Gunkel v. Garvey

Decision Date31 December 1964
Citation256 N.Y.S.2d 953,45 Misc.2d 435
PartiesEland GUNKEL, Plaintiff, v. Ernest E. GARVEY, Walter G. Palmer and Division 421, Brotherhood of Locomotive Engineers, Defendants.
CourtNew York Supreme Court

John T. Collins, Buffalo, for plaintiff.

Phillips, Mahoney, Lytle, Yorkey & Letchworth, Buffalo, for defendants.

JOSEPH A. NEVINS, Justice.

This is a motion pursuant to CPLR Rule 3211 to dismiss the complaint in this action upon the grounds that it is subject to the bar of collateral estoppel and that it fails to state a cause of action.

There seems to be relatively little dispute as to the important facts which underlie the complaint at least in so far as the parties have disclosed them. There are however some notable omissions from the factual history which render the decision more difficult. It does appear however that the plaintiff was employed by the New York Central Railroad Company as a locomotive fireman beginning in 1917 and that in 1939, he was promoted to the job of locomotive engineer, apparently in road service, which status continued until February of 1951 when he was suspended by his employer from road service and reduced to yard service, in which capacity he continued until July of 1961 when he was discharged from employment altogether. It further appears that the plaintiff was for some time prior to 1951 a member of the Grand International Brotherhood of Locomotive Engineers and of the local unit of that Brotherhood, known as Division 421, Brotherhood of Locomotive Engineers. The defendant Garvey is the Chairman, commonly referred to as the General Chairman of the General Committee of Adjustment of the Brotherhood of Locomotive Engineers employed by the New York Central Railroad Company, in its Eastern District and Boston and Albany Division. The defendant Palmer is described in the complaint as the former Chairman of the General Committee of Adjustment. It is undisputed that Division 421 of the Brotherhood and the defendants Palmer and Garvey as Chairmen of the General Committee of Adjustment were the duly authorized representatives of the plaintiff in the processing of grievances with the New York Central Railroad Company at all levels including reference to the National Railroad Adjustment Board pursuant to the provisions of Chapter 8 of the Railway Labor Act of 1934, 45 U.S.C.A. § 151 et seq.

The plaintiff's claim here revolves about the two incidents described, the first in 1951 which resulted in his demotion from road to yard service and the second in 1961, his final dismissal from service. The complaint consists of three causes of action, the first of which alleges that the defendants between 1951 and 1961 failed to refer the plaintiff's grievances upon his demotion to the Railroad Adjustment Board, although the plaintiff so requested and it is charged that the defendants advised plaintiff that such claim was being properly handled and filed with the Board. Neither the complaint, nor the affidavit of plaintiff's counsel specifies how or when such demands and assurances were made. The damages claimed are based upon an alleged difference in earnings between what the plaintiff would have received as a road engineman above his earnings as a yard employee. This is said to be $5,000.00 per year for the period of February 6, 1951 through July, 1961, or $60,000.00 plus a continuing annual loss of $6,000.00.

The second cause of action alleges in substance that neither of the individual defendants during their terms of office presented any claim to the National Railroad Adjustment Board although requested to do so by various division locals within their jurisdiction and that Division 421 with knowledge, actual or constructive, of this failure permitted the individual defendants to continue in office. This acquiescence by Division 421 in the alleged dereliction of duty on the part of the individual defendants is said to have resulted in the same money damages claimed in the first cause of action. Again, neither the complaint, nor the affidavit of plaintiff's counsel contains any factual information as to when, by whom or to whom such claims for proceedings before the Adjustment Board were presented; nor any claim, let alone showing, that any such alleged grievances were worthy of reference to that body, nor that they were resolved in a manner unsatisfactory to the employees involved.

Further, there is neither claim nor showing that Division 421 was empowered to remove the individual defendants from office or that the plaintiff ever demanded that such action be taken.

The third cause of action concerns the plaintiff's dismissal from service in July of 1961 and once again it is claimed that the defendants failed and refused to present the plaintiff's claim to the National Railroad Adjustment Board although requested to do so by the plaintiff, resulting in a claimed loss of wages from July, 1961 to March, 1962 in the amount of $8,000.00. Total damages of $74,000.00 are claimed.

It is undisputed that following grievance procedures processed by the General Committee of Adjustment and its then Chairman, the defendant Garvey, the New York Central Railroad Company offered to restore the plaintiff to the position last held by him as an engineer in yard service. This decision was accepted by the Chairman of the General Committee of Adjustment but declined by the plaintiff. No appeal was taken by the plaintiff from this acceptance by the General Committee of the offer to reinstate. However, the plaintiff's counsel asserts that such an appeal was foreclosed by time limitations which had expired prior to the rendering of the decision upon the grievances. This is denied by the defendants and disputed by an affidavit submitted on behalf of the defendants by Thomas A. Seymour, Assistant General Manager of Employee Relations for the New York Central System, Eastern District.

The motion to dismiss, based upon application of the doctrine of collateral estoppel grows out of the fact that this plaintiff previously commenced an action in the United States District Court for the Western District of New York against the same defendants for the same relief, upon the same grounds alleged here and that the complaint was dismissed there upon the ground inter alia that 'the complaint does not contain allegations sufficient to state a cause of action arising under and involving the interpretation and application of the Railway Labor Act as amended'. (Exhibit B attached to the supporting affidavit of John F. Donovan, Esq., sworn to the 13th day of January, 1964.) Leaving aside the question of whether that earlier determination fits within the doctrine of collateral estoppel, rather than that of res judicata it could only act as a bar to this action if it constituted a final adjudication on the merits. However, the District Court dismissed for lack of jurisdiction of the subject matter in the absence of a diversity of citizenship of the parties, the lack of any jurisdiction conferred pursuant to Sections 1331 and 1337 of Title 28 of the U. S. Code and as stated, the lack of allegations sufficient to state a cause of action arising under and involving an interpretation of a federal statute, i. e. the Railway Labor Act. The argument of the defendants is that federal laws control this case because it involves a collective bargaining representative, Division 421 of the Brotherhood of Locomotive Engineers, certified by the National Mediation Board, under the Railway Labor Act, as the representative of a class of employees in the service of an employer engaged in interstate commerce, and is argued, a cause of action arising out of a federal labor statute, the Railway Labor Act. This last refers to the duty of fair representation, which the defendants claim, arises from federal law. Concluding from these propositions that federal law applies exclusively the defendants reason that the earlier dismissal by the District Court is a conclusive determination that no cause of action exists under federal law and that therefore none can exist under state law.

There is ample authority that a railway union's duty to fairly represent the class of employees for whom it is certified as the bargaining representative derives from the powers and responsibility conferred upon it by the Railway Labor Act (Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 [1952]; Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 [1944]; Steele v. Louisville and Nashville R. R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 [1944]; Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 [1957] and Graham v. Brotherhood of Locomotive Firemen and Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22 [1949]) but it does not follow that the mere fact of such derivation will bring every action asserting a breach of that duty within the jurisdiction of a federal District Court where diversity of citizenship does not exist. In other words, to say merely that the right asserted is derived in a general way from federal statutes is not synonymous with the phrase '* * * arises under the Constitution, laws or treaties of the United States' which is used in Title 28 of the U. S. Code, § 1331, nor with the language used in Section 1337 of the Code...

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8 cases
  • Demings v. City of Ecorse
    • United States
    • Michigan Supreme Court
    • November 7, 1985
    ...not required to carry every grievance to the highest level, but must be permitted to assess each with a view to individual merit. Gunkel v Garvey, 45 Misc2d 435; 256 NYS2d 953 "Having regard for the good of the general membership, the union is vested with discretion which permits it to weig......
  • Goolsby v. City of Detroit
    • United States
    • Michigan Supreme Court
    • December 10, 1984
    ...required to carry every grievance to the highest level, but must be permitted to assess each with a view to individual merit. Gunkel v Garvey, 45 Misc 2d 435; 256 NYS2d 953 "Having regard for the good of the general membership, the union is vested with discretion which permits it to weigh t......
  • Lowe v. Hotel & Restaurant Emp. Union, Local 705
    • United States
    • Michigan Supreme Court
    • March 22, 1973
    ...carry every grievance to the highest level, but must be permitted to assess each with a view to individual merit. Gunkel v. Garvey, 45 Misc.2d 435, 256 N.Y.S.2d 953 (1964). In doing so, the courts have said that the union must act without fraud, bad faith, hostility, discrimination, arbitra......
  • Symanski v. East Ramapo Central School Dist.
    • United States
    • New York Supreme Court — Appellate Division
    • May 5, 1986
    ...each grievance with a view to its individual merit and its consistency with prior and pending grievance proceedings (Gunkel v. Garvey, 45 Misc.2d 435, 441, 256 N.Y.S.2d 953). "Just as a union must be free to sift out wholly frivolous grievances which would only clog the grievance process, s......
  • Request a trial to view additional results

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