granted railroads' motions for summary judgment. See McDonald v. Penn Central Transportation Co., 337 F. Supp. 803 (D. Mass. 1972); Spade v. Chesapeake & Ohio Railway Co., 325 F. Supp. 1079 (D. Md. 1971).
Plaintiff argues that reinstatement without back pay is inconsistent in that, if reinstatement was ordered, the Board must have found that the discharge was wrongful, and if the discharge was wrongful, it should have ordered back pay. In my view, there is nothing at all inconsistent about an award of reinstatement without back pay. When the matter was submitted to the Board, the Board's consideration was not confined solely to whether disciplinary action by the railroad was warranted, it extended also to determining the propriety of the disciplinary action imposed. Quite obviously the Board here concluded that disciplinary action was warranted, but that complete dismissal was not. The refusal to award back pay amounts to a reduction of the penalty from dismissal to a period of suspension. In considering the propriety of the penalty the Board properly had before it Rinker's prior disciplinary record which included five separate incidents for which Rinker had been disciplined for violations of safety rules, and six incidents for violating proper operating practices. He had been disciplined twice by dismissal (on both occasions he was subsequently restored) and on four occasions by suspension for varying periods of time.
Rinker attempts to analogize his case to a criminal case, arguing that it would be a violation of a defendant's rights to put before the jury the defendant's prior record. This is quite so if the purpose is solely to determine guilt or innocence, but even in criminal cases it is essential to consider a defendant's prior record in determining what sentence to impose. In the instant case, it would have been quite impossible to determine how severe the disciplinary action should have been for Rinker's violations of operating rules without knowledge and consideration as to the number of times he had been disciplined in the past, and with what effect. Rinker's claim that the introduction of his prior disciplinary record violated due process rights is without merit.
Finally, Rinker's claim that the UTU was not specifically authorized to enter into the agreement to submit matters to the Public Law Board must also fall. By its constitution, the UTU is granted authority to represent its members unless a member withdraws that authority by written notice. See Elgin, Joliet & Eastern Railway Co. v. Burley, 325 U.S. 711, 89 L. Ed. 1886, 65 S. Ct. 1282 (1945), adhered to in 327 U.S. 661, 66 S. Ct. 721, 90 L. Ed. 928 (1946). Rinker gave no such notice here.
In Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 32 L. Ed. 2d 95, 92 S. Ct. 1562 (1972), the Supreme Court held that claims for wrongful discharge under railroad collective bargaining agreements are subject to resolution only by compulsory administrative procedures provided by the collective agreement and by the Railway Labor Act. Andrews overruled Moore v. Illinois Central R.R. Co., 312 U.S. 630, 85 L. Ed. 1089, 61 S. Ct. 754 (1941), which allowed suit if the employee had accepted his discharge as final and the relevant state law permitted such action without prior exhaustion of administrative remedies.
The collective bargaining agreement here (Rule 8-C-1) requires a dispute as to physical fitness to be submitted for determination by a Board of Doctors, whose decision "shall be final." The Andrews case precludes this court's consideration of Count II, and plaintiff's counsel, by letter dated August 10, 1972, to the court, has so conceded.
Defendant's Motion for Summary Judgment will be granted.
This 6th day of November, 1972, it is Ordered that Judgment be and it is hereby entered in favor of defendant, Penn Central Transportation Co.