Diamond v. Terminal Railway Alabama State Docks

• Citation: 421 F.2d 228
• Decision Date: 07 January 1970
• Docket Number: No. 27588.,27588.
• Parties: B. J. DIAMOND, Plaintiff-Appellee, v. TERMINAL RAILWAY ALABAMA STATE DOCKS, An Agency of The State of Alabama, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

421 F.2d 228 (1970)

B. J. DIAMOND, Plaintiff-Appellee, v. TERMINAL RAILWAY ALABAMA STATE DOCKS, An Agency of The State of Alabama, Defendant-Appellant.

No. 27588.

United States Court of Appeals Fifth Circuit.

January 7, 1970.

COPYRIGHT MATERIAL OMITTED

Willis C. Darby, Jr., Mobile, Ala., MacDonald Gallion, Atty. Gen., State of Alabama, for defendant-appellant.

Al G. Rives, Clarence M. Small, Jr., Birmingham, Ala., Warren Finch, Mobile, Ala., for plaintiff-appellee; Rives, Peterson, Pettus, Conway & Burge, Birmingham, Ala., of counsel.

Before BELL, AINSWORTH and CARSWELL, Circuit Judges.

AINSWORTH, Circuit Judge:

Terminal Railway Alabama State Docks, a "carrier" subject to the provisions of the Railway Labor Act,¹ appeals from the District Court's judgment enforcing against it an award and order of the National Railroad Adjustment Board Third Division.² The Third Division issued this award and order in settlement of a dispute between Terminal Railway and the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees. This dispute involved the carrier's dismissal of B. J. Diamond, a Brotherhood member, from its service on September 13, 1963. In its order the Third Division directed Terminal Railway to restore Diamond to its service with his seniority and all other rights unimpaired, to compensate him for all wage and other losses he sustained as a result of his dismissal, and to clear his record of all charges made against him which may have been there recorded. After Terminal Railway failed timely to comply with this order, Diamond petitioned the District Court for enforcement.³ In response to Diamond's petition, Terminal Railway requested that the District Judge set aside the Adjustment Board award and counterclaimed against Diamond for $50,000 in actual and exemplary damages. The carrier based its counterclaim upon Diamond's allegedly deliberate and negligent failure to follow proper demurrage accounting procedures while serving as the Office Manager of Terminal Railway. Thereafter the District Court granted a partial⁴ summary judgment enforcing the award and order. The Court also granted Diamond's motion to strike the carrier's counterclaim.

On this appeal Terminal Railway contends (1) that the award of the Adjustment Board is without foundation in reason or fact, (2) that the monetary provision of the award was improperly computed, and (3) that its counterclaim should not have been struck. We conclude that the judgment of the District Court was correct and must be affirmed.

Briefly stated, the undisputed facts of this case are as follows. For twenty-six years Diamond was employed in various positions by Terminal Railway. During these years he held seniority as a clerk under the collective bargaining agreement hereinafter referred to as the "Clerks' Agreement" in effect between Terminal Railway and the Brotherhood of Railway and Steamship Clerks. In May 1963 he was appointed to the "official" position of Office Manager. As Office Manager he was responsible for the carrier's demurrage accounts. That this position was excepted from the protection of the Clerks' Agreement did not affect his seniority rights under the Agreement. On August 21, 1963, Terminal Railway notified Diamond that the position of Office Manager was abolished effective that date. On August 26, 1963, the Chief Clerk of the carrier issued a notice stating that Diamond had exercised his seniority rights under the Clerks' Agreement to displace a junior employee in the protected position of Order Clerk. Diamond, however, had become anathema to Terminal Railway. By a letter dated September 13, 1963, the carrier summarily dismissed him from its service. This letter gave as the reason for Diamond's discharge that Diamond had wilfully and negligently failed properly to assess and collect demurrage. So advised, Diamond was out of work.

Terminal Railway concedes that it violated Rule 17(a) of the Clerks' Agreement in dismissing Diamond without previously conducting a hearing on the charges it made against him. Rule 17, entitled "Investigation and Discipline," reads in part:

"17(a) Filing Charges and Hearing — Employes who have been in service more than 60 days will not be * * * discharged without just cause. When such action becomes necessary, the accused shall be duly apprised in writing, within ten days after knowledge of occurrence, of the charge that is brought against him, and within ten days after such notification the employe shall be given a full hearing or investigation by the proper officer of the railroad, at which time all evidence in the case shall be submitted. A proper and full record of the case will be kept and authenticated by both parties and made the basis for any discipline that may be administered, or basis for an appeal to a higher officer. If the offense is considered sufficiently serious the employe may be suspended during the interim."

On October 11, 1963, the Brotherhood requested that the carrier reinstate Diamond and pay him for time lost. The Brotherhood based this request on the ground that Diamond had been dismissed in violation of Rule 17(a). Terminal Railway refused, stating that the request for reinstatement and back pay had not been timely made. It took this position on the basis of Rule 18(b) of the Clerks' Agreement. Rule 18(b), entitled "Filing Local Grievances," provides that

"Any employe who considers himself unjustly treated, or that he has just grounds for claim or grievance, shall have the right of hearing and appeal in similar manner as is provided in Rule 17, provided written request is made to his immediate superior by the employe or his representative within seven days after cause for the complaint. This written grievance shall constitute the basis for investigation, trial or hearing."

On October 23, 1963, the carrier, under protest and without prejudice to its position that no hearing was then warranted, offered to hold a hearing in which it would "prove each and every charge" against Diamond. This offer was rejected by the Brotherhood. On December 13, 1963, the carrier again offered to conduct a hearing for the purpose of proving its charges against Diamond. This offer was also rejected. Finally, in September 1964, the Brotherhood filed an Ex Parte Submission with the Adjustment Board Third Division.

After reviewing the facts, the Third Division concluded:

"There is no question that the Carrier had every right to dismiss Diamond from its service as Office Manager, but in order to dismiss him from its service as a clerical employe it must observe the provisions of the Current Agreement. The Carrier may not shift the burden of initiating a hearing of its charges by arguing it was the duty of Diamond to request a hearing as provided in Rule 18(a) sic. In this case the Carrier dismissed Diamond from a clerical seniority position by its letter of September 13, 1963. It failed to comply with the provisions of Rule 17(a), which obligated it to initiate a hearing on the charges made against Diamond, and in so doing it acted in a capricious and arbitrary manner. In the circumstances found a sustaining award is indicated and Diamond shall be restored to the service of the Carrier with seniority and all other rights unimpaired; he shall be compensated for all wage and other losses sustained account of his dismissal; and his record shall be cleared of all charges or allegations which may have been recorded thereon as a result of the violations with which he was charged."

In the court below, the District Judge computed the monetary provision of the Adjustment Board award as follows. From the amount ($33,853.77) Diamond would have earned had he been continuously employed as a clerk by the carrier from the date of his dismissal to the date of his reinstatement, the District Judge subtracted the amount ($7,687.51) he actually earned from employment by others during this period. The remainder with interest of 6 per cent ($29,586.86) was adjudged due Diamond from Terminal Railway. In addition, the District Judge held that the carrier possessed a lien on the amount the Railroad Retirement Board paid as unemployment benefits to Diamond during the relevant period and awarded attorneys' fees to Diamond's lawyers. The District Judge considered immaterial to his computation of the monetary award the issues whether Diamond had failed to make reasonable efforts to seek employment and whether he had withdrawn himself from the employment market.

I.

Within the limits of our reviewing power, we first consider Terminal Railway's contention that the District Court erred in enforcing the award of the Adjustment Board. For reasons that follow, we hold that the District Court properly defined the narrow standard of review permitted by the Railway Labor Act and correctly applied that standard in this case.

The Adjustment Board is an expert body designed to settle "minor" disputes that arise from day to day in the railroad industry. Gunther v. San Diego & Arizona Eastern Ry. Co., 382 U.S. 257, 261, 86 S.Ct. 368, 370, 15 L. Ed.2d 308 (1965). The provisions of the Railway Labor Act dealing with the Adjustment Board are to be considered as "compulsory arbitration in this limited field." Brotherhood of Railroad Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30, 39, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957); see Gunther v. San Diego & Arizona Eastern Ry. Co., 382 U.S. 257, 262, 86 S.Ct. 368, 371, 15 L.Ed.2d 308 (1965). The federal courts do not sit as super arbitration tribunals in suits brought to enforce awards of the Adjustment Board. They may not substitute their judgments for those of the Board divisions. They need not inquire whether substantial evidence supports the Board's awards. Under the Railway Labor Act, as amended in 1966, Pub.L. No. 89-456, 80 Stat. 208, the range of judicial review in enforcement cases is among the narrowest known to the law. Board awards are "final and...