Brotherhood of Ry., Airline, and S.S. Clerks, Freight Handlers, Exp. & Station Emp. v. St. Louis Southwestern Ry. Co.

• Decision Date: 17 May 1982
• Docket Number: No. 81-2186,81-2186
• Citation: 676 F.2d 132
• Parties: 111 L.R.R.M. (BNA) 2391, 94 Lab.Cas. P 13,526 BROTHERHOOD OF RAILWAY, AIRLINE, AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS & STATION EMPLOYEES, Plaintiff-Appellee, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 132

676 F.2d 132

111 L.R.R.M. (BNA) 2391, 94 Lab.Cas. P 13,526

BROTHERHOOD OF RAILWAY, AIRLINE, AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS & STATION EMPLOYEES, Plaintiff-Appellee, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Defendant-Appellant.

No. 81-2186.

United States Court of Appeals, Fifth Circuit.

May 17, 1982.

Mike A. Hatchell, Tyler, Tex., for defendant-appellant.

Highsaw, Mahoney & Friedman, Clinton J. Miller, III, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before DYER, ^* SAM D. JOHNSON and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

In 1973, the St. Louis Southwestern Railway (the Railroad) created a new job in the mechanical department of its gravity yard at Pine Bluff, Arkansas. W. E. Eastwood, a member of the carmen's craft, bid upon and received the position. A second carman, J. E. Purtle, eventually succeeded Eastwood in the job.

On May 16, 1973, T. F. Carpenter, a clerk represented by the Brotherhood of Railway, Airline, and Steamship Clerks, Freight Handlers, Express and Station Employees (BRAC), filed a grievance submitting that Eastwood's duties required him to "spend the preponderance of his time, each day, ordering parts and materials, tracing material orders by mail and telephone, Local and Long Distance; receiving, checking and stor(ing) materials and parts and mak(ing) distribution of same." Carpenter alleged that these are functions normally performed by clerical workers covered by the collective bargaining agreement between the Railroad and BRAC. That agreement defines "clerical workers" as "(e)mployees who regularly devote not less than four (4) hours per day to the writing and calculating incident to keeping records and accounts, rendition of bills, reports and statements, handling of correspondence and similar work." The Railroad denied the grievance petition, however, replying to Carpenter that members of several crafts other than clerks had to "perform a certain amount of paperwork, telephoning, checking, receiving and dispensing material in connection with the assigned work ...."

The dispute then proceeded to Public Law Board 1186 (the Board), an arbitration board created by agreement between BRAC and the Railroad, as authorized by the Railway Labor Act, 45 U.S.C. § 153 Second. The Board heard the evidence submitted by BRAC and the Railroad, but apparently failed to notify the carmen or their craft representatives of the hearing. On July 31, 1978, the Board issued an award finding that the work in dispute properly belonged to a clerical position covered by BRAC's agreement. ¹ It also awarded damages in the equivalent of "eight hours each day, five days a week at the straight time of the Stock Clerk position, commencing on the date of the claim, May 16, 1973."

The award gave the Railroad thirty days (to August 31, 1978) in which to comply with its terms. According to BRAC, the Railroad created the required clerk's position at its Pine Bluff Yard, but refused to pay the monetary damages to Carpenter. On May 21, 1979, BRAC filed a petition in the district court seeking enforcement of the Board's award pursuant to 45 U.S.C. §§ 153 First (p) and 153 Second. The Railroad filed an answer and a cross-petition, pursuant to 45 U.S.C. § 153 First (q), contending that the award was void because the Board had failed either to notify the carmen's union, as required by both contract and law, or to consider the carmen's contract in resolving BRAC's claims.

The district court granted BRAC's motion for summary judgment on November 17, 1980. Having reviewed the Board's findings, the court concluded that members of the carmen's craft were not indispensable parties to the dispute, that the Board had given all the notice required under 45 U.S.C. § 153 First (j), and that the Railroad had waived any complaint concerning the failure to notify the carmen by failing to raise the issue before the Board. As part of its enforcement order, the court invited the parties to submit briefs, affidavits, and other evidence on the precise amount owed to Carpenter and on BRAC's entitlement to attorney's fees. Although BRAC submitted a memorandum on January 7, 1981, the Railroad apparently chose to ignore this opportunity. The court entered its final judgment on April 3, 1981, awarding $73,364.46 to BRAC as Carpenter's compensation and $5,435.00 as attorney's fees.

Finally, on May 1, 1981, the Railroad filed a Motion for Relief from Judgment, pursuant to Fed.R.Civ.P. 60(b), and a notice of appeal from the final judgment of April 3. The Rule 60(b) motion repeated the Railroad's objection to the Board's failure to notify the carmen and suggested, with respect to the damage amount, that the court should have reduced the Board's award by subtracting the salary drawn by Carpenter over the period of the violation. The court responded on May 21, 1981, that the correctness of its judgment on the notification was a matter for challenge on appeal, not under Rule 60(b). Moreover, the court held that relief from the damage calculation was undeserved since the Railroad had neglected its chance to present evidence and argument on the measure. The Railroad never filed a notice of appeal from the Court's action on this motion.

On appeal, the Railroad has reiterated the principal arguments described above. We affirm the district court's holding that the Railroad waived its objections to the Board's procedural error by failing to raise them before the Board. We also hold that the damages issue is not properly before us, since the Railroad raised this issue for the first time in its postjudgment Rule 60(b) motion and filed no notice of appeal from the district court's denial of that motion.

A. The Notification Requirement

The Railroad insists that the Board's award is void because the Board failed to comply with the mandatory notice provision of section 3 First (j) of the Railway Labor Act, 45 U.S.C. § 153 First (j). Section 3 First (j) provides that "the Adjustment Board shall give due notice of all hearings to the employee or employees and the carrier or carriers involved in any dispute submitted to them." ² The Railroad takes the position that the carman displaced by the award was obviously an "involved" party; thus, the Board's failure to notify him or his bargaining representative of the hearing on BRAC's grievance rendered the award fatally defective from the start. According to BRAC, however, the Pine Bluff position sought by Carpenter was so obviously covered by the terms of the Railroad's agreement with BRAC that the Board was justified in resolving the dispute without implicating the carmen's craft. The district court agreed with BRAC, holding that "(u)nder the limited facts of this case, members of the Carman's Craft were not indispensable parties to the dispute submitted the Public Law Board No. 1186."

We believe that the Board erred in failing to notify the carmen. Our review of the record convinces us that the Board acted upon a perfectly reasonable belief that the disputed job lay well within the limits of BRAC's bargaining jurisdiction, that the Railroad had simply misassigned the job, and that the carmen's contract was, therefore, irrelevant. Nevertheless, this court has long interpreted section 3 of the Railway Labor Act as requiring notice to any party likely to be harmed or substantially affected by the result of the hearing. In Estes v. Union Terminal Co., 89 F.2d 768 (5th Cir. 1937), we specifically held that the Adjustment Board should have given an employee the opportunity to appear before it reached a decision ousting him from his position. We reasoned that any displaced employee is materially affected by, and therefore involved in, such a determination:

Section 3 is rendered somewhat ambiguous by the use of the word "involved" instead of a more comprehensive term. But in justice and fairness, every person who may be adversely affected by an order entered by the Board should be given reasonable notice of the hearing.

Lane was occupying the position of gateman. The order of the Board required his dismissal. No man should be deprived of his means of livelihood without a fair opportunity to defend himself. Plainly, that is the intent of the law.

Id. at 770.

Moreover, in Hunter v. Atchison, Topeka & Santa Fe Railway, 188 F.2d 294, 300-01 (7th Cir. 1951), cert. denied, 342 U.S. 819, 72 S.Ct. 36, 96 L.Ed. 619 (1951), the Seventh Circuit expressly agreed with this reasoning. After quoting at length from Estes, the court wrote: "To say that the train porters are not involved in a dispute which may result in brakemen supplanting them in their jobs is so unrealistic as to be absurd. Surely the employee who has a certain job is as much interested in that job as another employee who is trying to take it away from him."

We are convinced, therefore, that the Board is obligated to notify an employee (or his representative) of any proceeding that may result in that employee's losing his position. This requirement should not prove burdensome in most instances, since a letter of notification to one or two union representatives normally will ensure that all "involved" parties are apprised of the dispute. In any event, inconvenience cannot excuse noncompliance with the law. See Estes, 89 F.2d at 771. Estes clearly established the rule that the Board must extend notice "to all persons who will be substantially affected by the order that may be entered by the Board, unless notice is waived." Id. It did not empower the Board to avoid this requirement sua sponte by determining at the threshold that a "substantially affected" third party could not possibly prevail on the merits. Thus the Public Law Board erred in failing to give the carmen an opportunity to plead their case, however ill-fated.

Lacking persuasiveness, however, is the Railroad's argument that this error renders the award void from its...