plaintiffs' intention to present the Special Adjustment Board with wage claims arising from the alleged 1950 wage equalization agreement. Judge Higginbotham, upon a review of the three Gainey cases, found that the plaintiffs were barred by collateral estoppel from relitigating the wage claim under the wage equalization agreement, and were similarly barred from relitigating the issue of the Brotherhood's refusal to process plaintiffs' grievances.
In this, the fifth case, plaintiffs ask this Court to order the NRAB to appoint a Referee for the purpose of hearing plaintiffs' grievances and to order the Railroad and the Brotherhood to refrain from participating in the selection of the Referee. To be sure, the plaintiffs could not be asking this Court to adjudicate the merits of the alleged termination of the "tonnage" agreement, or the alleged existence of the wage equalization agreement, or the Brotherhood's alleged unlawful refusal to process plaintiffs' grievances regarding the two contracts. Res judicata effect of the prior determination of these questions precludes their readjudication. Gainey I and II and Ruffin I have laid to rest any claim against the Railroad for its failure to comply with the alleged wage equalization agreement. There is also no question that res judicata effect must be given to the determination in Gainey III that the Brotherhood did not breach its duty to fairly represent plaintiffs in failing to process complaints regarding the alleged breaches of the contracts. These matters being settled, the question arises, what claims can the plaintiffs present to a Referee?
With regard to the Brotherhood, plaintiffs are precluded from presenting the NRAB or an appointed Referee any question as to whether the Union has breached its duty to fairly represent plaintiffs. This would clearly be the same cause of action as that relied on in Gainey III and Ruffin I, even though plaintiffs are asking for a different remedy and there are nominally different plaintiffs.
Res judicata makes conclusive a final, valid judgment; and if the judgment is on the merits, precludes further litigation on the same cause of action by the parties or their privies. Antonioli v. Lehigh Coal & Navigation Co., 451 F.2d 1171, 1176 (3d Cir. 1971), cert. denied, 406 U.S. 906, 92 S. Ct. 1608, 31 L. Ed. 2d 816 (1972).
Plaintiffs contend that the matter which they seek to present to a Referee, i.e., the alleged wrongful termination of the "tonnage" agreement, is one which no tribunal has passed on other than to say jurisdiction over the dispute lies in the NRAB. Although the merit of the dispute as to the breach of the "tonnage" agreement has not been decided by a federal court, this dispute nonetheless remains exclusively within the cognizance of the NRAB, and a federal court has no jurisdiction in the matter.
Plaintiffs, however, note repeatedly that Steele v. Louisville & Nashville R.R., 323 U.S. 192, 65 S. Ct. 226, 89 L. Ed. 173 (1944), and Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U.S. 210, 65 S. Ct. 235, 89 L. Ed. 187 (1944) require Court action, since in a dispute between railroad employees on one side and the railroad and the union on the other side, due process cannot be obtained by proceeding against them before the NRAB. Moreover, plaintiffs declare that the Third Circuit has "reversed" the Supreme Court by requiring plaintiffs to proceed before the NRAB in their dispute. (Complaint P 12; Plaintiffs' Brief Contra Railroad's Motion to Dismiss, pt. II(a); Plaintiffs' Brief Contra Brotherhood's Motion to Dismiss 3-4).
The Court finds plaintiffs' reliance on Steele inapplicable in this instance. In Steele, plaintiffs' complaint was against the union for unfair representation and against the employer railroad who was said to have conspired with the union in the union's discrimination. In the instant case, plaintiffs' dispute is with the Railroad only for breach of the "tonnage" agreement. As discussed above, the issue of the Brotherhood's discrimination has been decided by the courts and thus is not cognizable by the NRAB. Of course, as pointed out by Judge Goodrich in Gainey I, supra, p. 992, "If the plaintiffs claim that the provisions of the earlier ["tonnage"] agreement have not been lived up to, they may make their claims to the Railroad Adjustment Board, assuming that the claims would still be timely."
Plaintiffs cite two other cases for the proposition that the Court has power to issue a mandatory injunction to compel the NRAB to take a case which only it may hear and decide. Brotherhood of Railroad Trainmen v. Swan, 214 F.2d 56 (7th Cir. 1954) and System Federation, No. 30, Railroad Employes' Dep't v. Braidwood, 284 F. Supp. 611 (N.D. Ill. 1968). Indeed, if the NRAB refused to decide issues properly presented to it, which refusal would extinguish a petitioner's due process rights and constitute a failure by the NRAB to fulfill its duties under the Railway Labor Act, the Court may doubtless compel the Board to effect a final disposition of grievances. Plaintiffs' complaint, however, is manifestly different. They apparently do not wish to present their claims to the NRAB. Instead, they ask this Court to order the defendants to by-pass mandated statutory procedures
and appoint a Referee and restrain defendants from participating in the selection. Plaintiffs claim that to allow the course of statutory procedure will cause plaintiffs deprivation of due process. They contend that inasmuch as the NRAB is comprised mainly of representatives of railroads and unions, as workers complaining about the Railroad, their former employer, and the union, they would not obtain a fair hearing. They fear that if they independently present their grievances to the NRAB without the guiding hand of the Court, they will not receive due process. A Referee, if appointed by the Court, would be presented with the issue, if still timely, of the termination of the "tonnage" agreement. Although this issue has not heretofore been meritoriously disposed of, this Court is not convinced that the plaintiffs would necessarily be denied their right to due process by being required to follow statutory procedures and present such matter to the NRAB. This action is brought prior to any application made to the NRAB and prior to any decision or refusal to decide by said Board. This Court has not been presented with any legal or equitable basis upon which it could order a circumvention of procedures mandated by statute based upon plaintiffs' speculation of constitutional deprivations unsupported by any evidence of impropriety by the NRAB.
On the view expressed above, it is not necessary to discuss the parties' points regarding the statute of limitations, laches and attorneys' fees.
Accordingly the following Order is entered:
And now, this 26th day of October 1973, it is ordered that the motion of plaintiff, Moses Ruffin, for summary judgment is denied; the motion of defendant, Brotherhood of Railway and Airline Clerks, for dismissal is granted; the motion of defendant, Penn Central Transportation Company, for dismissal is granted.