Battle v. BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, ETC.

• Decision Date: 13 June 1963
• Docket Number: No. 17212.,17212.
• Parties: Ivan BATTLE, Appellant, v. BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS & STATION EMPLOYEES, J.R. White Lodge 1568, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

320 F.2d 742 (1963)

Ivan BATTLE, Appellant, v. BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS & STATION EMPLOYEES, J.R. White Lodge 1568, et al., Appellees.

No. 17212.

United States Court of Appeals District of Columbia Circuit.

Argued March 1, 1963.

Decided June 13, 1963.

Petition for Rehearing Denied August 1, 1963.

Mr. Winfred R. Mundle, Washington, D.C., with whom Mr. John A. Shorter, Jr., Washington, D.C., was on the brief, for appellant.

Mr. Milton Kramer, Washington, D.C., for appellee, Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees, and certain other appellees.

Messrs. William A. Glasgow and Thomas A. Flannery, Washington, D.C., were on the brief for appellee, Washington Terminal Co. Mr. Roman J. Gerber, Washington, D.C., also entered an appearance for appellee, Washington Terminal Co.

Before WILBUR K. MILLER, BURGER and WRIGHT, Circuit Judges.

Petition for Rehearing En Banc Denied En Banc August 1, 1963.

WILBUR K. MILLER, Circuit Judge.

Ivan Battle was employed by the Washington Terminal Company as a janitor in its maintenance of equipment department when, in 1952, the Brotherhood of Railway and Steamship Clerks became the bargaining agent for all employees in Battle's classification and entered into a union shop agreement with Washington Terminal. By its terms, all employees covered thereby were required to acquire and maintain union membership as a condition of continued employment. Battle joined the union.

Although, apparently, he had paid dues punctually for more than nine years, the union suspended him on June 30, 1961, because he was then two months in arrears in the payment of dues — a total of $8.00.¹

Battle alleges that on July 25, 1961, he tendered to the secretary of the union all arrearages in dues and applied for reinstatement.² The secretary refused to accept the money. Two days later, on July 27, 1961, the union served a "citation" on Washington Terminal, advising it that Battle had "failed to maintain membership in this Brotherhood by failing to tender or pay dues as required by the Constitution and Laws of the Brotherhood." This was in effect a demand that Battle be discharged, because the contract provided that the union might "cite" to the employer any employee suspended by it and that the employer must discharge the cited employee if he had been properly suspended under union regulations.

Pursuant to subsections (a) and (b) of Section 5 of the union shop agreement, Washington Terminal then advised Battle of his right to a hearing on the union's representations. This hearing was held before the master mechanic of the company on August 3, 1961, who decided on August 7 that Battle had not complied with the union shop agreement by maintaining union membership. On appeal to the manager of Washington Terminal, the master mechanic's finding was approved. At Battle's request, a neutral arbitrator was appointed under Section 5(c) of the agreement, who conducted an evidentiary hearing and received briefs. At this hearing, Battle conceded his failure to comply with Article 6, but argued that, under the reinstatement provision quoted in footnote 2, a union member suspended for non-payment of dues who tenders the dues and fees and applies for reinstatement before he has been cited to the employer may not thereafter be cited until the union has acted on his application for reinstatement.

The arbitrator did not categorically reject appellant's contention, or wholeheartedly endorse the union's argument to the contrary. Rather, he recognized that Battle's position "raises very important issues both as to the scope of the proceedings under Section 5 of the Union Shop Agreement and as to the extent of the Brotherhood's authority to cite an employee to the Carrier for failure to pay dues." He decided against Battle mainly on the narrow ground that an employer under a union shop agreement may not inquire into all the internal affairs of a union, or examine union regulations to determine their reasonableness.

On February 7, 1962, Battle filed in the United States District Court for the District of Columbia a complaint against the union and the Terminal Company which he denominated "Mandatory Injunction for Reinstatement; Local sic Damages for Wrongful Discharge from Employment and for Punitive Damages." He prayed for reinstatement as an employee and as a union member, and also prayed for compensatory and, apparently, for punitive damages. On June 20, 1962, the District Court dismissed the complaint for lack of jurisdiction of the subject matter. Battle appeals.

Had the appellant sought only to recover damages for wrongful discharge, the District Court would have had jurisdiction. Moore v. Illinois Central Ry. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 (1941). But he also sought reinstatement, with respect to which the National Railroad Adjustment Board has exclusive initial jurisdiction. In Order of Ry. Conductors v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318 (1946), the Supreme Court said courts should not interpret such agreements prior to interpretation by the Adjustment Board. It repeated that statement in Slocum v. Delaware L. & W. R. Co., 339 U.S. 239, 244, 70 S.Ct. 577, 579, 94 L.Ed. 795 (1950), and said:

"Our holding here is not inconsistent with our holding in Moore v. Illinois Central R. Co., 312 U.S. 630 61 S.Ct. 754, 85 L.Ed. 1089. Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad\'s action in discharging him as final, thereby ceasing to be an employee, and brought suit claiming damages for breach of contract. * * *

"* * * We hold that the jurisdiction of the Board to adjust grievances and disputes of the type here involved is exclusive. * * *"

The Seventh Circuit had before it a case somewhat similar to this in Walters v. Chicago and North Western Ry. Co., 216 F.2d 332, 335 (1954). After noting the Moore, Pitney and Slocum cases, it said:

"In the instant case the plaintiff\'s complaint clearly shows that she did not accept her discharge as final and merely file an action at law for damages and breach of contract. Instead in the caption of her complaint she stated, `Equitable Relief Sought,\' and in addition to damages she sought reinstatement `to her former position with her seniority, pension, vacation and pass rights unimpaired * * *.\' This complaint brought the plaintiff clearly within the Slocum case rather than within the facts of the Moore case."

In like manner, we hold that Battle's complaint was such that the Slocum case is applicable.

The cases of Cunningham v. Erie Railroad Co., 266 F.2d 411 (2nd Cir. 1959), and Nobile v. Woodward, 200 F.Supp. 785 (D.C.E.D.Pa.1962), cited by appellant, are not to the...