Thomas v. New York, Chicago & St. Louis R. Co., 11126.

• Citation: 185 F.2d 614
• Decision Date: 11 December 1950
• Docket Number: No. 11126.,11126.
• Parties: THOMAS v. NEW YORK, CHICAGO & ST. LOUIS R. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

185 F.2d 614 (1950)

THOMAS v. NEW YORK, CHICAGO & ST. LOUIS R. CO.

No. 11126.

United States Court of Appeals Sixth Circuit.

December 11, 1950.

Jerome A. Klein, Cleveland, Ohio, Howard M. Metzenbaum, Cleveland, Ohio, on brief, for appellant.

W. R. Price and John H. Ritter, Cleveland, Ohio, W. R. Price, John H. Ritter, Cincinnati, Ohio, on brief; Miller & Hornbeck, Cincinnati, Ohio, of counsel, for appellee.

Before HICKS, ALLEN and MARTIN, Circuit Judges.

ALLEN, Circuit Judge.

This appeal presents the question of the scope of the power of the National Railroad Adjustment Board under the Railway Labor Act, 45 U.S.C.A. § 151 et seq., to order reinstatement of a railroad employee not a member of a union, upon the ground of wrongful discharge. The case arises out of the following facts.

Appellant was employed as a steward on one of appellee's business cars which are used by executives of the railroad. It was the function of the steward to cook and to perform duties incident to the planning and preparation of meals on the business car. Appellant had been employed by the railroad for some twenty years and had for the most part a good record.

On February 11, 1945, appellant became involved in a dispute with J. H. Day, vice-president of the railroad, who was then using the business car to which appellant was assigned. Some irritation arose between appellant and the vice-president over the kind of meat and fruit which could be procured for the next trip. War rationing was still in force and limited the choice of available foods. The testimony is in sharp conflict as to this quarrel. Appellant was suffering from a hernia which had been improperly treated. Day testified that appellant said the Nickel Plate was responsible for this condition and that both the Nickel Plate and Day could "go to Hell." Appellant states that there was some discussion over the meat and fruit to be used and that Day was pretty angry about it. He denies that he reflected either upon Day or upon the railroad, although he admits that he "spoke up for myself." The incident was immediately reported, but the railroad took no action. In fact, in July, 1945, appellant was operated on for hernia by the railroad surgeon, the railroad paying all expenses of the operation and paying appellant's full wages up to September 17, 1945. Some eight months after the quarrel of February 11, appellant was ordered to furnish a written statement concerning the incident, which he refused to do, asking instead to be given an oral hearing with the railroad president. After appellant's failure to comply with subsequent orders to submit a written statement, he was discharged.

Appellant's grievance was submitted to the National Railroad Adjustment Board, which has jurisdiction over disputes between carriers and employees, growing out of grievances or out of the interpretation or application of agreements. The Board concluded that appellant had been wrongfully discharged, and ordered reinstatement. It declared that "Action to discipline an employe by carrier should be taken promptly after occurrence of the offense, and not deferred for a period of almost eight months. Rules which are now standard on the railroads forbid any such procedure." The carrier refused to comply with the reinstatement order, and this action for enforcement of the award was filed under the statute, 45 U.S.C.A. § 153(p).

The District Court held that the Railroad Adjustment Board had no authority to make the reinstatement award, and entered judgment for the railroad. The court considered that the Board assumed that the discharge was in violation of standard railroad rules which in fact do not cover appellant's contract of employment, and that the Board apparently gave appellant the benefit of collective bargaining contracts with unions of which appellant was not a member.

Appellant contends that the District Court erred in not giving "almost binding effect" to the findings and award of the Railroad Adjustment Board. He points out that after petition for enforcement has been filed, under § 153(p), 45 U.S.C.A., "Such suit in the District Court of the United States 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 * * *." Construing this section several courts have declared that the findings "are probative, not merely presumptive in value, having effect fairly comparable to that of expert testimony." Washington Terminal Co. v. Boswell, 75 U.S.App.D.C. 1, 124 F.2d 235, 241, aff. 319 U.S. 732; Shipley v. Pittsburgh & L. E. Rd. Co., D. C., 83 F.Supp. 722; Kelly v. Nashville, Chattanooga & St. Louis Ry., D.C., 75 F. Supp. 737.

We think that under the statute the District Court was fully empowered to find for the appellee, contrary to the ruling of the Adjustment Board. It would be a strange construction in absence of express provisions, on the point to hold that the reviewing court may not set aside the findings and conclusions of a nongovernmental agency chosen and paid by the carriers and employees respectively. 45 U.S.C.A. § 153 (p, g). The provision that the suit for enforcement shall proceed as all other suits...