Edwards v. St. Louis-San Francisco Railroad Company, 15400.

Citation361 F.2d 946
Decision Date13 May 1966
Docket NumberNo. 15400.,15400.
PartiesJ. W. EDWARDS, Plaintiff-Appellant, v. ST. LOUIS-SAN FRANCISCO RAILROAD COMPANY, a Corporation, National Railroad Adjustment Board, First Division, Eugene A. Killeen, Executive Secretary, H. W. Burtness, G. L. Buuck, Don Miller, B. W. Fern, K. Levin, W. R. Meyers, H. V. Bordwell, J. E. Carlisle, E. T. Horsley, and A. E. Myles, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

COPYRIGHT MATERIAL OMITTED

Joseph P. Jenkins, Kansas City, Kan., Louis F. Cainkar, Chicago, Ill., Joseph Cohen, Charles S. Schnider, Edward G. Collister, Jr., Gerald T. Elliott, Kansas City, Kan., for plaintiff-appellant.

Burke Williamson, Martin M. Lucente, Chicago, Ill., Thomas E. Deacy, Jr., Kansas City, Mo., John A. Hutchings, William P. Richmond, Chicago, Ill., for defendants-appellees; Sidley, Austin, Burgess & Smith, Chicago, Ill., of counsel.

Before CASTLE and SWYGERT, Circuit Judges, and GRANT, District Judge.

GRANT, District Judge.

Appellant brought this action in the district court against his former employer, the St. Louis-San Francisco Railroad Company, and the National Railroad Adjustment Board, First Division, and certain named individuals, members of the First Division of the National Railroad Adjustment Board. By his complaint, appellant sought to set aside a previously entered order of the Adjustment Board and to obtain judgment against the railroad in the sum of $50,000 for wrongful discharge and breach of employment contract, plus $100,000 in punitive damages for "willful and wanton disregard of appellant's rights".

Motions to dismiss were filed in the proceeding below by (a) H. W. Burtness, H. V. Bordwell, J. E. Carlisle, E. T. Horsley and A. E. Myles, Carrier Members of the National Railroad Adjustment Board, First Division, and (b) K. Levin and Don Miller, Labor Members. The lower court treated these motions as motions for summary judgment, and granted them. A motion to dismiss for lack of jurisdiction and lack of service of process filed by the railroad was also granted. The district court on its own motion then dismissed the complaint as to the remaining defendants. The alleged errors relied upon in this appeal were to have arisen out of the granting of these motions. This Court, however, finds the memorandum order of the district court effecting the disposition of these motions to be eminently correct in all particulars, and therefore affirms its judgment.

The facts of this case are as follows: On September 25, 1960, the appellant, who was then — as he had been for some forty years — employed by the St. Louis-San Francisco Railway Company as a conductor in passenger service, was taken off his run and charged with failure to remit a five dollar cash fare which appellant allegedly had collected from a passenger on or about August 28, 1960. The railroad was informed of the alleged incident in the morning of August 28, 1960, when the train's porter, J. D. McPherson, called V. J. Deckard, the railroad's Superintendent of Terminals in Kansas City. McPherson informed Deckard that with him was a woman who wanted to make a report. The woman then told Deckard that, while a passenger, she had given the conductor five dollars for a cash fare, but that she had been given no receipt for it. Deckard reported this to Special Agent Adams and asked him to investigate. Adams then prepared a statement from notes which he took at a conference with the woman, and the statement was signed by her. None of the three agents of the railroad actually saw the alleged incident take place.

Under the terms of the collective bargaining agreement in effect at that time between the Order of Railway Conductors and Brakemen and the railroad, a hearing must be held within five days for the individual so charged and taken off his run.1 Accordingly, a hearing was held on railroad company property on September 27, 1960, at which appellant appeared and was represented by the General Chairman of the Order of Railway Conductors and Brakemen. The railroad, during the course of the hearing, called four witnesses: an officer of the railroad's accounting department, who testified that appellant had not remitted any cash fares which would have been collected on August 28, 1960, and the aforementioned train porter, terminal superintendent, and special agent, each of whom testified only as to the version of the incident that had been related to them by the complaining passenger. The testimony of the latter three witnesses was, of course, hearsay; and the railroad did not produce the passenger, appellant's accuser.

Once at the beginning and again at the end of the hearing, appellant protested the failure of the railroad to produce the complaining witness and his resultant inability to face and cross-examine his accuser.2 Appellant did, however, testify in his own defense, categorically denying the charges against him and that he ever received a cash fare on the day in question. When asked how he accounted for the fact that the complaining passenger had not "materially changed her story" when relating it to three different agents of the railroad, appellant replied, "I don't account for it, sir, unless she misrepresented the facts and stuck to it."

With regard to appellant's due process protest, the hearing examiner apparently was convinced by the railroad that the latter was not contractually or otherwise bound to produce any witness — even a complaining witness — over whom the railroad did not have the power of subpoena. For, on September 30, 1960, the hearing examiner concluded that the charges against appellant had been sustained and accordingly appellant was dismissed from the service of the railroad.

Appellant, through his duly authorized representative, then proceeded to progress the matter in accordance with the related grievance procedures of the collective bargaining agreement. The appeal procedures which the appellant pursued did not, however, result in any change in the dismissal which had been ordered as a result of the investigation heretofore described. Having thus handled his grievance up to and including the chief operating officer of the carrier designated to handle such disputes, appellant then elected to submit the dispute to the First Division of the National Railroad Adjustment Board pursuant to the appropriate provision of the Railway Labor Act.3

Having waived the oral hearing available at his request,4 appellant chose to go to the Adjustment Board on the basis of the record as it then existed. This record consisted solely of a written submission in the nature of a complaint, to which was attached correspondence and other documents relating to the handling of the dispute by the railroad, including a transcript of the hearing held on September 27, 1960. The issues raised by appellant before the Board were: (1) whether the evidence adduced at the hearing held by the carrier supported the charge leading to his dismissal, and (2) whether the absence of the complaining passenger at the hearing violated the provision of Article 40 of the bargaining agreement which accords the accused or his representative the right to "examine all witnesses and papers pertaining to the case."5 After deliberation over the case, the carrier and labor members of the Adjustment Board, being equally divided, failed to agree on a disposition of the dispute. In accordance with the provisions of the Railway Labor Act,6 a referee was appointed to resolve the deadlock. The matter was presented to the referee on behalf of the appellant by a labor member of the Board's First Division, and the railroad's position was argued by a carrier member. The labor members and the carrier members took advantage of every opportunity to express their views in the proceedings before the referee.7 Appropriate notice was given to all parties and all the customary and usual procedures of the Board were followed.8

On December 14, 1961, the National Railroad Adjustment Board handed down its award, denying appellant's claim for reinstatement with full rights and privileges and back pay for all time lost. Finding that there was "sufficient information" to support the carrier's decision to invoke sanctions against appellant, the award turned to the "more perplexing question of whether procedural due process was complied with. * * *" Basing its decision on this issue on interpretation of Article 40 of the collective bargaining contract,9 which provision governs the resolution of such disputes between the railroad and its conductors, the referee found that there was no contractual right to demand that the complaining witness be produced for the purposes of confronting the accused.10 To these findings, the labor members of the Board registered a vigorous and bitter dissent.11

Following the denial of his claim by the National Railroad Adjustment Board, appellant filed the complaint involved in this appeal. In order to better set forth our views on the issues of law presented herein, we deem it appropriate to discuss such matters in terms of what actually are two lawsuits filed by appellant; first, the action against the National Railroad Adjustment Board, First Division, and the Board members; and, secondly, the action against the St. Louis-San Francisco Railroad Company.

I. The Action Against the National Railroad Adjustment Board, First Division, and the Individual Members of the Board.

That we have seen fit to present the facts of this case in some detail is not without purpose. This appellant was dismissed from his employment and deprived of his livelihood after forty years on the job on the sole basis of hearsay evidence. Moreover, when considered as a whole, the evidence adduced at the company hearing really indicated nothing more than the fact that a passenger charged a conductor with an act which the latter denied. What is particularly offensive is that the carrier not only elected to accept the charge of...

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