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Childs v. Pennsylvania Federation Brotherhood of Maintenance Way Employees

argued: February 23, 1987.

REGINALD CHILDS, APPELLANT
v.
PENNSYLVANIA FEDERATION BROTHERHOOD OF MAINTENANCE WAY EMPLOYEES, AND NATIONAL RAIL CORPORATION, APPELLEE



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 85-4759.

Weis, Becker and Hunter, Circuit Judges.

Author: Becker

Opinion OF THE COURT

BECKER, Circuit Judge.

This appeal, arising out of a suit by a railroad employee against his union for breach of its duty of fair representation (DFR) and against the railroad for breach of the collective bargaining agreement, presents two questions. First, we must determine whether the district court erred in granting summary judgment for the union on the ground that the six month statute of limitations has run on the DFR suit, a determination which turns primarily on the date of accrual of the claim. Second, we must determine whether the district court erred in granting summary judgment for the railroad on the ground that it could not exercise subject matter jurisdiction over the employer-railroad in the contractual dispute, because of the minor dispute provisions of the Railway Labor Act, even where the union's breach of its duty of fair representation allegedly prevented the employee from gaining full relief in front of the National Railway Adjustment Board (NRAB or the Board).

We hold that where the union continued to represent the employee before the NRAB, and tried to remedy the breach of its duty of fair representation, the employee's action against the union did not accrue until the Board rejected the employee's claim. As to the second issue, we hold that the district court possesses subject matter jurisdiction over the employer-railroad. In reaching this result, we join the Second and Sixth Circuits in recognizing a fourth exception to the general rule that minor contract disputes between an employee and an employer-railroad fall within the exclusive jurisdiction of the NRAB (the other three are inapplicable here). The exception provides that an employee may sue his railroad-employer in federal court where, because of a union's breach of its duty of fair representation, the employee cannot obtain meaningful relief before the Board.

We therefore reverse the grants of summary judgment and remand for a consideration on the merits of Childs' claim against the union, the existence of subject matter jurisdiction over the railroad (this will depend on the applicability of the fourth exception), and the merits of Childs' claim against the railroad if subject matter jurisdiction is found to exist.

I. FACTS AND PROCEDURAL HISTORY

Appellant, Reginald Childs, was employed by the National Railroad Passenger Corporation (Amtrak) from 1977 to 1981. In August 1981, Amtrak informed him that because of a reduction in force it would abolish his position as a trackman. It also notified Childs that under Rule 18 of the collective bargaining agreement between Amtrak and the Pennsylvania Federation Brotherhood of Maintenance of Way Employee (the union), he had ten days in which to exercise his seniority rights and displace junior employees -- what is known as "bumping" into another position. Amtrak claims that Childs failed to comply with the provisions of Rule 18 by appearing at the approved place and time to exercise his bump, and thereby forfeited his seniority. Childs rejoins that on September 3, 1981, the day before the deadline to exercise his bumping rights, he completed "bump-slips" for a surfacing crew but received incorrect information concerning the new crew's shift and location. He claims that he arrived in time but, through no fault of his own, went to the wrong location, causing his technical non-compliance and invalidating his bump.

Childs contacted the union which, on September 28, 1981, submitted a grievance on his behalf requesting his reinstatement with seniority rights intact. Childs claims that he provided the union with a list of witnesses who saw him arrive at the incorrect location before the deadline for exercising his seniority bump. Amtrak denied the claim. The union rejected Amtrak's decision as unsatisfactory and asked that Childs' request for reinstatement be listed for discussion.

On June 28, 1983, following further discussion, Amtrak issued its final decision, denying Childs' grievance. Amtrak maintained that a review of the record disclosed no evidence that Childs had properly exercised his seniority rights. Amtrak also found that the union had failed to present any probative evidence to support Childs' contention that he had arrived on time at a different location or had otherwise exercised his bump.

Throughout the entire on-property appeal process, Childs received copies of the union's written submissions and Amtrak's written denials, which set forth information underlying each party's grievance position. In its final two denial letters, Amtrak noted the absence of any evidence corroborating Childs' claim or refuting Amtrak's evidence. During this on-property appeal process, from September 28, 1981 through July 13, 1983, Childs neither submitted a witness list to Amtrak nor contacted Amtrak regarding the list's apparent absence.

After review of Childs' case, the union advised him that it had determined not to submit his case to the NRAB. The union based its decision, in part, upon the lack of documentary evidence to support Childs' contention that he arrived at the appropriate location to exercise his bump before the deadline. The letter advised that, although the union had concluded that the case did not warrant further handling, Childs could pursue the case before the Board on his own or through counsel of his choice. The letter enclosed the Board's Rules of Procedure which provide, in pertinent part, that "all data submitted in support of the employees' position must affirmatively show the same to have been presented to the carrier and made a part of the particular question in dispute." 29 C.F.R. ยง 301.5 (d).

Childs retained counsel to intercede on his behalf. On June 13, 1983, counsel wrote the union expressing Childs' concern over the union's failure to assist Childs in processing his claim. The letter enclosed a copy of Childs' witness list and noted that Childs had previously provided the union with such a list. Counsel requested that the union reconsider its decision not to pursue Childs' claim.

In light of its receipt of the list, the union decided to represent Childs in front of the Board. Intra-union correspondence indicates that union officers advised the local union office that additional time would be needed to follow up on the testimony of the workers on the witness list. Also, this correspondence indicates that the local union representative was aware that to win the case, Childs' file would have to be reopened.

The union requested a two-month extension from Amtrak. By letter dated August 3, 1983, Amtrak agreed to a two-month extension of time, "but only upon the condition that the case files in these matters [would be] closed and that no new contention will be raised by [the union] during the period of this extension." The union accepted this condition.

By letter dated August 25, 1983, the union advised Childs' attorney that: (1) Amtrak had refused to accept any new evidence or to discuss appellant's case further; (2) Amtrak had agreed to extend the time limits applicable to Childs' case only if the union agreed to close the case file and to refrain from raising any new contentions during the period of extension; (3) the union had first received the witness list from Childs' counsel on June 13, 1983; (4) early in the grievance process the union had requested that Childs provide documented proof to support his claim, but that he had failed to do so; and (5) the list Childs allegedly had provided to the union was not part of the file and there was no record that such a list had ever been received.

On September 2, 1983, Childs' counsel responded to the August 25 letter. He stated that by agreeing to an extension of time during which no new contentions could be raised, the union "breach its duty to fairly represent Mr. Childs." On September 9, 1983, the union responded to the letter from Childs' counsel as follows: "Under the circumstances we have no alternative except to prepare and present [Childs'] case to the National Railroad Adjustment Board on the basis of the record compiled on the property up to and including July 26, 1983."

On September 15, 1983, Childs' counsel wrote the union stating that he was "unsure" whether the on-property record included the list of employees who saw Childs at West Yard, and requested clarification of this matter. In a letter dated September 20, 1983, he received the following response: "Although there does appear to be a question as to whether or not said list of signatures was made a part of the record in this case we do intend to use that list in the preparation of our submission."

On October 26, 1983, the union filed its submission with the Board. The submission included a copy of the witness list provided by Childs' counsel in support of Childs' contention that he properly exercised his seniority rights.

On January 15, 1985, Childs' attorney spoke by phone with a union staff assistant who advised him that his personal attendance at the Board meeting was not necessary, that the union would present argument (including reference to the ...


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