Graf v. Elgin, Joliet and Eastern Ry. Co.

• Citation: 697 F.2d 771
• Decision Date: 07 January 1983
• Docket Number: D,No. 82-1864,No. 882,882,82-1864
• Parties: 112 L.R.R.M. (BNA) 2462, 96 Lab.Cas. P 14,105 Daniel K. GRAF, Plaintiff-Appellant, v. ELGIN, JOLIET AND EASTERN RAILWAY COMPANY, and Brotherhood of Railway Carmen, Localefendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 771

697 F.2d 771

112 L.R.R.M. (BNA) 2462, 96 Lab.Cas. P 14,105

Daniel K. GRAF, Plaintiff-Appellant, v. ELGIN, JOLIET AND EASTERN RAILWAY COMPANY, and Brotherhood of Railway Carmen, Local No. 882, Defendants-Appellees.

No. 82-1864.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 4, 1982.

Decided Jan. 7, 1983.

Thomas E. Cowgill, Cirricione, Block, Krockey & Cornugel, P.C., Joliet, Ill., for plaintiff-appellant.

W. Gerald Thursby, Chicago, Ill., Thomas A. Woodley, Mulholland & Hickey, Washington, D.C., for defendants-appellees.

Before WOOD, ESCHBACH and POSNER, Circuit Judges.

POSNER, Circuit Judge.

We consider in this appeal issues of federal jurisdiction and labor law arising out of the attempt of a railroad worker, Daniel Graf, to sue his union, a local union of the Brotherhood of Railway Carmen, and his employer, the Elgin, Joliet and Eastern Railway.

Graf sustained a concussion in an accident at work. In the course of investigating the accident the railroad learned that when Graf had been hired two years earlier he had not disclosed on his employment and medical forms a previous job, an injury (to his knee) in that job, and a claim for compensation for that injury. All were items of information that the forms required him to disclose, on penalty of being fired if he did not. After an informal hearing before his supervisor, at which Graf was represented by Leo Evans, the chairman of Local 882 (the collective bargaining representative), the railroad fired Graf for having knowingly falsified the forms.

The grievance procedure under the collective bargaining agreement entitled Graf to appeal to his supervisor's boss within 60 days, and thereafter to higher levels in the company and eventually to the arbitration boards created by the Railway Labor Act, see 45 U.S.C. Sec. 153. Graf asked Evans to file an appeal for him and Evans said he would, and later that he had. These appeals customarily are handwritten and hand delivered. Evans wrote out the following appeal: "Please consider this as a appeal to your dission ... [terminating Graf]. I can't except your dission and therefore appeal to the next highest officer of the carrier. We ask that he be reinstated with seniority intack and all back wages." Evans put this appeal in his pocket together with several others, only to find after the 60 days were up that it was still there. He testified in his deposition that the failure to submit Graf's appeal with the other appeals had been inadvertent. Graf in his deposition testified that Evans had told him, "I am sorry. I really thought I put it in."

Graf filed suit in a state court against the company (Count I) and the union (Count II). Count I, which sought reinstatement and back pay, charged that the company had fired Graf for the sole and wrongful reason that Graf had sued it under the Federal Employers Liability Act, 45 U.S.C. Secs. 51 et seq., for damages allegedly sustained as a result of the accident. Count II, which sought damages of $15,000, charged that the union had negligently failed to prosecute Graf's grievance. This count originally named Evans as a codefendant but he has been dismissed from the case and Graf does not appeal the dismissal.

The union removed the suit to federal district court and moved for summary judgment. The district judge granted the motion and dismissed Count II on the ground that the union had not breached its duty of fair representation. The judge then dismissed Count I on his own initiative because breach of the union's duty is a precondition to maintaining a suit against the company.

Graf's state court complaint had not indicated under what law he was suing, and in removing the suit the union did not indicate why it thought Graf's complaint was within the original jurisdiction of the federal district court. After removal Graf filed an amended complaint in the district court, but it was virtually identical to the original one and likewise did not indicate the legal basis for the suit. The district court never stated what it thought the basis of federal jurisdiction was either.

There is a natural assumption, based on section 301 of the Taft-Hartley Act, 29 U.S.C. Sec. 185, that all suits to enforce collective bargaining agreements (including suits by individual workers, see Smith v. Evening News Ass'n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962)) are within the original jurisdiction of the federal district courts and hence removable under 28 U.S.C. Sec. 1441 if filed in state court. And Graf's state court complaint, at least if read very liberally, alleges that the union violated its duty of representation under the collective bargaining agreement and that the company violated the agreement by firing him. But section 301 does not apply to employers subject to the Railway Labor Act (see sections 2(2), 2(3) of the National Labor Relations Act, as amended, 29 U.S.C. Secs. 152(2), (3), and section 301(a) of the Labor-Management Relations Act, 29 U.S.C. Sec. 185(a)), as the employer in this case is conceded to be; and no other statute purports to give the federal courts jurisdiction to enforce collective bargaining agreements with such employers. It is true that awards and denials of awards by arbitral boards created by the Railway Labor Act are reviewable in federal district court, 45 U.S.C. Secs. 153 First (p), (q), 153 Second, but Graf is not seeking judicial review of the denial of an award.

If the complaint can be read to allege a violation of the Railway Labor Act itself rather than just of the collective bargaining agreement, then 28 U.S.C. Sec. 1337 confers original federal jurisdiction. See, e.g., Raus v. Brotherhood of Railway Carmen, 663 F.2d 791, 796 (8th Cir.1981). Steele v. Louisville & Nashville R.R., 323 U.S. 192, 199, 204, 65 S.Ct. 226, 230, 232, 89 L.Ed. 173 (1944), held that the Railway Labor Act imposes on the collective bargaining representative a duty independent of the terms of the agreement to represent all members of the bargaining unit fairly. Count II can be read to allege a breach of that duty, and therefore 28 U.S.C. Sec. 1337 does confer federal jurisdiction over this count.

The basis of federal jurisdiction over Count I, which alleges retaliatory discharge by the railroad, is less clear. There is no suggestion that the company participated in the union's alleged violation of the statutory duty of fair representation; if it had, the basis of jurisdiction would be the same as over Count II. A claim that you have been retaliated against for exercising a federal right--the right to sue under FELA--might raise a federal question substantial enough to confer federal jurisdiction under 28 U.S.C. Sec. 1331. It is unclear, though, what federal law such retaliation would violate. Apparently it would not violate the FELA itself, see Greenwood v. Atchison, Topeka & Santa Fe Ry., 129 F.Supp. 105, 107 (S.D.Cal.1955); Loucks v. Star City Glass Co., 551 F.2d 745, 749 (7th Cir.1977), or federal labor law, cf. Krispy Kreme Doughnut Corp. v. NLRB, 635 F.2d 304 (4th Cir.1980). Although the fact that a federal claim is without merit will not defeat federal jurisdiction unless the claim is frivolous, Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), this observation has only limited relevance to the question at hand, which is whether there is any federal jurisdictional peg on which Graf can hang a claim that the company violated the collective bargaining contract. A claim of retaliatory discharge having no basis in federal law would be dismissed before trial and any pendent state-law claims would be dismissed along with it. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).

Diversity of citizenship was the ground on which a federal district court assumed jurisdiction over an employee's suit against his employer for breach of the collective bargaining contract in Moore v. Illinois Central R.R., 312 U.S. 630, 632, 61 S.Ct. 754, 755, 85 L.Ed. 1089 (1941) (see dissenting opinion in the court of appeals, Illinois Cent. R. Co. v. Moore, 112 F.2d 959, 967 (5th Cir.1940)), but diversity is not alleged here and appears not to be present. Moreover, Andrews v. Louisville & Nashville R.R., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), in overruling Moore, held that the arbitral remedies provided by the Railway Labor Act are exclusive and extinguish any remedies under state law. Maybe, though, the following can be argued: if, as alleged in the present case, the union, by violating its duty of fair representation, prevents the worker from taking advantage of the remedies set up by the Act, his rights under state law survive because Congress would not have wanted to leave him completely without remedy. But this way of distinguishing Andrews would not solve Graf's jurisdictional problem; he would still have to show how he can bring a suit under state law in federal court if there is no diversity.

Now Graf, as we shall see, may not be able to get complete relief in his suit against the union. Complete relief may require bringing in the company as an additional defendant. If so, Rule 19 of the Federal Rules of Civil Procedure would authorize joinder. But Rule 19 is not a source of federal subject-matter jurisdiction, 3A Moore's Federal Practice Sec. 19.04(2.-2) at pp. 19-68 to 19-70 (1982). And although the same considerations that support joinder might appear to support federal jurisdiction over Graf's claim against the company under the "pendent parties" concept, the current judicial hostility to that concept, illustrated by our recent decision in Hixon v. Sherwin-Williams Co., 671 F.2d 1005, 1008-09 (7th Cir.1982), may make this an unpromising avenue, though Hixon itself is distinguishable.

Language in Andrews, see 406 U.S. at 323, 92 S.Ct. at 1564, and in International Ass'n of Machinists v. Central Airlines, Inc., 372 U.S. 682, 692, 83 S.Ct. 956, 962, 10 L.Ed.2d 67 (1963),...