Hendley v. Central of Georgia R. Co., 78-1058

• Decision Date: 15 January 1980
• Docket Number: No. 78-1058,78-1058
• Citation: 609 F.2d 1146
• Parties: 103 L.R.R.M. (BNA) 2509 James E. HENDLEY, Plaintiff-Appellant, v. CENTRAL OF GEORGIA RAILROAD CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1146

609 F.2d 1146

103 L.R.R.M. (BNA) 2509

James E. HENDLEY, Plaintiff-Appellant, v. CENTRAL OF GEORGIA RAILROAD CO., Defendant-Appellee.

No. 78-1058.

United States Court of Appeals, Fifth Circuit.

Jan. 15, 1980.

Edward W. Szczepanski, Billy E. Moore, Columbus, Ga., John Wright Jones, Savannah, Ga., J. Sherrod Taylor, Columbus, Ga., for plaintiff-appellant.

John B. Miller, Savannah, Ga., William P. Stallsmith, Jr., Washington, D. C., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before TUTTLE, VANCE and KRAVITCH, Circuit Judges.

TUTTLE, Circuit Judge:

The appellant, a railroad employee, was charged with disloyalty to the railroad because of his assistance in a fellow employee's FELA action against the railroad. He filed an action to enjoin the railroad from conducting a disciplinary hearing, and now appeals from the district court's denial of the injunction. We reverse and remand.

James E. Hendley is employed by Central of Georgia Railroad as a switch engine foreman, and serves as local chairman of the United Transportation Union. In 1977, Daniel Razook, also a Central of Georgia employee, filed suit under the Federal Employers' Liability Act, 45 U.S.C. § 51 Et seq., against Central of Georgia and Union Camp Corporation, a customer of the railroad. Razook had been injured while working on a Central of Georgia railroad track which runs through the property of Union Camp Corporation. Although the property on which the tracks are located is owned by Union Camp, Central of Georgia and the Seaboard Coast Line Railroad have operating rights to the tracks.

Hendley had not been present when Razook was injured; however, he had been employed by the railroad for twenty-five years and was very familiar with the Union Camp yard. Razook, who was confused about the exact physical layout of the tracks, called Hendley at home and asked Hendley to meet him at the Union Camp Company to look at the tracks. Hendley, who was not on duty that day, arrived first, and was met on the property by Razook and Billy Moore, Razook's attorney. Razook had not mentioned to Hendley that he would be accompanied by his attorney. The three men walked through a gate to the area where the tracks were located. While Razook and Hendley were discussing the tracks, Moore took some pictures of the yard. Hendley did not assist Moore in taking the pictures. An engine was stopped in the woodyard, and Hendley and Moore apparently stepped up on it to speak to the railroad workers. None of the parties can recall whether the engine belonged to Seaboard or Central of Georgia.

On November 11, 1977, Hendley was deposed in connection with the Razook case. He answered questions concerning the physical characteristics of the Union Camp yard and discussed his visit to Union Camp to view the tracks with Razook. Certain responses in the deposition indicated that Hendley and Moore had climbed up onto a switch engine. ¹

A few days after Hendley's deposition was taken, W. D. Cogdell, Hendley's superintendent, saw the deposition while helping to prepare the defense in Razook's case. After reviewing the deposition, he concluded that Hendley was guilty of disloyalty to the railroad. The trial of Razook's case against the railroad ended on November 30, and on the next day, December 1, Hendley received a letter from Cogdell informing him of a formal investigation to be held on December 2 at 11:00 A.M. The letter charged Hendley with "disloyalty to the Central of Georgia Railroad Company in that you accompanied and assisted Mr. Billy Moore onto the property of the Union Camp Corporation on an unknown date for the purpose of making photographs of Union Camp Corporation's property for use in a law suit against the Central of Georgia Railroad Company and Union Camp which is in violation of rule R ² of the book of operating rules of Southern Railway System." Hendley was suspended from service as of December 1, pending the outcome of the investigation. At Hendley's request, the investigation was postponed until December 8 at 1:00 P.M. On December 8, Hendley filed suit in the district court for the Southern District of Georgia, requesting that the district court enjoin the defendant from conducting the disciplinary hearing and from interfering with his employment. Hendley alleged that the railroad's actions violated 45 U.S.C. § 60, which provides that it is a crime to discipline an employee for voluntarily furnishing information in connection with an FELA case.

The district court denied Hendley's request for an injunction, holding that the disciplinary procedure was a "minor dispute" within the exclusive jurisdiction of the National Railroad Adjustment Board. Hendley v. Central of Georgia Railroad Co., 442 F.Supp. 482 (S.D.Ga.1977) (citing the Railway Labor Act, 45 U.S.C. § 153 First (i)). Although the court agreed that violations of § 60 can be enjoined in connection with an on-going FELA case, it held that the section does not confer jurisdiction to override the mandatory grievance procedures where the case has been concluded and there is no possibility that evidence will be suppressed through coercion by the railroad. 442 F.Supp. at 486. Hendley filed a notice of appeal and a motion for an injunction pending appeal, stating that he was being irreparably harmed by the defendant's actions, since he was now unemployed. The court denied his motion for an injunction pending appeal.

The disciplinary hearing was conducted on February 15, 1978, and Hendley was dismissed from service on February 25, 1978. Hendley then progressed his grievance through the procedures of the National Railroad Adjustment Board. On April 6, 1979, the Board reviewed the decision and found that Hendley's "disloyalty" warranted disciplinary action, ³ but that dismissal from service was "an extremely harsh penalty." Accordingly, the Board ordered that Hendley be reinstated with full seniority, but without back pay.

It is necessary first for us to define precisely the question that is before us. We are not faced with the broader issue of whether 45 U.S.C. § 60, a criminal statute, may be enforced through a district court's issuance of an injunction in a civil action. The parties agree, and the district court held, that an injunction may issue to prevent violations of § 60 in an ongoing FELA case. The question we must decide is whether a federal court also has jurisdiction, when an FELA case has been concluded, to enjoin a disciplinary hearing used by a railroad for retaliatory purposes in violation of 45 U.S.C. § 60.

The Railway Labor Act, 45 U.S.C. §§ 151-163, requires that railroads and railroad employees attempt to settle all minor disputes through grievance procedures. If those procedures fail, either party may appeal to the National Railroad Adjustment Board for compulsory arbitration. Id. § 153 First (i). An award of the adjustment board is final and binding on both parties, § 153 First (m), and the scope of judicial review of these awards is narrow. See Central of Georgia Railway Co. v. United Transportation Union,353 F.Supp. 293, 302 (S.D.Ga.1973) (range of judicial review is "among the narrowest known to the law;" awards are final in the absence of fraud or jurisdictional defects). Minor disputes are those disputes which concern the application or interpretation of existing collective bargaining contracts, while "major disputes" concern changes in rates of pay or working conditions where the method of change is not provided in the existing labor contract. REA Express, Inc. v. Brotherhood of Railway, Airline & Steamship Clerks, 459 F.2d 226, 230 (5th Cir.), cert. denied, 409 U.S. 892, 93 S.Ct. 115, 34 L.Ed.2d 149 (1972). It is clear that a disciplinary hearing which is conducted in accordance with the procedures set out in an applicable collective bargaining agreement would usually constitute a minor dispute. See Brotherhood of Railroad Trainmen v. Central of Georgia Railway Co., 305 F.2d 605, 607 (5th Cir. 1962); Clark v. Seaboard Coast Line Railroad Co., 332 F.Supp. 380, 381 (N.D.Ga.1970). Thus, the National Railroad Adjustment Board has exclusive jurisdiction over this dispute, unless 45 U.S.C. § 60 is found to override the statutory arbitration processes. We conclude that it does.

The authors of the Federal Employers' Liability Act, recognizing the danger that railroad agents would coerce or intimidate employees to prevent them from testifying, included 45 U.S.C. § 60 in the Act:

Any contract, rule, regulation, or device whatsoever, the purpose, intent, or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void, and whoever, by threat, intimidation, order, rule, contract, regulation, or device whatsoever, shall attempt to prevent any person from furnishing voluntarily such information to a person in interest, or whoever discharges Or otherwise disciplines or attempts to discipline any employee for furnishing voluntarily such information to a person in interest, shall, upon conviction thereof, be punished by a fine of not more than $1,000 or imprisoned for not more than one year, or by both such fine and imprisonment, for each offense; Provided, That nothing herein contained shall be construed to void any contract, rule, or regulation with respect to any information contained in the files of the carrier, or other privileged or confidential reports.

(Emphasis added.) This section prohibits a railroad from disciplining or attempting to discipline an employee for furnishing information to an FELA plaintiff. Thus, any disciplinary investigation held solely for the purpose of punishing an employee for such conduct is violative of this statute. Hendley filed suit in federal district court, claiming that the scheduled disciplinary hearing was illegal for this reason. Ne...