Andrews v. Louisville & Nashville Railroad Company

• Decision Date: 01 June 1971
• Docket Number: No. 30307.,30307.
• Citation: 441 F.2d 1222
• Parties: Thomas L. ANDREWS, Plaintiff-Appellant, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

441 F.2d 1222 (1971)

Thomas L. ANDREWS, Plaintiff-Appellant, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY et al., Defendants-Appellees.

No. 30307.

United States Court of Appeals, Fifth Circuit.

April 26, 1971.

Rehearing Denied June 1, 1971.

Andrew W. Estes, Alford W. Wall, Atlanta, Ga., for plaintiff-appellant.

Robert G. Young, Webb, Parker, Young & Ferguson, Atlanta, Ga., for defendants-appellees.

Before THORNBERRY and GODBOLD, Circuit Judges, and BOOTLE, District Judge.

BOOTLE, District Judge:

This case is before us on appellant's appeal from the district court's granting of appellees' motion to dismiss based on appellant's having failed to meet the federal jurisdictional requirement that he exhaust his administrative remedies before the National Railroad Adjustment Board, under 45 U.S.C. § 153, First (i). Simultaneously with filing his appeal to this court, appellant filed a motion for reconsideration in the court below. This motion was granted to the extent that appellant have 15 days within which to amend his pleadings to demonstrate that he had exhausted his administrative remedies under the Railway Labor Act. Appellant, in his brief, admits that he cannot make such a showing. The sole question presented for decision is whether or not a discharged railroad employee aggrieved by his discharge may bring a common law action for damages where he has failed to pursue his administrative remedies under the Railway Labor Act.

The Supreme Court held in Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, decided in 1941, and in Transcontinental & West. Air. v. Koppal, 345 U.S. 653, 73 S.Ct. 906, 97 L.Ed. 1325, decided in 1953, that a discharged employee of a carrier subject to the Railway Labor Act may accept the discharge as final and "proceed either in accordance with the administrative procedures prescribed in his employment contract (including referral of the dispute to the appropriate division of the Adjustment Board) or he may resort to his action at law for alleged unlawful discharge if the state courts recognize such a claim. Where the applicable law permits his recovery of damages without showing his prior exhaustion of his administrative remedies, he may so recover, as he did in the Moore litigation, supra, under Mississippi law." Transcontinental & West. Air. v. Koppal, supra at 661, 73 S.Ct. at 910. When Moore and Koppal were decided "federal law was not thought to apply merely by reason of the fact that the collective bargaining agreements were subject to the Railway Labor Act." Republic Steel Corp. v. Maddox, 379 U.S. 650, 655, 85 S.Ct. 614, 617, 13 L.Ed.2d 580 (1965). But "since that time the Court has made it clear that substantive federal law applies to suits on collective bargaining agreements covered by § 204 of the Railway Labor Act, International Assn. of Machinists v. Central Airlines, Inc., 372 U.S. 682, 83 S.Ct. 956, 10 L.Ed.2d 67 * * * and by § 301(a) of the LMRA, Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972." Republic Steel Corp. v. Maddox, supra at 655, 85 S.Ct. at 618. And "thus a major underpinning for the continued validity of the Moore case in the field of the Railway Labor Act * * * has been removed." Republic Steel Corp. v. Maddox, supra at 655, 85 S.Ct. at 618.

Following the Maddox decision of 1965, the Supreme Court, in 1966, in Walker v. Southern R. Co., 385 U.S. 196, 87 S.Ct. 365, 17 L.Ed.2d 294, took a further look at Moore and Koppal and posed to itself the question "whether those decisions should be overruled in light of Maddox." The Court answered that question thusly:

"Provision for arbitration of a discharge grievance, a minor dispute, is not a matter of voluntary agreement under the Railway Labor Act; the Act compels the parties to arbitrate minor disputes before the National Railroad Adjustment Board established under the Act. Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622. Both at the time of petitioner\'s alleged discharge and at the time he brought his lawsuit, there was considerable dissatisfaction with the operations of the National Railroad Adjustment Board and with some of the statutory features. Congress initiated an inquiry and found that among other causes for dissatisfaction, `railroad employees who have grievances sometimes have to wait as long as 10 years or more before a decision is rendered by the Board on their claim\'; for example, `the First Division which has jurisdiction over disputes involving yard service employees of petitioner\'s class * * * has never been current in its work, and has a backlog of approximately 7½ years * * *.\' H.R. Rep. No. 1114, 89th Cong., 1st Sess., at 3, 5; S. Rep. No. 1201, 89th Cong., 1st Sess., at 2. The Congress also found that `if an employee receives an award in his favor from the Board, the railroad affected may obtain judicial review of that award by declining to comply with it. If, however, an employee fails to receive an award in his favor, there is no means by which judicial review may be obtained.\' H.R. Rep., supra, at 15. S.Rep., supra, at 3.

"In consequence, Congress enacted Public Law 89-456, 80 Stat 208, effective June 20, 1966, which drastically revises the procedures in order to remedy the defects. Of course the new procedures were not available to petitioner, and his case is governed by Moore, Slocum Slocum v.

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