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February 27, 1987

John Welby, Plaintiff
Consolidated Rail Corporation, Defendant

The opinion of the court was delivered by: NEALON

 William J. Nealon, Chief Judge

 Plaintiff filed a Complaint on April 23, 1986 pursuant to the Federal Employers' Liability Act (FELA), the Federal Safety Appliance Act and the Boiler Inspection Act. The gravamen of plaintiff's complaint is that on December 17, 1983, plaintiff suffered a myocardial infarction resulting from improper and unsafe working conditions imposed by defendant. In addition, plaintiff maintains that his condition resulted from defendant's failure to provide proper medical treatment during the course of his employment and from defendant's violation of the Hours of Service of Employees Act, 45 U.S.C. § 62(a).

 Jury selection and trial in this matter were scheduled for Monday, February 23, 1987. Defendant filed a Motion for Summary Judgment and a brief in support thereof on February 12, 1987 and February 17, 1987, respectively. After jury selection on February 23, 1987, the court set trial in this matter for Monday, March 2, 1987, in order to provide the court with an opportunity to rule on defendant's motion. All briefs having been filed, the motion is ripe for disposition. For the reasons set forth below, defendant's Motion for Summary Judgment will be denied.


 Defendant premises its motion on the contention that plaintiff's claim involves no "injury" within the meaning of the FELA, but rather involves a dispute concerning working conditions and as such is subject to mediation, arbitration or adjustment in conference under the provisions of the Railway Labor Act, 45 U.S.C. § 151 et seq. (Railway Act or RLA). Defendant avers that this court lacks subject matter jurisdiction over the claim asserted by plaintiff. See Document 30 of the Record at paras. 6 and 7. Accordingly, as defendant summarizes, "the principal legal issue is whether the admitted factual background of the plaintiff's claim constitutes negligence on the part of Conrail which has resulted in injury to the plaintiff or whether it constitutes merely a minor labor dispute." Document 34 of the Record, Conrail Pre-Trial Memorandum at 7.

 The Railway Act subjects disputes arising under collective bargaining agreements in the railroad industry to compulsory arbitration. See Lancaster v. Norfolk and W. Ry. Co., 773 F.2d 807, 812 (7th Cir. 1985), cert. filed, 54 U.S.L.W. 3717 (1986). The stated purpose of the Railway Act is to provide for the prompt and orderly settlement of all disputes growing out of grievances or, out of the interpretation, or application of grievances covering rates of pay, rules, or working conditions. See 45 U.S.C. § 151a(5). This purpose was amplified by the United States Supreme Court:

The Adjustment Board was created as a tribunal consisting of workers and management to secure the prompt, orderly and final settlement of grievances that arise daily between employees and carriers regarding rates of pay, rules and working conditions. (citation omitted). Congress considered it essential to keep these so-called 'minor' disputes within the Adjustment Board and out of the courts.

 Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 94, 58 L. Ed. 2d 354, 99 S. Ct. 399 (1978).

The language is as broad as could be framed . . . . On its face, every injury suffered by any employee while employed by reason of the carrier's negligence was made compensable. The wording was not restrictive as to the employees covered; the cause of injury, except that it must constitute negligence attributable to the carrier; or the particular kind of injury resulting.

 In Yawn v. S. Ry. Co., 591 F.2d 312 (5th Cir.), cert. denied, 442 U.S. 934, 61 L. Ed. 2d 304, 99 S. Ct. 2869 (1979), the claimants alleged that the railroad was negligent in failing to provide them with adequate help and adequate time with which to do their jobs thereby causing claimants to suffer, inter alia, physical and mental anguish. The railroad maintained that the claims were "minor" disputes subject to the Railway Act's grievance and arbitration procedures. The Fifth Circuit Court of Appeals disagreed stating, "as a corollary to this duty to maintain safe working conditions, the carrier is required to provide its employee with sufficient help in the performance of the work assigned to him." Id. at 315 (citations omitted). The court recognized a number of cases concerning employees who suffered some demonstrable physical injury as a result of insufficient help. Id. This court agrees with the rationale in Yawn that if an employee can establish physical injury caused by carrier negligence, he is entitled to damages under the FELA. Id. at 317. As the court in Yawn stated:

Any allegation of railroad negligence in failing to provide an employee with sufficient help could be characterized as a dispute over working conditions. However, the fact that an employee suffers injury because of unsafe working conditions does not preclude access to the FELA. Thus, if an employee engaged in repairing tracks is injured because he was furnished insufficient help to perform the task, the railroad will not be heard to argue that the employees' FELA suit is removable because it concerns a dispute over working conditions. (citation omitted).

 Id. While the arbitration procedures set forth in the Railway Act are designed to settle "minor" disputes that arise from day to day matters in the railroad industry, they are not intended to serve the function of resolving personal injury claims. Id. The role of the arbitrators was identified in Lancaster v. Norfolk and W. Ry. Co., supra, as follows: "arbitrators have no particular competence to determine ...

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