U BRARY preme court, u. s. Supreme Court of the United States OCTOBER TERM, 1963 In the Matter of: Docket No. 2 34 HENRY J0 CZOSEK, ET AL Petitioners. J SUPREME ah MARSHAL vs. ZI RECEIVED JOHN R, O’MARA, GEORGE McCORMICK, I! COURT, ’ JULIUS PACKARD, FALTER DALY, and S 05 OFFICE ERIE LACKAWANNA RAILROAD COMPANY,. AH U.S. ’ Respondents. 70 Duplication or copying of this transcript by photographic, electrostatic or other facsimile means is prohibited under the order form agreement. Place Washington, D„ C0 Date January 13, 1970 ALDERSON REPORTING COMPANY, INC. 300 Seventh Street, S. W. Washington, D. C. NA 8-2345 CCjDNTENTS I ORAL ARGUMENT OF: PAGE 2 Richard R„ Lyman, Esq., on behalf Petitioners 3 3 James F„ Shea, Esq., on behalf Respondents, IS O’Mara, McCormick, Packard and Daly 4 Richard EP Griffin, Esq., on behalf Respondent 25 5 Erie Lackawanna Railroad 0 7 8 REBUTTAL ARGUMENT OF: PAGE 9 Richard R. Lyman, Esq., on behalf Petitioners 31 10 II 12 13 * * * !4 IS 16 17 18 19 20 21 23 24 25 1 IN THE SUPREME COURT OP THE UNITED STATES October lo9 2 Term, 199 o■**» 4 HENRY J. CZOSEK, ET AL., 5 Petitioners; 6 vs. No. 234 7 JOHN R. O'MARA, GEORGE McCORMICK, JULIUS PACKARD, WALTER DALY, and. 8 ERIE LACKAWANNA RAILROAD COMPANY, 9 Respondents. 10 1! Washington, D. C. January 13, 1970 I 12 \ The above-entitled matter came tors for argument at 13 12:30 p.m. 14 BEFORE: IS WARREN BURGER, Chief Justice 16 HUGO L. BLACK, Associate Justice WILLIAM O. DOUGLAS, Associate Justice 17 JOHN M. HARLAN, Associate Justice WILLIAM J. BRENNAN, JR., Associate Justice 18 POTTER STEWART, Associate Justice BYRON R. WHITE, Associate Justice 19 THURGOOD MARSHALL, Associate Justice 20 APPEARANCES: 21 RICHARD R. LYMAN, ESQ. 741 National Bank Building 22 Toledo, Ohio 43604 Counsel for Petitioners 23 RICHARD F. GRIFFIN, ESQ. 24 2300 Erie County Savings Bank Building Two Main Place 25 Buffalo, New York 14202 Counsel for Respondent, 1 APPEARANCES (Cent.): 2 Erie Lackawanna Railroad Company 3 JAMES P. SHEA, ESQ. 3.412 Main Place Tower, 4 Buffalo, New York 14202 Counsel for Respondents, O’Mara, McCormick, 5 Packard and Daly. 6 7 8 9 10 n 12 13 14 IS IS 17 18 19 20 21 22 23 24 25 2 i PROCEEDINGS 2 KR. CHIEF JUSTICE BURGER: No. 234, Cssosek against .3 08 Mara. Mi. Lyman, you may proceed whenever you are ready. 4 ARGUMENT OF RICHARD R. LYMAN, ESQ. S ON BEHALF OF PETITIONERS e MR. LYMAN: Mr. Chief Justice, honorable Justices, i this is a case which comes before this Court to review a ! 8 judgment of the Court of Appeals below which partially reverses 9 and partially affirms a District Court judgment granting motions 10 to dismiss the complaint. The Plaintiffs in this case were 1! four employees of the Erie Lackawanna Railroad Company, which iZ is the railroad formed as the result of a merger of the former 13 Erie Railroad and the former Delaware, Lackawanna and Western 14 Railroad. 15 That merger* took place in 1960, and in 1962 the 16 Plaintiffs in the allegations of their complaint, which of 17 course control the facts for our situation here, were 18 furloughed from their employment as stationary engineers. 19 They alleged in the complaint several different theories of 20 action. They contend that that furlough being allegedly as a 21 result of the merger of the railroads was a violation of the 22 Interstate Commerce Act. They allege it was a violation of 23 the implementing agreement with that specification as to what 24 the implementing agreement provided for, or what provisions 25 were relied upon. They alleged that it was further violative 3 t of the Railway Labor Act. in that they did not receive thirty- 2 days advance written notice of the fact that they were going 3 to be furloughed. They alleged that they received no 4 compensation for their severance from employment, or severance 5 pay, to which they say they were entitled by the Interstate | 6 Commerce Act and the implementing agreement. They assert that 1 the furlough constituted a wrongful discharge because they were S not subsequently recalled from the furlough, or had not been up j 9 until the time of the suit, which was filed in 1967. iO They predicate jurisdiction on diversity of 11 citizenship and jurisdictional amounts on the Interstate 12 Commerce Act, Section 5, et. seq„, and on the Railway Labor Act. 13 There was ro specification of anything in the Interstate 14 Commerce Act upon which they were relying to give rise to 15 this action. The only specific jurisdictional allegation as m to the Railway Labor Act was this thirty day notice provision, '17 Finally, in addition to all of these various 18 allegations, they allege that their union failed and refused 13 to process the grievance and collect compensation for them 20 after they had been furloughed or wrongfully discharged, as 21 the case may be, and they say that this failure to process the 22 grievance amounted to hostile discrimination, bad faith, and 23 so forth. 24 She District Court sustained the motions to dismiss j 25 that, were filed by both Defendants, finding that there was no 4 1 diversity of citizenship. The Defendant, Erie Lackawanna, 2 is a New York corporation, and the only union defendants that 3 were sued were also residents of New York State. It found 4 that there was no basis for such an action or for jurisdiction under the Interstate Commerce Act in that they were not 6 relying on any provision of that Act, or claiming any provision; 7 of the statute had been violated, and that the only thing they 8 were basically suing on was the implementing agreement. 9 As to the Railway Labor Act, they said that the 10 Adjustment Board had exclusive jurisdiction of the contract II claim. With respect to the charge that the union had failed n to properly represent them, the District Court ruled that 13 although the Plaintiffs used the phrase "hostile discrimination ' 14 in alleginc that they failed to process their claims properly, 15 the use of that phrase alone would not support jurisdiction 16 under the Failway Labor Act as an unfair representation claim. 17 The District Court further pointed out that the Plaintiffs were 18 not attacking the validity of any collective bargaining 19 agreement, and they were not claiming that they could not 20 personally pursue their administrative remedies to enforce the! 21 contract rights under that agreement. 22 After that ruling by the District Court, Plaintiffs 23 did not seek leave to file an amended complaint or attempt to file one, but instead appealed from the decision of the District 24 25 Court. Thus all wa have in the record before the Court to 5 1 support the factual questions involved are the complaints,, 2 the two motions to dismiss, plus so-called affidavits that 3 were filed with the District Court in connection with those 4 motions to dismiss . 5 The union defendants, petitioners here, filed a 6 regular motion to dismiss the complaint based on lack of j 7 jurisdiction of the subject matter, and failure to state a 3 claim, and filed no supporting affidavits, so that it was an 9 ordinary motion to dismiss,. to The railroad!, motion was supported by an affidavit 11 of counsel which appears at page 12 of the appendix, which 12 did reflect some facts. On page 13, the second complete 13 paragraph of the page, states the railroad's version of the 14 facts out of which the dispute arose. 15 The Plaintiffs' attorney filed his ovra affidavit IS in oppositi.on to the motions to dismiss, appearing on page 15 17 of the appendix, in which he does not state any facts, simply 13 recites what he contended the nature of the action to be, and 19 then recited, and I quote, "that the Plaintiffs do not have to 20 allege facts or damages in their complaint under the Federal 21 Rules." 22 Following this decision of the District Court, 23 Plaintiffs1 appeal, the Court of Appeals held the complaint 24 was suffici.ent to state a Federal claim against the union 25 defendants for breach of the duty of fair representation. But 6 1 as to the railroad defendant, it sustained the District Court's 2 dismissal of the complaint for the reason that Plaintiffs had 3 to assert their claim for wrongful discharge against the 4 railroad exclusively before the National Railroad Adjustment. 3 Board, and further sustained the District Court’s other findings 6 as to the lack of any substance in the various other 7 jurisdictional allegations of the complaint, 8 C Does the employee, Mr, Lyman, have any avenue 8 through the Adjustment Board as you see it, and if so, what is ■ I 10 that? n A The employee? j 12 Q In proceeding against the union only, or in 13 asserting e. claim against the union only. 14 A He may not proceed against the union only 15 before the Adjustment Board. It is our contention that an 18 employee cannot by selective choice of defendants have the 17 alternative of either collecting damages from his union in a 18 court action or proceeding before the Adjustment Board against 19 the railrccd. If an employee has an adequate administrative 20 remedy, we contend that it must be resorted to and exhausted, 21 or he must attempt to exhaust it or show that it would be 22 futile to co so under the line of Maddox and Vaca against Sipes 23 C And if he prevailed, he has no cause of action 24 against the: union? Is that your position? 25 A No, because the Adjustment Board will make him 7 1 entirely whole for the alleged wrongful discharge.