case there was no discharge. “There
is a wide difference between a discharge because of
9
affirmative action and a disqualification on account of
physical disability... . ” See also footnote at pages
734-5.
The Court of Appeals decision is in conflict with Trans-
continental & Western Air, Inc. v. Koppal, 345 US. 653,
73 S. Ct. 906, 97 L. Ed. 1325, which held that a railroad
employee is required to exhaust his administrative remedies
if the local law requires that, and cited, in footnote 3,
Texas law as requiring use of the administrative procedures.
The decision of the Court of Appeals, in not holding
that respondent was bound by the findings of disability
made by the Railroad Retirement Board and not precluded
from claiming damages by his acceptance of benefits under
the Railroad Retirement Act is in conflict with Scarano v.
Central Railway Co. of New Jersey (3rd Cir.), 203 F. 2d
510.
Argument
This case should not have been considered
on the merits.
A. The Adjustment Board under the Railway
Labor Act had exclusive jurisdiction.
1. Respondent was required to, but did
not exhaust his administrative remedies.
The rules of law as to whether a discharged railroad em-
ployee who claims his discharge was wrongful may immedi-
ately file suit in the courts or whether he must exhaust his
administrative remedies have been recently announced by
the court. Transcontinental & Western Air, Inc. v. Koppal,
345 U.S. 653, 661-2 states:
10
« * * * Such employee may proceed either in ac-
cordance with the administrative procedures prescribed
in his employment contract or he may resort to his
action at law for alleged unlawful discharge if the
state courts recognize such a claim. Where the appli-
cable state law permits his recovery of damages with-
out showing his prior exhaustion of his. administrative
remedies, he may so recover, as he did in the Moore
litigation, supra, under Mississippi law.
“On the other hand, if the applicable local law, as
in Missouri, requires an employee to exhaust his ad-
ministrative remedies under his employment contract
in order to sustain his cause of action, he must show
that he has done so.”
Thus even conceding, for the purposes of iris discussion,
that respondent was discharged (although we do not be-
lieve he was) the suit should have been dismissed, as was
the Koppal case, if Texas law requires the exhaustion of
administrative remedies.
The complaint upon which the case was tried alleged
that respondent was employed under a collective agreement
of which the Railway Labor Act (45 U. S. C. A. 151, et
seq.) was a part. Under Texas law such act was a part of
the contract. Wilburn v. Missowri-Kansas-Texas R. Co. of
Texas, Tex. Civ. App., 268 S.W. 2d 726, 733.
Article 21 (a) of the collective bargaining agreement
provided:
“Conductors shall not be discharged or otherwise
disciplined without sufficient cause. In case a Con-
ductor believes he has been unjustly discharged or dis-
ciplined, he shall have the right within 10 days to make
a complaint in writing, and shall, upon request of him-
11
self or a committee of Conductors, be granted a hear-
ing within 10 days by the proper officials. If dissatis-
fied with the decision of said officials appeal may be
made to higher authority. In case he has been unjustly
i ged, he shall be reinstated and paid for the time
lost; if otherwise disciplined unjustly, it shall be cor-
rected.” (R. 248).
The Railway Labor Act, 45 U.S.C.A. 151, et seq. pro-
vides: Section 152:
“Second. All Se between a carrier or carriers and
its or their employees shall be considered, and, if pos-
sible, decided, with all expedition, in conference be-
tween representatives designated and authorized so to
confer, respectively, by the carrier or carriers and by
the employees thereof interested in the dispute... . ”
* + *
“Sixth. In case of a dispute between a carrier or car-
riers and its or their employees, arising out of griev-
ances or out of the interpretation or application of
agreements concerning rates of pay, rules, or working
conditions, it shall be the duty of the designated repre-
sentative or representatives of such carrier or carriers
and of such employees, * * * to specify a time and
place at which such conference shall be held: Provided,
* * * that nothing in this chapter shall be construed
to supersede the provisions of any agreement (as to
conferences) then in effect between the parties.”
Section 153:
“First. There is established a Board, to be known as
the ‘National Railroad Adjustment Board’ * * *.
“(i) The disputes between an employee or group of
employees and a carrier or carriers growing out of
grievances or out of the interpretation or application
12
of agreements concerning rates of pay, rules, or work-
ing conditions, * * * shall be handled in the usual
manner up to and including the chief operating of-
ficer of the carrier designated to handle such disputes;
but, failing to reach an adjustment in this manner, the
disputes may be referred by petition of the parties or
by either party to the appropriate division of the Ad-
justment Board * * *.”
It is undisputed that after Moore appealed the decision
of the superintendent to the assistant general managers and
to the chief personnel officer, he did not complete the ad-
ministrative procedures by taking the case to the Adjust-
ment Board as provided by the above act.
The contract, including the Railway Labor Act, which
was part of it, provided a procedure part of which was in-
voked. It contemplated that the interpretation of the con-
tract and the settling of disputes should be by persons in
the railroad industry and the Adjustment Board. It was
never contemplated that a jury, or a judge, not intimately
familiar with railroad usages, requirements and terminology
would pass upon matters requiring such for a proper solu-
tion. As was said in the Wilburn Case, 268 S.W. 2d 726,
734:
““* * * Tt is to the public interest, as well as to the
interest of other employees of the defendant, that the
physical capacity for discharging the duties of the em-
ployment be maintained in accordance with the ad-
ministrative procedure which has been provided for
in the contract between the Brotherhood and the de-
fendant. Since such administrative procedure requires
a condition precedent and prescribes a remedy for any
breach, the plaintiff is bound to pursue such contract
13
in the appropriate tribunal. Where determination has
been left to an administrative body by statute (and
the contract in this case was executed pursuant to a
federal stavute), it is not the province of courts to sub-
stitute their judgment or encroach upon the adminis-
trative body. Gray v. Powell, 314 U.S. 402, 62 S. Ct.
326, 86 L. Ed. 301; Securities and Exchange Comm. v.
Chenery Corp., 318 U.S. 80, 63 S. Ct. 454, 87 L. Ed.
626.” (Emphasis added)
Texas law requires that a person exhaust available ad-
ministrative remedies before resorting to the courts.
“* * * Te is well settled that, where contracting
parties either agree or are required by law to resort to
a designated tribunal for the adjustment of controver-
sies, they must exhaust such remedy before resorting
to the courts for redress.” Glass v. Hoblitzelle, Tex.
Civ. App., 83 S.W. 2d 796, 802, quoted in footnote 3
of Transcontinental & Western Air, Inc. v. Koppal,
345 U.S. 653, 73 S. Ct. 906, 97 L. Ed. 1325.
See also Matlock v. Gulf C. & S.F. Ry. Co., Tex. Civ.
App., 399 S.W. 2d 1056; St. Louis, B. & M. v. Booker,
Tex. Civ. App., 5 S.W. 2d 856, cert. den. 279 USS. 852,
45 S. Ct. 348, 73 L. Ed. 995; Cousins v. Pullman Co., Tex.
Civ. App., 72 S.W. 2d 356; J. E. Wyatt v. Kansas City
Southern Ry. Co., Tex. Civ. App., 101 S.W. 2d 1082 (all
railroad employment cases); and Southwestern Associated
Tel. Co. v. City of Dalhart, Tex. Civ. App., 254 S.W. 2d
819.
We therefore, submit that respondent was by law re-
quired to exhaust his administrative remedies; the court
should have so held and dismissed this case.
14
2. The dispute involved the
interpretation of the contract.
Respondent’s whole case was that under the collective
bargaining agreement he was entitled to return to service,
the defendant did not allow him to do so, and this was a
discharge. There was no proof of any refusal to allow plain-
tiff to work except on occasions when the railroad denied
this on the basis that he was not physically able to do so.
The collective bargaining agreement does not contain speci-
fic provision as to this, and it must therefore be interpreted
to determine whether that is part of the agreement.
A Special Adjustment Board considered another dispute,
quite similar except that the claim was for time lost in-
stead of damages for discharge, between petitioner and
another of its conductors, M. C. Barnes. The identical col-
lective bargaining agreement was involved. The Board award
(which appears in the appendix, page 61) held that
where the carrier had doubt as to the physical ability of a
conductor to perform his duties, a requirement that he be
examined by the railroad’s chief surgeon was proper. Be-
cause Barnes refused to report for such an examination,
his claim for time lost was denied. But in our case, Moore
was told that if he wanted to work he should go to the
chief surgeon and if the doctor passed him it would be
satisfactory for him to resume service. The court held this
was a discharge—a denial of work when he was eligible for
work and capable of working. The court in our case not
only interpreted the agreement which the decisions of this
court say a court should not do, but interpreted it contrary
to the rulings of the Adjustment Board, which has exclu-
sive jurisdiction to make such an interpretation.
Under the Barnes decision by the Special Adjustment
Board, the employee was not entitled to work (not entitled
15
to compensation for not being allowed to work) unless and
until he submitted to a physical examination by the com-
pany doctor—that was a condition precedent to his right
to work. In our case, Moore did not show himself entitled
to work, he did not satisfy the condition precedent, be-
cause he failed to report to the chief surgeon as requested.
He therefore should not have been awarded damages.
The First Division of the National Railroad Adjustment
Board, with Hon. J. Glenn Donaldson as referee, in Award
No. 13859, Order of Railway Conductors v. The Delaware
and Hudson Railroad Corporation decided a somewhat simi-
lar situation. That award is included in the appendix, page
62. Conductor Bovit filed claim for compensation. The
collective bargaining agreement provided for periodic ex-
amination for color perception, acuteness of vision or hear-
ing, but contained no provision for general physical ex-
amination. The carrier, without the agreement being
changed, issued a rule that all conductors would have to
take periodic physical examinations. Opportunity to do this
was given so that work time would not be lost, but Bovit
did not take advantage of that. He was ordered to report
to the doctor. He filed claim for a day’s pay for the day he
was examined. In denying the claim, the Board said:
“Our attention has not been called, nor does our
examination of the current rules reveal, any negotiated
rule dealing with physical examinations either upon
entry into service or upon return from sick or dis-
ability leave. Does it follow that the carrier is with-
out right in requiring the same because not negotiated?
We think not. We must bear in mind the nature of
services rendered; the general practice prevailing in
industry and in particular the transportation industry,
and the carrier’s strict legal liability to the public for
16
safe passage of its trains. Continued good sight and
hearing are only a part of the physical attributes which
must continuously attach as a condition of employ-
ment to those entrusted with the lives and property of
the patrons and employer. We find that the institution
of a regular, periodic, physical examination program
to assure the continued good health of its employees
in the interest of the protection of the public and the
equipment handled is a managerial function and that
the same may be unilaterally imposed. (Awards 7663,
8605). As in the case of all managerial prerogatives
however, exercise of the right must be reasonable. Un-
der the circumstances here present, we cannot say the
carrier acted unreasonably.”
We say that equally petitioner’s requirement of a physi-
cal examination of respondent who had been disabled was
not unreasonable.
The court below had to interpret the contract. It did not
have the jurisdiction to do so.
Respondent contended that under the agreement the rail-
road did not have a right to require a physical examination,
even though admittedly he had been physically disabled.
The requirement of this examination was the first “wrong-
ful discharge” alleged by plaintiff.
Respondent contended that defendant was not entitled,
under the agreement, to rely upon the decision of the chief
surgeon as to his ability to work.
Respondent contended he had a contract for life-time
employment.
Respondent contended that upon a dispute arising as to
his physical ability the matter should have been submitted
to a board of three doctors. This was not part of the writ-
17
ten agreement (made in 1924) but plaintiff took the Posi-
tion that by custom it had become a part of the agreement.
Therefore there was a question as to what Provisions the
agreement contained.
Respondent’s claims presented many questions of inter-
pretation of the collective bargaining agreement. This court
has held that where there are such questions, the Board of
Adjustment has jurisdiction to the exclusion of the courts.
Order of Ry. Conductors v. Pitney, 326 U.S. 561, 66 S.
Ct. 322, 90 L. Ed. 318; Slocum v. Delaware L. & W.R.
Co., 339 U.S. 239, 70 S. Ct. 577, 94 L. Ed. 795.
B. Respondent, by accepting disability
benefits between the time he sought to
resume his duties and the time of trial is
precluded from claiming damages for not
being allowed to work during that time.
It is undisputed that Moore each month continued to re-
ceive and accept the disability benefits from the Railroad
Retirement Board after he sought to resume work in Febru-
ary 1951, after he filed this suit, and up to the time of the
trial. Moore testified that he knew that he was only to re-
ceive the disability benefics if he was disabled and that the
Board should discontinue the pension if he had recovered.
(R. 83) This was on deposition since the trial court would
not allow evidence of it at the trial. At the trial the court
reconsidered but overruled the petitioner’s motion for sum-
mary judgment based on this. (R. 918)
See 19 Am. Jur. 682, Estoppel, wherein it is said:
“Sec. 64. Acceptance of Benefits—Estoppel is fre-
quently based upon the acceptance and retention by
18
one having knowledge or notice of the facts of bene-
fits from a transaction, contract, instrument, regula-
tion or statute which he might have rejected or con-
tested. This doctrine is obviously a branch of the rule
against assuming inconsistent positions, and it has been
said that such cases are referrable, when no fraud either
actual or constructive is involved, to the principles of
election or ratification rather than to those of equitable
estoppel. The result produced, however is clearly the
same and the distinction is not usually made. Such es-
stoppel operates to prevent the party thus benefited
from questioning the validity and effectiveness of the
matter or transaction in so far as it imposes a liability
or restriction upon him, or, in other words, it precludes
one who accepts the benefits from repudiating the
accompanying or resulting obligation. It finds applica-
tion in many different fields and under a wide variety
of circumstances, * * * It is also applied * * * to pre-
vent one who accepts the benefit of a judgment or de-
cree from questioning its validity or opposing the en-
forcement of its terms.”
See also 42 Am. Jur. 428, Public Administrative Law,
sec. 98, wherein it is said:
“One who receives and retains benefits under a rule of
a commission may be estopped to attack its validity.”
Plaintiff in accepting the monthly benefits took the posi-
tion that he was disabled. He has now taken the position
that he was not disabled. The courts do not allow this.
Scarano v. Central Railway Co. of N. J. (3rd Cir.), 203
F. 2d 510. The trial judge instructed the jury that they
were not to consider the fact that Moore was receiving the
disability benefits (R. 1027).
This point has been passed on, adversely to respondent,
by the Third Division, National Railroad Adjustment Board,
19
with the assistance of Hon. H. Nathan Swain as Referee.
In Order of Railway Telegraphers v. Pennsylvania Rail-
road, Award Number 2210, the Board denied the claim of
a telegrapher on the ground that it was inconsistent with
his prior position, Nednein was the senior unassigned op-
erator. He was assigned to a temporary vacancy but the
relief day of that position was filled by the regular relief
man. Nednein was not assigned to another job on such re-
lief day and he filed a claim for and was paid at the regular
rate for not being given other work when the regular re-
lief operator was working on this position. Thereafter when
the regular relief operator filled that job, Nednein was given
other work. In this claim, he sought overtime pay for being
assigned to and required to work on other jobs on the relief
days of this temporary vacancy. The claim was denied, the
Board saying,
“That claim on which Nednein was paid (the prior
claim) was entirely inconsistent with his present claim.
If while on temporary assignment to one position, he
was, on the relief days of that position, entitled, as the
senior available extra operator, to assignment to other
temporary vacancies he could not claim time and one-
half for working on the relief day assigned to his posi-
tion. If on such a temporary assignment the position
was his position on the relief day, then on that day he
could not be the senior unassigned extra operator.”
(Parenthetical matter added)
A copy of such award is in the Appendix, page 64.
In the Court of Appeals, respondent appended to his
brief Interpretation of Award 14987 by the First Division,
National Railroad Adjustment Board. That Interpretation
is in the Appendix, p. 67. Respondent relied upon that as
showing that the Board would allow a claim for time lost
— — sent ; AAA ORAM So RE
20
by a conductor while held out of service by the carrier
even though he had received benefits under the Railroad
Retirement Board. However, such decision is not applicable
here because the benefits there involved were not disabili
benefits so there was no inconsistency between the claim
of entitlement to benefits and the claim of being capable
and eligible for work. Further, the Interpretation stated:
“In discussing what would result if an affirmative
award were granted and claimant had received prior
to such time annuity from the retirement board, it
was agreed that be could not be paid from two sources
for the same period, and that he would, in event his
claim should be allowed, be required to return to the
retirement board any amounts so received during the
period not in service of the carrier and when not paid
by the carrier. The award assumed there would be an
adjustment of this matter so that claimant would not
have the benefit of both sources of payment.” (Em-
phasis added )
Respondent has not stated he would return to the Retire-
ment Board the amount of benefits he received for any
period for which he may recover damages in this suit. His
brief in the Court of Appeals was that the Retirement Board
should not require him to do this. Unlike the award of the
Adjustment Board, the judgment herein was not on the
basis that he would make refund and was not on the basis
that he would not be paid twice for the same period.
C. Respondent was bound by the findings
of disability made by the Board and the
court anal not have heard evidence as
to his physical condition,
Respondent, plaintiff in the trial court, made a showing
that subsequent to each of the actions which he alleged was
seiieanianiesinaniiicienisiahadaa a
21
a wrongful discharge, the Railroad Retirement Board, on
respondent’s own application or at his instigation, inquired
into respondent’s physical condition. August 8, 1951 (after
all of the alleged wrongful discharges except Sheffield’s and
Short’s letters), Moore wrote the Board making request “to
have me examined to see if I am still entitled to my annuity.”
(Appendix p. 33).
The Board had Moore examined and advised him he was
still found to be disabled. This letter is at page 33 of the Ap-
pendix. In 1952, the Board had specialized examinations
made to determine Moore’s physical condition. Following
these examinations, the Board found (and advised Moore)
that he was still disabled from performing his duties as a
conductor. The Board’s letter is in the Appendix, p. 36.
Moore did not appeal from, or file any direct attack on,
these findings.
The Railroad Retirement Board is given authority to
determine whether an employee is disabled and entitled to
benefits. 45 U.S.C.A. 228 b (a) 4 provides:
“The Board shall determine whether his condition js
disabling for work in his regular occupation .. .”
45 U.S.C.A. 228 b (a) 5 gives the Board the power and
duty to determine whether the disability continues or ceases:
“Such satisfactory proof shall be made from time to
time as prescribed by the Board, of the disability . . .
and of the continuance of such disability... If be-
fore attaining the age of sixty-five an employee in
receipt of an annuity .. . is found by the Board to
be no longer disabled . . . his annuity shall cease . . .”
Moore was less than sixty-five years old.
: 22
The Board under 45 U.S.C.A. 228 j (b) 1, is given gen-
eral power to administer the Act including the above pro-
visions, That section further provides that the decisions of
the Board upon questions of law and fact shall not be sub-
ject to review by any other administrative or accounting
officer. 45 U.S.C.A. 228 k provides that decisions of the
Board as to original eligibility for disability benefits and
continuance of disability and eligibility for benefits shall
be subject to judicial review only as provided in chapter 11
of 45 U.S.C.A. The provision for review is 45 U.S.C.A.
355(f) which provides for a bill of review against the
Board upon which
“The findings of the Board as to the facts, if supported
by evidence and in the absence of fraud, shall be con-
clusive. No additional evidence shall be received by
the court, but the court may order additional evi-
dence to be taken before the Board . . .” (Emphasis
added).
Petitioner objected to jurisdiction and to the court hear-
ing evidence as to Moore’s physical condition and disability
or ability to work. In spite of the above provisions and ob-
jection, the trial court heard evidence and entered judg-
ment on the basis that May 29, 1952, Moore was able to
work even though the Board had determined that Moore
was not able to work in August 1952 and had been so dis-
abled since August 1949.
Further, this action was an indirect attack upon the
findings of the Board and an unauthorized procedure for
review of the decision.
23
Consideration of the merits of the case showed
respondent is not entitled to recover.
A. Respondent was not discharged, much
less wrongfully discharged, and therefore
should have been denied relief.
The only jury findings upon which the judgment was
entered were (1) respondent was physically able to per-
form his duties May 29, 1952; and (2) petitioner’s refusal
to permit him to return to service was arbitrary on May 29,
1952. The jury found against respondents as to his physical
ability to work on earlier dates that were submitted to
the jury.
The date of May 29, 1952 was the date petitioner’s as-
sistant general manager wrote respondent. There was no
evidence as to any other transaction or communication be-
tween the parties on that date, so whether Moore was dis-
charged and whether that discharge was arbitrary, must be
determined on the basis of that letter. For the convenience
of the court, the full letter is set out in the Appendix,p. 34.
The letter of May 29, 1952 did two and only two things:
(a) It denied Moore’s appeal from the decision of the
superintendent refusing to allow him to return to ser-
vice and would not reinstate him as of the date he applied
to Judd or recognize his claim for earnings lost while held
out of service. There can be no dispute as to the propriety
of this action since the jury found that Moore was disabled
at the time he applied to Judd and on the other dates prior
to this letter.
(b) It offered to allow Moore to return to service if
he would report for a physical examination, the doctor
found he was qualified and he passed the safety rules exami-
nations. Moore did not complain of the requirement of a
24
safety rules examination. All employees are periodically re-
quired to pass such an examination (R. 323)
Therefore, the dispute is reduced to a determination of
whether a requirement of an employee, who had volun-
tarily retired because of disability, that he pass a physical
examination to show ability to work is a discharge and if
so, an arbitrary discharge. Petitioner submits that it is
neither.
Respondent’s whole case was for wrongful discharge. He
did not sue for damages for being held out of service, but
for damages because he was discharged. A “discharge” is a
termination of the employer-employee status. It is a per-
manent and final separation. It is diametrically opposed to
any concept that the employment status continues to exist,
even in a suspended state as to the performance of duties.
Petitioner’s acts were not consistent with a “discharge” or
a cessation of the employment relationship. They, and each
of them, were consistent with and only with a continua-
tion of the employment status, but a suspension of per-
formance of work by respondent because he was physically
disabled. The suspension was only to be during his dis-
ability.
Respondent applied for and was granted free railroad
transportation for himself and his wife. This he would have
a right to as an employee, active or retired. He would not
have the right to it as a discharged employee or during any
time after the employment status had been terminated by
discharge or otherwise.
On May 29, 1952, the date of the so-called “discharge”,
petitioner advised respondent that it would be satisfactory
for him “‘to resume duty as conductor” if he was physically
25
fit. He was not offered employment, but was offered an
activation of the suspended, not terminated, relationship. In
fact, respondent offered evidence that under petitioner’s
employment rules, respondent could not then be hired be-
cause of his age.
On June 25, 1952, petitioner’s chief personnel officer, T.
Short, wrote Moore that
“Mr. Sheffield advised you in his letter of May 29,
last paragraph as to what would be necessary for you
to do in order to return to service.
“This offer made by Mr. Sheffield still stands.
(R. 331-2)
This again is consistent with a continuation of the employ-
ment status and inconsistent with a prior discharge.
The suspension of the status had originally been sought
by respondent by his taking leave of absence and securing
annuity for disability. His application in February 1951
to reactivate the relationship was correctly declined because
he was still disabled, as the jury found. If Moore had re-
ported to the chief surgeon after receiving Sheffield’s letter
of May 29, 1952, or after receiving Short’s letter, it is at least
possible that the doctor would have found him qualified
and he would have been allowed to resume service. There
was a period of more than fifteen months between Dr. Sub-
lett’s examination of Moore when he sought to return to
service and Sheffield’s letter. This was just slightly less than
the period between Moore’s laying off and applying for
his pension and his application to resume service, eighteen
months. Moore claimed he recovered in the eighteen months,
but the doctor and the jury disagreed with him. Possibly
26
the doctor would have agreed with him at the date of
Sheffield’s letter. In any event, respondent did not sustain
the burden of proof which he had of showing the con-
trary.
The trial court in giving his charge to the jury did not
consicer the requirement of a physical examination of Moore
as unreasonable or as constituting a discharge. Respondent
had claimed that petitioner’s superintendent had discharged
respondent by requiring him to submit to the examination.
This contention was not submitted to the jury.
Therefore it seems to us that, until the time for entry of
judgment the holding was that the requirement of a physi-
cal examination of a person theretofore disabled was reason-
able and not a discharge, but at and since such time the re-
quirement for examination was a discharge. The court
entered judgment on the basis that respondent was dis-
charged May 29, 1952. Declining his claim for time lost
before that could not have been a discharge since he was
theretofore disabled and there was no valid claim. Stating
that it would be satisfactory for him to resume service
could not be a discharge. Therefore, by elimination, the
court must have held that the condition upon the offer,
the examination, was the discharge. By the court’s own
prior decision and the authorities cited above that require-
ment was reasonable and it should not be allowed as a
ground of recovery.
This court said in Transcontinental & Western Air v.
Koppal, 345 U.S. 653, 661, 73 S. Ct. 906, 910, 97 L. Ed.
1325, that a railroad employee
“may resort to his action at law for alleged wrongful
discharge if the state courts recognize such a claim.”
27
Texas courts do not recognize that there is a discharge, or
a right of action therefor, in the fact situation here pre-
sented and therefore respondent should not have been al-
lowed a recovery.
In Wilbura v. Missouri-Kansas-Texas R. Co. of Texas,
Tex. Civ. App., 268 S.W. 2d 726, an employee sued for
alleged wrongful discharge. Wilburn voluntarily “laid off”
because of illness. Later he applied to resume service and
the company doctor did not pass him. He claimed the
refusal to allow him to work was a discharge. But the court
held that a disqualification because of physical disability is
very different from a discharge, and the employee’s only
remedy under Texas law would be by mandamus to com-
pel a re-examination.
The courts below incorrectly determined that under
Texas law, respondent could sue for wrongful discharge.
B. Since respondent did not attempt to
return to work on or after the date the
jury found he was able to work he should
not recover damages.
1. Respondent did not report
for examination.
Petitioner’s assistant general manager, by the letter of
May 29, 1952 advised Moore that it would be satisfactory
for him to return to service if he would report for and
pass physical examination and pass the safety rules exami-
nation. (Appendix, page 34.) He did not report for
that physical examination. R. 322).
In connection with petitioner’s motion for summary judg-
ment there was submitted a decision by the Board of Ad-
28
justment in the Barnes case. That decision is included in the
Appendix, page 61. The memorandum opinion of No-
vember 19, 1953 cites that decision as holding that where
the evidence showed serious doubt as to a conductor’s ability
to satisfactorily perform his duties the carrier’s request for
physical examination by the chief surgeon of the carrier
was not unreasonable.
But even though petitioner, after verdict, moved for
judgment on this ground, the court entered judgment for
respondent. That was clearly erroneous. Petitioner made an
offer to let Moore resume work if Moore would show him-
self able to work. Moore made no effort to meet that con-
dition and therefore he should have been denied relief.
2. Failure to qualify for work defeats
respondent’s claim for damages.
The Adjustment Board, under the Railway Labor Act,
does not have jurisdiction of a damage claim for wrong-
ful discharge. But the point has been presented in a claim
for time lost while held out of service. The Barnes Claim,
Appendix, page 61, was presented against petitioner by
the Order of Railway Conductors (which had made the
collective bargaining agreement on which respondent based
his claim). Barnes, petitioner’s conductor, was out of serv-
ice, although not retired, because of his health. He applied
to the superintendent to resume service. The superintendent
advised Barnes that it would be necessary for him to report
to Chief Surgeon Sublett for physical examination before
he would be permitted to resume work. Barnes claimed
that a doctor of the employees’ hospital association had
examined and treated him, and had found he could work.
He claimed that it was wrong to require him to submit to
an examination by the railroad doctor. He did not report
29
for the examination. He filed claim for the time he lost
between applying to resume service and his securing a
pension under the Retirement Act.
The decision said:
“Where, as here, there is a perceptible deterioration
in physical condition of degree and significance suffi-
cient to throw serious doubt on conductor’s physical
capacity to satisfactorily perform his duties, a request
that he undergo a physical examination by carrier’s
physician before being permitted to resume service is
not improper.” (Emphasis added)
Thas in an interpretation of the particular agreement
(which is within the exclusive jurisdiction of the Board,
Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239, 70
S. Ct. 577, 94 L. Ed. 795; Transcontinental & Western Air,
Inc. v. Koppal, 345 U.S. 653, 73 S. Ct. 906, 97 L. Ed. 1325)
the Board held that the carrier could require an employee
to submit to examination by its doctor when there was
doubt as to ability to work. There was such a doubt in
this case. Moore had been granted pension because of dis-
ability and the jury found he was disabled when and after
he applied to resume service.
The Barnes case that an employee cannot claim dam-
ages for time lost because he did not report to the doctor
as requested, is on the premise that he was not entitled
to work. Similarly respondent was not entitled to work
because of his refusal to report for examination. He should
not have been granted relief for not being allowed to do
what he was not entitled to do.
To the same effect see the decision of the National Rail-
road Adjustment Board, First Division, as to conductor
30
Bovit, discussed at page 15 hereof and appearing in
the Appendix, page 62.
The court below erred in (1) assuming jurisdiction and
(2) in not following the Board’s interpretation of the
collective bargaining agreement.
3. Respondent did not apply to resume
service on May 29, 1952 and therefore
there could be no refusal then to allow
him to work and no discharge.
Sheffield’s letter of May 29, 195 2 was on an appeal from
the superintendent’s refusal «to allow him to resume service
in February 1951. That letter was in answer to Moore’s
letter to Sheffield of May 1, 1952, which began:
“Herewith, I respectfully present my appeal to your
office for consideration and handling of my claim for
reinstatement with seniority rights unimpaired, and
full compensation for time lost while held out of
service, by the superintendent at Kingsville.” (R. 312
Emphasis added)
Nowhere did that letter (R. 312-317) apply for present
resumption of service—it was solely on the basis he was
able to work and should have been allowed to work when
he applied to the superintendent. But the jury found he
was wrong in this contention.
Prior to trial, petitioner, in answer to respondent’s re-
quest, admitted that superintendent Judd was the proper
official to whom respondent should make request that he
be permitted to resume performance of duty. (R. 193, re-
quest 21 and answer) On May 29, 1952 respondent made
no request of the superintendent to resume service.
31
Since the action complained of was on an appeal and since
the appealed decision was correct, no relief should have
been granted.
We therefore conclude that the District Court and the
Court of Appeals erred in applying the law of Texas to
the question of whether respondent was required to exhaust
his administrative remedies, in holding that the district
courts have jurisdiction, in not holding that this case should
have been dismissed as one that is within the exclusive juris-
diction of the Adjustment Board under the Railway Labor
Act, in not holding that respondent was bound by the
Retirement Board findings of physical disability of respond-
ent, in allowing evidence of, and court finding as to, re-
spondent’s physical condition, in not holding the respond-
ent, by the acceptance of disability annuity from the Re-
tirement Board was precluded from claiming he was not
disabled and from seeking damages from his employer for
not being allowed to work during the time for which he
had accepted annuity for being disabled, and in holding that
respondent was wrongfully discharged.
We further conclude that this is a case in which writ
of certiorari should be granted under Rule 19, Section 1(b)
of this court.
We pray that this application for such writ be granted
and upon hearing the judgments of the court below be re-
versed.
Respectfully submitted,
PaLMER HuTcHEson,
Attorney for Petitioner
Houston, Texas
Lesuie S. LockEettr
Of Counsel
Corpus Christi, Texas
33
APPENDIX
P. O. Box 264 Kingsville, Texas August 8, 1951
Mr. A. R. Wells
Director of Retirement Claims
Railroad Retirement Board
844 Rush Street
Chicago 11, Illinois
Dear Sir:
I am anxious to resume my duties as railroad conductor
and believe that I am physically qualified to do so.
March 2, 1951, Dr. G. M. Sublett, the St. L. B. & M.
Chief Surgeon at Kingsville, Texas, recommended that I
not resume the duties of my occupation. After securing a
copy of Dr. Sublett’s recommendation, I was examined by
doctors in Houston, San Antonio and Kingsville. They did
not find any conditions which indicated I was unable to
perform the duties of my regular job. In fact their exam-
inations showed that I am able to perform the duties of
my job.
In view of the conflicting information, I would like to
request that the Railroad Retirement Board have me ex-
amined to see if I am still entitled to my annuity.
Very truly yours,
GEORGE C. MOORE
United States of America
Railroad Retirement Board
844 Rush Street
Chicago 11, Illinois
Bureau of Retirement Claims
December 26, 1951
34 APPENDIX
Mr. George C. Moore
P. O. Box 264
Kingsville, Texas
In reply refer to R.R.B. No. A-338174
Dear Sir:
At your request we have submitted you to additional
general and specialized examinations. The results of these
examinations, together with the examination conducted on
you on March 2, 1951 by C. M. Sublett, M. D., Chief Sur-
geon. The St. Louis, Brownsville and Mexico Railway, were
given careful consideration. According to our records, you
are still considered permanently disabled for work in your
regular occupation.
We have no jurisdiction over the employment practices
of the railroads and whether or not you are rehired is purely
a matter between you and your former employer.
Very truly yours,
(S.) A. R. WELLS,
(A. R. Wells)
Director of Retirement
Guy A. Thompson, Trustee
Missouri Pacific Lines
Gulf Coast Lines
International-Great Northern
E. C. Sheffield
Assistant General Manager
Palestine, Texas, May 29, 1952
Mr. G. C. Moore, Sr.
P. O. Box 246
Kingsville, Texas
Dear Sir:
Your letter of May 1 appealing for consideration for re-
SMD Aes APE SES LY
APPENDIX 35
instatement with seniority unimpaired and full compensa-
tion for time lost while held out of service by superinten-
dent at Kingsville.
Your claim for time lost while being held out of service
by superintendent at Kingsville is declined as Dr. C. M.
Sublett, our chief surgeon, examined you and disqualified
you for service as conductor and we received notice from
the Railroad Retirement Board under date of December 16,
1949 that you were granted full annuity under section
2(a), sub-section 4(ii). It is my understanding that you
are still receiving annuity from the Railroad Retirement
Board.
If you will again report to chief surgeon Dr. C. M. Sub-
lett at Kingsville, for physical examination and after ex-
amination if Dr. Sublett advises that you are now physically
fit to resume duty as conductor, it will be satisfactory for
you to return to service provided you pass the other re-
quirements with the understanding that you will not be
compensated for time lost while being held out of service
prior to the time examination is approved and you pass the
other requirements.
Yours truiy,
(S.) E. C. SHEFFIELD
cc: Messrs: $§. Hammer
C. M. Sublett
A. F. Judd
C. A. Rockwell
36 APPENDIX
United States of America
Railroad Retirement Board
844 Rush Street
Chicago 11, Illinois
Bureau of Retirement Claims
August 19, 1952
Mr. George C. Moore
Post Office Box 264
Kingsville, Texas
In reply to R. R. B. No. A-338174
Dear Sir:
On July 25, 1952 we replied to your letter of July 12,
1952 in which you inquired why you were being examined
by the Board and you requested to be informed concerning
the findings of the doctors conducting the examination.
Our records show that you were awarded an annuity
principally upon the basis of arthritis and that the annuity
has been continued uninterrupted since the award was ap-
proved in your favor. The report received from the Vet-
erans Administration Hospital which covers a series of
specialized examinations shows substantially the same dis-
ability which was present at the time your claim for a dis-
ability annuity was approved. The x-ray showed a curvature
of the cervical spine, a distinct lipping on the lower cer-
vical vertebrae, a slight lipping on the lower dorsal verte-
brae and calcification in the lower dorsal interspaces. Upon
the basis of these x-ray studies, a diagnosis of arthritis of
the spine was confirmed and continued in effect. Under
this decision no change is indicated in the disability status
of your claim insofar as your right, to receive a disability
annuity is concerned. As previously stated, the Board has
APPENDIX 37
no jurisdiction over the question of whether the employer
returns you to work in your regular occupation.
Very truly yours,
(S.) A. R. WELLS
(A. R. Wells)
Director of Retirement
Claims
MEMORANDUM OPINION.
Filed April 29, 1953.
(Title Omitted)
J. Marvin Ericson, Medical-Professional Bldg., Corpus
Christi, Texas, For Plaintiff.
Kleberg, Mobley, Lockett & Weil, Medical-Professional
Bldg., Corpus Christi, Texas, for Defendant.
Memorandum.
Plaintiff, a resident citizen of Texas, brings this action
against defendant, a resident citizen of Missouri. The com-
plaint is in five counts, which really amount to alternative
pleadings. Plaintiff alleges:
That he was an employee of defendant under a contract
of employment of which the laws of the United States are
part, particularly Title 45, Chapters 8 and 9; that on or
about October 1, 1924, the railroad entered into a contract
with its conductors, represented by the Order of Railway
Conductors of America, governing terms and conditions of
conductors then in service or who might enter defendant’s
service, a copy being attached as Exhibit A; that plaintiff
entered defendant’s employ under such contract about No-
vember 1, 1929.
38 APPENDIX
About August 1949, on the advice of his private physi-
cian, with defendant’s acquiescence, and without resigning
or being discharged, plaintiff laid off to follow a regimen
recommended by his physician; that about February 15,
1951, having recovered and being in good health for a man
of his age, plaintiff presented himself to defendant for re-
sumption of his duties; that defendant, contrary to the
contract, refused and still refuses to permit plaintiff to re-
sume and perform his duties; that defendant wrongfully
demanded that plaintiff submit to a medical examination
by defendant’s physician, which requirement was in viola-
tion of the contract in which it was stipulated that proper
performance of duties would be considered a satisfactory
test of physical ability; that this constituted a wrongful
discharge of plaintiff to his damage;
In the alternative, plaintiff submitted to an examination
by defendant’s chief surgeon about February 20, 1951; that
the chief surgeon made a written report to defendant, dated
March 2, 1951, wrongfully reporting that plaintiff was not
physically capable of performing his work, notwithstand-
ing that plaintiff was in good physical condition and capable
of performing his duties; that defendant, relying solely on
the chief surgeon’s report, refused to permit plaintiff to
resume performance of his duties which also constituted a
wrongful discharge;
Alternatively, after the report of defendant’s surgeon
plaintiff had himself examined by several competent phy-
sicians and surgeons who reported that he was in good phy-
sical condition considering his age; that plaintiff furnished
these reports to the defendant and requested a hearing
which was refused; that this amounted to a wrongful dis-
charge;
APPENDIX 39
Alternatively, about March 6, 1951, when plaintiff re-
ceived a copy of the chief surgeon’s report, he had himself
examined by other doctors, including specialists, and again
requested a hearing; that this request was granted about
May 12, 1951, when plaintiff furnished the reports of his
physicians to the defendant and requested that he be given
an opportunity to demonstrate his ability to perform his
duties; that about August 30, 1951, the defendant refused
such request, which amounted to a wrongful discharge;
Alternatively, that after August 30, 1951, plaintiff had
other medical examinations made; that about May 1, 1952,
he presented all data and information with reference to
such examinations to defendant and requested that he be
permitted to resume performance of his duties; that about
May 29, 1952, defendant attempted to impose conditions
upon plaintiff in violation of the contract, among others,
that plaintiff agree to waive compensation for the time he
had lost by being refused employment theretofore; that
this amounted to wrongful discharge;
That plaintiff's physical condition on February 15, 1951,
when he originally requested re-employment, was substan-
tially the same as on all other subsequent occasions; that at
that time plaintiff had a life expectancy of fourteen (14)
years, at least eight of which he would have continzed in
active duty and the remainder in retirement with benefits;
that he had accumulated 22 years seniority and would have
acquired 8 more, or a total of 30 years; that his average
monthly pay was and would have continued to be $700.00
a month;
Plaintiff sues for $92,600.00 actual damages and $15,000.00
exemplary damages.
40 APPENDIX
Defendant moved for production of documents in con-
nection with plaintiff’s application to the U. S. Railroad
Retirement Board for disability pension or annuity under
the Railroad Retirement Act, setting up that in connection
with such application plaintiff made certain statements and
representations as to his physical condition and bearing on
whether or not plaintiff was defendant’s employee at the
time of his alleged wrongful discharge.
Plaintiff then filed a motion for production of docu-
ments, including various correspondence, allegedly passing
between defendant and the Railroad Retirement Board and
particularly a copy of a report made by defendant’s chief
surgeon to the Railroad Retirement Board. Plaintiff op-
posed defendant’s motion for production of documents un-
less it be conditioned upon defendant’s production of the
documents plaintiff desires, particularly the report of the
chief surgeon to the Board.
Defendant replies that it is willing to produce all of the
documents requested by plaintiff excepting the report by
the chief surgeon which, defendant claims, it does not have
and can not secure; and excepting certain other documents
which it has been unable to find after diligent search; and
also excepting a demand for production of the record of
plaintiff’s work time, as requested in Item 15, (since de-
fendant had furnished plaintiff with a full statement of
wages paid him) ;
In connection with plaintiff's demand for production of
the chief surgeon’s report to the Railroad Retirement Board,
plaintiff has attached copies of various letters passing be-
tween him and such board with reference to his annuity
claim, his request for a copy of the chief surgeon’s report
and his request that he be given physical examinations by
APPENDIX 41
the board which would disclose that he was physically able
to return to his duties. Several of these letters show that
the board refused plaintiff’s request for a copy of the chief
surgeon’s report on the ground that “it is for use exclu-
sively in the administration of the Railroad Retirement
Board.”
Thereafter defendant moved to dismiss because:
Prior to September 29, 194¢, plaintiff applied to the Rail-
road Retirement Board for a disability annuity which was
granted, and plaintiff is still drawing monthly payments
of such annuity; that it has never been set aside and can-
not be collaterally attacked in this action; that plaintiff is
estopped, by continued acceptance of the annuity, to con-
tend that he is not disabled and to ask for damages in his
action.
While defendant’s motion is denominated a motion to
dismiss, it is, in reality, a motion for summary judgment,
based upon exhibits and plaintiff’s deposition.
From the incomplete record before me it appears that:
(1) Prior to May 9, 1947, plaintiff applied to the Rail-
road Retirement Board for a disability annuity which was
denied on or about March 22, 1948, on the ground that
he was less than 60 years of age, had less than 20 years ser-
vice and was not totally and permanently disabled for hire,
and did not qualify “under section 2(a) 5 of the Railroad
Retirement Act of 1937;”
(2) Thereafter plaintiff applied to defendant for rein-
statement and compensation for time lost; his union filed
a grievance complaint which resulted in his reinstatement;
he resumed his services about June 7, 1948, and continued
through August 18, 1949.
42 APPENDIX
(3) Sometime prior to September 29, 1949, plaintiff
again applied for, (or renewed his previous application),
to the Railroad Retirement Board for a disability annuity;
this was granted by the Board on December 16, 1949, (but
effective August 19, 1949); plaintiff is still receiving this
annuity, in monthly payments; it was awarded ““princi-
pally upon the basis of arthritis” and a finding that he was
disabled for work in his employment;
(4) On August 8, 1951, plaintiff wrote the Board that
he was anxious to resume his. duties, and believed he was
physically able to do so; that on March 2, 1951, defend-
ant’s chief surgeon had recommended that plaintiff not
resume his duties; that thereafter he had been examined by
doctors in Houston, San Antonio and Kingsville whose find-
ings differed from the chief surgeon’s; plaintiff, therefore,
requested the Board to have him examined to see if he still
was entitled to receive his annuity.
(5) On December 26, 1951, the Board advised that, after
considering general and specialized examinations, including
the one of March 2, 1951, defendant’s chief surgeon, they
still considered him “permanently disabled for work” in
his regular occupation; that the Board had no jurisdiction
over employment practices of the railroads and the ques-
tion of re-employment was purely a matter between plain-
tiff and his former employer;
(6) Plaintiff wrote Senator Lyndon Johnson who, in
turn, took the matter up with the Board; Senator Johnson
was advised by the Board on July 3, 1952, that their regu-
lations provided that a recipient of disability annuity report
to them if he had recovered; and, that in view of plain-
tiff’s letter to the Senator, the Board was arranging to have
specialized examinations made of him to determine if he
APPENDIX 43
had recovered and was “no longer entitled to the annuity
benefits which he is now receiving;” at the same time the
Board requested plaintiff to report to the Veteran’s Ad-
ministration Regional Office at San Antonio for the exami-
nation;
(7) On July 12, 1951, plaintiff wrote the Board that
apparently the request for re-examination had been made
“by some one other than myself;” that the Board had had
plaintiff examined at iis own request, in October, 195 4,
by Dr. A. C. Jones of Kingsville and had advised that his
standing would remain unchanged; that he did not object
to the examination but would like to know who made the
request and for what purposes;
(8) The examination was made at San Antonio and,
on August 19, 1952, the Board advised plaintiff as follows:
“Our records show that you were awarded an annuity
principally upon the basis of arthritis and that the annuity
has been continued uninterrupted since the award was ap-
proved in your favor. The report received from the Veterans
Administration Hospital which covers a series of specialized
examinations shows substantially the same disability which
was present at the time your claim for a disability annuity
was approved. The x-ray showed a curvature of the cer-
vical spine, a distinct lipping on the lower cervical verte-
brae, a slight lipping on the lower dorsal vertebrae and
calcification in the lower dorsal interspaces. Upon the basis
of these x-ray studies, a diagnosis of arthritis of the spine
was confirmed and continued in effect. Under this decision
no change is indicated in the disability status of your claim
insofar as your right, to receive a disability annuity is con-
cerned. As previously stated, the Board has no jurisdiction
over the question of whether the employer returns you to
work in your regular occupation.”
44 APPENDIX
(9) Plaintiff tried several times to secure a copy of the
report to the Board of defendant’s chief surgeon as to his
findings, but the Board refused to furnish it on the ground
that “any report of physical examination, regardless from
whom it may have been received, is for use exclusively in
the administration of the Railroad Retirement Act.”
Plaintiff was granted his annuity in 1949 under the pro-
visions of 45 U.S.C.A. 228b(a) 4(i), upon a finding that
his permanent physical or mental condition was such as to
be disabling for work in his regular occupation, having
completed 20 years of service, Section (a) 4 further pro-
vides, in part:
“The Board, with the cooperation of employers and em-
ployees shall secure the establishment of standards deter-
mining the physical and mental conditions which perma-
nently disqualified employees for work in the several occu-
pations in the railroad industry, and the Board, employers
and employees shall cooperate in the promotion of the great-
est practicable degree of uniformity in the standards applied
by the several employers. An individual’s condition shall be
deemed to be disabling for work in his regular occupation
if he will have been disqualified by his employer because
of disability for service in his regular occupation in accord-
ance with the applicable standards so established ...” (Em-
phasis supplied).
Section (a) 5, provides in part:
“Such satisfactory proof shall be made from time to time
as prescribed by the Board, of the disability provided for
in paragraph 4 or 5 of this subsection and of the continu-
ance of such disability (according to the standards applied
in the establishment of such disability) until the employee
APPENDIX 45
attains the age of sixty-five. If the individual fails to com-
ply with the requirements prescribed by the Board as’ to
proof of the continuance of the disability until he attains
the age of sixty-five years, his right to an annuity shall,
except for good cause shown to the Board, cease, but with-
out prejudice to his rights to any subsequent annuity to
which he may be entitled. If before attaining the age of
sixty-five an employee in receipt of an annuity under para-
graph 4 or 5 of this subsection is found by the Board to be
no longer disabled as provided in said paragraphs his an-
nuity shall cease upon the last day of the month in which
he ceases to be so disabled. An employee, in receipt of such
annuity, who earns more than $75. in service for hire, or in
self-employment, in each of any six consecutive calendar
months, shall be deemed to cease to be so disabled in the
last of such six months; and such employee shall report to
the Board immediately all such service for hire, or such
self-employment. If after cessation of his disability annuity
the employee will have acquired additional years of ser-
vice, such additional years of service may be credited to
him with the same effect as if no annuity had previously
been awarded to him.” (Emphasis supplied).
It is defendant’s contention that the Board has jurisdic-
tion, not only to determine the existence of a claimed dis-
ability originally, but, once found, whether the disability
continues from time to time if it is called in question; that
the Board’s decisions are not subject to review by other ad-
ministrative agencies or accounting officers, under 45 U. S.
C. A. 228j (b) 1; and can only be reviewed by the Courts,
under 228k of Title 45, by a proceeding brought for that
Purpose, upon a showing that it is clearly and manifestly
wrong. There is not doubt that such is the rule in cases
where the Board denies an application for an annuity; che
46 APPENDIX
order will stand if supported by substantial evidence and
not in violation of law. Gardner v. Railroad Retirement
Board, Sth Cir., 148 F. (2d) 935. Watts v. Railroad Re-
tirement Board, Sth Cir., 150 F. (2d) 113; Welborn v.
Board, Sth Cir., 151 F. (2d) 448; Squires v. Board, Sth
Cir., 151 F. (2d) 182; Wheeler v. Board, 8th Cir., 184 F.
(2d) 173; Robinson v. Board, 8th Cir., 184 F. (2d) 703.
Unquestionably, the same rule would apply in an action
by an employee where the Board discontinued an annuity
upon a finding that the disability no longer existed. But
does the statute require such a direct proceeding for judi-
cial review where the Board has found that the disability
still exists? As shown by the emphasized portions of the
statute quoted above, the Board has power to require satis-
factory proof from time to time of the continuance of the
disability; and, if the beneficiary fails to comply with such
requirement, or if the Board finds that he is no longer dis-
abled, his annuity ceases. Subsection 228i authorizes recov-
ery and adjustments of annuities erroneously paid; and pro-
tects from liability certifying or disbursing officers acting
in good faith.
This is an anomalous, indeed a peculiar case. It would
be supposed that ordinarily the Board would accept an an-|
nuity recipient’s claim that he had recovered and stop pay-
ing him an award he says he does not want. All the reported
cases are complaints that the Board has wrongfully denied
an annuity to a claimant, not that it had continued one he
no longer is entitled to.” An additional oddity is the fact
1 Utah Copper Co. v. Railroad Retirement Board (D.C.) 41 Fed.
Supp. 763, aff. 10th Cir., 113 F. (2d) 358; Railroad Board v. Dai-
quesne Co., 326 U.S. 446, and Dispatch Shops v. Railroad Retire-
ment Board, 2nd Cir., 154 F. (2d) 417, were actions by employers
to set aside Board holdings that they were employers under the
act.
APPENDIX 47
that here the employee continues to accept his annuity al-
though he says he is not entitled to, and does not want, it.
As pointed out, the statute grants to the Board jurisdic-
tion and broad power to determine disability originally and,
from time to time, whether it still exists. 45 U. S. C. A.
288}, (b) 1 provides that the Board “shall have and exer-
cise all the duties and powers necessary to administer sec-
tions 228a-228r.” Subsection 228k provides that decisions
of the Board determining the rights and liabilities of any
person ” under sections 228a to 228c-1 “shall be subject to
judicial review in the same manner,” etc., as under chapter
11 (of the Railroad Retirement Act, 45 U.S. C. A. 355 f)
by filing a petition for review against the Board, in the dis-
trict Court where the claimant resides, within one year.
And, as held in the cases, the Board’s decision can only be
set aside where not supported by substantial evidence and
in violation of law.
Notwithstanding the broad language of the statute, I
doubt that Congress contemplated that there ever would
be an appeal by an annuity beneficiary for judicial review
of an order awarding him a continuance of his annuity on
the ground that his disability had ceased. Among other
reasons for this view, in addition to the anomaly of the
situation itself, are the following: (1) the provisions for
recovery or adjustment of annuities erroneously paid; (2)
the fact that subsection 228k provides that proceedings for
review of a decision with respect to an annuity must be
? Under this, I suppose, defendant could have petitioned for a
judicial review of the continuance of this annuity, since “person”
is defined in subsection 228n to include a corporation; and in old
subsection 228k, a part of the Act of 1937, the right to Court relief
was accorded to “any employee or other person aggrieved.”
48 APPENDIX
commenced within one year after the decision is entered
upon the Board’s records and communicated to the claim-
ant; and (3) the provisions of subsection 228b(b), reading
as follows:
“(b) An annuity shall be paid only if the applicant shall
have relinquished such rights as he may have to return to
the service of an employer and of the person by whom he
was last employed; but this requirement shall not apply to
the individual mentioned in subdivision 4 and subdivision 5
of subsection (a) prior to attaining age sixty-five.” (Em-
phasis supplied).
Plaintiff, coming within the foregoi..g emphasized ex-
ception, says that the effect of the Board’s refusal to find
that he has recovered and to discontinue his annuity is to
compel him to relinquish his right to return to his employ-
ment. The Board disclaims jurisdiction of the question of
re-employment saying in its letters, that this is a matter
between plaintiff and defendant. Nevertheless, the fact re-
mains that plaintiff invoked the Board’s jurisdiction orig-
inally, reinvoked it on the question of his recovery and con-
tinues to accept the benefits of an award, based upon a
finding that he is, and has been since 1946, disabled for
work in the very employment he says he is now able to re-
sume. The Board made its findings over plaintiff’s protests,
just as it made findings that certain companies were em-
ployers in the cases cited in footnote 1, supra. Plaintiff's
whole argument here that the Board acted arbitrarily and
in violation of law; that its decision was the result of col-
lusion with, or procurement of, defendant.
Plaintiff had the right to make those contentions and
have them decided in a direct proceeding for review brought
under subsection 355f. But the finding, upon which the
NOR Re eae
APPENDIX 49
annuity is based, is not res judicata which does not apply
to administrative decisions. 50 C. J. 3. 29, sec. 606. So the
situation is not unlike one where a claim for total per-
manent incapacity is made under the Workmen’s Compen-
sation laws and it is shown that the claimant had been found
to be so incapaciraced in a previous action. It is a question
of fact whether he had recovered from the previous condition.
Defendant's plea of estoppel is based upon the foregoing
and the fact that plaintiff has continued to collect his an-
nuities. Ordinarily, of course, in order to create an estoppel,
the party invoking the doctrine must have acted or been
misled to his prejudice; but estoppel frequently is based
upon acceptance or retention of benefits, a branch of the
rule against inconsistent positions, referable to the principle
of election rather than to that of equitable estoppel. 19
Am. Jr. 682. At this time the record is not sufficiently de-
veloped for me to say that plaintiff is so estopped.
The appellate Courts repeatedly have cautioned trial
Court: to carry motions for summary judgment along with
the case until all the evidence is in, especial! y in close cases,
such as this one. I shall do that here.
Defendant’s motion for summary judgment, therefore,
is overruled and will be carried along with the case.
As indicated upon pre-trial, both motions for production
of documents are granted as to all documents the parties
are able to secure; excepting that defendant will not be re-
quired to produce the record of plaintiff’s work time, as
requested in item 15.
The Clerk will notify counsel.
JAMES V. ALLRED,
Judge.
Corpus Christi, Texas.
April 29, 1953.
50 APPENDIX
MEMORANDUM OPINION
Filed November 19, 1953.
(Title Omitted)
J. Marvin Ericson, Medical-Professional Bldg., Corpus
Christi, Texas, For Plaintiff.
Kleberg, Mobley, Lockett & Weil, Jones Bldg., Corpus
Christi, Texas, For Defendant.
Memorandum.
Action by plaintiff for wrongful discharge. Reference
is here made to a memorandum dated April 29, 1953, over-
uling defendant’s motion for summary judgment based
upon plaintiff’s failure to file a direct proceeding for a
judicial review of a decision of the United States Railroad
Retirement Board.
Defendant has filed a second motion to dismiss based
upon plaintiff’s failure to allege exhaustion of his remedies
under the employment contract between the railroad and
plaintiff’s union. Article 21 of such contract provides that
conductors shall not be unjustly discharged or disciplined;
that in case a conductor believes he has been unjustly dis-
charged or disciplined, he shall have the right within ten
days to make complaint in writing, and, upon request, be
granted a hearing within ten days; that if dissatisfied with
the decision he may appeal to “higher authority.”
Defendant bases his motion upon a recent decision of
the U. S. Supreme Court in Transcontinental & Western
Air, Inc. v. Koppal, 346 U.S. 653, 73 S. Ct. 907, 97 L. Ed.
863, in which the Court amplifies Moore v. Illinois Cen-
APPENDIX si
tral R. Co., 312 U.S. 630, 61 S. Ct. 754, 85 L. Ed. 1089;
and holding that, if the applicable State law requires an
employee to exhaust his administrative remedies under his
employment contract before instituting Court action, he
must show that he has done so Defendenat points to the
Texas rule announced in the cases’ requiring a discharged
or dissatisfied employee to exhaust his remedies, if required
by the contract, before resorting to the Courts.
Defendant frankly concedes that a later decision by the
Texas Supreme Court, Texas & New Orleans R. Co. v.
McCombs, 143 Tex. 257, 183 S.W. (2d) 716, seemingly
changes the Texas rule in railway employee, cases; but
pointing to the fact that the McCombs decision was prior
to the Supreme Court decision in the Koppal case, and that
the Texas Supreme Court did not discuss the general rule
in Texas, defendant insists that the Texas Supreme Court
apparently decided McCombs on the theory that Moore v.
Illinois Central announced the law to be applied to rail-
road employment cases regardless of the local law.
It is true that the Texas Supreme Court decided the
McCombs case in the light of the Moore case and “for the
sake of uniformity of decision;” ard stated that it “should
follow the Moore case rather than the decisions of the
Courts of Civil Appeals.” The Texas Supreme Court ex-
pressly refers to Wyatt v. Kansas City So. Ry. Co., supra
and “similar decisions.”
1 Among others, Wyatt v. Kansas City Southern R. Co. (Tex.
Civ. App.) 101 S.W. (2d) 1082; Swilley v. Galveston, H. & S. A. R.
Co. (Tex. Civ. App.), 96 S.W. (2d) 105; Cousins v. Pullman Co.,
72 S.W. (2d) 356; Matlock v. Gulf C. & S. F. Ry. Co. (Tex. Civ.
App.) 99 S.W. (2d) 1056; St. Louis, B. & M. Ry. Co. v. Booker
(Tex. Civ. App.), 5 S.W. (2d) 856. See also 7 Tex. Jur., Ten Year
Supp. 195, sec. 114a.
$2 APPENDIX
Regardless of the basis of the McCombs decision, it re-
mains the local law, announced by the highest Court in
this State in railroad employee cases. The employment
agreement in the McCombs case contained stronger lan-
guage and more specific details as to procedure for seeking
relief than the one here involved. The Texas Supreme Court
held that while the McCombs agreement gave him the right
to appeal to the highest company offials, it did not require
him to do so; and that there was nothing in that agreement
that required the employee to seek administrative relief as
a condition precedent to Court action. While that case dealt
with a claim for overtime, there is no distinction in prin-
ciple from a like provision dealing with unlawful dis-
charge.
After the filing of briefs on the second motion to dis-
miss, defendant’s counsel concedes by letter that the con-
tract here involved does not set up the administrative pro-
cedure for appeals but contends that it has been built up
by custom. In support of this contention counsel has fur-
nished the Court with a copy of an award and opinion by
“Special Board of Adjustment No. 24, Missouri Pacific
Lines in Texas and La., vs. BLF & E, ORC and BRT, Docket
No. 101, Case No. 116, 915-5,” involving a claim by the
estate of Conductor M. C. Barnes, an employee of defend-
ant, for time lost after he had reported back for duty and
before his application for annuity retirement had been
granted by the Railroad Retirement Board. The Special
Board of Adjustment was composed of a chairman, a repre-
sentative of the employee and a representative of the em-
ployer. This falls far short, however, of establishing an
agreement generally as to compulsory submission of such
claims to a Board of Adjustment. At most, it merely shows
APPENDIX 53
‘a voluntary submission of the Barnes claim by the parties
in the nature of arbitration.”
Defendant’s second motion to dismiss, therefore, is over-
ruled. The Clerk will notify counsel.
The action will stand for trial on the following issues:
(1) was plaintiff physically able to perform his duties at
the time he sought to return; (2) Did defendant arbitrarily
refuse to permit him to return to work; and (3) If so, the
amount of damages. Defendant’s first motion to dismiss
will be carried along with the case.
JAMES V. ALLRED,
Judge.
Corpus Christi, Texas,
November 19, 1953.
2The decision, however, is interesting and probably decisive
here of one disputed question raised by plaintiff's pleading, quoted
in the original memorandum, this “proper performance of duty
would be considered a satisfactory test of physical ability” to do
so. Barnes had applied for and was granted a leave of absence
because of his health. Thereafter, and before expiration of his
leave, Barnes reported back for duty. Defendant’s superintendent
referred him to the Chief Surgeon for physical examination. He
was examined by a physician at the request of the Chief Surgeon,
who found that, unless Barnes improved considerably in the future,
he should not be put back to work. Defendant’s superintendent
refused to permit Barnes tr “eturn to work until he reported to
the Chief Surgeon for physical examination and received his okay.
Barnes failed to do this.
Later he made application to the Railroad Retirement Board
for retirement. This was granted. Meantime, however, he had filed
claim for time lost between the date he reported back for service
and the effective date of his retirement annuity. The Special Board,
after reviewing all the facts, denied the claim, holding that where
the evidence showed serious doubt as to a conductor’s physical
capacity to satisfactorily perform his duties, the carrier’s request
for physical examination by the Chief Surgeon was not unreason-
able.
That decision also disposes of the contention pleaded and vigor-
ously asserted by plaintiff in his original brief, ie, that a pro-
54 APPENDIX
MEMORANDUM OPINION.
Filed April 6, 1954.
(Title Omitted)
J. Marvin Ericson, Medical-Professional Bldg., Corpus
Christi, Texas, For Plaintiff.
Kleberg, Mobley, Lockett & Weil, Jones Bldg., Corpus
Christi, Texas, For Defendant.
Memorandum.
Action by plaintiff for damages for discharge from em-
ployment. Reference is here made to a memorandum dated
April 29, 1953, overruling defendant’s motion for summary
judgment because plaintff did not file a direct proceeding
for judicial review of the decision of United States Rail
Retirement Board finding that he was still unable to work;
and to a memorandum of November 19, 1953, overruling
a second motion to dismiss because of plaintiff’s failure to
vision appearing in an agreement between the I. & G. N. Railroad
Co. and its employees has become a part of the agreement with
St. L. & B. & M. employees. The provision was: “The proper per-
formance of their duties will be considered satisfactorily test of
physical ability of all employees now in service.” The decision of
the Special Board of Adjustment expressly find that this provision
does not apply to defendant’s employees; that: “That rule is not
contained in the agreement covering working conditions of con-
ductors on the St. Louis, Brownsville and Mexico, the railroad
here involved. A review of St. L. B. & M. agreement will confirm
this fact. The I. G. N. and the St. L. B. & M. agreements are two
separate and distinct agreements, covering two separate properties
insofar as rules governing the working conditions of employees in
train and engine service is concerned.”
On brief and upon pre-trial plaintiff’s counsel condeded that the
written agreement, attached to his complaint, did not contain the
quoted provision; but, insisted, as did Barnes’ estate before the
Special Board, that it had been incorporated in a 1947 conference
in Houston, “with an understanding in regard to servicemen re-
turning from the government service.” In any event, plaintiff does
not claim to be a returning serviceman.
APPENDIX 55
allege that he had exhausted his remedies under an em-
ployment contract between the railroad and plaintiff's
union,
Plaintiff had alleged, by alternative counts, that he was
physically able to perform his duties as a conductor on or
about (a) February 20, 1954; (b) March 6, 1951; (c) July
30, 1951; (d) May 29, 1952; but that defendant arbitrary
refused to permit him to resume his duties upon each and
all of such dates. A jury found that plaintiff was able to
perform his duties on or about May 29, 1952, and that
defendant arbitrarily refused to permit him to resume his
duties at that time. The jury awarded plaintiff $6,960 for
his damages, measured by his probable earnings between
May 29, 1952 and the date of trial. The recovery was limited
to his probable earnings to the time of trial, under Eubanks
v. Galveston, H. & S. A. Ry. Co. (Tex. Comm. App.) 59
S.W. (2d) 825
Plaintiff moves for judgment in excess of the amount
awarded by the jury, and, alternatively, for judgment on
the verdict Defendant moves for judgment non obstante
veredicto based upon (a) the motions to dismiss hereto-
fore urged, overruled and carried along with the case; (b)
the fact that, notwithstanding plaintiff’s alternative allega-
tions as to his physical ability on the various dates, he had
actually applied for re-instatement in February 1951 and
had been rejected then; that the subsequent dates were in
actually appeals to a higher authority, not new applications.
to return to work; that there was, in reality, only one appli-
cation to return to work (that of February 1951) and,
since the jury found that plaintiff was not physically able
to perform his duties in February 1951, he is not entitled to
recover upon a finding that he was able to perform his
duties May 29, 1952.
56 APPENDIX
Article 21 of the employment contract provided that
cond»ctors should not be unjustly discharged or disciplined;
that a conductor who believed that he had been unjustly
discharged or disciplined should have the right, within ten
days, to make complaint in writing to the railroad and be
granted a hearing within another ten days; that, if dis-
satisfied with the decision, he could appeal to higher au-
thority.
As pointed out in the memorandum of November 19,
1953, this provision for application, appeal, etc. did not set
up administrative procedure for appeals. It was silent as
to what official of the railroad an application to resume em-
ployment should be made, or an appeal taken. The facts here
show that neither party concerned themselves with tech-
nical details as to procedure; and, while plaintiff in his let-
ter to Sheffield, dated May 1, 1952, referred to his application
as an “appeal for reconsideration,” yet, after the initial re-
fusal by defendant’s chief surgeon Sublett, plaintiff con-
tinued to submit to additional medical examinations and
furnished additional evidence as to his physical condition
to defendant in support of each effort he made to return
to work.
Defendant’s motions will be overruled and _ plaintiff’s
alternative motion for judgment on the verdict is granted.
A judgment is being entered in accordance with the ver-
dict. The Clerk will notify counsel.
JAMES V. ALLRED,
Judge.
Corpus Christi, Texas,
April 6, 1954.
APPENDIX 57
OPINION OF THE UNITED STATES
COURT OF APPEALS, FIFTH CIRCUIT.
April 22, 1955
Before HOLMES and RIVES, Circuit Judges, and
THOMAS, District Judge.
HOLMES, Circuit Judge: On November 1, 1929, George
C. Moore, Sr., appellee, entered the employment of the St.
Louis, Brownsville & Mexico Railway Company, of which
Guy A. Thompson is Trustee. At the time of his entering
such employment, there existed a collective bargaining
agreement between said railroad and the Order of Railway
Conductors of America, which became part of Moore’s
contract of employment. Said collective bargaining agree-
ment was a continuing contract for one year after its ef-
fective date, and thereafter until 30 days’ notice in writing
had been given by either party to the other; and said agree-
ment was still in force at the time of the trial of this case.’
The contract between Moore and the said railway company
was made in Texas, was intended to be performed in Texas,
and is alleged to have been breached in Texas. No federal
question is involved in this controversy as an integral part
of the plaintiff’s case, though many federal questions are
raised in defense thereof. Federal jurisdiction depends solely
upon diversity of citizenship between the parties, and the
requisite jurisdictional amount.
In January, 1946, appellee was injured on the job, sued
appellant, and recovered a judgment against him for dam-
1“The Company will furnish a copy of agreement to all Con-
ductors in service. Same is effective October Ist, 1924, and is effec-
tive for a period of one (1) year, and thereafter until 30 days’
notice in writing has been given by either party to the other,
listing changes desired, conferences shall be held immediately upon
the expiration of 30 days’ notice, unless another date is mutually
agreed upon.”
58 APPENDIX
ages under the Federal Employers Liability Act. Thereafter,
he applied for and was awarded disability payments by the
Railroad Retirement Board, and received such payments up
to the date of the trial of this case. On February 15, 1951,
and at other times, having allegedly recovered from his dis-
ability, appellee requested that appellant restore him to ac-
tive service, which requests, he claimed, were arbitrarily
denied; and he brought this suit for damages tor his wrong-
ful discharge, which he alleged was accomplished by the
railroad’s refusal to reinstate him. The plaintiff’s cause of
action arose under the common law of Texas, and is gov-
erned by the law of that state, except to the extent that
it may be barred or otherwise affected by federal law.
In Texas & New Orleans R. Co. v. McCombs, 143 Tex.
257, 183 S.W. (2) 716, apparently changing the Texas rule
in railway employee cases, the Supreme Court of Texas
decided that Moore v. Illinois Central R. Co., 312 U.S. 630,
announced the local law to be applied in similar cases. The
McCombs decision was prior to T. & W. Air, Inc. v. Koppal,
345 U.S. 653, 73 S. Ct. 504, 97 L. Ed. 718, in which the
court held that, if the applicable state law requires an em-
ployee to exhaust his administrative remedies under his
employment contract before filing suit, he must show that
he has done so. Nevertheless, regardless of the reason for
the McCombs decision, it remains the local law, announced
by the highest court in the state. On the authority of this
decision, the court below overruled the defendant's second
motion to dismiss the complaint, and let the action stand
for trial on the following issues:
(1) Was the plaintiff physically able to perform his du-
ties at the time he sought to return to work? (2) did the
defendant arbitrarily refuse to permit him to return to
| ae
APPENDIX 59
work? and (3) the amount of damages that he was entitled
to recover.
It is stated in Judge Allred’s opinion that, after the filing
of briefs on the second motion to dismiss, defendant’s coun-
sel conceded that the contract here does not set up the
administrative procedure for appeals, but contends that it
has been built up by custom. The custom relied on was
held by the court below to fall far short of establishing an
agreement generally to compulsory submission of such
claims to a Board of Adjustment. At most, the court held
it merely showed a voluntary submission by the parties of
a particular claim.
The court below submitted the case to the jury upon the
issues above stated. The verdict rendered in its pertinent
Part was that the appellee was Physically able to perform
his duties as conductor on May 29, 1952, and that the ap-
pellant’s refusal to permit him to resume his duties on or
about said date was arbitrary. The jury further found that
$6,960 was the amount which would reasonably compen-
sate the plaintiff for loss of employment from May 29, 1952,
to the date of the trial, the court having so limited the
plaintiff’s right to recover future damages in reliance upon
Eubanks v. Galveston, H. S. A. Ry. Co., 59 S.W. (2)
825. The court below awarded judgment for the plaintiff
against the defendant for said amount, and both sides ap-
pealed to this court from said judgment. The appeal of the
plaintiff, George C. Moore, Sr., was from that part of the
judgment which denied him recovery of damages, to ac-
crue after the date of the trial, for defendant’s breach of
contract,
We agree with the court below, and with the contentions
of appellee, that the remedial provisions of the Railway
60 APPENDIX
Labor Act did not require appellee to exhaust his adminis-
trative remedy before filing an independent suit for his
wrongful discharge; that the findings of the Retirement
Board were not conclusive where, as here, the claimant
exercised his option to pursue his judicial remedy without
first exhausting his administrative remedy; and that ap-
pellee was not estopped by having received annuity pay-
ments from the Board under the facts and circumstances
in this case. The jury, by its verdict, having found that
appellee was physically able to perform the duties of his
employment as conductor for the defendant on May 29,
1952, and that appellant arbitrarily refused to return him
to work on said date, and such verdict being supported by
substantial evidence, the court correctly rendered judg-
ment upon such verdict, awarding plaintiff damages for
wrongful discharge. The trial court also correctly overruled
defendant’s motion for an instructed verdict.
We find no reversible error in the record, and think that
the judgment appealed from should be affirmed on both
appeals. It is so ordered. Moore v. Illinois Central R. Co.,
312 U.S. 630; T. & W. Air, Inc. v. Koppal, 345 U.S. 653;
Tex. & N. O. R. Co. v. McCombs, 143 Tex. 257, 183 S.W.
(2) 716. The two memorandums of Judge Allred in this
case have not been published, but they are in the record
and will be added in an appendix to this opinion.
AFFIRMED.
(Judge Allred’s opinions of April 29, 1953, and of No-
vember 19, 1953,—without footnotes, however,—appear
here. Since they are reproduced in this appendix with their
footnotes, they are omitted at this point.)
APPENDIX 61
AWARD IN CASE OF M. C. BARNES
AWARD NO. 182
DOCKET NO. 101
CASE NO. 951-5
SPECIAL BOARD OF ADJUSTMENT NO. 24
ORDER OF RAILWAY CONDUCTORS
7s.
MISSOURI PACIFIC LINES IN TEXAS AND
LOUISIANA
Request that the estate of Conductor M. C. Barnes be
allowed pay for all time lost from his run September 17,
1951, to the date of severing his connection with the car-
rier for the purpose of obtaining his railroad pension.
FINDINGS: The Board, upon the whole record and all
the evidence, finds that:
The carrier or carriers and the employe or employes in-
volved in this dispute are respectively carrier and employe
within the meaning of the Railway Labor Act, as approved
June 21, 1934.
The Board has jurisdiction over the dispute involved
herein.
The parties to said dispute were given due notice of hear-
ing thereon.
Where, as here, there is a perceptible deterioration in
physical condition of degree and significance sufficient to
throw serious doubt on conductor’s physical capacity to
satisfactorily perform his duties, a request that he undergo
a physical examination by carrier’s Physician before being
62 APPENDIX
permitted to resume service is not improper.
AWARD
Claim denied.
SPECIAL BOARD OF ADJUSTMENT NO. 24
(S) HAROLD M. GILDEN
Harold M. Gilden, Chairman
(S) T. SHORT
T. Short, Carrier Representative
(S) C. H. BINGHAM
C. H. Bingham, Employe
Representative
Houston, Texas
October 16, 1953
AWARD IN CASE OF A. P. BOVIT
FIRST DIVISION, NATIONAL RAILROAD ADJUST-
MENT BOARD
ORDER OF RAILWAY CONDUCTORS
S.
THE DELAWARE AND HUDSON RAILROAD
CORPORATION
J. Glenn Donaldson, Referee.
FINDINGS: The First Division of the Adjustment Board,
upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes in-
volved in this dispute are respectively carrier and employe
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.
ASE RRP, NEUE TS
APPENDIX 63
The parties to said dispute were given due notice of hear-
ing thereon.
Article 6, relied on by claimant, applies to work assign-
ments made by carrier. This Division has previously ruled
that physical examinations are not “work assigned” within
the contemplation of such a rule, hence Article 6 does not
support the claim.
The parties have heretofore negotiated a rule concerning
color perception, acuteness of vision or hearing (Article
8). The employes protested the unilateral institution of an
additional regular, periodic, physical examination, contend-
ing that it was a change in working conditions requiring
negotiations apparently because it went beyond the nego-
tiated Article 8 which, as we have pointed out, dealt only
with certain physical conditions. In effect, the employes
contend, that unless provision is made in the rules for phy-
sical examinations there is no compulsion upon the em-
ployes to submit to them, at least unless they be compen-
sated for time lost in doing so, upon the basis that it con-
stitutes assigned work. The claim raises the broad question
of whether or not the institution of such a program is
properly within the scope of managerial rights.
Our attention has not been called, nor does our examina-
tion of the current rules reveal, any negotiated rule dealing
with physical examinations either upon entry into service
or upon return from sick or disability leave. Does it follow
that the carrier is without right in requiring the same be-
Cause not negotiated? We think not. We must bear in mind
the nature of the services rendered; the general practice
prevailing in industry and in particular the transportation
industry, and the carrier’s strict legal liability to the public
for the safe passage of its trains. Continued good sight and
64 APPENDIX
hearing are only a part of the physical attributes which
must continuously attach as a condition of employment
to those entrusted with the lives and property of the pa-
trons and employer. We find that the institution of a regu-
lar, periodic, physical examination program to assure the
continued good health of its employes in the interests of
the protection of the public and the equipment handled is
a managerial function and that the same may be unilaterally
imposed. (Awards 7663, 8605). As in the case of all man-
agerial prerogatives however, exercise of the right must be
reasonable. Under the circumstances here present, we can-
not say the carrier acted unreasonably.
It may be argued that this ruling is in conflict with this
Division’s ruling in Award No. 8131; however, it should be
obvious from a reading of that docket, that the carrier
there saw fit to relinquish its authority, in part, and the
Division merely construed the agreement as written.
AWARD
Claim denied.
AWARD IN CASE OF W. L. NEDNEIN
THIRD DIVISION, NATIONAL RAILROAD ADJUST-
MENT BOARD,
AWARD 2210
ORDER OF RAILWAY TELEGRAPHERS
vs.
PENNSYLVANIA RAILROAD
H. Nathan Swain, Referee.
“OPINION OF BOARD: The facts are undisputed. W. L.
Nednein, as senior unassigned extra operator, was assigned
APPENDIX 65
to fill a temporary vacancy at “RJ” because of the absence
of the regularly assigned operator from July 19 to July 28,
1941. Wednesday, July 23, was the regular relief day as-
signed to this position pursuant to Rule 4-B-4 of the
Agreement. On that day the regular relief operator filled
the position and Nednein for that day was assigned to fill
a temporary vacancy at office “AD.”
“Nednein now claims pay for the day at the rate of time
and one-half on the theory that he was required to work on
the ‘relief day assigned to his position.’
“Nednein, under the same Agreement, presented a claim
through the Local Chairman against the same Carrier for
pay at the regular rate for certain days lost in the month
of September, 1941, because of the failure of the Carrier to
assign him, as the senior available extra operator, to tempo-
rary vacancies on relief days of the position to which he
was then temporarily assigned. The Carrier agreed to the
claim and paid him for such relief days.
“That claim on which Nednein was paid was entirely in-
consistent with his present claim. If while on a temporary
assignment to one position, he was, on the relief days of
that position, entitled, as the senior available extra operator,
to assignment to other temporary vacancies he could not
claim time and one-half for working ‘on the relief day as-
signed to his position.’ If on such a temporary assignment
the position was his position on the relief day, then on that
day he could not be the senior unassigned extra operator.
“Without deciding whether the contention of the peti-
tioner in the other claim was sound or whether the conten-
tion he is making in this claim is sound, we must hold that
66 APPENDIX
having received the payment demanded on his first claim
he is now estopped to present this claim on a theory directly
opposed to the theory on which the first claim was predi-
cated, and on which he received money. He cannot be per-
mitted to take the money from the Carrier on the theory
that one interpretation of the Agreement is correct and
then be sustained on another claim predicated on the op-
posite interpretation.
“FINDINGS: The Third Division of the Adjustment Board,
after giving the parties to this dispute due notice of hear-
ing thereon, and upon the whole record and all the evidence,
finds and holds:
“That the carrier and the employe involved in this dis-
pute are respectively carrier and employe within the mean-
ing of the Railway Labor Act, as approved June 21, 1934;
“That this Division of the Adjustment Board has juris-
diction over the dispute involved herein; and
“That the petitioner having demanded and accepted pay-
ment on a prior claim for relief days on which he did not
work, on the theory that he was an extra operator available
for assignment on those days, is now estopped from claim-
ing payment at the rate of time and one-half for work on
an assignment on a relief day.
“AWARD
“The Claim is denied.”
APPENDIX 67
INTERPRETATION OF AWARD 14987.
DOCKET 27667
NATIONAL RAILROAD ADJUSTMENT BOARD
FIRST DIVISION
39 South LaSalle Street, Chicago 3, Illinois
With Referee Thomas J. Mabry
PARTIES TO DISPUTE:
ORDER OF RAILWAY CONDUCTORS
UNION PACIFIC RAILROAD COMPANY
The award of which an interpretation is requested reads:
“Claim sustained for full restoration of seniority
and vacation rights and pay for all time lost. Such
-pay for lost time shall be calculated in keeping with
Past practices in making such calculations on this
property.”
It was the purpose of the award here in question and
the intention of the Board by affording full restoration of
seniority and vacation rights and pay for all time lost, to
restore his status as an employe and place claimant Kibler
in a position to receive all benefits of employment for the
period of time he was wrongfully held out of service and
until he would be automatically retired by virtue of age.
We were, at the time of the rendition of the award, aware
of the fact that claimant had made claim for, and was pos-
sibly then receiving, retirement benefits from the Railroad
68 APPENDIX
Retirement Board; and, likewise, that he was then at, or
fast approaching, the age where retirement from the service
of the carrier was compulsory. We were under no miscon-
ception as to any of the facts disclosed by the docket then
before us or of ariy facts later discussed by this request for
interpretation.
In discussing what would result if an affirmative award
were granted and claimant had received prior to such time
annuities from the retirement board, it was agreed that he
could not be paid from the two sources for the same period,
and that he would, in event his claim should be allowed,
be required to return to the retirement board any amounts
so received during the period not in the service of the car-
rier and when not paid by the carrier. The award assumed
there would be an adjustment of this matter so that claimant
would not have the benefit of both sources of payment.
We do not accept the argument of carrier that this Board
cannot order restored to service an employe who, after
wrongful discharge and in order to protect himself as to
his annuity rights at the earliest possible time, has re-
linquished all rights of seniority with the carrier and thus
disengaged himself from the service. We view such re-
linquishment of rights of an employe as “voluntary” only
in that he acted under no compulsion from the carrier, his
former employer. But, claimant must have been under
another compulsion, that of a clear duty to protect him-
self under the retirement act until such a time as he might
have been restored to his original status and paid for lost
time. It was not the purpose of this Division under this
award to have required claimant to gamble on the out-
come of his claim before us, or on the time that might be
required to decide it, and to stand by without any effort
APPENDIX 69
to secure the benefits of retirement which, under the rules,
he would be entitled to receive.
A letter in evidence upon this hearing for interpretation,
from the Railroad Retirement Board, recognizes that there
may be, as there have been, reinstatement of employes who
have been drawing such retirement pay and that “in ac-
cordance with precedent established in like cases” such
situations are met by requiring a refund of the annuities so
paid for the time in question. This letter is persuasive of the
practice in that respect.
The carrier refers to, and relies upon, Award 11888 and
interpretation thereof, with Referee Thaxter sitting with
the Board. Without undertaking to set out in citation and
reasoning our disagreement with carrier, we say that docket
presented a different set of circumstances; and, moreover, it
might be said that some parts of the interpretation of that
award would rather lend, than withhold, support for our
position here.
But, be that as it may, we say that Award 11888, so
heavily relied upon by carrier, is wholly unsound if it bears
the interpretation so contended for, to the effect that a
discharged employe may not, while awaiting a decision of
this Division for restoration of rights and for pay, accept
benefits from the Railroad Retirement Board except under
penalty of forfeiting all rights thereafter to be awarded by
this Board. We are not, however, in agreement that that
award bears such interpretation as it would apply to the
facts in this case.
The award here in question is interpreted to require pay-
ment of all lost time up to the date claimant would be re-
tired because of age limit, viz, June 21, 1951. The parties
APPENDIX
70
hereto are in agreement as to other requirements to be met
under the award and they need not be noticed further.
NATIONAL RAILROAD ADJUSTMENT BOARD
BY ORDER OF FIRST DIVISION
ATTEST: (Signed) J. M. MacLeod
Executive Secretary
Dated at Chicago, Illinois, this 10th day of April, 1952.
EXCERPTS FROM RAILWAY LABOR ACT
45 US.C.A. 151, et seq:
Sec. 152. General duties—Duty of carriers and employees
to settle disputes
+ £¢ + *
Second. All disputes between a carrier or carriers and
its or their employees shall be considered, and, if possible,
decided, with all expedition, in conference between repre-
sentatives designated and authorized so to confer, respec-
tively, by the carrier or carriers and by the employees
thereof interested in the dispute.
+ + + *
Sixth. In case of a dispute between a carrier or carriers
and its or their employees, arising out of grievances or out
of the interpretation or application of agreements concern-
ing rates of pay, rules, or working conditions, it shall be the
duty of the designated representative or representatives
of such carrier or carriers and of such employees, within
ten days after the receipt of notice of a desire on the part of
either party to confer in respect to such dispute, to specify
a time and place at which such conference shall be held:
Provided, (1) That the place so specitied shall be situated
APPENDIX 71
upon the line of the carrier involved or as otherwise mutu-
ally agreed upon; and (2) that the time so specified shall
allow the designated conferees reasonable opportunity to
reach such place of conference, but shall not exceed twenty
days from the receipt of such notice: And provided further,
That nothing in this chapter shall be construed to super-
sede the provisions of any agreement (as to conferences)
then in effect between the parties,
+ + + &
Sec. 153. National Railroad Adjustment Board—Establish-
ment; Composition; powers and duties; divi-
sions; hearings and awards
First. There is established a Board, to be known as the
“National Railroad Adjustment Board”, the members of
which shall be selected within thirty days after June 21,
1934, and it is provided—
+ + © &
(i) The disputes between an employee or group of em-
ployees and a carrier or carriers growing out of grievances
or out of the interpretation or application of agreements
concerning rates of pay, rules, or working conditions, in-
cluding cases pending and unadjusted on June 21, 1934,
shall be handled in the usual manner up to and including
the chief operating officer of the carrier designated to handle
such disputes; but, failing to reach an adjustment in this
manner, the disputes may be referred by petition of the
parties or by either party to the appropriate division of the
Adjustment Board with a full statement of the facts and
all supporting data bearing upon the disputes.
*+ + £ &
72 APPENDIX
EXCERPTS FROM RAILROAD RETIREMENT ACT
45 U.S.C.A. 228b, et seq:
Sec. 228b. Elivibility for annuities; time of accrual; spouse’s
annuity
(a) The following-described individuals, if they shall
have been employees on or after the enactment date, and
shall have completed ten years of service, shall, subject to
the conditions set forth in subsections (b)-(d) of this sec-
tion, be eligible for annuities after they shall have ceased
to render compensated service to any person, whether or
not an employer as defined in section 228a(a) of this title
(but with the right to engage in other employment to the
extent not prohibited by subsection (d) of this section) :
+ ¢+ + &
4. Individuals having a current connection with the rail-
road industry, and whose permanent physical or mental
condition is such as to be disabling for work in their regu-
lar occupation, and who (i) will have completed twenty
years of service or (ii) will have attained the age of sixty.
The Board, with the cooperation of employers and em-
ployees, shall secure the establishment of standards deter-
mining the physical and mental conditions which perma-
nently disqualify employees for work in the several occu-
pations in the railroad industry, and the Board, employers,
and employees shall cooperate in the promotion of the great-
est practicable degree of uniformity in the standards applied
by the several employers. An individual’s condition shall
be deemed to be disabling for work in his regular occupa-
tion if he will have been disqualified by his employer be-
cause of disability for service in his regular occupation in
accordance with the applicable standards so established; if
the employee will not have been so disqualified by his em-
APPENDIX 73
ployer, the Board shall determine whether his condition is
disabling for work in his regular occupation in accordance
with the standards generally established; and, if the em-
ployee’s regular occupation is not one with respect to which
standards will have been established, the standards relating
to a reasonably comparable occupation shall be used. If
there is no such comparable occupation, the Board shall
determine whether the employee’s condition is disabling
for work in his regular occupation by determining whether
under the practices generally prevailing in industries in
which such occupation exists such condition is a permanent
disqualification for work in such occupation. For the pur-
poses of this section, an employee’s “regular occupation”
shall be deemed to be the occupation in which he will have
been engaged in more calandar months than the calendar
months in which he will have been engaged in any other
occupation during the last preceding five calendar years,
whether or not consecutive, in each of which years he will
have earned wages or salary, except that, if an employee
establishes that during the last fifteen consecutive calendar
years he will have been engaged in another occupation in
one-half or more of all the months in which he will have
earned wages or salary, he may claim such other occupa-
tion as his regular occupation; or
§. Individuals whose permanent physical or mental con-
dition is such that they are unable to engage in any regular
employment.
Such satisfactory proof shall be made from time to time
as prescribed by the Board, of the disability provided for
in paragraph 4 or 5 of this subsection and of the continuance
of such disability (according to the standards applied in
the establishment of such disability) until the employee
74 APPENDIX
attains the age of sixty-five. If the individual fails to com-
ply with the requirements prescribed by the Board as to
proof of the continuance of the disability until he attains
the age of sixty-five years, his right to an annuity by reason
of such disability shall, except for good cause shown to
the Board, cease, but without prejudice to his rights to any
subsequent annuity to which he may be entitled. If before
attaining the age of sixty-five an employee in receipt of an
annuity under paragraph 4 or § of this subsection is found
by the Board to be no longer disabled as provided in said
paragraphs his annuity shall cease upon the last day of the
month in which he ceases to be so disabled. An employee,
in receipt of such annuity, who earns more than $75 in
service for hire, or in self-employment, in each of any six
consecutive calendar months, shall be deemed to cease to
be so disabled in the last of such six months; and such em-
ployee shall report to the Board immediately all such serv-
ice for hire, or such self-employment. If after cessation of
his disability annuity the employee will have acquired addi-
tional years of service, such additional years of service may
be credited to him with the same effect as if no annuity had
previously been awarded to him.
Sec. 228j. Railroad Retirement Board — Establishment;
appointment; compensation
* 2 © ©
(b) 1. The Board shall have and exercise all the duties
and powers necessary to administer sections 228a to 228c—1
228e—228h, 228i—228p, 228r, and 228s of this title and the
Railroad Retirement Act of 1935. The Board shall take such
steps as may be necessary to enforce such sections and make
awards and certify payments. Decisions by the Board upon
issues of law and fact relating to pensions, annuities, or
ee ee ee. Ae, ee ee. he) s
APPENDIX 75
death benefits shall not be subject to review by any other
administrative or accounting officer, agent, or employee of
the United States.
** * &
Sec. 228k. Court jurisdiction
Decisions of the Board determining the rights or liabili-
ties of any person under sections 228a to 228c—1, 228e—
228h, 228i—228p, 228r, and 228s of this title shall be sub-
ject to judicial review in the same manner, subject to the
same limitations, and all provisions of law shall apply in
the same manner as though the decision were a determina-
tion of corresponding rights or liabilities under chapter 11
of this title except that the time within which proceed-
ings for the review of a decision with respect to an annuity,
pension, or lump-sum benefit may be commenced shall
be one year after the decision will have been entered upon
the records of the Board and communicated to the claim-
ant. Aug. 29, 1935, c. 812, Sec. 11, 49 Stat. 973; June 24,
1937, c. 382, Pe. I, Sec. 1, 50 Stat. 315; July 31, 1946, c.
709, Sec. 215, 60 Stat. 735.
Sec. 355. Claims for benefits—Publication of Board’s regu-
lations
** +
(f) Any claimant, or any railway labor organization or-
ganized in accordance with the Provisions of the Railway
Labor Act, of which claimant is a member, or any other
party aggrieved by a final decision under subsection (c)
of this section, may, only after all administrative remedies
within the Board will have been availed of and exhausted,
obtain a review of any final decision of the Board by filing
76 APPENDIX
a petition for review within ninety days after the mailing
of notice of such decision to the claimant or other party,
or within such further time as the Board may allow, in the
United States court of appeals for the circuit in which the
claimant or other party resides or will have had his princi-
pal place of business or principal executive office, or in the
United States Court of Appeals for the Seventh Circuit or
in the United States Court of Appeals for the District of
Columbia. A copy of such petition, together with initial
process, shall forthwith be served upon the Board or any
officer designated by it for such purpose. Service may be
made upon the Board by registered mail addressed to the
Chairman. Within fifteen days after receipt of service, or
within such additional time as the court may allow, the
Board shall certify and file with the court in which such
petition has been filed a transcript of the record upon which
the findings and decision complained of are based. Upon
such filing the court shall have exclusive jurisdiction of the
proceeding and of the question determined therein, and
shall give precedence in the adjudication thereof over all
other civil cases not otherwise entitled by law to prece-
dence. It shall have power to enter upon the pleadings and
transcript of the record a decree affirming, modifying, or
reversing the decision of the Board, with or without re-
manding the cause for rehearing. The findings of the Board
as to the facts, if supported by evidence and in the absence
of fraud, shall be conclusive. No additional evidence shall
be received by the court, but the court may order addi-
tional evidence to be taken before the Board, and the Board
may, after hearing such additional evidence, modify its
findings of fact and conclusions and file such additional or
modified findings and conclusions with the court, and the
Board shall file with the court a transcript of the additional
PERS IQUE NORE A UN one a
APPENDIX 77
record. The judgment and decree of the court shall be final,
subject to review as in equity cases.
An applicant for review of a final decision of the Board
concerning a claim for benefits shall not be liable for costs,
including costs of service, or costs of printing records, ex-
cept that costs may be assessed by the court against such
applicant if the court determine that the proceedings for
such review have been instituted or continued without rea-
sonable ground.
**+ 2 &
Office - Supreme Court, U
FILED
P10 1955
HAR@LD B. WILLEY, ©
No. 326
In the
Supreme Court of the United States
October Term, 1955
Guy A. THOMPSON, Trustee, The St. Louis, Brownsville &
Mexico Railway Company, Debtor,
Petitioner,
v.
GEORGE C. Moore, SR,
Respondent.
RESPONDENT'S BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
Davip H. Nutt,
1424 K. Street, N. W.,
Washington 5, D. C.,
Attorney for Respondent.
Of Counsel:
J. MARVIN ERICSON,
Corpus Christi, Texas.
SS ——$—————
LS
WARLICK LAW PRINTING CO. - LAW BRIEF PRINTING - DALLAS ~ Ri-6 71)
a A TINS we
Ba i A oon AS A et
SUBJECT INDEX
Page
samnmnant of the Onnbe se 35S. eS i. 1-6
Inaccuracies in Petition for Writ of Certiorari __. 6-7
Questions Presented nd Petition for Writ of
eR, Derr, eae Uae Mey cert elem ce weet 7-8
Respondent’s Propositions =. 8-9
Proposition I—(Restated) eens. 9
Argument Under Proposition I... . 9-11
Proposition IJ—(Restated) 0.0000 ooooococecocoececeee. 11
Argument Under Proposition II... ............. 11
Proposition II1I—(Restated) 0.0... 12
Argument Under Proposition III... 12-15
Proposition IV—(Restated) 0. 15-16
Argument Under Proposition IV. swt 15-16
Speeereen: Oe Pee te 17
Signature and Mailing Address of Counsel... 17
Certificate ........... ee ee ay PUNE IAG TT se 17
ii List of Authorities
Cases
Buster v. Chi. M. St. P. & P. Ry Co.
(C. A. Til, 1952), 195 Fed. 2d 73.0000...
Butler v. Thompson (C. A. Mo., 1951),
Se i Te Ss ori Siee ss ccpo ous
Consolidated ede Ins. Co. v. Smith
(Tex. Civ. App.), 74S. W. 2d 139.
Kendall v. Penn. R. Co. (D. C. Ohio, age
94 Fed Supp. 875. “
Kennon v. Schlesinger (Tex. Civ ADD.) )
182 S. W. 2d 373, err. ref. Re SRLS ae hy
Loews, Inc. v. Cinema Amusements Co., Inc.,
210 Fed. 2d 86, Cert. Den. 74 S. Ct. 787,
347 U. S. 976, 98 L. Ed. ce on
Michel v. Louisv. & N. R. Co. (1961),
188 Fed. 2d 224
Moore v. fll. Cent. R. Co., 61 S. Ct. 754,
312 U. S. 630, 85 L. Ed. 1089 |
Newman v. Balt. & O. R. Co. (C. A. Pa., 1951),
191 Fed. 2d 560
Oswald v. Chi. B. & Q. Ry. Co. (C. A. Ia., 1952),
NPN MIU chs ivindricsvearkdovsisestins
Priest v. Chi. R. I. & P. R. Co. (C. A. Ark., 1951),
189 Fed. 2d 813
Swartz v. Sou. Buffalo Ry. Co. (D. C. N. Y., 1942),
44 Fed. Supp. 447
Tex. & N. O. R. Co. (Tex. cua Ct.), 143 Tex. 237,
183 S. W. 2d 716... ACES MCAS
U. S. v. Johnson, 66 S. Ct. 464, 327 U. S. 106,
90 L. Ed. 414, reh. den. 66 S. Ct. 699,
327 U. S. 817, 90 L. Ed. 1040... |
Page
List of Authorities—(Continued) iii
Page
Watson v. M. K. & T. Ry. Co. (Tex. Civ. App.),
See PM ne 11
Youmans v. Charleston & W. Ry. Co. (S. Car.),
“ino a oe TOES RTO Tee LEE 11
Statutes
U.S. C. A. Title 45, Ch. 8,Sec. 158. tsti<‘Ctit 10
U.S. C. A. Title 45, Ch. 9, Sec. 228b(a) sas a 13
U.S. C. A. Title 45, Ch. 9, Sec. 228i(a), 14
U.S.C. A Title 45, Ch. 9, Sec. 228i(c) 14
sd ao ESTE TM TURE PNET SET A RETA DUA AAS
. Fa L RV AORTA Lee a ae
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