Before KALODNER and HASTIE, Circuit Judges, and LAYTON, District Judge.
KALODNER, C.J.: The substituted plaintiff appeals from an Order entered against him in the District Court dismissing the complaint originally filed by his decedent.
Details of the action, proceedings, and contentions of the parties are set forth in prior opinions of the District Court and this Court*fn1 as well as in 155 F.Supp. 695, which immediately preceded this appeal.
Briefly stated, Charles A. DePriest commenced this action for damages against the defendant railroad asserting that pursuant to a collective bargaining agreement, and during his employment by the defendant railroad as a locomotive engineer, he was entitled to compensation greater than that actually paid to him. The complaint recited that DePriest had processed his claim through the defendant's organization, but did not proceed to the National Railroad Adjustment Board because he retired and severed his employment relationship. Although defendant's answer denied that DePriest's claim was administratively rejected by its general manager, it admitted that he was an employee in the period involved and averred that he relinquished all rights to return to service and had applied for his annuity.
Following our dismissal, for want of appellate jurisdiction, of the prior appeal of the decedent, 243 F.2d 485, the plaintiff moved to modify the stay order entered by the District Court.The defendant moved to dismiss the complaint on the ground that the court lacked jurisdiction of the subject matter. In support of the motion, defendant attrached certified copies of three Awards made by the National Railroad Adjustment Board, First Division, in independent matters, all involving interpretation of the contract here involved with respect to the same issue. These Awards denied relief to the claimants; they were entered by the Board shortly before we rendered our decision on the prior appeal.
The District Court determined that the issue involved was one of interpretation of a collective bargaining agreement; that the question of interpretation was exclusively for the National Railroad Adjustment Board and that its finding was final and binding upon the plaintiff. 155 F.Supp. 695. Although the Opinion of the District Court proceeded upon an inquiry into the binding effect of the aforementioned Awards, which would presuppose jurisdiction, the Order actually entered dismissed the complaint for want of jurisdiction.
The questions now presented for disposition are whether the cause was within the jurisdiction of the District Court, and, if it was, whether the plaintiff is barred by the Awards submitted in support of defendant's motion.
We are of the opinion that the District Court was not without jurisdiction in the premises and that, at this stage of the action, it does not appear that the plaintiff is or should be barred from further proceedings.
There is no dispute here that the requirements of an ordinary diversity action are met. If the District Court is deprived of jurisdiction, that must appear from the provisions of the Railway Labor Act, 48 Stat. 1185, c. 691, 45 U.S.C. Section 151, et seq.
The term "employee" is defined in Section 1 Fifth of the Act, 45 U.S.C. Section 151 Fifth, to include
"every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner or rendition of his service) who performs any work defined as that of an employee or subordinate official in the orders of the Interstate Commerce Commission ..." Further, Section 3 First (i) of the Act, 45 U.S.C. Section 153 First (i), grants to the National Railroad Adjustment Board jurisdiction to hold hearings, make findings, and enter awards in all disputes between carriers and their employees
"growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions ..."
In this statutory framework, the United States Supreme Court permitted an employee who claimed to have been wrongfully discharged to maintain an action at law without resort to the Adjustment Board even though a question of interpreting a bargaining agreement was presented. Moore v. Illinois Central R. Co., 312 U.S. 630 (1941). The Court there said at page 634:
"[We] find nothing in that [Railway Labor] Act which purports to take away from the courts the jurisdiction to determine a controversy over a wrongful discharge or to make an administrative ...