Woodrum v. Southern Ry. Co.
| Decision Date | 15 January 1985 |
| Docket Number | No. 83-8722,83-8722 |
| Citation | 750 F.2d 876 |
| Parties | 118 L.R.R.M. (BNA) 2539, 40 Fed.R.Serv.2d 1410, 102 Lab.Cas. P 11,329 Lonnie M. WOODRUM, Plaintiff-Appellant, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Mitchel P. House, Jr., Susan S. Cole, E.S. Sell, Jr., Macon, Ga., for plaintiff-appellant.
F. Kennedy Hall, Macon, Ga., for defendant-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before HENDERSON and HATCHETT, Circuit Judges, and NICHOLS *, Senior Circuit Judge.
This appeal presents for our review a summary judgment by the United States District Court, 571 F.Supp. 352, for the Middle District of Georgia holding that the court has no subject matter jurisdiction over a suit by Woodrum, a former railroad employee, to set aside the order of Public Law Board 1261, by which he was dismissed from employment with Southern Railway Company (Railway). Our jurisdiction is under 28 U.S.C. Sec. 1291. The principal, though not the sole, issue was whether proffer by the Railway of statements of a witness, subsequently recanted, were of the class or kind of fraud constituting an instance of "fraud or corruption by a member of the division making the order" within the meaning of 45 U.S.C. Sec. 153 First (q). Upon carefully reviewing that witness' statements before the board and his subsequent recanting statement, and the context of the entire case, we conclude that the Railway's actions were not such an instance, no actual misconduct by such member being alleged. Others of appellant's contentions are also without legal merit. Accordingly, there was no issue of material fact and the suit was properly dismissed. We affirm.
Plaintiff-appellant Woodrum was and had been since 1965 an engineer who operated trains on the Southern Railway. On April 27, 1978, defendant-appellee, by its Superintendent, L.H. Smith, Jr., served on appellant a notice to attend an "investigation" in which he was told appellee would "investigate" on May 1, 1978 a charge of "conduct disloyal and unbecoming an employee" in arranging for a fellow employee, Eddie Lee Robinson, to meet with an attorney, Frank Burge, for the purpose of having Robinson retain Burge to sue the Railway for an injury under the Federal Employer's Liability Act (FELA), and also that he personally took Robinson to meet with Burge about March 15 to discuss the case. The carrier then apparently was incensed about its employees acting as runners to solicit retainer of attorneys in such cases, and viewed it as a heinous offense. This view is not in dispute and apparently was well understood, so the subsequent proceedings were conducted on the common assumption that if Woodrum had done as alleged, dismissal from employment was the appropriate penalty. However, no provision of any collective bargaining agreement or rule of the Railway is cited, and apparently the carrier relied on its inherent or implicit rights as an employer.
The "investigation" was conducted with Superintendent Smith presiding, May 8, at the Ramada Inn, Macon, Georgia. It appears to have been more than an ex parte investigation but less than a full evidentiary hearing. It was recorded by tape, but witnesses were not sworn. Woodrum had representatives of his union present who, being apparently laymen, defended him as best they could, and were allowed to call and question witnesses. We go into the testimony in more detail than did the court below, or the parties in their briefs. The presiding officer appeared interested in developing all the facts, and excluded little or nothing anyone wished to present.
The attorney, Burge, had been invited to be present, but excused himself. He is a lawyer who specializes in FELA cases and has offices in Birmingham, Alabama, but apparently practices in Georgia also. He submitted a written statement exculpating himself from any misconduct. There were three witnesses who were present and testified, who are major figures in the fraud issue. Others of slight importance are mentioned further on.
W.B. Piper identified himself as a claim agent for the Southern Railway. His duties included investigating personal injuries to employees and, if settlement was warranted, to settle with them on a fair and reasonable basis. He had investigated two recent injuries to E.L. Robinson, a switchman, the second of which occurred on March 9, and having settled the first earlier, he formally settled the second April 5. But before settling, Robinson displayed to him a letter from Burge, dated March 23, setting up an appointment for him to see doctors in Birmingham, Alabama, and for air transportation to that city. Robinson said he did not know Burge. On April 20 Piper received word Burge had, on April 6, filed a suit on Robinson's behalf against the Railway. He told Robinson of this and that Burge apparently had a written retainer, but Robinson said he had signed only a medical form. On being asked who got him involved with Burge, Robinson said it was Woodrum. Woodrum had called him on the telephone and said Burge was going to be in Macon, Georgia, at the Hilton Hotel the next day, and Robinson should see him. "I've been hurt before on the railroad and I know what kind of hassle that they can give you." Robinson then told Piper he went to the Hilton and was met in the lobby by Woodrum who took him to Burge and prompted Burge in the discussion of Robinson's injuries that followed. Burge gave Robinson his calling card. After this meeting, Woodrum walked down the hotel corridor with Robinson, asked for the calling card, and wrote his own name and telephone number on the back of it so Robinson could let Woodrum know if he needed anything before Burge contacted him again. The card was produced before Smith, and Woodrum's signature authenticated.
On April 24 Robinson sent Burge a letter avowing he had never retained Burge to bring a suit for him. But this disavowal is incredible in light of the actual retainer contract, which was in evidence, and a tape of his conversation with Burge.
Robinson, however, took the stand. In general he adhered to the story he told Mr Piper, as had been recounted by Piper. He asserted or tried to make it appear he signed the retainer contract being induced by Burge's trick to believe he was signing two similar papers, the one on top being an authorization to doctors to divulge information about him. He said Burge's questions indicated he already knew about Robinson's injuries.
Woodrum testified that on March 8 he was doing some yard switching, i.e., shuttling a train about the yard, in course of which he heard that Robinson had to have a relief. March 14 he heard Robinson was hurt. The next day he called Robinson on the telephone and asked if he had done anything to cause the injury. Robinson said no--that he had lost about 3 days--and he recounted efforts to see Mr. Smith. Woodrum continued--
I said Mr. Robinson I cannot tell you what to do about it--I'm no attorney--my attorney will be in town and he would be glad to talk to you. He said who is he Mr. Burge. I said that's right. He said where's he gonna be at. I said the Hilton Hotel about 2:30 this afternoon.
He denied meeting Robinson in the lobby or conducting him to Burge's hotel room, saying Robinson walked into the room where Woodrum and others already were. He called minor witnesses Nobles and Reid to corroborate this. He admitted he had referred other persons, members of his union, to Burge, but denied that Burge gave him any remuneration for doing so. He told Robinson to be at the Hilton at 2:30.
On the basis of this investigation, Superintendent Smith found, by letter May 16, 1978, that Woodrum was guilty of both charges made against him, i.e., of arranging the meeting of Robinson with Burge, and of personally conducting Robinson to a hotel suite to have the meeting. On September 15, 1978, General Manager Moore analyzed the record, affirmed the dismissal, and declined the appeal.
On July 30, 1979, Public Law Board No. 1261, passing judgment on the union's appeal on Woodrum's behalf, said there was "sufficient substantive evidence of probative value" that "claimant was acting as agent for a personal injury attorney specializing in cases against railroads under the [FELA] and attempted, by subterfuge, to persuade an allegedly injured employee (not a member of Claimant's organization) to retain attorney to sue Carrier." It will be noted these are not exactly the charges made by Smith, but no issue of that is made here. The discrepancy however does throw light on the care exercised by the board in reviewing the record, which of course included the charges as served. The board further recited that participation in such industrial "ambulance chasing" is contrary to the carrier's interests, patently disloyal, and could not be tolerated. They conceded there might be conflicts in the testimony, but they did not, they said, try facts and weigh evidence. Their mandate was clear: to deny the claim if there was "substantive evidence of probative value to support the charge." There is also no issue whether this is a proper assessment of the board's functions, and we assume it is for purposes of this case.
Approximately June 15, 1979, Robinson too lost his job with the railroad. May 20, 1980, he provided a sworn Question and Answer statement to Burge. In this statement he acknowledges that he signed the retainer contract knowingly and not by trick, and that he went to the room at the Hilton by himself and not conducted by Woodrum.
Some time after that meeting, the statement continues, he had a conversation with a Ralph Fussel who told him there was a possibility of his losing his job. (Though Fussel is not identified in this statement, a Ralph Fussel participated in the proceedings before Superintendent Smith as representing Robinson's union.) Fussel further said to get out of his...
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