Foy v. Norfolk and Western Railway Company

• Decision Date: 21 April 1967
• Docket Number: No. 11051.,11051.
• Citation: 377 F.2d 243
• Parties: O. V. FOY, Appellant, v. NORFOLK AND WESTERN RAILWAY COMPANY, a corporation, Brotherhood of Railroad Trainmen, an unincorporated association, Brotherhood of Railroad Trainmen, Local Lodge 550, John Jennings, Secretary, Local Lodge 550, Brotherhood of Railroad Trainmen, and John Cartos, President and Local Chairman, Local Lodge 550, Brotherhood of Railroad Trainmen, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

377 F.2d 243 (1967)

O. V. FOY, Appellant, v. NORFOLK AND WESTERN RAILWAY COMPANY, a corporation, Brotherhood of Railroad Trainmen, an unincorporated association, Brotherhood of Railroad Trainmen, Local Lodge 550, John Jennings, Secretary, Local Lodge 550, Brotherhood of Railroad Trainmen, and John Cartos, President and Local Chairman, Local Lodge 550, Brotherhood of Railroad Trainmen, Appellees.

No. 11051.

United States Court of Appeals Fourth Circuit.

Argued March 10, 1967.

Decided April 21, 1967.

Howard I. Legum, Norfolk, Va. (Fine, Fine, Legum, Schwan & Fine, Norfolk, Va., on brief) for appellant.

Robert R. MacMillan, Norfolk, Va. (Breeden, Howard & MacMillan, Norfolk, Va., on brief) for appellees Brotherhood.

Jos. L. Kelly, Jr., Norfolk, Va. (Williams, Cocke, Worrell & Kelly, Norfolk, Va., on brief) for appellee Norfolk and Western Railway Co.

Before J. SPENCER BELL and WINTER, Circuit Judges, and HARVEY, District Judge.

J. SPENCER BELL, Circuit Judge.

This action was brought by plaintiff, a resident of Virginia, under the Railway Labor Act (45 U.S.C. § 151 et seq.), against his employer, the Norfolk and Western Railway Company, a Virginia corporation, and against his union, the Brotherhood of Railroad Trainmen, and two of its local officials. Plaintiff alleged in his complaint that the defendants had discriminated against him because he is a Negro, thus preventing him from being promoted to more desirable and higher paying positions during the course of his employment. Summary judgment was granted for the defendants on the grounds that plaintiff had failed to exhaust his intra-union, contractual, and administrative remedies without offering any reasons, other than bare allegations for his failure to do so.

Plaintiff Foy had been employed by Norfolk and Western as a yard brakeman since 1926. Since 1957, he had been a member of Local Lodge No. 550 of the Brotherhood. On March 17, 1965, this action was commenced.

The Brotherhood, on April 21, 1965, filed a motion to dismiss the complaint on the ground that the plaintiff was a member of Local Lodge No. 550 and had failed to pursue or exhaust his intra-union remedies by following the grievance procedures provided by the Brotherhood's constitution. The Brotherhood's motion was supported by two affidavits: in one, the current chairman of the Brotherhood's local grievance committee stated that plaintiff had not followed the grievance procedure; and in the other, the chairman of the Brotherhood's general grievance committee stated that grievances of other Negro members could and had been processed by local lodges and the general grievance committee and had been satisfactorily adjusted in the past. Plaintiff filed no counter-affidavits.

The district court treated the motion as a motion for summary judgment in accordance with Rule 12(b) of the Federal Rules of Civil Procedure, and on March 4, 1966, summary judgment was granted for the Brotherhood and Norfolk and Western. Thereafter, on April 19, 1966, plaintiff was granted leave to file an amended complaint.

The unverified amended complaint alleged that plaintiff had not followed the Brotherhood's grievance procedure before 1955 because he had been excluded from membership because of his race; and that he did not resort to the grievance procedure after admission to the Brotherhood because (1) he had requested the local chairman to take steps to end the discrimination and was told nothing could be done, and (2) his complaint was not a "grievance" of the type contemplated by the Brotherhood's constitution, so that to follow the procedure would have been futile.

The Brotherhood promptly filed a motion to dismiss the amended complaint, which motion was supported by affidavits of all three men who had served as chairman of the local grievance committee since 1955. The affiants stated that the plaintiff had never requested action to end the alleged discrimination, that he had never discussed his grievance with any of them, and that they had not told plaintiff that nothing could be done. The two affidavits which had been filed with the motion to dismiss the original complaint were also filed with the motion to dismiss the amended complaint.

Norfolk and Western also filed a motion to dismiss the amended complaint on the following grounds: (1) it could not have participated in any violation of the plaintiff's right to fair representation under the Railway Labor Act for the reason that this right had not been violated by the Brotherhood; (2) any violation of contract rights is within the exclusive jurisdiction of the National Railroad Adjustment Board; and (3) plaintiff had not exhausted his contractual remedies under the collective bargaining agreement applicable to his employment. The last ground was substantiated by an affidavit of the general agent and superintendent of Norfolk and Western at Norfolk, Virginia, who stated that plaintiff's first claim to the railroad that he should be considered for promotion was rejected because it was not made within the time provided by the claims rule, but at that time plaintiff was advised that he would be included in the next group of yardmen to be examined for promotion; and that plaintiff was in fact examined with the next group and was subsequently promoted to the position of yard conductor. The affiant further stated that vacancies for the position of car retarder operator, in which plaintiff had also expressed an interest in his complaint, had always been duly advertised and that plaintiff had at no time qualified or attempted to qualify himself for that position in accordance with the terms of the collective bargaining agreement.

On May 27, 1966, the district court gave notice to counsel for all parties that argument on the motions to dismiss the amended complaint would be heard on August 3, 1966. The defendants' motions and all supporting affidavits had been served on the plaintiff prior to May 27. At no time before the hearing date did plaintiff file any counter-affidavits or other response to the defendants' motions. After oral argument on the motions, treated by the court as motions for summary judgment, had been heard, plaintiff asked leave to file a counter-affidavit. Plaintiff offered no explanation why the affidavit had not been timely filed, nor did he indicate who the affiant would be or what would be the affidavit's nature. The district court denied the plaintiff's motion to file a late affidavit and granted summary judgment for all defendants. We affirm.^*

There is, of course, no doubt that the Railway Labor Act imposes upon a union serving as a bargaining agent under the Act an absolute duty to represent all employees fairly and without discrimination. E. g., Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The question now under consideration, however, is whether the district court abused its discretion in requiring the plaintiff first to exhaust his intra-union remedies under the circumstances of this case before bringing his grievance to the courts.

The Labor-Management Reporting and Disclosure Act provides that a labor union cannot limit the right of a member to institute a court action:

"Provided,

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