*1 stead, particular statutory ground on a court to make an determination initial applying only escapees. Thus, the of these issues. trial court has not considered the cor- judgment case The is reversed and the rectness of the factual statement made for is remanded to the district court Huffman as to his conduct nor has it con- proceedings inconsistent with further not whether, assuming sidered that Huff- opinion. culpable man had no in motivation leav- ing prison and the of Texas State circumstances, under the the state could validly, nevertheless, treat this conduct grounds depriving

of his as him of right appeal which is afforded

to others. interrelationship undisputed allegations the thus-far that prosecuting attorney during learned Sonja STUMO, Plaintiff-Appellant, arguments the course of final jury prosecuting that witness had LINES, al., UNITED AIR INC. et important testified to facts that were Defendants-Appellees. literally true, subsequent and the No. 15904. appellant accepting conduct in justified penal his release from state Appeals United States Court of necessary, think, institutions makes it we Seventh Circuit. case trial be returned to the Aug. 10, 1967. court for a of the determination factual issues, necessary here raised. This is precise it is clear that because basis the dismissal state court was

not that found court. trial

light Illinois, of Griffin v. State of it 100 L.Ed. arbitrarily

is clear that state cannot

deny right appeal, it once generality

made it available

cases. The actions taken here moving

state for a dismissal of the

appeal ground on the Huffman was escapee light that Huff fact

man’s absence from the state was at least

partially due to the mistake the state

officials, releasing premature either him

ly filing or in not a detainer raise serious

questions been decided Further,

the trial court. view present fact state

record, appears possibly that there was

a serious if defect trial itself jury ease was submitted to the at a time prosecuting

when the officer had been

put complaining on notice that his wit falsely, necessary

ness had sworn it is

that the case be remanded to the district *2 Ill., Chicago,

George Archer, F. appellant. Gramza, and Stuart Bernstein Allen E. Mayer, Ill., Kowitt, Chicago,

Arthur J. Tierney, Friedlich, Spiess, & Brown ap Ill., Platt, Chicago, counsel, pellees. HASTINGS, Judge, MA- Chief Before Judge,

JOR, and Circuit Senior Judge. SCHNACKENBERG, Circuit Judge. MAJOR, Circuit Senior Air Plaintiff, of United brought Lines, (United), action Inc. defendants for and other recovery compensatory punitive and alleged relief, for her other and wrongful on March by air, and carrier United is a common subject Title employees it and its Title II seq. 181 et Defendant U.S.C.A. Sec. (ALPA) ais Association Line Pilots employees of representing the union including appro- United, plaintiff, operate priate and ALPA unit. United bargaining agreement collective rights responsi- which sets forth parties Defend- thereto. bilities of the Hardesty, Ritner, McAnallen ants Sys- members of United’s Robertson were Adjustment, for- two tem Board being designees and the mer Ruby ALPA. two Defendant latter president ALPA. United, Har- Defendants Ritner (1) 12(b) desty, pursuant Rule (6) Pro- Rules of Civil Federal complaint cedure, to dismiss the moved following for the reasons: “1. The Court lacks subject suit over matter of this plaintiff’s since United Air Stew- before the Lines. Flight working System ardesses rules and conditions of stew- Stewards Adjustment; employed Board includ- ardesses ing Plaintiff; said contract contained premature “2. This action is since ‘Investigation XII, Disci- a Section Adjustment XIII, ‘System pline’, and a Section yet not grievance, heard and decided Adjustment’, up in com- *3 Board set any constitutional im- pliance II of the with Title Sec. pairment alleged Railway in the Labor Railway juris- Act Labor and whose may by plaintiff Act be asserted in a governed by authority diction was any System suit to review award of the I of the Act.” Sec. Title Adjustment plaintiff Board of which deem to violation of her discharge, A letter of dated March rights; constitutional by Mary was sent conformity Decker, supervisor, complaint “3. The fails to state a bar- with XII-A-1 of the collective Sec. grant- claim which relief can be agreement gaining ALPA and between ed.” XIII United. XII and Sections by A ALPA, similar motion was filed Mc- agreement procedures for the contain Anallen and per- Robertson. The Court discharge grievances. processing of filing mitted the of numerous affidavits They provide appeals for a series of documentary and other evidence sub- through up supervision various levels of parties mitted support of their general president man- to the vice respective positions. ager of the and ulti- Customer Services The Court its order of October mately System Adjust- to the Board of 1966, allowed defendants’ motion to dis- decisions, ment. The Board’s in all cases jurisdiction miss for lack of on the “properly expressly referrable to it” ground “plaintiff having elected the binding upon parties made “final and grievance procedure alleging no thereto.” misrepresentation fraud or part System jurisdiction, Board has either or both defendants is bound alia, “disputes inter all over such plain- election.” From this order * * * and the com- [an] appeals. tiff ** grievances pany growing out of argue In this Court defendants as an interpretation applica- or out of the or affirming alternative basis for agree- the order tion of of the terms this of dismissal that the Court was ment.” The Board of four mem- without consists jurisdiction bers, company and two selected diversity for want of of citi- by ALPA, ap- provision for two zenship. pointment of a neutral referee in the argued by Of the numerous issues timely ap- event of deadlock. Unless a peal respective parties, clearly think we there System Board from is taken to the emerges controlling issue to wheth- decision, company’s fourth level System acquired er binding” decision “final un- becomes plaintiff’s grievance, der contract. which she submitted to it in accordance Upon discharge, set bargain- with the terms of the collective grievance machinery. motion the contract ing agreement. We need not recite in detail the eviden- tiary alleged plaintiff’s complaint:

As concerning nu- circumstances hearings all “At times were held at relevant hereto an merous agreement plaintiff’s request. existed This is so for the between the defend- reason, understand, ant Air Line Pilots Association as we that there Flight by Line the contract Stewardesses Stewards no claim Division, duly procedure union followed at least until labor certified was not recognized, pay, 15, 1966, when covered the Railway appeal lie On Labor to the submitted Adjustment. System Board of plaintiff states: brief meantime, plaintiff by letter In required “As appeal grieved May 5, 1966, requested (45 184), dated Plaintiff Act U.S.C. hearing follow- from the adverse decision dispute handled in the and it was this hearing ing April including up manner to and usual request sponse advised she operating of the carrier to this officer chief May 10, designated (a United, in a letter dated Mr. E. C. Wester- so May Copies hearing velt) date of but Stumo was not reinstated.” local of this chairman, were sent to ALPA’s letter plaintiff argues that, that the than More legal department and to its give employee an elec- Act “does not plaintiff’s fellow Mr. Two of Archer. compels processing tion accompanied her to stewardesses *4 to the chief in the usual manner ance hearing. explained not For some reason prerequisite operator of as a the carrier” present by record, Archer not the was right employee to elect to to the the and his name was not mentioned wrongful discharge. a court for sue in May 25, plain- plaintiff. On relevancy may point appeal It to be some tiff that her was was advised hearing, denied, copies the on out that at first held of the decision were and appeared plaintiff legal department March with and sent to ALPA’s Mary stewardess, Hollé, a fellow Decker to Miss one the stewardesses company. present for Plaintiff’s appeared was the the who had hearing. with grievance copy and a was denied of the sent her and to ALPA’s decision was 15, 1966, On ALPA submitted legal request. department, Hear- at her ing April appeal further was held a discharge. protesting This 28, 1966, was accom- great submission, opinion, in our is panied the of the ALPA chairman importance, perhaps of the is- decisive employee. a local and fellow Follow- sue before us. The directed letter was ing hearing, copies of the this decision (a defendant), Chair- to David S. Ritner the were sent ALPA Lines, man, Inc. United Stewardess- legal department. es’, System Adjustment, and Board of stage signed Ruby (a proceeding At this de- United was Charles H. fendant), Pilots George as President of Air Line a received letter from Mr. F. (Steward Association and Stewardess Archer, April 29, dated in which Division). pro- The letter set forth the stated, he advised Miss “Please be agree- bargaining collective visions of the Sonja is Stumo a client of mine required con- ment which the Board to requested per- I examine the any dispute properly submitted to sider tinent decisions that have been rendered been it which had not requested copy in the above case.” He previously settled in with accordance following hearing of the decision agreement. terms of The letter stated April 28, sup- he with which plied. exchange questions issue, The record facts reveals position a series of letters Archer and plaintiff relied and her regard United, which in main we as thereto, as the reference well may note, pertinent immaterial. It be employer. position concluded: however, May a letter dated grieving “Wherefore, stew- 1966, Archer “re- demanded requests decision ardess herewith pay, Miss full back instate Stumo with Board: seniority apology and letter of jus- Company 3, 1966, “1. That the ad- a letter dated June discharge the terms tified in the vised that under Archer agreement bargaining ant. collective and the grievant fully sought enjoin tem Board “2. That hearing deciding instated, be made whole that she matter. monetary that all losses sustained and brings This us to a consideration of papers pertaining hereto be removed upon by parties the cases relied file, from her support respective positions. of their grievant Co., That have such Moore v. “3. Illinois Central Railroad other, or different relief as further 85 L.Ed. just proper.” upon by plaintiff. deem much relied It is progenitor long of a line cases and regular Loomos, staff attor- John G. has been often cited and discussed ney ALPA, stated, in an affidavit Supreme attempt Court. An among things: other analyze many these cases in detail would subject “3. That furnished both he unduly opinion. burden this Further- attorney and her with advice before more, in the view which we take of the hearings provided each of for in matter, necessary. it is Bargaining Agreement. the Collective True, Moore, the Court held that Similar assistance was rendered discharged employee, railroad who by local Air Line Pilots Association wrongfully claimed to have been dis- officials. charged in violation of his union con- request, “4. Per her a letter sub- tract, pursue could mitting to the United *5 state law breach of contract without Lines, Inc. Steward & Stewardess having to exhaust either his contract System Adjustment pre- Board of remedy remedies or his administrative pared by signature by forme Associa- Adjustment before the National Railroad President, Ruby.” tion Charles H. In the instant case we need not be concerned with state law as it is not Thus, open it is not to doubt but that plaintiff’s grievance properly sub- upon by plaintiff. relied Subsequent de- System Board, mitted ALPA to the Supreme cisions of the Court have se- request, and that the letter sub- verely limited the Moore doctrine to the prepared by legal mission was ALPA’s particular case, facts of that which were Although counsel. Archer does ex- not quite dissimilar from those before us. pressly deny affirm or that he had Delaware, In Slocum v. Lackawanna knowledge submission, plain- of the it is Co., & Western Railroad 339 U.S. ly Moreover, inferable that he did. 70 S.Ct. 94 L.Ed. the Court reading correspondence of the jurisdiction Adjust- held that the of the Archer and United us leaves with the adjust grievances ment Board to and dis- impression distinct that he was not in- putes type of the there involved was aiding processing terested in his client exclusive. As to Moore the Court stated grievance System before the Board (page 244, 580): page only preparing was concerned way for court action. discharged by Moore was the railroad. He could have chal- July 6, 1966, On her at- lenged validity discharge of his torney, Archer, filed the instant com- Board, seeking before the reinstate- plaint in the United States District pay. ment and back Instead he chose Thus, Court. we have a situation where accept to charging the railroad’s action in dis- plaintiff by ALPA, duly authorized final, thereby ceasing him as agent, properly submitted her employee, brought to be an suit System Board, to and some three claiming damages for breach of con- later, weeks without notice and without held, Railway tract. As we there affording opportunity the Board an Labor Act does not bar courts from grievance, hear and decide her aban- * adjudicating such cases. doned the same and elected to resort to the only Court for relief. “We hold that She Sys- grievances adjust abandoned her submission the Board to to the and dis- hold interpret Walker type do not putes here involved ex- We discharged employee maintain holding can Moore case clusive. wrongful damages decision, action for a court discharge does conflict with time seek contrary same should be and no inference employee. language as an maintain his status Moore in the drawn opinion.” Certainly Walker, ease so no other aware, stands for the far as we shown, the instant case As we aggrieved employee proposition recognize her plaintiff did not may pursue remedies his administrative validity challenged be- as final but including his up submission seeking reinstatement. fore the aban- to the Air, & Western In Transcontinental it, More- and resort to court action. don Koppal, Inc. v. Walker, over, discuss- Court in after questions was one 97 L.Ed. 366) ing page (page subject carrier of a whether produced de- of defects which number show Act must claims, lays processing con- in the administrative exhausted his he has opinion cluded its as follows: employ under the contract remedies Congress consequence, “In enacted question answered ment. The Court 208-210, 89-456, Public Law 80 Stat. ap affirmative, “provided the in the plicable 20, 1966, dras- effective June requires.” The law so state tically procedures in order revises the 906) repeated (page Court S.Ct. course, defects. Of interpretation Moore procedures new were not available ' (above quoted), and made in Slocum ” * * * petitioner 910): page (page concluded appears applicable permits his thus the Court law “Where recovery showing if, have reached a different result as in without case, the instant the enactment mention- prior adminis- of his exhaustion recover, plaintiff. remedies, ed had been available so trative he *6 litigation, he did in Moore as the Pennsylvania cases, Co. Railroad Two Mississippi supra, under law.” 548, 3 Day, 1322, 79 v. S.Ct. Railway Co., Rail- 1422, 385 Pacific Walker v. Southern L.Ed.2d Union 196, 365, 294, Price, 601, L.Ed.2d 79 S.Ct. 87 S.Ct. 17 360 U.S. road Co. v. U.S. upon by plaintiff, 1351, 1460, much relied held that 3 L.Ed.2d both decided employee 1959, quite had received a 29, a railroad who similar involved facts discharge final not barred from those here. maintaining a suit for court (360 U.S. Day, stated the Court In pursue because of failure to adminis- 1325): page page 79 S.Ct. interpreted remedies. The trative Court employee discharged “Moreover, the deciding (page Moore as 87 S.Ct. validity dis- challenge of his page 365): seeking Board, rein- charge before discharged a em- railroad pay. Union back See statement aggrieved ployee discharge may Price, post, U.S. Pacific R. Co. v. (1) pursue either his plain is p. 1351. Thus it procedures estab- administrative light reading inAct both from applicable lished bar- an collective ad- purpose of its and the needs of its gaining agreement subject Rail- to the ad- and from the settled ministration way right and his of re- interpretation that ministrative view before the National Railroad respond- jurisdiction over Board has Adjustment Board, (2) if or he ac- compensation. claim for ent’s cepts discharge final, bring his jurisdiction, appropriate the Board has action at “Since law in an state jurisdic- primary money damages court for if must have the state recognize tion.” courts a claim.” such distinguished reasoning by reached The Court Moore which the Court thus 1325): controlling (page 553, page here. its in Price is S.Ct. result holding contrary make a sham- A controlling “Moore carved out from the statutory and contractual bles of the primary jurisdiction doctrine of provisions for the settlement wrong- special unusual and situation of ances. aggrieved ful where the em- Perhaps ployee our expelled should not conclude we has been from em- ployment mention reference to without relationship.” the cases Sipes, al. Vaca et U.S. employee’s union, In after Price, Feb- L.Ed.2d decided processing grievance through the ruary employee 1967. In that case management required unsat- levels with permitted to maintain an action isfactory results, submitted his case against court a union for its state Adjustment Board, the National Railroad fusal to take his to arbitration. Thereafter, which denied the claim. judgment Plaintiff obtained a alleging action, Price filed his court union, which was affirmed wrongful dismissal violation of Supreme Missouri Court reversed bargaining agreement collective for the Supreme the United Court on the States urged Adjust- same reasons before the ground prove had failed to distinguished ment Board. The Court ar- the refusal the union was (360 page Moore thus 79 S.Ct. bitrary or Of the result bad faith. page 1356, footnote): cry course, the facts there are a far holding “However, Moore was here, those where union simply remedy for that a common-law representatives processed damages might pursued by a dis- ordinary in the usual and man- charged employee resort who did not and, request, properly pre- ner at her statutory remedy to the before the pared and submitted it challenge validity of his question dismissal. A different arises discussing employee’s duty here where the obtained remedies, exhaust administrative and, determination from the (page 184, Court Vaca stated having lost, seeking relitigate 914): page the courts the same issue as to employee’s “Since the claim is based validity discharge.” of his bargain- upon breach of collective (page 1360): page held ing agreement, he is bound terms *7 “We therefore hold that the agreement govern of that the spondent’s submission to Board the rights manner in which contractual grievances validity his as to the reason, it be For enforced. this discharge precludes his him from seek- employee is settled that the must ing damages in the instant common- attempt least to exhaust law action.” grievance procedures and arbitration agree- bargaining established the Thus, Price, resorted the (Italics supplied.) ment.” challenged remedy, to his administrative discharge by argues submitting his Plaintiff did least his that she “at Adjustment and, attempt” grievance pro- to ance the after to Board exhaust the receiving decision, provided by agreement. The adverse filed cedures the fallacy argument here, court action. In the resides in the the em- this case ployee pursued resorted to her fact that while con- administrative her including challenged discharge by up remedy, tractual to and the her sub- remedies mitting grievance Sys- grievance System her submission of her to the to the and, Board, giving oppor- Board the same without it an tem she abandoned Thus, tunity by her decide, to action. hear and resorted to court abandoned voluntary jurisdic- same and her The act she thwarted filed court action.

787 System System had com- Board. The which she to the record Board, tion of invoked, allegation nugatory pletely dispels at- that she and rendered unfairly is tempt or had initiated. Vaca was treated discriminated she that, by plaintiff. ALPA. More than no to aid time her was submitted to numerous Plaintiff advances System employed Board a had she re subsidiary do not contentions which attorney. private as quire She consideration. extended “ states, on brief Plaintiff jury deprive trial her of a serts to that replete plaintiff’s with record is alleged wrongful ais for her attempts lay for to foundations vain to Amendment of the Seventh violation be a fair trial.” This statement would argument is the Constitution. This read, if record more accurate it “This wholly Pacific Union without merit. See attempts replete plaintiff’s vain is Price, 601, 79 Co. 360 U.S. Railroad v. justi- lay the foundations which Pennsyl 1460; 1351, 13 L.Ed.2d proceedings fy her abandonment Day, Railroad v. 360 vania Co. U.S. System which she initiated before 1422, and L.Ed.2d Parker Board, so action.” to resort court as D.C., Ry. al., Co. et v. Illinois Cent. rec F.Supp. Plaintiff fails ex letters the numerous Of power ognize Congress that Archer, changed rights modify or abolish law or common particular attention plaintiff calls Silver, remedies. See Silver 28, directed June 21 and those L.Ed. United, did which United Archer to Co. v. Timber Wash Mountain State letters, is as it These so not answer. 260, 61 ington, attempts in serted, to obtain vital were L.Ed. 685. be to a fair trial formation conducive argues, apparently as Plaintiff System In the June Board. fore voluntary abandoning for excuse suggested neutral a that letter Archer submission, fair that she cannot a receive Sys designated sit to with referee System The trial before the pur Board, and submitted tem argument point is thrust of on this sug persons. pose of six the names make-up based gestion premature as inasmuch was composed is, of members provided agreement expressly employer selected and the union. only employed should be neutral referee A similar contention this Court made to deadlock, which a Board event of Lines, Arnold et al. v. United obviously place after not take until could answered, al., Inc. et F.2d was Courtesy heard. the might correctly think, adversely em we reply, suggested have ployee. obligation legal do so. under no requested plaintiff’s An examination of Archer 28 letter the June complaint copy reveals that a number submission nature; pre allegations conclusory which, are of a we already positively viously shown, some fur been refuted docu had mentary proof legal *8 in submitted connection him counsel nished expressed therewith and in the others are irrelevant ALPA. Concern was any being alleges issue in the case. writer was not She letter that being kept steps effect that because taken she was a non-union of the informed member, legal proper regarding grievance. plaintiff’s ALPA refused as sistance, thereby discriminating against self-serving, fail was and United’s letter previously her. We no shown within is how ure answer it one week processed, charge plaintiff proof was It which of of unfairness. ordinary evidently prep step admits was “in the usual and taken was last manner,” prepared by action, and it com how was aration for court which was legal department menced week ALPA and submitted one later. allegation Railway Act, complaint Labor of the 45 U.S.C. other §§ One alleged (m) (p), perhaps noted. It and 153 First and as con- should be 1337; wilfully plaintiff “that told ferred and that U.S.C. § § United embezzling Management Relations akin to conduct was company funds.” assume it is as We U.S.C. amended. § allegation seeks complaint appears From that it alleged damages. exemplary is not a was hired United as it that the statement was false or that July 7, and stewardess effective any person ut- was made for whose employed was so until her liable. More- United would be terances Mary supervisor, March Her importance, ir- it was over and of more Decker, that letter then notified her relevant issue which discharged she was violations System submitted to the policy on December United’s travel con- and 1965. Pursuant to the labor complaint We hold that hearing effect, requested she a tract ground properly dismissed on that hearings investigation, were and an and System acquired held at offices. United’s jurisdiction plain to hear and decide willfully charges I United Count that grievance, tiff’s which she submitted rights disregarded plaintiff’s in con- accordance with the terms of and, ducting hearings in to her reference bargaining agreement. collective This respects, guilty improper other unnecessary makes it to consider or de handling rights, that, a as of her suggested cide the alternative basis willfully thereof, she was direct result affirmance, defendants as a reason for wrongfully discharged, for which she is, citizenship. diversity that a lack of exemplary compensatory and seeks both appealed The order from is damages. Affirmed. II, plaintiff charges count System Adjustment— United’s Board of SCHNACKENBERG, Judge Circuit Division received Letter Stewardess a (dissenting): from Union Submission Sonja Stumo, appeals plaintiff, from Board to conferred on the wrongful order plaintiff’s of the district court entered hear September 27, 1966, granting discharge, of- motions Union refused to complaint, employee, legal dismiss her filed her, defend- a nonunion fer aid Lines, Inc., ants although United Air members as- Delaware all are [Union] corporation, “United”, signed lawyer Ritner, represent them E. S. R. a staff W. Hardesty, hearings. also Carole Diane McAnallen and such Board She (as defendant, charges Robertson members Board members of the United System Air Adjustment), Hardesty, Ritner, Lines Board of and Rob- McAnallen ertson, United, employees Line Pilots who are Association-Stewardess are Flight Division,1 officers, junior Stewards who in rank to United’s Ruby, grievance, president already Charles H. had denied hearing individually. get fair she “cannot said Board.” complaint, I,2 Plaintiff’s in count al- leged alia, against suit, prays, cause action inter Plaintiff’s wrongful “prosecut- discharge, arising enjoined defendants be deciding” hearing ing, the fifth her dis- and seventh amendments and/or charge grievance United. States constitution and also un- parts Labor Act Sometimes referred to herein as the “Un- *9 purpose constitutional, is now that ion” or for “AUPA”. upon plaintiff, and I relied for 2. basis such While II it abandoned as a count asked for certain in- consider junctive relief and for a declaration that relief. May 4, following occurring Dorsey replied on to Archer relevant facts appear enclosing copies of 1966, letter this suit was instituted before support charges 23, 1966, United’s March filed in dated an affidavit 1966, April 8, and Hale decision of motion to dismiss: Dorsey May 3,1966 Richman decision. Mary from Decker dis- letter requested all corre- that thereafter charging plaintiff, told she she was Brown, spondence A.F. addressed to be expected to was reimburse general manager of vice-president and $29.09. May plaintiff Thereupon on United. appealed from her dis- Plaintiff requesting 5, 1966 wrote Mr. Brown charge Man- Service to Stewardess hearing, appeal provided in “an as ager March Hale letter dated asking copies Agreement” that and investigation requested “an 1966 and hearing rendered and decisions notices discharge, hearing” and deci- attorney Archer. to sent replied March Hale on sions rendered. 23, general Whereupon vice-president and stating charges. letter, manager service, E. C. customer hearing held was In Hale’s office a (who appointed Westervelt had been April By dated letter March designee Brown) replied for Mr. plaintiff that 8, 1966, informed he setting May dated a letter charges and that she were accurate hearing May 18, the stew- acquaint responsibility her- to a had copy O’Hare, ardess office at procedures. proper with the self attorney to which letter was sent Archer. appealed plaintiff April On vice-president May 25,1966, this decision Under date of Wester- agreement relying plaintiff be- Dorsey, on which velt wrote letter L. Rich- May 18, United and AUPA. W. he hear- tween referred Employee man, representative, ing, plaintiff, staff as Miss well as Dorsey designee Prato, Relations, Miss Hollé and stewardess grievance, April 28, plaintiff’s present. hear set Decker and Mr. Hale were nothing hearing. There :'s 1966 for a Westervelt concluded that court can proper in the record from which and therefore statements, sworn or determine what was denied. hearing unsworn, on were made at the May date, Archer On same merely April 28, The record Brown, part: wrote present besides that shows there were ‘opinions’ appeal following: Richman, plaintiff predicated have been Passenger-agent Voss, Decker, Miss hearings; presented facts they Kaye Marilyn Hollé Stewardess prejudged, been Local). (ALPA O’Hare chairman of proof shifted. burden has been George attorney point, At F. further state that We 29, 1966, April arbitrary imposed Archer under date of standard was Dorsey, vice-president ap- Miss not been wrote Stumo stating plied had become em- United’s unionized requested pertinent ployees.” in- all client and future, in the formation be released However, replied on June Brown any copy as well decision based indicating “re- hearing. April on the 28th quired appeal further make Adjustment”. By May 3, 1966, Rich- letter dated Following suggestion, man notified Brown’s inquired ance for the reason that Archer on was denied satisfactorily explain Board meet- she had failed to him date of the next ing, questions she had been names its members various asked. other information. Due to Brown’s *10 790 13, brought proceeding by vision, on

absence, O. E. in a the Wilkinson respondent’s names of the four 1966 the Brotherhood on behalf furnished gave (i) name of members and the 3 First board the § Act, seeking respondent’s to whom Ritner as board chairman the appeal. pay. The should submit reinstatement with back 15, 1966 letter of June Board The Union rendered an award in favor petitioner. question the the The for de- submitted respondent cision here is whether may pursue remedy for common-law July 1966, 6, filed her On damages wrongful allegedly for his suit in the district court. having pur- dismissal after chosen to plain- It is basic contention statutory remedy sue the discharged wrongfully tiff that she was sulted in a Na- determination action and that is a common-law Adjustment tional his dis- arising Illinois therefrom. Moore v. justified.” (Italics sup- missal was 630, Co., Central R. 312 U.S. plied.) 754, (1941). main- 1089 L.Ed. She pointed At the court impar- tains that she could not obtain an adjustment out its award and hearing Board, tial before the because claim, board denied the and some three makeup.3 years damage later the in suit was filed This court on Pacific now relies Union court. Price, R. Co. v. At 79 S.Ct. at the court (1959). But there 13 L.Ed.2d 1460 stated: petitioner union, Price knew that his consent, his National procedure submitted to the if Even Adjustment Railroad Board his followed the railroad constituted a against employer, proper investigation, ance railroad the Board’s out- right Board, explicable dismissed and there- denial of the claim is precluded seeking only ground fore he was dam- on the Board also ages 32(b) justify for that in dismissal a common-law held that Article did not pointed respondent disobeying action. As the court out at the dis- patcher’s S.Ct. at 1352: instruction to remain Nipton. We conclude that both issues diversity “This is a common-law ac- against were decided the Board brought by respondent, tion a form- respondent, and therefore reach the petitioner railroad, er question respondent, whether de- the United District Court States * * * spite the adverse determination damages to recover from the Adjustment Board, pursue could allegedly wrongfully railroad dis- remedy common-law charging him violation of the collec- the District Court.” bargaining agreement tive Brotherhood of Railroad 608-609, and at the court ”* * * Trainmen. added: “ thereupon * * * The court added: Congress barred the em- “ ployee’s subsequent validity resort com- of the dis- charge challenged upon previously mon-law after an adverse de- grievance by grounds termination the same National before the Adjustment Adjustment Board, Di- Board.” First Railroad tion there were two stewardesses on the confronted with the Plaintiff had been employees United, reality including who also situation pointed presence employees were members of the union. As of two the Board junior standing out, plaintiff a member of the was not who were Lines, plain- company Arnold v. whom union. Cf. officials (1961). Inc., Cir., grievances F.2d In addi- were directed. tiff’s

791 bar, 773, 775. How- 245, 3 L.Ed.2d Obviously at while case say: attempted ever, proceeded good in Vaca to plaintiff to ex- the court faith grievance procedures, haust the available doctrine, pre-emption how- “This never made a it is a fact that the Board rigidly applied ever, has been never therefore final decision or award. fairly in- it not where could cases having Price), follows, (unlike there Congress intended exclu- ferred that her been no determination NLRB, to lie sive with * *» * thereby Board, plaintiff was not thoritative, U.S. barred announced in Moore. cum v. United and she mon-law action. cited L.Ed. ful mon-law or from way ceasing contract. As suit could have he chose to reinstatement discharge Illinois Central R. tent Although plaintiff was “Our wrongful, 239, discharging any 795 claiming damages discharged by adjudicating with from Delaware, at to be case (1950), holding 754, 85 the court challenged the 244, before statutory action for accept our proceeding Act does claims that overruling differs defense counsel we and back 70 Moore him employee, holding in Moore v. L. & here there L.Ed. S.Ct. the railroad’s such cases. saying: Co., 312 U.S. power Moreover, from was cited as au- W. R. with her held, 577, for breach final, discharged pay. railroad. validity bar at principles discharge the Rail- inconsis- Co., 339 provide, brought has thereby Instead seeking A com- wrong- 580, in Slo- courts Moore action of his com- not He 94 At Further, S.Ct. must procedures.” union lief ployer, controlled the individual claim dicial determine under what factory and arbitration settled that ever, lic dies have been devised ual attempt say: “ * * * ^[*] Steel at grievant. through fashion an because these contractual *» despite review page 914, the court stated: bargaining employer 386 U.S. they or unworkable exhaust to S.Ct. Corp. 614, by the If the contractual may a breach of his breach-of-contract at his failure 13 L.Ed.2d For a breach employee must at least procedures established Maddox, at appropriate agreement. Repub- well union problem pages 184-185, 87 this the court went proven for the individ- prove circumstances reason, to secure re- and the em- 379 580. duty by then is obtain the court are U.S. remedial contract remedy. unsatis- reme- How- often it 650, ju- on is questions fu- and does not involve Moreover, under all the circumstances ture the railroad and relations between case, unrealistic would be ”* employees. its other plaintiff’s fide endeav- contend that bona addition, we have the benefit the administrative or to obtain relief Sipes, recent her process in Vaca v. decision and of itself barred filing at 17 L. S.Ct. action theory (1967),4 United, Ed.2d the court rec had where that she there- ognized general solely proceed rule neither with the ad- elected to jurisdic proceedings. state nor federal While counsel courts ministrative activity directly involving argue tion that “if were over suits for United subject grievance route in mid- to the National Labor Relations abandon right citing Diego Building stream, Trades to recover San wrongful discharge Council, Garmon, etc. v. U.S. contract turn, developed (1944), which, the Rail- Vaoa relies the doctrine involved way Co., in Steele & N. R. v. Louisville Labor Act. 192, 65 89 L.Ed. 173 according terms”, agree logic own I terminate they ignore suggests choose to the frustration counsel herein when he that the rights litigant overwhelmed efforts to ex- of a such as vis- haust her a-vis administrative remedies. an interstate air carrier not de- do varying many pend on the laws of the 2. Defendants contend that *12 states it I hold that di- crosses. would wrongful cannot maintain her action for versity citizenship of is not essential to discharge in the federal courts because plaintiff’s cause of action when asserted satisfy she has failed to basic under federal law. quirements They of Moore case. recog- principle This of federal law was diversity upon note that Moore was based recently nized United itself when it citizenship that, bar, and in the case at filed suit in the District Court for the complaint plaintiff allege in her not does Illinois, Northern District Di- Eastern diversity. rely Thus defendants (62 seeking 2116), enjoin vision pilots C Air, Transcontinental & Western Inc. v. ignoring training certain Koppal, 97 procedures jet Diversity for aircraft. (1953) L.Ed. 1325 which was an action citizenship being brought present, not discharged employee jurisdiction upon based federal 1331 wrongful discharge, §§ 1337, supra. diversity citizenship. was based on There relied the law that In its brief United declares Missouri. rely upon Machinists to cannot jurisdiction sustain federal at the appears, however, that from its policy very same time “avoid the federal controversy nature the involved in governs federally exhaustion which en- ease is one which arose under the forcible contracts”. But she does not States, laws of the United 28 U.S.C.A. § policy. Rather, seek to avoid 1331 and 1337.5 International § Ass’n law, accordance with federal she made a Airlines, Machinists v. Central comply attempt bona fide ex- 682, 684, U.S. 10 L.Ed.2d (1963). haust administrative remedies. 67 diversity The case before us is When, because the circumstances action. her, which confronted Board’s action Republic Corp. Maddox, Steel 379 promised abortive, plaintiff to be 13 justified filing present suit for (1965), L.Ed.2d 580 the court said: discharge.6 At unlawful the trial of her governs Federal law ‘Suits damage suit, the bona fides of ef- for violation of contracts forts to exhaust her administrative employer organization and a labor require- remedies will be an issue. The * * ** * *» (Emphasis sup- state, federal, ments of law will con- plied.) guidelines respect trol. were recognized Republic Corp. laid down in that Moore Steel is not over- v. Mad- dox, supra, 652, hand, ruled. On the other 616: the court con- general cluded that “the federal rule” general “As a rule in cases to which (underscoring mine) applies. applies, federal law federal labor 1331(a) provides: monop- 5. § commerce restraints original The district courts shall have olies. of all civil actions wherein * ** controversy Scholarly supporting matter arises treatises this con- * * * Constitution, appear under the laws clusion in Exhaustion of Rem- Wrongful Discharge the United States. edies and Under provides § said courts 25 U.Chi.L.Rev. * * jurisdic- ; original (1958) Jaffe, shall have The Exhaustion any proceeding Remedies, tion of civil action or aris- Administrative 12 Buffalo L. ing Congress regulat- (1963). under Act of Rev. ing protecting commerce or trade policy requires em- individaul

ployees wishing to assert contract

grievances attempt use must agreed procedure contract upon employer and union as the ”*

mode of redress.

I would hold that record us before

indicates that there is a sufficient show- ing of her at the trial dam-

age present evidence, suit could complaint, from which the court require-

could find that she had met *13 policy

ments of the stated in Maddox. reasons,

For these I would reverse appeal

order from which this was taken

and would remand to the district court proceedings

for further in accordance

herewith.

TRANSPORT & MANUFACTURING EQUIPMENT COMPANY OF DELA-

WARE, Corporation, Appel- Delaware lant, TRAINOR,

Edwin P. District Director Revenue, Internal Cohen, Sheldon S. Commissioner Revenue, of Internal Henry Fowler, Secretary H. Treasury States, Appel- of the United lees.

No. 18672. Appeals States Court of Eighth Circuit.

Aug. 16, 1967.