Norfolk & W. Ry. Co. v. UNITED TRANSP. U.

• Decision Date: 22 May 1980
• Docket Number: Civ. A. No. 77-1108.
• Citation: 490 F. Supp. 301
• Parties: NORFOLK AND WESTERN RAILWAY CO. v. UNITED TRANSPORTATION UNION et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

490 F. Supp. 301

NORFOLK AND WESTERN RAILWAY CO. v. UNITED TRANSPORTATION UNION et al.

Civ. A. No. 77-1108.

United States District Court, W. D. Pennsylvania.

May 22, 1980.

H. Woodruff Turner, Neal R. Brendel, Pittsburgh, Pa., for plaintiff.

T. P. Shearer, Pittsburgh, Pa., for defendants.

MEMORANDUM

WEBER, Chief Judge.

Norfolk and Western Railway filed an action to Vacate and Remand an Award of a Special Board of Adjustment established under the Interstate Commerce Act. The Court remanded the matter to the Board for reconsideration. Upon further report of the Board the Railroad renewed its motion to vacate. This was denied by the Court, terminating the litigation.

Defendants have now filed a petition for taxation of Attorney's Fee, pursuant to 45 U.S.C. § 153(p), as a prevailing party. Plaintiff opposes the award on several grounds, but all agree that attorney fees are awarded only on specific statutory authority and that the dispositive issue is whether this action was one under § 153(p) which would allow an award, or was under § 153(q), which does not provide for such awards.

§ 153(p) covers actions initiated by employees for enforcement of an award. § 153(q) covers suits initiated by the carrier and employees in which review of an award is requested, where they are aggrieved by the award or by failure of the Board's division to include certain terms in the award, or the failure of a division to make an award in a dispute before it.

It appears that this action is clearly under § 153(q) since it was initiated by the carrier and was premised on the complaint that the award was so vague that the Board's division had failed to perform its duty. Defendant, however, raises the case of Long Island RR Co. v. United Transportation Union, 76 F.R.D. 16 (E.D.N.Y.1976), which granted an award of attorney's fees to the Union even though the case was initiated by the carrier under § 153(q).

The Long Island case involved a situation where the carrier sought review by suit under § 153(q) of the award for an interpretation as to whether it could validly be enforced in view of the possible conflict with the Economic Stabilization Act. The Union filed an answer and counter petition for enforcement of the award under § 153(p) and eventually prevailed.

When the Union filed for attorney's fees, the carrier responded that the suit was initiated under § 153(q) and so no award was allowed, or that only a portion of the fees should be paid according to the portion of the suit attributable to § 153(p). The court felt that such a portioning was unrealistic and the case was basically one in the nature of enforcement and so the entire fee should be...