# Andrews v. Louisville & Nashville Railroad Co./Dissent Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Douglas
[p326] MR. JUSTICE DOUGLAS, dissenting.

## I

If this employee wanted reinstatement and back pay, there would be merit in remitting him to the remedies under the Railway Labor Act. But he does not want that relief. Rather, he desires to quit the railroad, to have no further jobs with it, and to be compensated in dollars for his wrongful discharge.
The cases on which the Court relies to overrule Moore v. Illinois Central R. Co., 312 U.S. 630, are quite different. Brotherhood of Railroad Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30, involved claims of existing employees, not for damages for wrongful discharge, but for "additional compensation" and for "reinstatement," and involved a "minor" dispute, that is, a controversy "over the meaning of an existing collective bargaining agreement." Id., at 32-33. Machinists v. Central Airlines, 372 U.S. 682, also involved reinstatement "without loss of seniority and with back pay." Id., at 683. In Republic Steel Corp. v. Maddox, 379 U.S. 650, the aggrieved employee wanted "severance pay" allegedly owed under the collective-bargaining agreement. Id., at 650-651. In Walker v. Southern R. Co., 385 U.S. 196, the dispute basically involved an issue of seniority, though the opinion does not disclose it.
[p327] The complaint in this case alleges that following an automobile accident, in which the petitioner-employee was involved, the company refused to allow him to go to work on the ground he had not recovered sufficiently to perform his former duties. No issue involving the collective-bargaining agreement was tendered. Petitioner–rightly or wrongly–claimed this was a discharge and that under Georgia law, governing the place where he worked, he had been deprived of wages from the time he recovered from the accident, and that he was deprived "of the expectancy of future earnings... until the date of his scheduled retirement."
In other words, he asks for no relief under the collective agreement, he does not ask for reinstatement or severance pay, he does not ask for continued employment. He is finished with this railroad, and turns to other activities; he seeks no readmission to the collective group that works for the railroad. He leaves it completely and seeks damages for having been forced out.
[p328] To remit him to the National Railroad Adjustment Board is to remit him to an agency that has no power to act on this claim. We said as much in Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239. That case involved a grievance that "concerned interpretation of an existing bargaining arrangement." Id., at 242. We therefore held that the employee first had to exhaust his remedies before the Adjustment Board. We distinguished the case from Moore as follows:
   "Our holding here is not inconsistent with our holding in Moore v. Illinois Central R. Co., 312 U.S. 630. Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad's action in discharging him as final, thereby ceasing to [p329] be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide, and does not involve questions of future relations between the railroad and its other employees. If a court in handling such a case must consider some provision of a collective-bargaining agreement, its intepretation would of course have no binding effect on future interpretations by the Board." 339 U.S., at 244 (Emphasis added.)
The Adjustment Board has considerable expertise in construing and applying collective-bargaining agreements, as respects severance pay, seniority, disciplinary actions by management, and the various aspects of reinstatement. But the body of law governing the discharge of employees who do not want or seek reinstatement is not found in customs of the shop or in the collective agreement but in the law of the place where the employee works. The Adjustment Board is not competent to apply that law. In the first place the members of the four divisions of the Adjustment Board authorized by 45 U.S.C. § 153 First (b) presumably do not know the local law governing the employee-employer relationships in all of the States where railroads run. In the second place, the personnel of these divisions of the Adjustment Board may occasionally have lawyers on them but law-trained members are the exception, not the rule. In the third place, an employee seeking damages for reinstatement is normally entitled to a jury trial; and no division of the Adjustment Board ever pretends to serve in that role.
The Board, we now know, is made up of laymen; those laymen have no insight into the nuances of Georgia [p330] law on the question of damages, and they obviously cannot even purport to give the remedy in damages which a "court suit" entails.
The regime of mediation and arbitration under collective-bargaining agreements, such as the one we upheld in Textile Workers v. Lincoln Mills, 353 U.S. 448, and those we have cited under the Railway Labor Act, are important in stabilizing relations between unions and employers. See U.S. Bulk Carriers v. Arguelles, 400 U.S. 351, 355-356. But where the collective-bargaining agreement is not directly involved, and certainly where the individual employee, who tenders his grievance, wants to quit the railroad scene and go elsewhere and sever his communal relation with union and railroad, the case falls out of the ambit of authority given to the mediation or arbitration agencies.
The courthouse is the forum for that litigant and I would never close its door to him, unless the mandate of Congress were clear. Even then I do not see how the Seventh Amendment could be circumvented: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved."
Though the case is in the federal courts, this employee sues to enforce a common-law right recognized by the State of Georgia. The only place he can get a trial by jury is in a court. If he sues under a collective-bargaining agreement, he does not sue at common law but under a statutory federal regime. Yet that is not this case.
Everyone who joins a union does not give up his civil rights. If he wants to leave the commune and assert his common-law rights, I had supposed that no one could stop him. I think it important under our constitutional regime to leave as much initiative as possible to the individual. What the Court does today is ruthlessly [p331] to regiment a worker and force him to sacrifice his constitutional rights in favor of a union. I would give him a choice to pursue such rights as he has under the collective agreement and stay with the union, or to quit it and the railroad and free himself from a regime which he finds oppressive. I would construe the federal law as giving the employee that choice. The choice imposed by the Court today raises serious constitutional questions on which we have not had the benefit of any argument.
This is a plain, ordinary, common-law suit not dependent on any term or provision of a collective-bargaining agreement. I cannot, therefore, join those who would close the courthouse door to him. Under the First Amendment, as applied to the States by the Fourteenth, he is petitioning the Government "for a redress of grievances" in the traditional manner of suitors at common law; and by the Seventh Amendment is entitled to a jury trial.

## II

As noted, my basic disagreements with the majority concern the validity of the two assumptions implicit in its holding: (a) that the collective agreement will be sufficiently implicated in this dispute to warrant the application of federal substantive law, and (b) that Congress has vested the Board with jurisdiction to [p332] entertain nonreinstatement grievances such as Andrews' complaint. But, even taking these assumptions as correct for purposes of argument, I believe the Court has erred.
The majority does not hold that Congress has mandated that the statutory procedure be the exclusive route for adjusting Andrews' grievance. Indeed, that path was foreclosed by our decision in Walker v. Southern R. Co., 385 U.S. 196, holding that prior to the 1966 amendments Congress has evinced no such purpose, and by the fact that nothing in the 1966 amendments themselves evidences an intention to render the statutory channel exclusive for nonreinstatement claims. Rather, today's result is grounded in the authority of the federal courts to fashion the substantive law to be applied to collective agreements. Machinists v. Central Airlines, 372 U.S. 682, 695; see also Textile Workers v. Lincoln Mills, 353 U.S. 448. Even under that assumption, I would not impose the exhaustion requirement upon this narrow and readily identifiable group of dischargees.
There is no equation of the substantive law to govern agreements under § 301 of the Labor Management Relations Act, into which exclusive arbitration clauses may voluntarily be inserted by the parties and the substantive law to govern railroad contracts, onto which the statutory grievance procedure is superimposed by law. One would not suppose that every doctrine developed under the Labor Management Relations Act, 61 Stat. 136, should be carried over into the apparatus created by the Railway Labor Act. A salutary doctrine under one measure may serve no worthwhile purpose under the other. Yet today the majority transplants [p333] the Maddox rule in the foreign soil of the railroad world without any discussion of the ends to be served. Even Maddox cautioned against that result, stating that any overruling of Moore should come only after "the various distinctive features of the administrative remedies provided by [the Railway Labor] Act can be appraised in context, e.g., the make-up of the Adjustment Board, the scope of review from monetary awards, and the ability of the Board to give the same remedies as could be obtained by court suit." 379 U.S., at 657 n. 14.
It is said that the fact that Congress (rather than private parties as in Maddox) fashioned the instant adjustment procedure somehow reinforces a presumption of exclusivity. Yet it is difficult to perceive how that can be when it is also conceded, as mentioned earlier, that Congress itself has never designed its prescription to be the sole avenue of redress for this limited class of claimants. Rather, the significance of the statutory source of this procedure lies in its inflexibility and immunity from modification through collective bargaining. Unlike the Maddox rule, what is done today cannot be undone tomorrow through contract negotiation. That difference would seem to warrant caution to ensure that more is to be gained than lost by closing the courthouse door.
One clear disadvantage counsels against today's holding. Given the nature of permanent dischargees' weak positions vis-a-vis their former unions, the personnel manning the adjustment mechanism, its haphazard decisional process, and the absence of judicial review of Board decisions, the risk is substantial that valid [p334] complaints of permanent dischargees such as Andrews will be unfairly treated.
The machinery erected by the Railway Labor Act was not meant to be judicial in nature. Rather, it was designed as an arbitration process in which the union and the carrier occupy opposite sides of a bargaining table. As a substitute for the economic battleground, the process envisions decisionmaking on the basis of strength and accountability to the interests represented. Unions will often press one grievance at the expense of another. If Andrews were a continuing union member perhaps he would receive equal representation. But because the union will not have to answer to him if his claim is lost the union may yield its merit in the logrolling process carried on with management. I now have doubt that the reasoning of Maddox was sound insofar as we opined that a union agent will have sufficient interest in faithfully prosecuting the complaint of a former member who "has lost his job and is most likely outside the union door looking in instead of on hand to push for his claim." 379 U.S., at 653 (majority opinion), and 668 (Black, J., dissenting). Indeed, only this Term in Chemical Workers v. Pittsburgh Glass, 404 U.S. 157, we refused to permit a union to represent nonvoting pensioners, holding that under the National Labor Relations Act, 49 Stat. 449, as amended, 29 U.S.C. § 151 et seq., the company was not required to bargain with respect to pension plans affecting inactive retirees. We reasoned that "the risk cannot be overlooked that union representatives on occasion might see fit to bargain for improved wages or other conditions favoring active employees at the expense of retirees' benefits." Id., at 173.
[p335] Beyond the inherent risk of compromise of a dischargee's claim there lie still further obstacles to fair treatment. First, the internal procedures used by the Board are far afield from those normally associated with impartial adjudication. The Board is exempt from the Administrative Procedure Act, § 2 (a)(1), 5 U.S.C. § 551 (1). One account of ad hoc procedures leaves little doubt that before that forum Andrews will have no means of proving his allegations:
   "As the Board has operated in practice, the procedures followed in holding hearings have been quite informal and have differed from the trial-type hearings conducted by other agencies established and maintained by the Federal Government. Disputes are referred to the Adjustment Board by the filing of written submissions. Each submission contains a statement of claim, accompanied by a statement of facts. If the parties can agree, a joint statement of facts is filed; if they cannot agree, separate submissions are filed, stating the facts separately. All submissions are in writing. Parties may be heard in person, by counsel, or by other representatives as they elect.... It would be most extraordinary for live testimony to be given by witnesses. There is no requirement that a factual submission or other [p336] written statement be sworn. There is no cross-examination of witnesses and no record or transcript of the proceedings. There is no provision for issuance of subpoenas or compulsory attendance of witnesses." Hearing on H.R. 706 [1966 Railway Labor Act amendments] before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 89th Cong., 2d Sess., 49 (1966).
All of this might be made tolerable if at some point in his journey Andrews could look forward to a judge's inquiry into the affair. But the fact is that whatever order by whatever process the Board may enter will be virtually immune from any judicial review because an award, either of the Adjustment Board or of a special board, is reviewable only for fraud or for lack of jurisdiction. 45 U.S.C. § 153 (p) (proviso).
On the other side of the balance, it could not be claimed that permitting a judicial remedy (in addition to an administrative one) would risk economic warfare, especially in light of the estranged relationship of permanent dischargees to their former unions. Nor could it be claimed that a judicial remedy would risk nonuniformity in interpretation of collective agreements inasmuch as courts as well as the Board would be obliged to apply a single body of federal common law. See Maddox, supra, at 658 n. 15.
In summary, the danger of unfair treatment of the clearly identifiable class of dischargees represented by Andrews is so great, without any compensating advantages, that I would not confine these claimants to the administrative remedy.

## Notes

* ↑ The opinion of the Court of Appeals in the Walker case makes clear that the seniority dispute was based on the collective agreement. 354 F. 2d 950.
* ↑ The Georgia law of "wrongful discharge" seems to amount to a set of common-law axioms of construction to fill in the ambiguities in employment contracts and employment relationships. If there is a contract, however, which expressly addresses the issue, the contract, and not the construction axioms, controls. For example, unless a contract provides otherwise, disobedience is a ground for discharge, Georgia Coast & Piedmont R. Co. v. McFarland, 132 Ga. 639, 64 S.E. 897, as is disrespectful language, Wade v. Hefner, 16 Ga. App. 106, 84 S.E. 598. If the employment contract, whether oral or written, provides that the worker may be fired only if his performance is unsatisfactory, he may. not be discharged only. for economic necessity, Lummus Cotton Gin Co. v. Baugh, 29 Ga. App. 498, 116 S.E. 51, although "mitigating factors" may generally be a defense. Walker v. Jenkins, 32 Ga. App. 238, 123 S.E. 161. But where the language of the agreement is clear, that language controls and not the rules of construction. Thus, if the parties provide that the employer may fire at will, no discharge can be wrongful. Webb v. The Warren Co., 113 Ga. App. 850, 149 S.E. 2d 867. The general presumption is that hiring is terminable at will, unless some definite period of employment is provided or inferable from the relationship. Ga. Code Ann. § 66-101 (master and servant). The intent of the parties is the guide to determine if the courts may look to custom or the pay interval, if the contract is otherwise ambiguous. Odom v. Bush, 125 Ga. 184, 53 S.E. 1013. Thus, if the worker is paid monthly, he must be given 30 days' notice. As to damages, once it is shown that the discharge was wrongful, the measure of damages is the difference between the rate of pay and what the dischargee might have been able to earn in other employment. Ga. Code Ann. § 4-216. The fact that the employer prevented the employee from performing the remainder of the service is not a bar to recovery on that portion of the term. Irwin v. Young, 91 Ga. App. 773, 87 S.E. 2d 322. For Andrews to recover on a damages theory, it appears that it would be necessary for him to show first that he was not dischargeable at will. We do not know from the pleadings what proof Andrews will tender. So far as we can now tell the collective agreement is not in issue. His complaint does not state the source of the employer's duty; and respondents allege that the collective agreement creates no such duty. As to damages it is also impossible to say that any terms of the collective agreement will be relevant to this dispute.
* ↑ The Board is currently disposing of petitions at the rate of about 1,500 annually. At that rate the Board will eliminate its present backlog of slightly more than 3,000 cases in two years. Thirty-Seventh Annual Report of the National Mediation Board 95 (Table 9) (1971).
* ↑ Constitutional issues not raised by the parties are at times passed upon by the Court. For a notorious example, see Erie R. Co. v. Tompkins, 304 U.S. 64, and Butler, J.'s comments, id., at 88-89. See also Mapp v. Ohio, 367 U.S. 643, 673-677 (Harlan, J., dissenting); Redrup v. New York, 386 U.S. 767, 771-772 (Harlan, J., dissenting).
* ↑ Nothing in the 1966 amendments nor their related legislative history even suggests or hints at a design to overrule Moore v. Illinois Central R. Co., 312 U.S. 630. See H. R. Rep. No. 1114, 89th Cong., 1st Sess. (1965); S. Rep. No. 1201, 89th Cong., 2d Sess. (1966).
* ↑ It was expressly observed by the majority in Republic Steel Corp. v. Maddox, 379 U.S. 650, 657-658, that bargaining parties could avoid the force of that opinion simply by agreeing that arbitration was not the exclusive remedy.
* ↑ One commentator on the Act has warned that representation by a union may be a critical factor in obtaining a favorable award: "[A]n individual's efforts will presumably be less effective than that of a union, particularly since the grievance will ultimately be resolved by a board composed in part of representatives of affected unions." Risher, The Railway Labor Act, 12 B. C. Ind. & Com. L. Rev. 51, 72 (1970). The plight of the unionless grievant is more alarming when viewed in light of the unsatisfactory record under the Act: "The Railway Labor Act is special privilege legislation, the product of the once great political power of the railroad unions. It has been administered as such. This accounts for the dismal administrative records of the National Mediation Board and the National Railroad Adjustment Board in... protection of individual rights, and grievance adjustments." Northrup, Foreword to Risher, The Railway Labor Act, supra, at 52.