Kidder v. Eastern Air Lines, Inc.

• Decision Date: 27 December 1978
• Docket Number: No. 78-598-Civ-SMA.,78-598-Civ-SMA.
• Parties: Benjamin R. KIDDER, Plaintiff, v. EASTERN AIR LINES, INC., Defendant.
• Court: U.S. District Court — Southern District of Florida

469 F. Supp. 1060

Benjamin R. KIDDER, Plaintiff, v. EASTERN AIR LINES, INC., Defendant.

No. 78-598-Civ-SMA.

United States District Court, S. D. Florida, Miami Division.

December 27, 1978.

William H. Berger, U. S. Dept. of Labor, Sol. of Labor, Atlanta, Ga., for plaintiff.

William G. Bell, Jr., Carmen L. Leon, Miami Intern. Airport, Eastern Airlines Legal Dept., Miami, Fla., for defendant.

MEMORANDUM ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

ARONOVITZ, District Judge.

This cause came on for consideration upon the motion of defendant Eastern Air Lines, Inc., to dismiss the complaint for lack of jurisdiction and upon plaintiff Benjamin R. Kidder's motion for summary judgment. The court having considered the record, and the arguments of counsel, and being otherwise fully advised in the premises, hereby finds that defendant's Motion to Dismiss should be denied and plaintiff's Motion for Summary Judgment should be granted.

Plaintiff Benjamin R. Kidder, a mechanic with defendant Eastern Air Lines, Inc., since August 14, 1973, and a member of the United States Army National Guard at all times pertinent, brought this action claiming that defendant had violated his rights as a civilian employee of defendant in contravention of 38 U.S.C. § 2021, et seq. (commonly referred to as the Veteran's Reemployment Rights Act), when defendant failed to pay him for the Memorial Day, 1977, holiday (May 30, 1977).¹

The basis for defendant's denial of payment was that Mr. Kidder was on a military leave of absence for the period May 22, 1977 to June 4, 1977, performing active duty for training with his National Guard unit, and under the collective bargaining agreement between the defendant and District 100 of the International Association of Machinists and Aerospace Workers, employees of defendant will not receive holiday pay if they are classified as being on a leave of absence on the date of the holiday.²

(A) Motion To Dismiss

In response to the filing of plaintiff's complaint, defendant moved to dismiss on the ground that the court lacks jurisdiction because actions under the Veteran's Reemployment Rights Act have been preempted by the Railway Labor Act, 45 U.S.C. § 151, et seq., and exclusive jurisdiction for resolution of this dispute is in the National Railroad Adjustment Board and its appropriate System Board of Adjustment.

In 1958, the Supreme Court considered this very issue in McKinney v. Missouri-K.-T. R. Co., 357 U.S. 265, 78 S.Ct. 1222, 2 L.Ed.2d 1305 (1958), and ruled that a veteran:

Was not obligated, before bringing suit in the District Court under 38 U.S.C. § 2022 * * * to pursue remedies possibly available under the grievance procedure set forth in the collective bargaining agreement or before the National Railroad Adjustment Board. id. at 268, 78 S.Ct. at 1225

The Court further held that:

"Nowhere is it suggested that before a veteran can obtain the benefit of this expeditious procedure and the remedies available to him in the District Court he must exhaust other avenues of relief possibly open under a collective bargaining agreement or before a tribunal such as the National Railway Adjustment Board. On the contrary, the statutory scheme contemplates the speedy vindication of the veteran's rights by a suit brought immediately in the District Court, advanced on the calendar before other litigation, and prosecuted with the assistance of the United States Attorney. Only thus, it evidently was thought, would adequate protection be assured the veteran, since delay in the vindication of re-employment rights might often result in hardship to the veteran and the defeat, for all practical purposes, of the rights Congress sought to give him. To insist that the veteran first exhaust other possibly lengthy and doubtful procedures on the ground that his claim is not different from any other employee grievance or claim under a collective bargaining agreement would ignore the actual character of the rights asserted and defeat the liberal procedural policy clearly manifested in the statute for the vindication of those rights. id. at 270, 78 S.Ct. at 1225-1226

Accord, Moe v. Eastern Air Lines, Inc., 246 F.2d 215, 218 (5th Cir. 1957) cert. den. 357 U.S. 936, 78 S.Ct. 1380, 2 L.Ed.2d 1550 (1958); Armstrong v. Baker, 394 F.Supp. 1380, 1386-1387 (N.D.W.Va.1975). Cf. Beckley v. Lipe-Rollway Corp., 448 F.Supp. 563, 567 (N.D.N.Y.1978).

Defendant insists, however, that McKinney is no longer the law after Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972). In Andrews, the Supreme Court overruled its prior decision in Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 (1950), where it had been established that "a railroad employee who elected to treat his employer's breach of the employment contract as a discharge was not required to resort to the remedies afforded under the Railway Labor Act for adjustment and arbitration of grievances, but was free to commence in state court an action based on state law for breach of contract" (406 U.S. at 321, 92 S.Ct. at 1564). Defendant argues that the decision of the Supreme Court in Andrews requires that all controversies between an employer covered by the Railway Labor Act and one of its employees must be pursued through the established grievance procedure and the National Railroad Adjustment Board and cannot be relitigated de novo in federal court.

This argument misconceives the holding in Andrews. The general rule that the grievance procedure and the National Railroad Adjustment Board provide the primary and exclusive method for resolution of a "minor dispute" i. e., a dispute relating "either to the meaning or proper application of a particular provision of a collective bargaining agreement with reference to a specific situation . . .." (Elgin, Joliet & Eastern R. Co. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886 (1945), was clearly in existence in 1958 when the Supreme Court decided McKinney. See Slocum v. Delaware L. & W. R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795 (1950)). The decision in Andrews simply removed "an exception to the otherwise mandatory rule of submission of minor `disputes' to the Board of Adjustment" (Hages v. Aliquippa & Southern R. Co., 427 F.Supp. 889, 893 (W.D.Pa.1977)), and did not create any new rule of law not in existence at the time McKinney was decided.

What defendant has failed to grasp, therefore, is that both before and after Andrews, the established law was and is that the Railway Labor Act mandates exclusive jurisdiction in the grievance procedure and the National Railroad Adjustment Board for the resolution of claims which are founded solely and exclusively on the collective bargaining agreement. Indeed in Andrews itself, the Supreme Court stated that "it is conceded by all that the only source of petitioner's right not to be discharged, and therefore to treat an alleged discharge as a `wrongful' one that entitles him to damages, is the collective-bargaining agreement between the employer and the union" (406 U.S. at 325, 92 S.Ct. at 1565). See Union Pacific R. Co. v. Sheehan, ___ U.S. ___, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978), wherein the Supreme Court reaffirmed that the National Railroad Adjustment Board was the exclusive arbiter of "disputes arising out of the interpretation of collective-bargaining agreements."

The instant case represents a completely different situation, for there is no dispute concerning the application or interpretation of the holiday pay provision of the collective bargaining agreement. Rather the plaintiff here seeks a remedy expressly granted by a federal law and requests a construction by a federal court of that federal law in the context of a clear contract provision. As the Supreme Court held in McKinney v. Missouri-K.-T. R. Co., supra, "the rights the plaintiff asserts are rights created by federal statute . . .. Plaintiff sues not simply as an employee under a collective bargaining agreement, but as a reservist asserting special rights bestowed upon him in furtherance of a federal policy to protect those who have served in the Armed Forces 357 U.S. at 268-269, 78 S.Ct. at 1225."

Significantly, in an analogous situation, the Court in Healen v. Eastern Air Lines, Inc., 9 EPD ¶ 10,023 (N.D.Ga.1973), an action under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e, et seq.),³ rejected the very argument posited by defendant herein, i. e., that the grievance procedure and the System Board of Adjustment was "the exclusive, mandatory, and statutory established forum for resolution of the disputes which are the basis of this action" (9 EPD ¶ 10,023 at p. 7238).

As the Court ruled:

This argument is unsound for several reasons. First of all, this is not a dispute over the application or interpretation of a provision of the collective bargaining agreement. The challenged terms of the contract are absolutely clear in their effect and that is precisely what is attacked here. In light of the clear meaning of the collective bargaining agreement, there is no way that relief could be obtained through the traditional arbitration process. However, an even more compelling reason is the charge that certain employment policies of the defendant discriminate on the basis of sex. Thus, the rights asserted here fall squarely within the purview of Title VII. Title VII was intended to create rights and protect interests completely separate and apart from those arising under the collective bargaining and arbitration mechanisms of the Railway Labor Act or the National Labor Relations Act. citations omitted

* * * * * *

The recent Supreme Court decision, Andrews v. Louisville & Nashville, 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), does not command a contrary result. That case did not involve discriminatory employment practices actionable under Title VII. It simply pertained to

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