The Second Division consisted of the regular members and in
addition Referee Bernard J. Seff when award was rendered.
SYSTEM FEDERATION NO. 30, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
FINDINGS: The Second Division of the Adjustment Board upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The instant case comes before the Second Division of the National Etailroad Adjustment Board for the second time as the result of the Order Lnd Decree of Federal District Court Judge Abraham L. Marovitz who ssued his final judgment order on May 7, 1968, in the case known to the J. S. District Court as System Federation No. 30 v. Braidwood, et. al. No. 76708.
that Plaintiffs are entitled to judgment pursuant to Sec. 3 First (q) of the Railway Labor Act setting aside Award No. 4692 and remanding the proceedings to said Second Division for further action in accordance with the opinion of this Court rendered on April 19, 1968, and
1. Award No. 4692 of the Second Division of the National Railroad Adjustment Board be and the same hereby is vacated and set aside;
2. These proceedings are hereby remanded to the said Second Division, and it is hereby directed to reopen its Docket No. 4476; to hear and determine the dispute before it in said docket, which hearing may include the convening of a panel of neutral doctors; to decide and determine the issues raised by the claims and defenses asserted by the parties in said docket; and to render an award disposing of the claim or claims therein on their merits;"
It would not appear that any good purpose would be served by repeating either the material which appears in Award No. 4692 or the arguments advanced by the U. S. District Court except for the following quotation from the "Memorandum Opinion", dated April 19, 1968, and which appears on pages 20 and 21 of the said "Opinion":
This Division takes the position that what has been presented for the consideration and the judgment of the Board is solely the narrow legal issue of deciding the instant case on the merits in strict accordance with the remand ordered by the United States District Court, Northern District of Illinois Eastern Division.
The Court's Order and Decree requires only that the said case be decided on its merits. It is the opinion of this Board that a panel of neutral doctors;
pursuant to the Gunther case, be established to resolve the conflict in medical testimony concerning the ability of the claimant, George M. Lyons, to perform the duties of his craft. At the request of the carrier, which appears to be a reasonable one, the neutral doctor should be a psychiatrist. It would appear from the record that the major issue to be decided by the medical panel concerns itself with the fact that the claimant's neuro-psychiatrist, Dr. Manuel Sall, testified on page 17 of the original award number 4692 that claimant suffered from a "conversion hysteria" and that this condition has a definitive bearing on his capacity to perform the duties of his craft.
Carrier contends that the Board should also consider the issues of "time limits" and "equitable estoppel", both of which points were raised and argued orally before the Board. The Board, in the exercise of its judgment, is of the opinion that the Court's remand explicitly requires only that the Board render an award disposing of the claim or claims on their MERITS. It is the considered opinion of the Board that its decision as stated supra does exactly what the Court, in the proper exercise of its jurisdiction, has ordered it to do.
Above case to be handled and disposed of in accordance with the decision supra.
We dissent. We do not concur in the majority's uncooperative construction of the United States District Court's Opinion remanding this dispute to the Board, but since that opinion speaks clearly for itself there is no need for further comment in that connection.
Referee Seff, and the Labor Members, who composed the majority in Award No. 5453 do not say so, but they imply very bluntly that one reason they refused on this remand to even consider the facts in support of the two principal defenses interposed by the carrier ("time-limit-on-claims" and "estoppel") is that such defenses are unrelated to the "merits." Each of the three concluding paragraphs of the "Findings" implies, somewhat vaguely, that the United States District Court through its order and decree confined the Board to "the narrow legal issue" of deciding the instant case on the "merits" and thereby excluded consideration of the defenses of time-limiton-claims and estoppel. During the course of the hearing on remand when a disagreement arose between Labor and Carrier Members, the Referee issued a ruling concerning the final judgment of the District Court. That ruling quoted and emphasized the same parts of the Court opinion which the majority have again set forth in these "Findings" (preceding the word "Enter"). The gist of the Referee's ruling at that time was expressed in the following short paragraph:
Following the issuance of the ruling of the Referee, the Carrier Members made the following motion-which failed for lack of majority-
We find that the Referee's "ruling" and the "Findings" are consistent in the error of holding that the two defenses are not substantive subjects, and that they are not subjects in the category of meritorious defenses, whatever facts might be proven in support of them. It would be erroneous to infer, from the majority's recitation concerning those defenses (the "points were raised and argued before the Board") that the Board had considered the applicable facts. It is clear to us that they would not.
It is just at this point that the award departs from the precedents of this Division. The majority have been guilty of the same refusal to consider the merits of the defenses as System Federation No. 39 was in docket number 1564, covered by Award No. 1602. In that case the Union, pressing a claim for the return to active service of an injured employe who had recovered a substantial F.E.L.A. judgment ($26,319.10) for permanent injuries, refused even to consider the Carrier's defense that he was estopped by the prior judgment. In that case this Division, without a referee, remanded the case on the ground that the Railway Labor Act required that the parties make a sincere effort to solve the dispute, and that a mere perfunctory conversation or reference to the defenses was inadequate. Later, when the dispute in docket number 1564 was again before the Second Division upon the same claim (that J. T. Hardee be reinstated), the claim was denied. The following excerpts from the "Findings", Award No. 1672, covering that dispute, are truly representative of the Division's holding (Referee Edward F. Carter)
If the majority's award is to be construed as its own independent holding that a defense based upon claimant's non-compliance with the time-limiton-claims rule is foreign to the "merits" of the dispute, regardless of the provisions of the rule and the facts, then it is sufficient to point out that the majority undertakes a general repudiation of this Division's precedents on this subject: See the following illustrative Awards of this Division, Nos. 3569, 3545, 3549 and 3656, some sustaining and others denying this defense by application of the provisions of particular time limit rule to the facts of the case.
Contrary to the supposition dealt with in the preceding paragraph, we nfer that the majority did not actually intend any such wholesale renunciation of our precedents, and that the majority simply considered that in this sase the order and decree upon remand prevented the Division from giving !onsideration to the time limit defense (as also to the estoppel defense). )f course, as we implied at the outset, we think that the order and decree f April 25, 1968 as explained in the incorporated opinion of April 19, 1968, id no such thing. Whether the majority's response upon remand was somehing more than a simple mistake of law upon their part is not for us to say.