The opinion of the court was delivered by: GRIM
Alleging that she was laid off without good cause from her position as a telephone operator in the station at Washington, D.C., the employee brings this diversity action against her employer, the railroad company, for loss of salary and for punitive damages. The employer has moved to dismiss for want of jurisdiction. It has also moved for summary judgment in its favor.
In cases involving grievances under labor agreements, as does this, the National Railroad Adjustment Board has exclusive primary jurisdiction and this court has no jurisdiction until the services of the Board have been invoked. Slocum v. Delaware, L. & W.R. Co., 1950, 339 U.S. 239, 70 S. Ct. 577, 94 L. Ed. 795; Order of Ry. Conductors v. Southern Ry. Co., 1950, 339 U.S. 255, 70 S. Ct. 585, 94 L. Ed. 811; Lee v. Virginian Ry. Co., 1955, 197 Va. 291, 89 S.E.2d 28.
The railroad's position here is that the employee's claim was handled through a series of grievance procedures set up by the Railway Labor Act, 45 U.S.C.A. § 151 et seq., culminating in an award by the National Railroad Adjustment Board, that the Board denied the claim, and that this court lacks jurisdiction of the present action because Section 3 of the Act, 45 U.S.C.A. § 153 First (m), provides that the Board's awards 'shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award.'
If made on the merits, the decision of the Board is final. Bower v. Eastern Airlines, Inc., 3 Cir., 1954, 214 F.2d 623.
The decision in the present case hinges, therefore, on whether or not the Board decided the case on the merits.
The railroad raised two defenses before the Board. The first defense, a procedural one, was that since the employee was not represented by the Brotherhood, the Board could not accept jurisdiction.
Plaintiff was a member in good standing of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, which had a labor contract with the railroad. For reasons which are not explained, plaintiff was represented in the proceeding before the Adjustment Board not by the Brotherhood but by Elmer E. Davis, of the Railroad Industrial Union.
The second defense before the Board, on the merits, was that the railroad's action was justified in that there was evidence that plaintiff was 'emotionally unstable' and that she 'manifested an abnormal personality which would result in continuing conflict with fellow employees.'
The Board's award (Award No. 6558, Docket No. MS-6967) is as follows:
'Statement of Claim: Claim of Gladys R. Koelker, Telephone Operator, B. & O.R.R. Co., Washington, D.C. Claiming pay for June 1, 1951, and all subsequent days and dates until officially reinstated with seniority unimpaired.
'Opinion of Board: The evidence of record reveals that there is no dispute between the parties to the controlling Agreement.
'Findings: The Third Division of the Adjustment Board, upon the whole record, and all the evidence, finds and holds:
'That both parties to this dispute waived oral hearing thereon;
'That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway ...