Johnston v. Interstate Railroad, Civ. A. No. 71-C-122-A.

• Decision Date: 20 July 1972
• Docket Number: Civ. A. No. 71-C-122-A.
• Citation: 345 F. Supp. 1082
• Court: U.S. District Court — Western District of Virginia
• Parties: W. P. JOHNSTON, Plaintiff, v. INTERSTATE RAILROAD, Defendant.

345 F. Supp. 1082

W. P. JOHNSTON, Plaintiff, v. INTERSTATE RAILROAD, Defendant.

Civ. A. No. 71-C-122-A.

United States District Court, W. D. Virginia, Abingdon Division.

July 20, 1972.

Carl E. McAfee, Norton, Va., for plaintiff.

James C. Roberson, Norton, Va., for defendant.

OPINION

WIDENER, Chief Judge.

Plaintiff has instituted this action to review his being removed and held out of service by defendant. He also seeks to have reviewed the decision of the National Railroad Adjustment Board sustaining defendant's action in holding plaintiff out of service. The relief sought by plaintiff includes reinstatement with seniority and payment of $100,000.00 on a monthly rate from October 8, 1968, the date he was allegedly first wrongfully withheld from service.

Plaintiff contends that his employer's action in withholding him from service violates Rule 23 of a collective bargaining agreement entered into between his employer and the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees. Rule 23 of the agreement provides that no charge shall be made against an employee that involves any matter about which the carrier has had knowledge for thirty days or more. Plaintiff contends that Interstate Railroad had actual knowledge of the charge for which he is being held out of service for a period of thirty days or more prior to October 8, 1968. Johnston also contends that defendant's holding him out of service also violates a no-reprisal provision in a strike-settlement agreement, dated December 22, 1967, between Interstate Railroad and the Brotherhood of Locomotive Firemen and Enginemen.

Defendant, Interstate Railroad, has entered a plea to the jurisdiction of this court and has moved to dismiss the complaint. For the reasons which follow, defendant's motion to dismiss must be granted.

In support of its motion to dismiss, defendant has filed copies of the following documents: an opinion of this court, Johnston v. Interstate Railroad, 303 F. Supp. 138 (W.D.Va.1969), dismissing an action similar to the present action because the matter lay within the exclusive jurisdiction of the National Railway Adjustment Board; the National Railroad Board's decision rendered on April 29, 1971; an indictment returned against plaintiff on October 5, 1968 in this court; and certain court papers and orders entered in a resulting criminal proceeding against plaintiff. These documents show that on or about October 29, 1967, a Southern Railway bridge was dynamited and a Southern Railway train was derailed. Interstate Railroad is a wholly owned subsidiary of Southern Railway. The dynamiting occurred approximately five miles from Interstate's territory and at a time when there was a strike against Interstate. Although Johnston was not technically on strike, the strike not having been called by his union, he was involved in it. By agreement dated December 22, 1967, the strike was settled. On October 5, 1968, a federal grand jury returned an indictment against Johnston and others, charging them with conspiring to derail, disable, and wreck a train being operated in interstate commerce by Southern Railway, with willfully derailing, disabling, and wrecking that train, and with aiding and abetting the derailing, disabling, and wrecking of that train. Subsequently, on August 3, 1970, the conspiracy count of the indictment was nolle prossed, and Johnston entered a plea of guilty to the remaining count of the indictment, which charged him with willfully derailing, disabling and wrecking the train, as well as with willfully aiding and abetting in the train's derailment. On October 8, 1968, upon receiving notice of the indictment, Interstate advised Johnston that the company would hold an investigation of the charges and that in the meantime Johnston would be held out of service. Subsequently, plaintiff instituted an action in this court to review Interstate's holding him out of service. This court held that the matter lay within the exclusive jurisdiction of the National Adjustment Board. Johnston v. Interstate Railroad, 303 F.Supp. 138 (W.D.Va.1969).

Johnston next presented his claims to the Board, claiming, among other things, that:

"Carrier had knowledge of the facts giving rise to the charge before the indictment and failed to charge Claimant within 30 days thereof; . . . Furthermore, the investigation should never have been commenced since the strike settlement agreement between Carrier and the Brotherhood of Locomotive, Firemen and Enginemen contained a no-reprisal agreement."

The Board ruled adversely to Johnston on all of his claims. It specifically held:

"When Carrier sent Claimant notice of the investigation on October 8, 1968 and then held the investigation of its charges against Claimant on October 10, 1968, it came well within the 30 day limitation required by Rule 23.

* * * * * *

"Claimant cannot avail himself of the December 22, 1967 strike settlement agreement since the Organization of which he is a member, was not a party to that Agreement."

There are several possible constructions of Johnston's present complaint. Apparently, plaintiff seeks to have reviewed the company's action, without regard to the Board's decision, as well as the Board's decision. The complaint contains the following paragraph:

"This action is brought to review the removal and holding out of service of your undersigned plaintiff W. P. Johnston by the defendant Interstate Railroad and to further review the decision of the National Railroad Adjustment Board rendered by the said Board on April 29, 1971, which decision sustains the holding of your undersigned plaintiff out of service from October 8, 1968 up and until and through the present."

Although plaintiff alleges that he ". . . is and was an employee . . ." of Interstate and that Interstate ". . . is wrongfully holding your undersigned plaintiff out of service . . .," the complaint might be construed as an action for wrongful discharge. For, plaintiff does state in the above quoted paragraph that he seeks to have his "removal" reviewed. Additionally, as relief, he asks for, among other things, payment of $100,000.00 on a monthly rate since ...