Gunther v. San Diego & Arizona Eastern Railway Company

• Decision Date: 04 September 1964
• Docket Number: No. 18724.,18724.
• Citation: 336 F.2d 543
• Parties: F. J. GUNTHER, Appellant, v. SAN DIEGO & ARIZONA EASTERN RAILWAY COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

336 F.2d 543 (1964)

F. J. GUNTHER, Appellant, v. SAN DIEGO & ARIZONA EASTERN RAILWAY COMPANY, a corporation, Appellee.

No. 18724.

United States Court of Appeals Ninth Circuit.

September 4, 1964.

Charles W. Decker, San Francisco, Cal., Harold N. McLaughlin, John H. Ritter, Marshman, Hornbeck, Hollington, Steadman & McLaughlin, Cleveland, Ohio, for appellant.

W. A. Gregory, William R. Denton, Frederick L. Nelson, San Francisco, Cal., James W. Archer, Eugene L. Freeland, Gray, Cary, Ames & Frye, San Diego, Cal., for appellee.

Before POPE, HAMLEY and MERRILL, Circuit Judges.

MERRILL, Circuit Judge.

Appellant initiated this proceeding on November 28, 1960, by filing in the District Court for the Southern District of California a petition under 45 U.S.C. § 153(p),¹ seeking enforcement of an award and order of the First Division of the National Railroad Adjustment Board. That award and order directed that appellant be reinstated by the Railroad to active employment, with pay for lost time. The Railroad successfully contended before the District Court that the award and order was made in excess of the jurisdiction of the Adjustment Board, and was therefore not subject to a judicial order of enforcement. Summary judgment was rendered in favor of the Railroad. Appellant subsequently moved, under F.R.Civ.P. Rule 60(b), to be relieved of judgment on the ground of newly discovered evidence. This motion was denied by the court. Appeals from both the judgment and subsequent order were taken and have been consolidated.

On December 30, 1954, shortly after appellant's seventy-first birthday, the Railroad removed him from active service. He had been employed by the Railroad since December, 1916, and his employment since December, 1923, had been as locomotive engineer.

The record establishes without dispute² that appellant's removal was under the following circumstances:

"Locomotive engineers employed by the San Diego & Arizona Eastern Railway Company are and have always been required to take and pass periodic physical examinations and reexaminations to determine their fitness to remain in service. In the year 1954 these requirements provided, and they still provide, that employees of age seventy and over must take and pass such a physical examination every three months. In accordance with the foregoing rule, Mr. Gunther reported for physical examination on November 24, 1953, and for additional examinations (reexaminations) in each successive three-month period to and including December 15, 1954. On the latter date Mr. Gunther reported for and took his physical examination; and on the basis of the findings during this examination the examining physicians determined that he was no longer physically qualified to remain in service as a locomotive engineer. These findings were reviewed at the Southern Pacific Hospital in San Francisco by the Chief Surgeon, who concurred in the findings and opinion that Mr. Gunther\'s heart was in such condition that he would be likely to suffer an acute coronary episode. Based upon this conclusion, Mr. Gunther was physically disqualified, as aforesaid, on December 30, 1954."

Following removal, appellant submitted to an examination by a physician of his own choice, and on the basis of that doctor's favorable report requested of the Railroad that a three-doctor board be appointed to reexamine his physical qualifications for return to service. When this request was denied appellant filed with the Railroad Adjustment Board a claim for reinstatement and back pay. The claim was presented on appellant's behalf by the Brotherhood of Locomotive Firemen and Enginemen, of which organization appellant was a member and officer. The designated collective bargaining representative of the Railroad's employees, however, was the Brotherhood of Locomotive Engineers and it was the contract reached between that organization and the Railroad which constituted the applicable collective bargaining agreement.

Before the Adjustment Board appellant's claim was opposed by the Railroad on the ground that there was no rule providing for the appointment of a neutral medical board and that the Railroad's judgment of appellant's fitness, based upon the decision of its Chief Surgeon, was not subject to review.

The Board nevertheless ordered a neutral board to be established. Its order of October 2, 1956, provided:

"It is true that carrier has the right and responsibility of determining within proper limits the physical fitness of employes to remain in service. It is true also that the employe has the right to priority in service according to his seniority and pursuant to the agreement so long as he is physically qualified. Where these two rights come into collision it has consistently been held by this Division that it has jurisdiction to determine whether the employe has wrongfully been deprived of service. If carrier through its medical staff has removed an employe from service in good faith, on the basis of a fair standard of fitness, applied to his physical condition, adequately determined, there is no right to reinstatement. Otherwise he has been wrongfully removed from service.

"Since determination of the facts necessary to enable the Division to make proper award on such issue requires expert medical competence, it has not been unusual, where adequate showing has been made of ground for challenge of carrier\'s decision, for the Division to provide for a neutral board of three qualified physicians, one chosen by carrier and one by the employe and the third by the two so selected, for the purpose of determining the facts as to a claimant\'s disability and the propriety of his removal from service. In such case the Division predicates its award upon the finding of the board of physicians.

"While the statement of claimant\'s physician now submitted is generally equivocal we think that when considered in connection with his prior report and that of carrier\'s medical superintendent, it discloses sufficient substantial disagreement as to claimant\'s physical condition to justify further check up and inquiry by such a neutral board of physicians. If the decision of the majority of such board shall support the decision of carrier\'s chief surgeon, the claim will be denied; if not, it will be sustained with pay pursuant to rule on the property from October 15, 1955, the date of the letter of Dr. Hall showing disagreement with the findings of disqualification by the company physicians."

Appellant was duly examined by the neutral board and the Adjustment Board subsequently found "that the majority of said board properly examined claimant and that their findings and decision therefrom did not support the decision of carrier's chief surgeon but that they found and decided that claimant had no physical defects which would prevent him from carrying on his usual occupation as engineer." The claim of appellant was sustained with pay for all time lost from October 15, 1955. It is for enforcement of this award and order that this proceeding was instituted.

The function of the Railroad Adjustment Board is set forth as follows in 48 Stat. 1189 (1934), 45 U.S.C. § 153(i) (1958):

"The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on June 21, 1934, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes."

The First Division of the Board, by § 153(h), is given authority over disputes involving engineers.

The issue here is whether any dispute growing out of a grievance or question of contract interpretation is presented by appellant's removal from active service upon the ground of physical disqualification. We agree with the District Court that no such dispute is presented.

It is clear from the record that the Railroad has always reserved to itself the right and responsibility of determining the qualifications of its employees, including, importantly, the physical fitness of its locomotive engineers. It would seem to us to be a most elementary proposition that in the public interest the responsibility for such determinations must be clearly fixed, and that in the absence of contrary provisions in the applicable collective bargaining agreement such responsibility must rest with the Railroad.³

There was no contrary provision in the contract between the Railroad and the Brotherhood of Locomotive Engineers as of the date of appellant's removal.

Appellant refers us to the contract's general provisions respecting seniority rights and right to continue active employment in the absence of good cause for discontinuance thereof.⁴ It is clear from a reading of these provisions that th...