CZOSEK v. O'MARA
Argument of Richard R. Lyman
Chief Justice Warren E. Burger: Number 234, Czosek against O'mara.
Mr. Lyman, you may proceed whenever you're ready.
Mr. Richard R. Lyman: Mr. Chief Justice, honorable justices, this is a case which comes before this Court to review a judgment of the Court of Appeals below which partially reversed and partially affirmed a District Court judgment granting motions to dismiss a complaint.
The plaintiffs in this case before employees of the Erie Lackawanna Railroad Company which is the railroad formed as the result of the merger of the former Erie Railroad and the former Delaware Lackawanna & Western Railroad.
That merger took place in 1960.
And in 1962, the plaintiffs and the allegations to their complaint which of course control the facts where situation here were furloughed from their employment as stationary engineers.
They alleged in the complaint several different theories of action.
They contend that that furlough being allegedly as a result of the merger of the railroads was the violation of the Interstate Commerce Act.
They allege that it was a violation of the implementing agreement without specification as to what a implementing agreement provided for or what provisions were relied upon.
They alleged that it was further violative of the Railway Labor Act and that they did not receive 30 days advance written notice of the fact that they were going to be furloughed.
They alleged that they received no compensation for their severance from employment or severance pay to which they say they were entitled to by the Interstate Commerce Act and the implementing agreement.
They assert that the furlough constituted a wrongful discharge because they were not subsequently recalled from the furlough or had not been up until the time of the suit which was filed in 1967, a predicate jurisdiction on diversity of citizenship and jurisdictional amounts on the Interstate Commerce Act Section 5 at sec and on the Railroad -- Railway Labor Act.
There was no specification of anything in the Interstate Commerce Act upon which they were relying to give rise to this action.
The only specific jurisdictional allegation as to the Railway Labor Act was this 30 day notice provision.
And finally, in addition to all of these various allegations, they alleged that their union failed and refused to process the grievance and collect compensation for them after they had been furloughed or wrongfully discharged as the case maybe.
And they say that this failure to process the grievance amounted to hostile discrimination, bad faith and so forth.
The District Court sustained the motions to dismiss that were filed by both defendants.
Finding that there was no diversity of citizenship, the defendant Erie Lackawanna as a New York Corporation and the only union defendants were sued -- that were sued were also residents of the New York State.
It found that there was no basis for such an action or for jurisdiction under the Interstate Commerce Act and that they were not relying on any provision of that Act or claiming any provision of the statute had been violated and that the only thing they were basically suing on was the implementing agreement.
As to the Railway Labor Act, they said that the adjustment board had exclusive jurisdiction in the contract claim.
With respect to the charge that the union had failed to properly represent them, the District Court ruled that although the plaintiffs used the first hostile discrimination and alleging that they fail to process their claims properly.
Use of that phrase alone would not support jurisdiction under the Railway Labor Act as an unfair representation claim.
And the District Court further pointed out that the plaintiffs were not attacking the validity of any collective bargaining agreement and they were not claiming that they could not personally pursue their administrative remedies to enforce a contract rights under that agreement.
After that ruling by the District Court, plaintiffs did not seek leave to file an amended complaint or attempt to file one but instead appeal from the decision of the District Court.
Thus, all we have in the record before the Court to support the factual questions involved are the complaint, they're too much to dismiss, plus so called affidavits that were filed with the District Court in connection with those motions to dismiss.
The unions defendants, petitioners here, file a regular motion to dismiss the complaint based on lack of jurisdiction of the subject matter and failure to state a claim and filed no supporting affidavit, so that it was an ordinary motion to dismiss.
The railroad's motion was supported by an affidavit of counsel which appears at page 12 of the appendix which did recite some facts.
On page 13, the second complete paragraph of the page states the railroads version of the facts out of which the dispute arose.
The plaintiffs filed -- the plaintiff's attorney files his own affidavit in our position to the motions to dismiss.
Appearing on page 15 of the appendix and which he does not state any facts simply recites what he contend, what he contended the nature of the action to be and then recited and I quote “that the plaintiffs do not have to allege facts or damages in their complaint under the federal rules.”
Following this decision of the District Court, plaintiff's appeal, the Court of Appeals held that the complaint was sufficient to state a federal claim against the union defendants for breach of they duty of fairer representation.
But as to the railroad defendant, it sustained the District Court's dismissal of the complaint for the reason that plaintiffs had to assert there claim for wrongful discharge against the railroad exclusively before the National Railroad Adjustment Board and further sustain the District Court's other findings as to the lack of any substance and the various jurisdictional allegations to the complaint.
Chief Justice Warren E. Burger: Does the employee Mr. Lyman have any avenue through the adjustment board as you see it, and if so what is that?
Mr. Richard R. Lyman: Employee --
Chief Justice Warren E. Burger: In a proceeding against the union only wherein a claim, asserting a claim keeps the --
Mr. Richard R. Lyman: No.
You may not proceed against the union only before the adjustment board.
It is our opinion or out contention that an employee cannot by a selective source of defendants have the alternative of either collecting damages from his union in a Court action or proceeding before the adjustment board against the railroad.
If an employee has an adequate administrative remedy, we contend that it must be resorted to and exhausted as -- or he must attempt to exhaust it or show that it would be futile to do so under the line of medics in Vaca against Sipes.
Justice Byron R. White: Did he prevent it?
Mr. Richard R. Lyman: Pardon me?
Justice Byron R. White: Did he prevail against all sort of action against the union as such?
Mr. Richard R. Lyman: No because the adjustment board will make him entirely hold for the alleged wrongful discharge.
Justice William J. Brennan: Whom does he proceed against before the board, the employee?
Mr. Richard R. Lyman: Pardon me?
Justice William J. Brennan: Whom does the employee proceed against before the board?
Mr. Richard R. Lyman: The Erie Lackawanna Railroad Company.
Justice William J. Brennan: Right, and suppose if he prevails, I gather your position as he has no cause of action against the union?
Mr. Richard R. Lyman: Because he has recovered fully for any damage or injury he suffered.
Justice William J. Brennan: As he does not prevail, then does he have a cause of action against the union?
Mr. Richard R. Lyman: That we would contend not because in the Landmark case, recent decision of this Court in Vaca against Sipes, one of the basic element which an employee must sustain and action against his union for unfair representation is that his claim against the company is a good one on the merits.
Now, this points up Mr. Justice Brennan, the problem and dilemma that the Court of Appeals left us in.
If he goes against the Railroad Company before the adjustment board, the adjustment board holds in an award which this Court has many times ruled, his final and binding and conclusive and the recent amendments of the statute say so.
And then he has established the absence of any valid claim on the merits and we would say then it would be completely horrendous, if he could turn around and collect his full damages and an action against the union for unfair representation.
Justice Byron R. White: Isn't the -- the law doesn't require, does it?
Or may be it does in the railroad area that in fact maybe awarded upon reinstatement?
I suppose that's still --
Mr. Richard R. Lyman: The law --
Justice Byron R. White: I know they certainly can give it but if --
Mr. Richard R. Lyman: They normally do, that would depend on whether the contract entitled the man to it or not.
Justice Byron R. White: And if the board said, if the board said, well that the only place you can get a remedy for reinstatement is from the employer.
The union certainly couldn't reinstate him but we think that the only reason the employer fired this man is because of the -- as the result of union's hostility, not because the employer want to because the union wanted the employer too.
We will not award him back pay against the employer, let him recover that from the union?
Mr. Richard R. Lyman: I have seen no such awards and of course you have no assurance.
Justice Byron R. White: Would you think it would be proper under the law for the board to deny full back pay?
Mr. Richard R. Lyman: Well, under Your Honors decision in Vaca against Sipes, if part of his damages were attributable to the unions action, the union of course should asses -- be assessed with that liability.
Justice Byron R. White: But the board can do --
Mr. Richard R. Lyman: Prorating process.
Justice Byron R. White: But the board couldn't do that?
Mr. Richard R. Lyman: I don't see how the board could make the decision for some Court before which the employer would go against the union and --
Justice Byron R. White: But it could say that you won't give him back pay?
Mr. Richard R. Lyman: As against the union, the union wouldn't even be a party to the claim you see.
Justice Byron R. White: Or as against the employer they could say, we will not give him back pay.
He's going to get any back pay, he has to get it from the union?
Mr. Richard R. Lyman: Of course in Your Honor's decision in Vaca against Sipes, you pointed out that there is a little different situation presented when the -- when as in this case, the charge of unfair representation is based on failure to process a grievance which is caused by a completely unrelated independent breach of contract by the employer.
There is absolutely no allegation in this complaint, no intimation in any of the recitation of facts that the union was in any way responsible for precipitating the furlough or discharge of these men.
Justice Byron R. White: But that's a pleading problem, that's -- it may be that the union, that the employee against the union can't prove its case, unless it proves something like that but it does say that it was -- there was hostile -- the allegation is hostile discrimination by the union in the complaint?
Mr. Richard R. Lyman: The only factual allegation of the complaint to support that conclusory styling of the action is the allegation that the union failed to process the grievance.
Justice Byron R. White: Well, --
Mr. Richard R. Lyman: It alleges no motive, any --
Justice Byron R. White: Well, does it have to?
Why isn't that a matter of proof and discovery, things like that rather than having to plead your evidence in the complaint?
Mr. Richard R. Lyman: Well, Your Honor pointed out that hostile discrimination, something akin to malice, actual malice, that sort of concept is of the essence of an unfair representation claim.
We don't understand that a union is going to be penalized for maybe failing to properly asses the merits of a claim unless there is some basic invidious discrimination that is involved and as failure to do so, that is absent in this case.
Plaintiffs try to supply it by oral argument of his counsel even though he did not have the District Court level at least although he does now want to amend his complaint.
By arguing orally to the Court that maybe there was a political motive because these people were laid off but some former employees of the former Erie Railroad were kept on and that therefore there was political discrimination.
No rational basis is stated for any such charge of political discrimination as a matter of fact in its -- I might also almost go back to the words of this Court in 1854 case wholly baseless and without reason to think that a union stood to achieve any political gain or had any political motive by merely failing to collect severance pay for somebody that the company had furloughed.
Chief Justice Warren E. Burger: But if as Justice White suggested, there is some underlying hostility on the part of the union officials, the steward toward this employee, that would be a factual, would it not?
Mr. Richard R. Lyman: If it was just personal spite and malice, I think it would be.
Chief Justice Warren E. Burger: Perhaps it isn't --
Mr. Richard R. Lyman: There is no such allegation --
Chief Justice Warren E. Burger: He might have been an employee who hasn't cooperated with the union or who hasn't cooperated with the particular officers and therefore this was a retaliation.
Now, we don't know that but would that not be a matter of --
Mr. Richard R. Lyman: Nor does the complaint suggested or alleged it?
Chief Justice Warren E. Burger: Wouldn't that be a matter of proof rather than pleading?
Mr. Richard R. Lyman: Well, if it is, there is very little left to the part of Rule 12 that authorizes the dismissal of complaints for failure to state a claim.
Justice Byron R. White: Well doesn't this completes --
Mr. Richard R. Lyman: We're not contending that that detailed facts, common law pleading, technicalities must be observed, but there must be a pleading in the complaint of the basis for the charge that is being made even though it's not actually drawn.
Justice Byron R. White: Well, the complaint does allege possible discrimination?
Mr. Richard R. Lyman: It alleges the pure conclusion but alleges nothing except the mere failure to process the grievance which --
Justice Byron R. White: I know but it does -- it does allege --
Mr. Richard R. Lyman: Which they --
Justice Byron R. White: It does allege in so many words, hostile discrimination?
Mr. Richard R. Lyman: It alleges that and some -- as other picturesque language in the paragraphs against the union but no facts except the very fact of not processing the grievance.
Now, in Vaca against Sipes as in 2109, this Court also recognized the duty to exhaust remedies or attempt to exhaust them as a element of stating a claim and that was not done here and in fact on the record, in this Court of Appeal's brief, counsel for plaintiffs alleged -- admits that he could have gone to the adjustment board, it's well established that the adjustment board does take and is required to take submissions of individual employers and that 2153 eastern case, the board has in fact taken them.
The Court of Appeals in saying that the plaintiffs had to go against the railroad before the adjustment board, admitted ipso facto that plaintiffs do have a right to go to the board and it remanded them to the board where their claim against the railroad which was a claim for all of the damages that they have suffered.
There's no intimation which supports in the complaint or in the record anywhere that would support allocation of any portion of that remedy as against the union.
Chief Justice Warren E. Burger: That on the pleading question again, in addition to what Justice White has referred to about the allegation, the claim of hostile discrimination, there is an explicit allegation that the union breached its duty to the plaintiff as a member and violated the collective bargaining agreement by not representing him in the claim against the railroad.
Now, how could he -- do you say that's not enough to raise the issue?
Mr. Richard R. Lyman: The allegation that he didn't -- that they did not represent them and prosecute their claim as a factual allegation.
The other is not the allegation in effect but a conclusion which, and again relying upon Vaca against Sipes, the mere failure to represent in process is not sufficient, it must be a malicious bad faith failure to represent a process.
A union cannot be held to any standards of competence such as doctor is required to observe in malpractice suits and that sort of thing and there is nothing --
Chief Justice Warren E. Burger: Well, there are cases which have held, I don't think in this Court but there are cases in the Court of Appeals which have held that the relationship between the union and its member is in the nature of the fiduciary relationship?
Mr. Richard R. Lyman: We agree and where some factual basis alleged other than these bare statements showing that that fiduciary relationship was breached.
Showing an act which by its nature would breach them, then it would be a different question.
If the Court please, I would like to reserve few minutes for rebuttal unless the Court has some further questions that they wish to ask now?
Justice Byron R. White: Could I ask you just one thing about -
Mr. Richard R. Lyman: Yes.
Justice Byron R. White: If there is a collective bargaining agreement, was there a collective bargaining agreement or this was in effect with the merger?
Mr. Richard R. Lyman: Yes, Mr. Justice White, there of course is all was the so called scheduled agreement on these railroad setting forth the basic rates of payrolls and working conditions then when --
Justice Byron R. White: Is there anything that --
Mr. Richard R. Lyman: Then there was an implementing agreement to implement the merger.
Justice Byron R. White: Is there any thing -- is there a provision in any of the agreements which indicate that the union has a duty, a contractual duty to represent the employee before the adjustment board?
Mr. Richard R. Lyman: Not that I know off.
Justice Byron R. White: Would you think --
Mr. Richard R. Lyman: And with the union, Railroad Unions in general have maintained the proposition that they may take employee's claims to the adjustment board or they may advise them that we don't think this a claim that has much merit but you're free to take it yourselves if you want to but we won't do it at the union expense.
Justice Byron R. White: Do you think the -- let's assume the union freely fits that it's a good claim but it just says we don't normally undertake this, is the employee permitted to go before the board by the law and let him go by himself?
Mr. Richard R. Lyman: Yes Your Honor.
I think the union could lawfully do that and perhaps the remedy for that if the employee wanted more extensive representation and activity by his union representative as to choose another union that will give it to him if he won't get it from that union.
Justice Byron R. White: Now, under the bargaining agreement, are the pre-board steps of the grievance procedure operable by the employee himself without the union's cooperation?
Mr. Richard R. Lyman: We didn't get in to that in this case, on most properties, they are, as implementing agreement is not before the Court in the record.
Actually, I reviewed it recently and it is at the initial stages to be resorted to by the employee himself as I read it.
Justice Byron R. White: Not from the union?
Mr. Richard R. Lyman: No.
And there is I think --
Justice Byron R. White: So that the employee --
Mr. Richard R. Lyman: -- 60 -- within 60 days of the time he claims is affected by the merger.
The employee is supposed to file on certain forms that were supplied, claim for compensation.
Justice Byron R. White: So the employee is not barred from the grievance procedure because the union refuses to process it?
Mr. Richard R. Lyman: No Your Honor.
Chief Justice Warren E. Burger: Thank you Mr. Lyman.
Argument of James P. Shea
Mr. James P. Shea: Mr. Chief Justice, may it please the Court.
It would appear that the chief thrust of the petitioner's argument of course is against the sufficiency of the claims.
With that in mind to be very candid to the Court, the employee respondents here rely on this Court's prior decision in Conley versus Gibson.
And on page 7 of our brief, we quote “what we believe to be the law of the United States related to the sufficiency of a complaint in the federal Court.
The Court indicated there that the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
” Now, with this in mind, this is why I argued before the Circuit Court of Appeals in New York outside the record because there just isn't any record here outside the complaint and the affidavits of counsel.
And the reason I did argue to the Second Court of Appeals as to what I believe is the factual background and which has not been disputed as far as I know by any of the counsel here as to the factual background which underlies the complaint in this case.
Now, the respondent employees were four former members of the Delaware Lackawanna & Western Railroad that had varying periods of the service with that railroad ranging from 47 years to 9 years.
Of course the merger took place in 1960 and these men were employed as stationary engineers in the city of Buffalo what was known as the Michigan Avenue Power Plant.
They were laid off during the summer which was the usual procedure with the company.
They were not called back to work for the fall season and the plant was closed down.
Now of course, when the merger took place between the two railroads, there was a merger, if you will of the unions involved.
The employees were members of local 826 System Federation 78, counsel 2.
Now, they were stationary engineers and they supplied the steam to provide heat for the power plant and also provided heat for the trains as they come in for the station.
Erie Railroad built a new station, a new plant in the City of Buffalo.
These four men, the respondent employees here as station engineers were not called back to work.
Their jobs were replaced by four former employees of the Erie Railroad and these four former employees of the Erie Railroad were not stationary engineers but they were laborers.
And it was the contention of the employees and they had made this know through again, this is after -- this is not in the record but I feel like we have to bring it to the Court's attention with the Court's permission.
They brought this situation to the attention of the master mechanic for the railroad and the union representative.
The answer that they received from both parties was that the -- they were not affected employees with respect to the merger, that the reason that they lost their jobs or to use the word furlough as the other counsel used it, was because of the obsolescence of this Michigan Avenue Power Plant.
Now, in the lower courts and the District Court and then the Court of Appeals, both the attorneys for the union and the attorneys for the Railroad indicated that these men have not lost their jobs, that they were just furloughed.
Of course this is almost 8 years later and they still called it a furlough, they don't call it a wrongful discharge.
They did bring these -- they brought this attention of the situation to the master mechanic and the union representative as I indicated before, they got the same answer.
And was written to the president of the union and he said that the reason that you were given before by the general chairman of the local counsel was the sufficient reason as to why you do not have your job, and that's the end of the matter.
There were no forms given to the employees here as to start any kind of action before the National Railroad Adjustment Board, nothing of this sort, nothing was done at all.
Action was commenced in the Western District of New York.
A complaint was filed and summonses were served on certain of the defendants.
It's the major contention of the employees here that this is a fair representation case against the union and that the National Railroad Adjustment Board under no decisions that I know of does not have jurisdiction over an unfair representation claim against the union alone.
My reading of cases in the Second Circuit Court of Appeals in New York, particularly the Cunningham case indicates that when a plaintiff has a claim against the union for unfair representation and also connected with that would have a wrongful discharge claim against the company that a better practice is not to disassociate the claims and make the plaintiff seek their relief in two different areas of law as it were but to let the employee plaintiff sue both people in the Federal District Court and it is my understanding of the Cunningham case as that what was done.
Judge Medina indicated that in a closely integrated action that this is the better practice and this is what should be done and this is what I argued to the Court of Appeals in New York.
As to the argument of Mr. Lyman, relative to the company, the Railroad should not be led off, I agree but I think that the Court of Appeals in its opinion left the employees with and out as it were because they allowed us to amend our complaint if we could against the union, against the company, excuse me, alleging that if it wasn't -- not collusion but at least some kind of test that's understanding between the two defendants as to these job replacements.
Because, again, this is not in the record but the employees would attempt to prove that there was some kind of an agreement between the company and the union as represented by stronger people from the former Erie Railroad that there was some kind of agreement as to these four jobs.
Justice Byron R. White: How would you get around the rule that the board has exclusive jurisdiction to pass on --
Mr. James P. Shea: Wrongful discharge?
Justice Byron R. White: Yes and other grievance type of cases?
Mr. James P. Shea: Well, as I understand the Cunningham case that as the posture, the case was tried on Mr. Justice White, a wrongful discharge along with the fair representation.
Justice Byron R. White: I know but somebody might tell exactly here in this Court --
Mr. James P. Shea: Right.
Justice Byron R. White: What if the Railroad which I take it would have the right under the law to take that kind of a case to the board, wasn't it?
Mr. James P. Shea: That's my understanding of the law also.
Justice Byron R. White: And also, what if the Railroad says I insist on taking this to the board?
Mr. James P. Shea: Well, that would be the first time that the railroad is subject then because there is no allegation before that, they could have brought it to the board.
Again, then you come to the problem as the same factual set of circumstances that employees would I say be forced to go into two different forms to litigate the one question, really the one question.
Justice Byron R. White: Would you amend as the Court of Appeals suggest that you might --
Mr. James P. Shea: Yes sir.
Justice Byron R. White: Do I understand you to say that you concede that the railroad could take that case, the collusion case forward?
Mr. James P. Shea: No.
Justice Byron R. White: You're saying only the discharge text, isn't it?
Mr. James P. Shea: Correct Your Honor.
And employees are suing, they are not suing for loss of seniority rights or anything like that.
We accept the furlough or discharge, whatever you want to call, its final and we're just pursuing along those remedies.
There is no other minor dispute category involved.
Justice Potter Stewart: They just want money, they want the job back?
Mr. James P. Shea: They want retribution as far as money -- monetary damages are concerned here.
There has been no offer of severance pay or anything like that.
Justice Byron R. White: But you still win your case even if you fail to win the -- even if you fail in your effort to join the company?
Mr. James P. Shea: I am not sure if I do win the case Your Honor, the --
Justice Byron R. White: Why, why, your case is dismissed.
Mr. James P. Shea: Before the board you mean?
Justice Byron R. White: No, before in the Court, not dismiss the Court.
Do you think the Second Circuit conditions your right to maintain the suit upon you joining the employer?
Mr. James P. Shea: No.
Justice Byron R. White: No it didn't?
Mr. James P. Shea: That's correct, it did not.
Justice Byron R. White: But you can still proceed against the Union even if you didn't join the employer?
Mr. James P. Shea: That's true Your Honor, I could.
Justice Byron R. White: But your cause of action might require some kind of proof of employer participation, was it not?
Mr. James P. Shea: Even more than that --
Justice William J. Brennan: Even against the union?
Mr. James P. Shea: Even more than that Mr. Justice Brennan because the -- of course the discharge was precipitated by the company.
Justice William J. Brennan: So your evidence would have to go to employer conduct whether or not you amend it to --
Mr. James P. Shea: Would certainly be an evidentiary problem that District Court to do that.
Justice William J. Brennan: So you're not alleging a union caused discharge?
Mr. James P. Shea: No, because in a pure sense, the union couldn't cause it --
Justice William J. Brennan: You just alleged remedy to discharge?
Mr. James P. Shea: Right, at least collusion on part of the union with the Railroad, to cause the loss of employment by the employees here.
As far as the --
Justice William J. Brennan: Suppose, in this posture now that employer were to go to the board on the discharge case, I gather the railroad could do that, couldn't they?
Mr. James P. Shea: Yes, it's my understanding --
Justice William J. Brennan: Even though you're not asking for reinstatement?
Mr. James P. Shea: Correct, we are not asking for reinstatement.
Justice William J. Brennan: Suppose a determination of the board favorable to the railroad?
Mr. James P. Shea: Then these employees are out of the picture as far as the railroad is concerned.
Justice William J. Brennan: Well, What's the bearing of a determination of the board in favor of the railroad upon your lawsuit against the union?
Mr. James P. Shea: I just said, as far as the railroad is concerned.
Justice William J. Brennan: You still have your cause of action?
Mr. James P. Shea: The case against the union, it's my understanding, we're still allowed to sue the union but again it's a practical problem, it's an evidentiary problem as far as these employees are concerned.
Why disjoint the case when it's a closely integrated problem and allow the plaintiffs to go into a Federal District Court at least expense to them and --
Justice William J. Brennan: I expect there might be -- you don't concede there might be any kind of question at all about your lawsuit against the union if the board were to find in favor of the railroad?
Mr. James P. Shea: Well, that's the reason I didn't want to go to the board naturally because the board is comprised of members of the union and the company.
When you're alleged in a complaint such as this that there was some kind of -- conspiracy is kind of a bad word but some kind of collusion anyways against the employees by both sides as this Court indicated in Glover although that was a racial discrimination case, I really don't see too much distinction between this case and the Glover case as far as allowing these employees to go into a District Court and not to disassociate.
Chief Justice Warren E. Burger: Well, if you want to you could decline the option that the Court of Appeals gave you and maintain the action against the union only, couldn't you?
Mr. James P. Shea: I could Your Honor.
Chief Justice Warren E. Burger: And then except for the statutes of limitations if you didn't prevail there, you could seek against the railroad?
Mr. James P. Shea: Which is very important in this case, the statute of limitations because of course it lays a point over the Court, it's almost 8 years old is the case now and my understanding of the procedure of the National Railroad Adjustment Board that's quite time consuming there as far as getting before the board and getting a decision.
Essentially, that's the position of the employees of this case and unless the Court has any further questions, thank you very much.
Chief Justice Warren E. Burger: Thank you Mr. Shea.
Mr. Griffin, you may proceed whenever you're ready.
Argument of Richard F. Griffin
Mr. Richard F. Griffin: Mr. Chief Justice, members of the Court, may it please the Court.
On behalf of the Erie Lackawanna, the respondent employer in the case, basically, it's our position that we had a right to have the question of this matter of whether the furloughing or discharge was right or wrong, whether it had anything to do with the merger, but basically, this is a question of an interpretation of agreements and then under the Railway Labor Act that the design of that is that where agreements are interpreted in this type of dispute that the National Railroad Adjustment Board is the one to interpret the agreements and accordingly, the plaintiffs had an obligation to take the case there.
Justice Byron R. White: Mr. Griffin.
Mr. Richard F. Griffin: Yes.
Justice Byron R. White: The railroad hasn't caused petitioned here, has it?
Mr. Richard F. Griffin: No Your Honor.
Justice Byron R. White: Are you objecting to a leave aloud the petitioners to other employees rather to amend?
Mr. Richard F. Griffin: Am I objecting to that?
Justice Byron R. White: Yes.
Mr. Richard F. Griffin: Yes Your Honor.
Justice Byron R. White: Well, how can you -- you didn't cross petition that against you, did you?
Mr. Richard F. Griffin: No I did not --
Justice Byron R. White: The only as I understand it, all we have here is the union's petition, isn't that all?
Mr. Richard F. Griffin: That's correct in terms of a petition Your Honor.
Chief Justice Warren E. Burger: What you mean is that you don't like it but you happen to be -- you haven't asked us to review it?
Mr. Richard F. Griffin: No I haven't filed any formal petition.
My understanding was that all questions are before the Court and this Court has the power in the posture that it is to order reinstatement of the District Court decision which dismissed as against all defendants without any leave.
And furthermore, although the main thrust of the union's argument is that the complaint should be dismissed as against it.
It also in its brief makes certain implicitly alternative arguments as against the railroad.
Justice William J. Brennan: But Mr. Griffin, you're a respondent, aren't you?
Mr. Richard F. Griffin: That's correct Your Honor.
Justice William J. Brennan: Ordinarily, a respondent is here defending the judgment below, isn't he?
Mr. Richard F. Griffin: Yes.
Justice William J. Brennan: And you're here attacking the judgment insofar as amendment against the railroad was permitted, aren't you?
Mr. Richard F. Griffin: In part, that's my purpose Your Honor, yes.
Justice William J. Brennan: Yes.
Mr. Richard F. Griffin: I think that the -- it's my position that the gratuitous none asked for permission to start in effect another lawsuit against the railroad that the Second Circuit gave was improper and unnecessary and --.
Justice William J. Brennan: My question is whether you can bring that to us without having cross petition against the judgment which gave that leave to the -- your co-respondents?
Mr. Richard F. Griffin: It's a good question and I'm frank to say that Your Honor, I'm not able to authoritatively respond.
At the time that the petition on behalf of the union was filed, I do recall that in our office, we went into that thing and it's my impression, I could be wrong that we determined at that time that if certiorari was granted by this Court on the union's application, then the Court would have the power once it was granted to review the particular issue that I'm referring to here.
Justice William J. Brennan: Why would you ever -- class as a respondent in this case anyway, because you didn't petition, is that it?
Mr. Richard F. Griffin: Well, I'm -- I was originally --
Justice William J. Brennan: Or a petitioner you're a respondent, is that it?
Mr. Richard F. Griffin: That's right.
Was originally a defendant in the District Court --
Justice William J. Brennan: Yes, and you --
Mr. Richard F. Griffin: --then I was an appellee in the --
Justice William J. Brennan: And you wanted to sustain the District Court's judgment of dismissal?
Mr. Richard F. Griffin: That's correct insofar -- .
Justice William J. Brennan: And the Court of Appeals reversed the District Court and you objected to that?
Mr. Richard F. Griffin: That is correct.
Justice William J. Brennan: You and the union argued together in the Court of Appeals?
Mr. Richard F. Griffin: That's correct.
We were there to sustain Judge Henderson, the district judge's decision that there was no case in effect that we should be out 100%.
And then the Second Circuit in effect sustained that on the basis of the case and pleadings before it but as I say gratuitously gave leave for the plaintiffs to start in effect another lawsuit against us.
Chief Justice Warren E. Burger: When you say gratuitously --
Mr. Richard F. Griffin: Well no one asked for it.
They say ab initio or on its own --
Justice Potter Stewart: But there it is Mr. Griffin, it's a judgment and it's a judgment adverse to you and you have an appeal from it, part of it that is adverse to you, have you?
Justice Byron R. White: Are you sharing respondent's time here?
Mr. Richard F. Griffin: Yes, we made an application.
Justice Byron R. White: For additional time?
Mr. Richard F. Griffin: To divide the time Your Honor.
Well, as I say I agree the kind of -- I apologize for our being unable to answer, if authoritative was -- that's my -- but on the question which is the other question that I think we're entitled to without question to address ourselves to and that is whether the railroad should be in the case at all and whether the exclusive remedy to the plaintiffs is not before the adjustment board, it's our position that this case must be in the adjustment board and that the exceptions to that that this Court has decided such as in the Glover case and --
Justice Potter Stewart: Of course Mr. Griffin, if the employees don't amend as against the railroad, you have the case anyway, aren't you?
Mr. Richard F. Griffin: That's right.
And they never have amended --
Justice Potter Stewart: I wonder why you're here at all if I --
Mr. Richard F. Griffin: Well, if I knew --
Justice Potter Stewart: Or despite the --
Mr. Richard F. Griffin: Your Honor --
Justice Potter Stewart: I don't understand why you're here at all?
Mr. Richard F. Griffin: Well, If I knew that the union in its brief did not suggest that this Court should make some adverse determination and maybe keep us in the lawsuit, then as far as that part of it, I wouldn't be here and I think that it's quite clear that we shouldn't be in the lawsuit and as I think Justice White developed in the question, this employee had all the chance in the world to go before the adjustment board, his counsel for years, his counsel decided not to go to the adjustment board and that was -- he had every opportunity in the world, there was nothing to prevent him but he didn't want to go there and this Court has consistently held that the Railway Labor Act provides exclusive remedy and has an obligation to go there.
Now, Mr. Shea and I just will conclude with this went outside the record to argue about the merits of the case and I think I have to respond in this respect that he says that the Erie Railroad hired old employees of Erie that the merge railroad hired old employees to run a new power plant after the one power plant was closed down in Buffalo.
Well, that's not a fact and it's not for you to decide whether or not it's a fact but he's gone into it and he never before put this in and they didn't build a new power station and hired new people because in Buffalo, the old Lackawanna had one of these great huge stations that you couldn't give away for years, finally it was sold for taxes or something and the power plant that he did it and so on came to an end and that's where these men worked.
For the limited time that there was passenger service, there was a source of steam elsewhere in Buffalo that was used and they didn't build a new power plant as Mr. Shea suggests.
And accordingly, that's why all along they took the position that their jobs came to an end due to a railroad obsolescence, that the merger had nothing to do with it and accordingly that there's no case.
And I think that that's what the Railroad Adjustment Board would hold, that there's no political discrimination, there's nothing in this case and that's why there's never been anything set forth in the pleadings because they don't have anything to set forth.
In the Glover's case where there was a futility question, the counsel went in great detail.
And so in conclusion, it's our position very basically that the District Court was correct in dismissing this case 100% as against the defendant Erie Lackawanna, we feel that's where we should be.
Chief Justice Warren E. Burger: Mr. Lyman you have three minutes left.
Justice Potter Stewart: Why did you make the railroad respondents Mr. Lyman?
Rebuttal of Richard R. Lyman
Mr. Richard R. Lyman: Because the Court of Appeals left us as the sole defendants to defend against a charge claimed for damages based on the acts of the railroad company and not on our acts.
And if the railroad had not been made the respondents, --
Justice Potter Stewart: Well, you're --
Mr. Richard R. Lyman: --we're out of it and we have to say their burden according to --
Justice Potter Stewart: Well, your complaint is that instead of limiting the relief to the employees to amend on grounds of collusion against the railroad, you wanted the railroad what, make something else?
Are you challenging the judgment as to the extent to which the railroad is kept in a way?
Mr. Richard R. Lyman: Under Vaca against Sipes, the Court made it very clear that the railroad cannot slip its burden off paying for its wrongful breach of contract off under the labor unions simply in a situation were like here, the union did not process the claim for the employees to complain about what the railroad had done.
Justice Potter Stewart: Well, let me see if I get it right.
Your point is you want out entirely on the pleading argument that there is no cause of actions unless against union?
Mr. Richard R. Lyman: Yes.
Justice Potter Stewart: Well, if one has been, then you're --
Mr. Richard R. Lyman: Then we'll --
Justice Potter Stewart: -- entitled to have the union of the employer as a full co-defendant, is that it?
Mr. Richard R. Lyman: Yes, because their damages cannot properly be placed upon the union.
Now, they leave to amend, to allege collusion that the Court of Appeals granted the plaintiffs doesn't say this because on a remand, suppose, first they may not amend, may decide they'd rather just go against us then we're out, we're lost.
If they do amend and then the District Court finds there was no collusion as there is no suggestion in this case that there was except in the Court of Appeal's idea that maybe that was the kind of an action that could be brought jointly and that if there were no collusion, they could not proceed.
If they do amend, bring the railroad back in and suppose the railroad gets out and maybe even on a summary judgment showing there's no shed of support for the charge of collusive action.
Then the case would be left in the same posture that it is now or a purely independent act, breach of contract by the railroad is being defended solely by the union.
Chief Justice Warren E. Burger: One thing that does emerge here is that the Court of Appeals thought that these pleadings stated the cause of action against the union.
That is clear that they thought that whether correctly or not?
Mr. Richard R. Lyman: Yes Your Honor and we think and we submit that they did not do so against the union and we've argued that at some length in our brief and decided, decisions from the Sixth Circuit, the Seventh Circuit, the Tenth Circuit which I very clearly contrary to the holding of this Court of Appeals.
Chief Justice Warren E. Burger: Thank you Mr. Lyman.
The case is submitted.
Thank you gentlemen.