Brotherhood of Locomotive Engineers, Appellant, v. Denver & Rio Grande Western Railroad Co. et al., Appellees, 411 F.2d 1115 (10th Cir. 1969)

This appeal involves the proper construction of a 1966 amendment to Section 3, Second, of the Railway Labor Act, 45 U.S.C. § 153, Second¹  (Public Law 89-456, 80 Stat. 208). And the specific question is, as stated by the trial judge, "Whether one union [The Brotherhood of Locomotive Firemen & Enginemen] can utilize the special board of adjustment machinery of [the amendment] to resolve with the railroad the grievance claims of its members when these claims arose out of the employment in a craft for which another union [The Brotherhood of Locomotive Engineers] is the exclusive collective bargaining agent under the Act and involve the interpretation and application of the collective bargaining agreement executed by such other union." 290 F. Supp. 612, 618 (D. Colo. 1968).

The Firemen's Union is the collective bargaining representative for the locomotive firemen on the Denver & Rio Grande Western Railroad Company. The Engineers' Union is the certified bargaining representative for the locomotive engineers on the same line. Agreeably to their respective collective bargaining contracts firemen are sometimes promoted to engineers and engineers demoted to firemen. Some of these people who shuttle between the two crafts are members of both unions but not necessarily so.

The Firemen's Union submitted several grievance claims on behalf of its members to the Railroad for settlement and prosecuted them to the "chief operating officer of the carrier designated to handle such disputes." 45 U.S.C. § 153, First (i). Upon the Railroad's rejection of the claims, the Firemen's Union requested the creation of a special adjustment board in accordance with § 153, Second, to arbitrate the claims. The Railroad refused to agree to the creation of the board for the arbitration of six of the claims on the ground that they admittedly arose while the firemen were performing duties of an engineer, hence, subject to the engineers' contract. Following the statutory procedure, the Firemen's Union then requested the National Mediation Board to appoint a party "associated in interest with the carrier", § 153, Second, who, with the Firemen's Union representative, would constitute the special adjustment board. See 29 C.F.R. § 1207.1-1207.4. Apparently the appointed carrier representative and the Firemen's Union representative were unable to agree; whereupon, pursuant to the statute, the N.M.B. appointed a third member referred to as a "procedural neutral" to resolve the jurisdictional dispute.

After the hearings before the special adjustment board, as thus constituted, wherein the Engineers' Union was heard, the Firemen's Union representative and the procedural neutral entered into a statutory agreement, assuming jurisdiction of the six firemen-engineer claims, according to the "established interpretation" of the Engineers' contract by the Engineers' Union.² 

Before hearings on the merits, the Engineers' Union brought this action seeking in essence a declaration that the Firemen's Union, Railroad, and National Mediation Board are legally without authority to convene a special adjustment board to interpret and apply the Engineers' collective bargaining contract to these firemen-engineer disputes, and for an injunction against the exercise of the assumed subject matter jurisdiction. On a motion to dismiss, Judge Arraj first sustained his own jurisdiction to review, Brotherhood of R.R. Trainmen v. Denver & R.G.W.R., 370 F.2d 833 (10th Cir. 1966) cert. den. 386 U.S. 1018, 87 S. Ct. 1375, 18 L. Ed. 2d 456 (1967), and cf. Garvey v. Freeman, 397 F.2d 600 (10th Cir. 1968), then confirmed subject matter jurisdiction of the special adjustment board. He accordingly dismissed the Engineers' Union's action for failure to state a claim for injunctive relief.

The Railroad and the N.M.B. chose to take no part in the appeal, leaving the Firemen's Union as the only answering Appellee. No question of judicial review is raised on appeal. But we should not exercise our injunctive powers to interfere with the establishment of the special board and the exercise of its jurisdiction unless it is made to appear that the invocation of the board was clearly unauthorized and that the exercise of subject matter jurisdiction would leave the Appellant without remedy. Transportation-Communication Emp. Union v. U. P. R. Co., 385 U.S. 157, 164, 87 S. Ct. 369, 17 L. Ed. 2d 264 (1966); Whitehouse v. Illinois Cent. R. Co., 349 U.S. 366, 75 S. Ct. 845, 99 L. Ed. 1155 (1955), and cf. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 51, 58 S. Ct. 459, 82 L. Ed. 638 (1938). Reviewing the trial court's declination to interfere with the administrative processes in this context, we affirm its judgment.

Under the Railway Labor Act an individual may prosecute his grievance before the National Railroad Adjustment Board pro se or by any designated representative, as he chooses. See Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711, 65 S. Ct. 1282, 89 L. Ed. 1886 (1945) adhered to on rehearing, 327 U.S. 661, 66 S. Ct. 721, 90 L. Ed. 928 (1946) and McElroy v. Terminal Railroad Association of St. Louis, 392 F.2d 966 (7th Cir. 1968) cert. den. 393 U.S. 1015, 89 S. Ct. 611, 21 L. Ed. 2d 559 (1969). Relying on the legislative history of the 1966 amendment, however, the trial court concluded, rightly we think, that an individual could not invoke the provisions of the amendment to convene a special adjustment board to handle his grievance, but rather Congress intended to limit the availability of this machinery to a union representative. The question was thus narrowed to whether this union representative must be the collective bargaining representative. Squarely facing this issue as the heart of the lawsuit, the trial court concluded that neither the language of the amendment nor the legislative history warranted restricting the availability of this machinery to the collective bargaining representative alone but rather that the statutory words "representative of any craft or class" meant any otherwise qualified union representative. We agree, and can add little, except to make further reference to the legislative history of the 1966 amendment in so far as it bears on the interpretation of these critical words.

The declared purpose of the 1966 amendment was to relieve the congestion in the dockets of at least two of the four divisions of the N.R.A.B. House Report No. 1114, 89th Congress, First Session p. 3, and Senate Report No. 1201, 89th Congress, Second Session, 1966 U.S. Code Congressional and Administrative News, pp. 2285-2286. To achieve this purpose the special adjustment board machinery was established as a mandatory arbitration alternative to the N.R. A.B. And we should not frustrate the primary legislative purpose by unduly limiting the availability of this machinery designed as it was to expedite grievance settlements hopelessly in arrears.

The Firemen's Union could have indisputably presented these firemen-engineer claims to the N.R.A.B. and we should not deprive it of standing to process them before the special board in the absence of a clear legislative intent to do so. As Judge Arraj suggested "it would not be in keeping with the spirit of the [Railway Labor Act] to" restrict the availability of this special board machinery further than that required "by the specific wording of the act supported by persuasive reasons." Congress did exclude individual invocation of the special boards lest it result in a proliferation of such boards each with a single claim. Instead, it was contemplated "that a number of disputes will be referred to" a single board after being "carefully screened by the party submitting it." Senate Report No. 1201, 1966 U.S.Code Congressional and Administrative News, pp. 2286-2287. But there is nothing in this legislative manifestation from which it can be logically concluded that Congress intended that the statutory words "representative of any craft or class" be restricted to the collective bargaining agent.

The House Report did take note of some testimony relating to possible "labor pirating" under the amendment.³  But at the same time the House Committee answered its own question with the observation that settlement through the neutral person (procedural neutral) would alleviate this danger in matters of union jurisdiction. We are convinced that the statutory words "representative of any craft or class" mean precisely what they say and embrace the Firemen's representation of these claims.

The Engineers' Union argues, however, that if this construction is correct it runs afoul of the due process clause since representatives of the Railroad and the Firemen's Union are thus permitted to construe the collective bargaining contract of the Engineers. But the valid and litigable collective interest of the Engineers' Union was fully protected by the procedural neutral in his opinion as anticipated by the House Committee, i.e. footnote 3. In ruling that the special adjustment board had jurisdiction of these firemen-engineer claims the neutral directed that the agreement assuming jurisdiction for the merits board contain a provision whereunder the Firemen's handling of the engineers' claims would be governed and controlled by the interpretation and application placed upon the Engineers' contract by the Engineers' Union.

But the Engineers' Union argues that having already construed its contract to exclude these claims its interests are violated by the assumption of subject matter jurisdiction. We think this argument confuses issues of merits with questions of jurisdiction. As Judge Arraj, we also cannot presume that the special board, properly convened, will violate its jurisdictional agreement. But if it does, the Engineers' Union, as an interested party, is not without relief on judicial review. See § 153, Second and § 153, First (q). It is not without remedy. As Mr. Justice Brandeis observed in Myers, supra, 303 U.S. pp. 51-52, 58 S. Ct. p. 464, "the rule requiring exhaustion of the administrative remedy cannot be circumvented by asserting that the charge on which the complaint rests is groundless and that the mere holding of the prescribed administrative hearing would result in irreparable damage. Lawsuits also often prove to have been groundless; but no way has been discovered of relieving a defendant from the necessity of a trial to establish the fact."

Affirmed.