BROTHERHOOD OF RR TRAIN. v. Central of Georgia Ry. Co., Civ. A. No. 1809.

• Decision Date: 14 December 1961
• Docket Number: Civ. A. No. 1809.
• Parties: BROTHERHOOD OF RAILROAD TRAINMEN, an unincorporated association, and B. Grady Byington, Plaintiffs, v. CENTRAL OF GEORGIA RAILWAY COMPANY, a corporation, Defendant.
• Court: U.S. District Court — Middle District of Georgia

202 F. Supp. 324

BROTHERHOOD OF RAILROAD TRAINMEN, an unincorporated association, and B. Grady Byington, Plaintiffs, v. CENTRAL OF GEORGIA RAILWAY COMPANY, a corporation, Defendant.

Civ. A. No. 1809.

United States District Court M. D. Georgia, Macon Division.

December 14, 1961.

Wayland K. Sullivan, Cleveland, Ohio, E. S. Sell, Jr., John D. Comer, Macon, Ga., for plaintiffs.

Julian C. Sipple, Savannah, Ga., H. D. Russell, Macon, Ga., for defendant.

BOOTLE, Chief Judge.

This petition for injunction alleges this case. The Brotherhood of Railroad Trainmen is the bargaining representative of the craft of Railroad Trainmen employed by the defendant. Mr. Byington is the Chairman of the General Grievance Committee for the Brotherhood on the property of the defendant and is a full-time salaried employee of said General Grievance Committee having requested and having been granted a leave of absence from the Central in accordance with the schedule agreement between the Brotherhood and the Central, reading: "Trainmen accepting positions with the Brotherhood of Railroad Trainmen may retain their seniority rights", said leave of absence having been granted September 1, 1958. Mr. Byington last served the Central in the capacity of conductor and the Order of Railway Conductors' agreement with the Central contains a provision substantially identical to that just quoted from the Trainmen's contract. Article 31 of the Trainmen's contract reads as follows:

"ARTICLE 31

"INVESTIGATIONS AND DISCIPLINE

"No trainman or yardman will be demerited, suspended, or discharged without a fair and impartial trial before the Trainmaster or the Superintendent. They will be allowed to be present and hear the evidence. If desired, they may have one or two employees of their own selection with them and they will be allowed to ask questions bearing on the case; they will also be allowed to remain after the investigation and discuss the points in the case with officials. In case of discipline, they will be notified in writing within five (5) days after investigation. If exonerated, they will be paid for lost time and will be notified in writing as soon as possible. Discipline will be applied uniformly, commensurate with the facts in the case, without distinction as to color.

"Upon request, the General and Local Chairman will be furnished with a copy of the investigation where discipline is applied."

Notwithstanding the fact that Mr. Byington is on said leave of absence, the defendant, through its superintendent, has served written notice upon Mr. Byington in accordance with said Article 31 to be present for investigation "to hear the evidence in cases which involve your efforts to prevent or discourage employees of the Central of Georgia Railway, or survivors of such employees, from making settlement of claims involving personal injuries to those employees. You are charged with gross disloyalty to the Central of Georgia Railway by inciting and promoting law suits against the company involving personal injuries to its employees, and for improperly making unsolicited calls on persons for the purpose of inducing or encouraging law suits against this company." The complaint alleges that the aforesaid charges have been preferred against Mr. Byington as the result of a conspiracy by and between the Central, its superintendent and other officials of the Central whose names are unknown to the plaintiffs "for the purpose of discrediting the plaintiffs in the performance of their duties as craft representative, and as General Chairman, respectively, under the aforesaid Railway Labor Act, and for the purpose of interference, influence and coercion, all more specifically proscribed by Section 2 Third of said Act"; that as craft representative both Mr. Byington and the Brotherhood have for a long period of time represented employees of Central during investigations when such employees were charged with misconduct by Central, pursuant to said Article 31; that Central by its charges against, and its proposed investigation of, Mr. Byington intends to dismiss him as an employee and thereby to disqualify him as a representative of employees in investigations of alleged rule violations and thereby to hamper, impede and hinder the plaintiffs in the performance of their duties as craft representative and as General Chairman, "thus interfering, influencing and coercing the trainmen employees in their free choice of their craft representative and their General Chairman;" that under the applicable rules a discharge of Mr. Byington would be effective instanter, there being no provision for supersedeas pending the determination of the validity thereof; that unless prevented the defendant will proceed with its intended investigation and its said conspiracy and the plaintiffs will be irreparably injured and damaged, and that there is no adequate remedy at law.

Upon presentation of the complaint a temporary restraining order without hearing was entered October 31, 1961, and by agreement of counsel remains in force until disposition of the defendant's motion to dismiss upon the grounds that: (1) this court has no jurisdiction to entertain the complaint and to do so would contravene the provisions, the intent and the purpose of the Railway Labor Act; (2) the complaint fails to state sufficient facts to constitute a cause of action in equity, and (3) the complaint is not justiciable. Upon said motion to dismiss counsel have been fully heard, orally and by briefs.

This court is of the opinion that the motion to dismiss should be sustained upon each of the three grounds stated.

No contention is advanced that Mr. Byington is not presently an employee of the Central. He alleges that he is "on leave of absence". In his letter to the superintendent (Exhibit C to the complaint) he says: "my seniority as a Conductor & Trainman are protected as provided by both the Conductors and Trainmen's Agreements, which is a matter of record; your file R-4765 should so reflect this." Upon oral argument his counsel disclaimed any contention that Mr. Byington is not subject to the contract but insisted that he is not subject to the working rules. A furloughed employee is still an employee. Hundley v. Illinois Central Railroad Company, 272 F.2d 752 (6th Cir. 1959). By the same token, an employee on leave of absence is still an employee. Mr. Byington has so regarded himself. By Article 31 above quoted, the Brotherhood and the Central saw fit to restrict representatives of employees at discipline investigation to "one or two employees of their own selection" and the complaint alleges that Mr. Byington for a long period of time has represented employees during such investigations.

Section 3 of the Railway Labor Act, 45 U.S.C.A. § 153, First (i), confers jurisdiction on the National Railroad Adjustment Board to hold hearings, make findings and to enter awards in all disputes between carriers and their employees "growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions * * *" and it now seems settled that courts do not have power to adjudicate disputes involving such interpretation when the Adjustment Board has not acted. Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795 (1950); Pennsylvania R. Co. v. Day, 360 U.S. 548, 79 S.Ct. 1322, 3 L.Ed.2d 1422 (1959); Union Pacific R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351, 3 L.Ed.2d 1460 (1959); Rose v. Great Northern Railway Company, 268 F.2d 674 (8th Cir. 1959); Hundley v. Illinois Central Railroad Company, supra.

The Day case teaches that even retired employees must not be allowed to bypass the Board specially constituted for hearing railroad disputes whenever they deem it advantageous to do so. It would seem that this doctrine applies equally to employees on leave of absence. The Day case restated the now generally recognized concepts that the Board was established as a tribunal to settle disputes arising out of the relationship between carriers and employees; that Congress entrusted an expert administrative board with the interpretation of collective bargaining agreements; that uniform administrative interpretation is of great importance reflecting the needs and fair expectations of the railroad industry for which Congress has provided in effect a charter for its internal government; that a discharged employee may challenge the validity of his discharge before the Board, seeking reinstatement and back pay; and that "since the Board has jurisdiction, it must have exclusive primary jurisdiction."

In order to remove this case from the general rule as to the exclusiveness of jurisdiction of the National Railroad Adjustment Board plaintiffs point to Section 2 of the Act, 45 U.S.C.A. § 152, Third, which reads:

"Representatives, for the purpose of this chapter, shall be

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