Kotakis v. Elgin, J. & E. Ry. Co.
| Decision Date | 11 July 1975 |
| Docket Number | No. 74-1558,74-1558 |
| Citation | 520 F.2d 570 |
| Parties | 90 L.R.R.M. (BNA) 2966, 78 Lab.Cas. P 11,241 Triantafyllos KOTAKIS, Petitioner-Plaintiff-Appellant, v. ELGIN, JOLIET & EASTERN RAILWAY CO., Respondent-Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Peter N. Apostal, Chicago, Ill., for appellant.
W. Gerald Thursby and John V. Ryan, III, Chicago, Ill., for appellee.
Before FAIRCHILD, Chief Judge, and CUMMINGS and SPRECHER, Circuit Judges.
Plaintiff immigrated to this country from Greece during World War II. He was employed as a welder by the defendant from 1956 until October 1, 1970. On that day, he was to begin work as a grinder for defendant, a wholly owned subsidiary of United States Steel Corporation.
On the afternoon of September 30, plaintiff was riding in the automobile of a fellow employee, Steve Krinakis, allegedly to return certain welding equipment to defendant's welding shop. Krinakis' car became overheated. While the car was cooling off at the side of the road, the men picked up from the edge of the road or adjacent weeds a large brass bearing that had evidently come from the Gary Works of United States Steel Corporation. That company's security guards intercepted the act and began to interrogate the two railroad employees. Assertedly because of difficulties with the English language, plaintiff left the scene in order to find a Greek-American to act as interpreter for himself and Krinakis. When plaintiff returned to the scene about ten minutes later without finding an interpreter, Krinakis and the security guards had left, so that plaintiff went home. He asked for and failed to receive permission to take the next day off.
On October 1, plaintiff and Krinakis were told to report to the office of R. V. Dangremond, the defendant's Division Engineer, concerning charges of attempted theft of company property. They appeared before Dangremond at 10:00 a. m. Welding Supervisor Lenhardt and Assistant Track Supervisor Vorgias were also present. Vorgias acted as interpreter.
According to plaintiff, Dangremond advised him and Krinakis that disciplinary charges would be brought against them unless they chose to resign. Plaintiff maintains that they were also threatened with criminal prosecution. At the conclusion of the meeting, the plaintiff and Krinakis signed letters of resignation.
The company representative's version of the crucial conversation differs somewhat from plaintiff's. According to R. V. Dangremond, the Division Engineer, plaintiff and Krinakis were specifically told:
(Plaintiff's Exhibit A-2).
Plaintiff subsequently sought reinstatement. When this was denied, plaintiff's labor union, the Brotherhood of Maintenance of Way Employees, prosecuted a grievance on defendant's property 1 on his behalf. The union argued that plaintiff's resignation was obtainf Labor Relations denied the claim.
On February 18, 1972, plaintiff's union filed a claim on his behalf with the Third Division of the National Railroad Adjustment Board, repeating the arguments made during the grievance proceeding. The union also alleged that the railroad violated Rules 21(a) and 59(b) of the applicable collective bargaining agreement. 2 To support plaintiff's claim of a coerced resignation, the union relied on the affidavits of plaintiff and Krinakis which were submitted in the grievance proceedings.
As frequently happens, the ten-man Third Division of the National Railroad Adjustment Board was deadlocked, so that the matter was submitted to Irwin M. Lieberman as referee pursuant to Section 3 First (1) of the Railway Labor Act (45 U.S.C. § 153 First (1). In deciding the controversy in favor of the defendant, the referee held that Rule 59(b) was not violated because it required no affirmative action by the carrier to secure a representative and because plaintiff made no request for representation at the October 1st meeting. The referee also held that Rule 21(a) had not been violated because it requires a hearing only when discipline or dismissal is imposed by the company and not when an employee resigns. The referee concluded that except for the "unsupported statement" of plaintiff, there was nothing in the record to convince him that the resignations were obtained through the use of coercion and duress. Therefore, the claim was denied by the Adjustment Board.
In 1971, plaintiff filed a complaint against defendant in the district court claiming that he had been discharged without good cause in violation of the collective bargaining agreement between defendant railroad and his union. On May 23, 1973, that suit was dismissed for want of prosecution.
In August 1973, plaintiff filed the present action seeking, inter alia, review of the Adjustment Board award pursuant to Section 3 First (q) of the Railway Labor Act (45 U.S.C. § 153 First (q)). Count III of the complaint went beyond the review proceeding in alleging a conspiracy between the union and the railroad to deprive plaintiff of his right to proper representation by the union. On December 7, 1973, the district court dismissed Count III as against defendant railroad, stating that it was barred by the dismissal of the prior case for want of prosecution.
On March 29, 1974, the district court granted defendant's motion for summary judgment with respect to Count I, which constituted plaintiff's petition for review of the Adjustment Board decision. See 45 U.S.C. § 153 First (q). Plaintiff had there alleged want of due process before the Adjustment Board, which he contended amounted to a failure of that Board "to conform, or confine itself to matters within the scope of the (Third) division's jurisdiction." The minute order accompanying the district court's ruling stated:
Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the district court entered a final judgment for the railroad with respect to Counts I and III, resulting in this appeal. 3 We affirm.
In Count I of this complaint, plaintiff complained that the Third Division of the National Railroad Adjustment Board deprived him of due process of law because it "arbitrarily and capriciously denied petitioner's claim without recognizing substantial evidence in the record * * *." The burden of proof allegedly applied by the referee was also attacked. The award was said to be reversible as outside the Third Division's jurisdiction because "it is without foundation in reason or fact (and) wholly baseless and completely without reason."
In the opinion of the Board, Referee Lieberman properly observed that the crux of the matter was whether plaintiff's resignation was obtained through coercion and duress. Consequently, he decided that petitioner's guilt or innocence with respect to the alleged theft was immaterial. After excerpting Division Engineer Dangremond's, plaintiff's fellow-employee Krinakis' and plaintiff's own reports of the October 1st conversations in Dangremond's office, the Referee stated:
The referee then quoted from Third Division Award No. 18476 (1971), where an employee of the Union Pacific Railroad Company was attempting to rescind a written resignation that he signed rather than face a disciplinary charge. There the Board stated that the burden of proof rested with the employee's union to show "beyond a reasonable doubt" that he was coerced into signing a letter of resignation under duress, and that this cannot be established by inference or by the employer's threat of disciplinary action as an alternative to resignation. After thus quoting from Award No. 18476, Referee Lieberman concluded that nothing in the record indicated that petitioner's resignation was obtained through the use of coercion and duress except his unsupported statement. Therefore, the Referee was unpersuaded and the claim was denied.
In considering the judicial attack on this Third Division award, Section 3 First (q) of the Railway Labor Act is controlling. In pertinent part, it provides:
"On such (district court) review, the findings and order of the division shall be conclusive on the parties, except that the order of the division may be set aside, in whole or in part, or remanded to the division, for failure of the division to comply with the requirements of this chapter, for failure of the order to conform, or confine itself, to matters within the scope of the division's jurisdiction, or for fraud or corruption by a member of the division making the order * * * " (45 U.S.C. § 153 First (q)).
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