Sensabaugh v. RAILWAY EXPRESS AGENCY, INC., OF VIRGINIA, Civ. A. No. 72-C-6-R.

• Decision Date: 14 August 1972
• Docket Number: Civ. A. No. 72-C-6-R.
• Citation: 348 F. Supp. 1398
• Parties: B. B. SENSABAUGH, Jr., Plaintiff, v. RAILWAY EXPRESS AGENCY, INC., OF VIRGINIA, c/o Mr. W. W. Meredith, Jr., Registered Agent, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

348 F. Supp. 1398

B. B. SENSABAUGH, Jr., Plaintiff, v. RAILWAY EXPRESS AGENCY, INC., OF VIRGINIA, c/o Mr. W. W. Meredith, Jr., Registered Agent, et al., Defendants.

Civ. A. No. 72-C-6-R.

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

August 14, 1972.

William B. Poff, Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., for plaintiff.

Christian, Barton, Parker, Epps & Brent, Richmond, Va., and Peter G. Wolfe, REA Express, Inc., New York City, for defendants.

OPINION AND JUDGMENT

DALTON, District Judge.

This action is brought under the Railway Labor Act, 45 U.S.C. § 151 et seq., and the jurisdiction of this court is founded on the provisions of 28 U.S.C. §§ 1331(a) and 1337¹. The action arises under federal law and the amount in controversy exceeds $10,000.

Plaintiff filed a complaint on January 5, 1972, and alleges that on or about August 30, 1971, the defendants entered into a conspiracy to discriminate against plaintiff by: 1) abolishing plaintiff's job without reducing the work force, 2) refusing to honor plaintiff's bid for another job pursuant to the terms of the collective bargaining agreement, 3) failing to process plaintiff's grievances for contractual violations, and 4) refusing to pay plaintiff the Supplemental Unemployment Benefits to which he is entitled under Rule 13 of the collective bargaining agreement between Railway Express Agency (REA) and the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees (Brotherhood). Because of such discrimination, plaintiff seeks an injunction against defendant for future actions of this nature, and desires reinstatement with back pay, along with damages for injuries suffered.

Defendant Brotherhood, on February 28, 1972, filed a motion for summary judgment dismissing plaintiff's complaint or, in the alternative, summary judgment on the merits.

Defendant REA filed an answer on April 17, 1972, denying plaintiff's allegations and stating that since plaintiff failed to exhaust his administrative remedies, this court was without jurisdiction.

The facts of the case are as follows:

REA Express is an express carrier subject to Chapter 1 of the Interstate Commerce Act. Its relations with its employees are governed by the provisions of the Railway Labor Act (45 U. S.C. § 151 et seq.).

The Brotherhood is the duly designated collective bargaining representative pursuant to the provisions of the Railway Labor Act, and represents all employees of REA Express, with minor exceptions. Pursuant to this representation, the Brotherhood has negotiated collective bargaining agreements with REA Express covering rates of pay, rules, and working conditions of the employees so represented. Among the provisions of the basic collective bargaining agreement are provisions establishing seniority districts, seniority rosters for each district, and for promotion, assignment and displacement on the basis of seniority.

Under the agreement, whenever REA Express has a new position or a vacancy in an existing position of 30 days' duration, it bulletins this position in the seniority district in which the position exists. Employees on the seniority roster in that district can then bid for the position. If the senior bidder is qualified to perform the work, he receives the position.

Whenever REA Express abolishes jobs, an individual holding such job may "bump" a junior employee by the exercise of his seniority. Among the provisions of the seniority rules is Rule 3, paragraph (o)².

The substance of this rule is that when there is a bulletined new position or a vacancy, a senior qualified furloughed employee has a right to be assigned to the position even though it may be bid for by a junior employee.

In addition, Rule 12 of the collective bargaining agreement³ recognizes the right of REA Express to consolidate offices and/or to transfer positions of work. The agreement provides for notice to the General Chairman of the Brotherhood's System Board with jurisdiction over the work involved, agreement with REA Express with respect thereto, and for the assignment of the consolidated or transferred work. The latter provisions of Rule 12 give the employees holding the work which is consolidated or transferred to another seniority district the right to follow the work into the other seniority district and a prior right to the newly established consolidated position. Once, however, the employee is assigned to the newly consolidated position, his seniority is dovetailed into the seniority roster of the new district and any changes in assignments or displacements which thereafter occur are based on his position on the new seniority roster. It was the application of these rules which led to the displacement of the plaintiff, Mr. Sensabaugh.

Plaintiff originally became employed by REA Express on May 18, 1960, and was the only individual actively employed at Lexington, Virginia. He held the position of Agent and his seniority date, i. e., the date when he was first able to bid for a bulletined position, was October 18, 1965. In February, 1971, because of declining business, REA Express, by agreement with C. W. Wade, then General Chairman of the South Atlantic District Board of Adjustment of the Brotherhood, consolidated the Lexington station with the Staunton, Virginia, station. In accordance with Rule 12 of the collective bargaining agreement, plaintiff was given the right to follow his work to Staunton, his seniority was dovetailed into the Staunton seniority roster, and a new position was created to which he was assigned, which included, among other things, the pickup and delivery service at Lexington, formerly performed by the Lexington station.

In this new position, plaintiff performed over-the-road (OTR) truck service from Staunton to Covington, Virginia. The pick-up and delivery service at Covington was performed by the Covington station at that time.

In August, 1971, because of declining business, the management of REA Express decided to consolidate the Covington station with the Staunton station. An agreement for this consolidation was reached with General Chairman Wade in accordance with Rule 12.

Under Rule 12 of the collective bargaining agreement, Mr. L. K. Ray, then the agent at Covington, was entitled to the new position, to have his seniority dovetailed into the Staunton seniority roster, and to be assigned to the job which would include the OTR service to Covington as well as the local pick-up and delivery service to Staunton. In this event, plaintiff would be displaced and would be required to exercise his seniority rights to bump a junior man if he could. This new situation was analogous to plaintiff's move to Staunton, when the Lexington station was consolidated with Staunton and plaintiff was given prior rights to a new job, which included pick-up and delivery service at Lexington, along with other service.

After the Covington consolidation agreement, REA Express bulletined a new job which included OTR truck service at Covington and Lexington, as well as to other points. Not all points were served every day. At the same time, the carrier served notice of abolishment of plaintiff's job which included work to be performed in the new consolidated position. Mr. William A. Hanger, a local chairman of the Brotherhood's local lodge grievance committee and Vice General Chairman of the South Atlantic District Board of Adjustment of the Brotherhood, objected to the management of REA Express on the ground that the newly bulletined position involved more work than one man could perform and that as a consequence the management should not have discontinued plaintiff's job. The management subsequently withdrew the bulletin, pending an investigation of the matter.

Subsequently, it readvertised the newly consolidated position on September 9, 1971. By this time, Mr. Ray, the former Covington agent, had indicated that he did not wish to follow his work from Covington. This meant that the newly consolidated position was then open for assignment to employees on the Staunton seniority district roster in order of seniority. Plaintiff bid for the job; however, he was not assigned the job and instead it was assigned to Mr. A. B. Crist, who had greater seniority and was entitled under Rule 3(o) of the collective bargaining agreement to be called to fill the position and assigned thereto.

Thereafter, Mr. Hanger submitted a grievance to local REA Express management, which was declined. By agreement between the Brotherhood and REA Express, a so-called Public Law Board had been created pursuant to the provisions of Section 2, Second, of the Railway Labor Act (45 U.S.C. § 152(2)) to hear and determine grievances arising out of the interpretation and application of collective bargaining agreements. Plaintiff did not request the Brotherhood to submit his grievance to this Special Board of Adjustment No. 752. Nor did plaintiff exercise his right to submit his grievance himself to the Third Division of the National Railroad Adjustment Board (NRAB) created to render final and binding determinations on employee grievances subject to Section 3 of the Railway Labor Act (45 U. S.C. § 153).

The primary issue for consideration by this court is whether plaintiff failed to exhaust his administrative remedies before seeking judicial redress for his grievances. Plaintiff alleges in his complaint "That recourse to the contractual grievance procedure or to the Adjustment Board would be futile, and plaintiff is excused from pursuing any such remedy as a prerequisite to maintaining the instant action. The contractual remedy is administered and the members of the Adjustment Board were selected by the very parties (defendants herein) against whom plaintiff's complaint is directed." This court is of the opinion that no employee of REA Express may disregard established grievance procedures, agreed upon by labor and management, merely because he feels such action...