L. F. Cole v. Erie Lackawanna Railway Company ( 1976 )

ENGEL, Circuit Judge

(dissenting).

I agree with the majority that the district court had jurisdiction to exercise a limited judicial review over the determination of the special adjustment board. I further agree with the majority that the provisions of § 153 First (j) apply to proceedings before special adjustment boards under 45 U.S.C. § 153 Second. I am unable, however, to agree that the appellee did not receive notice sufficient to satisfy § 153 First (j), especially in view of the majority’s clearly supported finding that the appellee authorized the U.T.U. to handle his grievance, both personally and by virtue of the authorization contained in Article 44 of the U.T.U. Constitution.

As appellee himself acknowledged, he knew in advance that the Board would be conducting a hearing on his claim and expected the union to represent him personally. Apparently, the majority opinion holds what the Supreme Court in Burley II expressly ruled it would not hold:

“. . . that any employee can stand by with knowledge or notice of what is going on with reference to his claim, either between the carrier and the union on the property, or before the Board on their submission, allow matters to be threshed out to a conclusion by one method or the other, and then come in for the first time to assert his individual rights.” Burley II, supra, 327 U.S. at 666, 66 S.Ct. at 723.

The majority appears to construe the holding in Burley I and II to require both employee authorization to the union to prosecute his individual claim and formal or actual notice. However, the Supreme Court in the Burley decisions held that the rights accorded by § 153 First (j) “. ‘are statutory rights, which he may exercise independently or authorize the union to exercise in his behalf’”. Czosek v. O’Mara, 397 U.S. 25, 28 n. 1, 90 S.Ct. 770, 773, 25 L.Ed.2d 21 (1970), quoting Burley I, supra, 325 U.S. at 740 n. 39, 65 S.Ct. 1282 (emphasis added). The question of actual notice is important only insofar as it infers authority by estoppel. “Even the ordinary law of agency attributes authority to a representative to act when the principal stands by with knowledge or notice of his assumption of that authority and permits the third person to act to his injury upon the same assumption.” Burley II, supra, at 665 n. 7, 66 S.Ct. at 723. Thus, the Second Circuit in Pyzynski v. New York Central R. R., 421 F.2d 854, 859, 860 (2nd Cir. 1970) stated:

“The Burley decisions may be said to have held that a carrier may rely on the authority of a union to negotiate a conclusive settlement of an employee’s grievance if it can be shown either that the union acted upon the basis of actual authority, whether individually given or to be gathered from the union constitution or by-laws or from custom and usage or that the employee had notice or knowledge of the actions taken by the union in his behalf and took no steps to negate the union’s authority.” (emphasis added)

The dictates of Burley have been satisfied in the instant case both by granted authority (individually given and by the union constitution) and the actual knowledge possessed by Cole.

Nor do I understand Kotakis v. Elgin, J. & E. Ry., 520 F.2d 570 (7th Cir. 1975); Illinois Central R. R. v. Whitehouse, 212 F.2d 22 (7th Cir. 1954), rev'd on other grounds, 349 U.S. 366, 76 S.Ct. 845, 99 L.Ed. 1155 (1955), and Hunter v. Atchison, T. & S. F. Ry., 188 F.2d 294 (7th Cir. 1951) to have expanded Burley I and Burley II to invalidate the Board hearing in the instant case.

In Kotakis, supra, at 576, the court simply observed:

“Moreover, the record discloses that plaintiff knew his grievance had been submitted to the adjustment board and that he had authorized the union to represent him here. That satisfies the notice requirement.”

In Illinois Central v. Whitehouse, supra, the court held only that the notice was required to be sent to a second union in a dispute primarily between the railroad and petitioning union because the second union’s interests were impinged, and finally, in Hunter v. Atchison, supra, the court held that “actual notice of the hearings for a sufficient period prior thereto to permit plaintiffs to be present and to be heard is all that is required”. However, plaintiffs in Hunter were not members of the union which had petitioned the Board to decide whether its members or plaintiffs were entitled to certain jobs with the carrier. Therefore, there was obviously no question of whether the union was authorized to act on behalf of plaintiffs. It was not. Their interests were adverse.

The effect of the majority opinion, as I see it, is to give the employee and the union a second bite of the apple merely by their mutual agreement that union representation was inadequate, a confession easy to make when the union suffers no penalty and difficult, if not impossible, to refute by the Board or the carrier since neither has been privy to the incident.

The better course, I believe, is to leave the employee to his remedy against the union for breach of its duty of fair representation. It is significant, I think, that this duty was originally created in the specific context of the Railway Labor Act, Steele v. Lousiville & Nashville R. R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). Steele in turn provided the blueprint for Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). See also Czosek v. O’Mar a, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970). Resort to this line of decisions as a remedy for the type of complaint here has the advantage of preserving the integrity of established grievance procedures. The Board and the carrier may deal with -confidence with the union. The union is not undercut by Board and carrier efforts to by-pass it in order to ascertain whether it actually represents the employee. The employee benefits because the union will be encouraged to present the carrier’s best case the first time around and may be penalized by its failure to represent the employee fairly.

Finally, I am unable to see upon the facts in this case how more formal or direct notice to Mr. Cole would have affected his course of action. He clearly authorized the union to represent him. He conferred with the union and acted on its advice and counsel. The difficulty is not in the notice; it is in the advice which the union gave Cole after the notice. As a practical matter a union member will invariably follow the advice of his union agent over the advice contained in a notice given him by the carrier or the Board, however formal or detailed.

I would reverse the judgment of the district court and remand for entry of judgment denying enforcement of the award.