Russ v. SOUTHERN RAILWAY COMPANY

• Citation: 334 F.2d 224
• Decision Date: 16 July 1964
• Docket Number: No. 15482.,15482.
• Parties: C. E. RUSS, Plaintiff-Appellee, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

334 F.2d 224 (1964)

C. E. RUSS, Plaintiff-Appellee, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellant.

No. 15482.

United States Court of Appeals Sixth Circuit.

July 16, 1964.

Argued by James I. Hardy, Washington, D. C., Clyde W. Key, Knoxville, Tenn., on the brief, for appellant.

Argued by Harold A. Ross, Cleveland, Ohio, W. E. Fitzgerald, Knoxville, Tenn., Marshman, Hornbeck, Hollington, Steadman & McLaughlin, Cleveland, Ohio, on the brief, for appellee.

Before WEICK, Chief Judge, and MILLER and PHILLIPS, Circuit Judges.

WEICK, Chief Judge.

This appeal is from an order of the District Court enforcing the monetary portion of an award and order of the National Railroad Adjustment Board which directed Southern Railway Company to reinstate, with back pay, C. E. Russ, a locomotive engineer who had been discharged by the railroad for violation of its safety and operating rules.

The facts are fully stated in the opinion of the District Judge, reported in 218 F.Supp. 634, and need be referred to only briefly, here.

The controversy arose out of a collision in which a train operated by Engineer Russ, collided with one of Southern's track motor cars, killing the operator of the car. After an investigation, the railroad discharged Engineer Russ and Fireman J. D. Cox, on May 15, 1958, for violation of its safety and operating rules.

A warning had been given by the Assistant Supervisor to Russ, prior to the collision, that the track motor car was in the area ahead. Russ communicated this warning to Cox. In such a situation, the rules of the railroad required that the train be operated at a reduced speed sufficient to bring it to a stop within the assured clear distance ahead. The rules also required the fireman to maintain a lookout for obstructions on the tracks and to warn the engineer thereof.

The railroad reinstated the fireman on September 27, 1958, on a leniency basis, without pay for time lost, but did not reinstate Engineer Russ.

In February, 1959, the Brotherhood of Locomotive Engineers made claim to the National Railroad Adjustment Board in behalf of Russ and Cox, for restoration of service and back pay. The Board on January 31, 1961 made findings to the effect that the accident was per se a violation of the rule requiring the engineer to operate the train at a reduced speed so that he could stop within the assured clear distance ahead. It found, however, that there was "a wide disparagement¹ in the punishment" which the railroad administered to the engineer and fireman which could not be justified. It was of the view that there was no issue involved over the degree of responsibility involved in the two positions. It denied the claim of Cox for back pay, but ordered Russ reinstated as of the same date when Cox was reinstated namely, September 27, 1958, and with back pay from that date amounting to $22,903.05, and seniority unimpaired.²

The railroad restored Russ to service on May 29, 1961, without pay for lost time, and ordered him to report for duty on July 20, 1961. It refused to comply with the back pay provisions of the order, with the result that the Brotherhood and Russ filed proceedings in the District Court to enforce the monetary portion of the Board's order. The Board was dismissed from the case, which proceeded with Russ as party plaintiff.

The case was tried de novo in the District Court on the record before the Board and on new evidence offered in Court. In a memorandum opinion, the Court held that the evidence sustained the finding of the Board that Engineer Russ had violated the railroad's rule. The Court was of the view, however, that while the Board could not usurp the prerogative of management to discipline employees for violation of safety rules, it had the right to determine whether the discipline was too severe, and to fashion a remedy within the framework of the bargaining agreement between the railroad and the Brotherhood of Locomotive Engineers. The Court was of the opinion that the evidence supported the finding of the Board that the penalty of permanent termination of work was too severe and that the order of the Board restoring Russ to duty with back pay was within the framework of the bargaining agreement and was valid and enforceable. He entered judgment against the railroad in the sum of $22,903.05, which was for the full amount of the award, reserving the application of plaintiff for allowance of attorneys' fees pending review by this Court.

At the outset the question is presented as to the force and effect of the monetary award made by the Board and the scope of review by the District Court and this Court.

The Railway Labor Act provided that the awards of the Board "shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award." 45 U.S.C. § 153 First "m."

With respect to suits for enforcement, the Act provided that they "shall proceed in all respects as other civil suits, except that on the trial of such suit the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated * * *" and the District Courts are empowered to enter such judgment "as may be appropriate to enforce or set aside the order of the division of the Adjustment Board." 45 U.S.C. § 153 First (p.).

The Board had exclusive primary jurisdiction over disputes arising out of collective bargaining agreements. Pennsylvania R. Co. v. Day, 360 U.S. 548, 79 S.Ct. 1322, 3 L.Ed.2d 1422; Hodges v. Atlantic Coast Line R. Co., 310 F.2d 438 (C.A.5).

An award which does not contain an order for the payment of money is final and binding on both parties to a dispute. Brotherhood of Locomotive Engineers v. Louisville & Nashville R. Co., 373 U.S. 33, 40, 83 S.Ct. 1059, 10 L. Ed.2d 172; Brotherhood of R. R. Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622.

It is clear, however, from the express language of the statute, that money awards of the Board are not final and binding, but the railroad may appeal therefrom to the District Court and obtain a de novo hearing. Washington Terminal Co. v. Boswell, 75 U.S.App.D.C. 1, 124 F.2d 235, affirmed by a divided Court in 319 U.S. 732, 63 S.Ct. 1430, 87 L.Ed. 1694; Thomas v. New York, Chicago & St. Louis R. Co., 185 F.2d 614 (C.A.6); Callan v. Great Northern Ry. Co., 299 F.2d 908 (C.A.9); Brotherhood of Railway, etc. v. Atlantic Coast Line R. Co., 253 F.2d 753 (C.A.4); Boos v. Railway Express Agency, Inc., 8 Cir., 253 F.2d 896. The Court may take evidence and is not bound by the findings of fact of the Board, which are only prima facie evidence. The award, however, carried with it a presumption of validity. Trainmen v. Chicago R. & I. R. Co., supra. The weight to be given to it is comparable to that accorded to expert testimony. Washington Terminal Co. v. Boswell, supra; Thomas v. New York, Chicago & St. Louis R. Co., supra. The Court is empowered to enforce or set aside the Board's order. Brotherhood of Locomotive Engineers v. Louisville & Nashville R. Co., supra, 373 U.S. pp. 41 and 43, 83 S.Ct. 1059; Brotherhood etc. v. Railway Express Agency, 238 F.2d 181 (C. A.6).

The burden of proof was on the railroad to prove that the award was wrong. Elgin, Joliet & Eastern Ry. Co. v. Burley, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928; Brotherhood etc. v. Railway Express Agency, supra.

Since these suits in the District Court are to proceed as other civil suits and the trial is anew, the Court was free to adopt findings of fact and conclusions of law. The scope of appellate review would seem to be the same as in other civil cases. The reviewing court is bound by the clearly erroneous rule. Rule 52(a) Federal Rules of Civil Procedure.

The railroad points out that both the Board and the Court found as a fact that Engineer Russ had violated one of its rules. It contends that it had the right to discharge Russ for such violation, and its action in so doing was in the exercise of the prerogative of management, which could not be usurped by the Board in the absence of a showing of discrimination or arbitrariness on its part.

Russ and Cox both contended before the Board that they did not violate any rule of the railroad. This point is not in issue in this appeal. Russ contends here that the discipline imposed on him by the railroad was too severe, taking into account his long record of service and when compared with that administered to the fireman, was discriminatory. He claims the Board had the right to fashion a remedy and likens the case to a voluntary arbitration proceeding. He cites the trilogy of Steelworkers cases as authority. United Steel Workers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steel Workers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steel Workers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424.

The collective bargaining agreement contained no provision for arbitration. It did provide procedure for investigations and discipline as follows:

"Article 31. Investigations and Discipline.

"(1) Engineers will not be discharged or demerited

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