The opinion of the court was delivered by: KLOEB
This matter is before the Court upon the motion of defendant for summary judgment, supported by affidavits, attached to which are copies of proceedings before the National Railroad Adjustment Board, before which the plaintiff was duly represented, containing the plaintiff's Ex Parte Submission, dated June 12, 1946, the Carrier's Response to Ex Parte Submission, with exhibits, and the Carrier's Oral or Rebuttal Presentation, with exhibits. No affidavits were filed in opposition thereto.
This case is based on alleged violation by the defendant of the Railway Labor Act, 45 U.S.C.A. § 152, 153, on the ground of claimed discriminations against the plaintiff because of his Union activities. Sec. 152, Subdivision 'Fourth', upon which the grievance of the plaintiff is based, provides: ' * * * No carrier, its officers, or agents shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees, * * * '.
There is no agreement involved in this case.
The grievances of the plaintiff reached the National Railroad Adjustment Board, Fourth Division, on appeal. The finding of the Board, dated August 28, 1946, is attached to and made a part of the amended bill of complaint. The opinion states that the claim and request involved was -- 'that said Glenn Ramsey be reinstated in his former position as Yard Patrolman with pay for all time lost and with seniority rights unimpaired.'
The opinion of the Board states:
'It appears that there is no written contract between the National Council, Railway Patrolmen's Union, A.F. of L., and the respondent carrier, and hence no question of violation or interpretation of contract is involved in this proceeding.
'The sole charge is that the carrier discharged Yard Patrolman Glenn Ramsey for union activities in violation of Paragraph 4 of Section 2 of the Railway Labor Act.
'It is sufficient to say that the accusation is not substantiated by the evidence. On the contrary, the record shows that the carrier made repeated efforts to induce Ramsey to accept the position at Columbus, to which it assigned him, and his refusal to do so left the carrier no alternative but to dismiss him.'
The Board further found 'upon the whole record and all the evidence' that the carrier and employee involved in the dispute were such within the meaning of the Railway Labor Act; that it had jurisdiction 'over the dispute involved herein', and that the parties to the dispute were given due notice of hearing thereon.
It is the contention of counsel for the defendant, in support of motion for summary judgment, that this finding and decision of the Board is final and conclusive upon the parties. In support they cite the case of Berryman v. Pullman Co., D.C. Mo., 1942, 48 F.Supp. 542, which does not seem to have reached the higher courts on review. It was there held:
'1. The remedy provided by the Railway Labor Act by submission of dispute to the adjustment board is not exclusive, but once a dispute is submitted to the board an award made is final except in so far as it contains a money award. Railway Labor Act, Sec. 3(m), 45 U.S.C.A. § 153(m)
'2. Under provision of Railway Labor Act that award of adjustment board is final and binding upon both parties to dispute except in the case of a money award, where pullman porter who had been dismissed submitted dispute to adjustment board which upheld dismissal and no money award was contained in award, the award of the adjustment board was 'final' precluding a subsequent inquiry into the same question by the court. Railway Labor Act, Sec. 3(m), 45 U.S.C.A. § 153(m).'
Counsel for plaintiff admit that, so far as the question on the discharge of the plaintiff is concerned, if that were the only question involved, the decision in the Berryman case would apply. However, they claim that there are other grounds of discrimination alleged in the bill of complaint on which the plaintiff ...