and that argument had been had thereon on April 17, 1957, the court adjourned the matter until disposition of the Barnett matter by the Court of Appeals.
On May 28, 1957, 245 F.2d 579, the Court of Appeals, through Judge Goodrich, filed an opinion in the Barnett matter, supra, and these motions were then argued before this court on June 7, 1957.
An examination of defendant's motion discloses certified copies of the awards in three cases, all claims against the Pennsylvania Railroad Company, in the one, award 18115, Thomas J. Finlin, in the second, award 18116, and in the third, award 18117, all having in issue the interpretation of the very contract and the same factual circumstances involved in the present case, so we are confronted directly with the issue: Under these circumstances, does the National Railroad Adjustment Board have exclusive jurisdiction for the interpretation of the contract?
In its previous opinion in this matter, 145 F.Supp. 596, 599, this court said:
'If the interpretation of the pending matters on this question by the administrative body is against the claimants thereunder, is it binding upon this Court in the present matter? We think so, under the authority of the Slocum case, supra ( Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S. Ct. 577, 94 L. Ed. 795), and Newman v. Baltimore and Ohio Railroad Co., 3 cir., 1951, 191 F.2d 560.'
If the present status of the law on this subject is the same, this statement would seem dispositive of the matter, at the same time the court is reluctant to take its own statement as sole authority for so holding.
In the DePriest case (Day v. Pennsylvania R. Co.), supra, Judge Maris said (245 F.2d 486):
'* * * On the contrary the stay here was sought merely because of the rule of law laid down by the Supreme Court in Slocum v. Delaware, L. & W.R. Co., 1950, 339 U.S. 239, 70 S. Ct. 577, 94 L. Ed. 795, and Order of Railway Conductors of America v Southern Railway Co., 1950, 339 U.S. 255, 70 S. Ct. 585, 94 L. Ed. 811, that the National Railroad Adjustment Board has exclusive jurisdiction to decide the question raised in this case as to the construction of the labor agreement here sued on.'
'* * * Nor can we ignore the fact that even if the plaintiff's right is established by the Board the amount of the claim at least may well have to be established in the present action in the district court. We, therefore, think it not inappropriate to suggest that the district court, upon plaintiff's application, may well be moved to modify the existing stay of proceedings to the extent necessary to permit the parties to undertake depositions, discovery and other pre-trial procedure in order that the evidence which is now available may be preserved for use at the trial of the action when and if it takes place.' (Emphasis supplied.)
To this court this at the very least creates an inference that Judge Maris was of a mind that the determination by the National Railroad Adjustment Board if it was against the position of the present plaintiff, was final.
In Barnett v. Pennsylvania-Reading Seashore Lines, supra, Judge Goodrich said (245 F.2d 581):
'* * * A legislative policy permitting court reexamination of monetary awards but no review in cases where no award is made is not a matter for us to question unless it violates constitutional rights. This statutory scheme does not.
'The view just expressed, that there can be no judicial review when the Board fails to give relief to an employee, is that of other courts which have had occasion to examine the question. Sometimes the conclusion is put on the basis that the statute giving the Board's order finality means what it says. No review is provided for and that is the end of it. Reynolds v. Denver & R.G.W.R. Co., 10 Cir., 1949, 174 F.2d 673; Weaver v. Pennsylvania R.R., D.C.S.D.N.Y.1956, 141 F.Supp. 214; Greenwood v. Atchison, T. & S.F. Ry. Co., D.C.S.D.Cal.1955, 129 F.Supp. 105; Futhey v Atchison, T. & S.F. Ry. Co., D.C.N.D.Ill.1951, 96 F.Supp. 864; and Berryman v. Pullman Co., D.C.W.D.Mo.1942, 1942, 48 F.Supp. 542, 543, where the court said: 'That finding is made final by the statute. There is no room for a subsequent inquiry into the same question by the Courts.' Occasionally res judicata is given as the reason. Ramsey v. Chesapeake & O.R. Co., D.C.N.D.Ohio 1948, 75 F.Supp. 740. Other decisions put the result squarely upon the election of remedies theory. Plaintiff having chosen to go to the Board, he cannot now, after losing, come to a court. Majors v. Thompson, 5 Cir., 1956, 235 F.2d 449; Michel v. Louisville & N.R. Co., 5 Cir., 188 F.2d 224, certiorari denied 1951, 342 U.S. 862, 72 S. Ct. 87, 96 L. Ed. 648; cf. Kelly v. Nashville, C. & St. L. Ry., D.C.E.D.Tenn.1948, 75 F.Supp. 737 (court action brought while proceedings were pending before the Board).
'Regardless of the path taken judicial authority arrives at the same place. The cases which preserve the possibility of court review if the Board has acted unconstitutionally or has gone outside its jurisdiction should be kept in mind. But they are not in point in this case which is a plain challenge to the decision reached by the Board on the merits of the plaintiff's claim.'
This view seems also to be the opinion of the Fifth Circuit for in the matter of Sigfred v. Pan American World Airways, 1956, 230 F.2d 13, Judge Tuttle, speaking of the National Railroad Adjustment Board and the National Air Transport Adjustment Board, said at page 17:
'In the light of the declared aims of the Act, we also find it to be the intent of Congress to allow the parties to make the awards of such boards final and binding. Therefore, giving normal effect to these words, we refuse to review a challenged ruling of law, there being no question raised regarding the jurisdiction of the board or the regularity of its proceeding. * * *
'However, it was urged upon the district court that the system board's construction of the agreement is arbitrary and capricious. If we regard this as an assertion that the board's arbitrariness rose to the level of a denial of due process, it is not amiss to add that we regard the board's interpretation of the agreement not only entirely reasonable, but we believe it to be the correct interpretation.'
And further (at page 18):
'The interpretation of such an agreement was held by the Slocum case to be within the exclusive jurisdiction of the statutory board there involved.'
It is therefore, the opinion of this court that the National Railroad Adjustment Board had the contract in question in the present case before it for interpretation in like circumstances; that the present plaintiff did not necessarily have to appear before such Board under the holding of Kirby v. Pennsylvania R. Co., supra; and that the question of interpretation of the labor agreement was exclusively in the National Railroad Adjustment Board and its finding is final and binding upon the plaintiff in this case.
Consequently, the defendant's motion to dismiss will be granted and it, therefore, becomes unnecessary to consider the motion of plaintiff to modify the stay.
Counsel will prepare an appropriate order.