Union Pacific Railroad Company v. Price/Dissent Douglas

Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.

The basic question in this case is the one reserved in Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 719, 720, 65 S.Ct. 1282, 1287, 1288. It is whether an award that denies a claim for money damages comes within the exception of § 3 First (m) of the Railway Labor Act which provides that 'the awards shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award.'

It was pointed out in the dissent in that case (325 U.S. at pages 760-761, 65 S.Ct. at pages 1306-1307) that the provision for finality of these awards was close in origin to the reparation orders under the Interstate Commerce Act.

'Since both Acts came out of the same Congressional     Committees one finds, naturally enough, that the provisions      for enforcement and review of the Adjustment Board's awards      were based on those for reparation orders by the Interstate      Commerce Commission. Compare Railway Labor Act, § 3, First     (p) with Interstate Commerce Act, as amended by § 5 of the      Hepburn Act, 34 Stat. 584, 590, 49 U.S.C. § 16(1), (2), 49     U.S.C.A. § 16(1, 2). If a carrier fails to comply with a     reparation order, as is true of non-compliance with an      Adjustment Board award, the complainant may sue in court for      enforcement; the Commission's order and findings and evidence      then become prima facie evidence of the facts stated. But a     denial of a money claim by the Interstate Commerce Commission      bar the door to redress in the courts. Baltimore & Ohio R.     Co. v. Brady, 288 U.S. 448, 53 S.Ct. 441, 77 L.Ed. 888;     I.C.C. v. United States, 289 U.S. 385, 388, 53 S.Ct. 607,     609, 77 L.Ed. 1273; Terminal Warehouse v. Pennsylvania R.     Co., 297 U.S. 500, 507, 56 S.Ct. 546, 548, 80 L.Ed. 827.'

Since the decision in the Burley case the situation described in the dissenting opinion has changed. Subsequently, United States v. Interstate Commerce Comm., 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451, was decided; and it held, contrary to earlier precedents cited in the dissent in the Burley case, that orders in reparations cases which denied the claims of shippers were reviewable in the federal courts. It pointed out that the 'negative order' doctrine, which we abandoned in Rochester Tel. Corp. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147, had greatly influenced those prior decisions.

We refused to follow that discarded doctrine there; and it should find no place here. An award of no damages is, as I see it, as much a 'money award' as an award of 6 cents. The words 'money award' are descriptive of the nature of the claim, setting that class apart from other suits which involve, for example, a declaration of seniority rights.

Tolerance of judicial review has been more and more the rule as against the claim of administrative finality. See Shields v. Utah Idaho Cent. R. Co., 305 U.S. 177, 183, 59 S.Ct. 160, 163, 83 L.Ed. 111; Stark v. Wickard, 321 U.S. 288, 309-310, 64 S.Ct. 559, 570-571, 88 L.Ed. 733; Harmon v. Brucker, 355 U.S. 579, 581-582, 78 S.Ct. 433, 434-435, 2 L.Ed.2d 503; Leedom v. Kyne, 358 U.S. 184, 190, 79 S.Ct. 180, 185, 3 L.Ed.2d 210. The weight of the Administrative Procedure Act, 60 Stat. 243, 5 U.S.C. § 1009, 5 U.S.C.A. § 1009, is on the side of judicial review, the finality of administrative action being sanctioned only where it is clear from the statutory scheme that judicial review is precluded.

Respondent argues that it would be grossly unfair to construe § 3 First (m) so as to deny judicial review to a defeated employee but not to a defeated railroad. That would indeed be the result if an employee asserting a money claim cannot get court review if he loses, while the employer can obtain it if the employee wins. It is difficult for me to believe that Congress designed and approved such a lopsided, preferential system. No rhyme or reason is apparent for such discrimination. The attempt throughout was to equalize the advantages of the contending parties, not to prefer the employer who had long been dominant. Washington Terminal Co. v. Boswell, 75 U.S.App.D.C. 1, 6-7, 124 F.2d 235, 240-241. Some have said that an award denying payment cannot be a 'money award' in the intendment of the Act. Berryman v. Pullman Co., D.C., 48 F.Supp. 542. But that is a narrow reading, not in keeping with the harmony of the Act. I would read § 3 First (m) so as not to preclude judicial review in any suit for 'money awards' no matter which party wins.

It is true that the Act does not provide the method of review in a case of this kind. Section 3 First (p) only covers the case where an award has been granted an employee and the carrier 'does not comply.' In that case the order of the Board 'shall be prima facie evidence of the facts therein stated.' § 3 First (p). But this action is properly maintainable if the District Court otherwise has jurisdiction. No question of election of remedies is involved because of the express provision in the Act that the award of the Board is not final. Since there is no provision in the Act that specifies what judicial review may be obtained,the re are preserved whatever judicial remedies are available. One of those is a suit for damages for wrongful discharge. In three separate decisions we have said that actions for wrongful discharge can be maintained in the courts by the employee. Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089; Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 244, 70 S.Ct. 577, 579, 94 L.Ed. 795; Transcontinental & Western Air v. Koppal, 345 U.S. 653, 661, 73 S.Ct. 906, 910, 97 L.Ed. 1325. We stated in the Slocum case that 'A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide * *  * .' The Board has power to reinstate the discharged employee and award back pay; and that was the relief which this employee sought before the Board. But the common-law action for wrongful discharge may include other items of damages as well. Here the employee claimed not only lost earnings but future earnings, seniority rights, retirement rights, hospitalization rights, and transportation rights. Whether Nevada law that governs this contract would grant as much is not now important. The point is that the measure of the recovery in a suit for damages is not necessarily the same and may in fact be greater, including an award of attorney fees. It is difficult to believe that this cause of action triable before a jury is lost, wiped out, or abolished merely because the employee loses out when he pursues the lesser or more restrictive remedy before the Board. If there is to be equality between employer and employee in the assertion of rights and the assumption of duties under the Act, the employee cannot be held to have merely one chance if he proceeds before the Board, while the employer has a remedy first before the Board and, if he loses there, another one before the court.

In my view the Court's contrary reading of § 3 raises questions of constiutional magnitude. For if an employee is to be denied any review of the Board's decision when the railroad prevails, while the latter can obtain judicial review with a jury trial before complying with a Board order, there would appear to be an unjustifiable discrimination in violation of the Due Process Clause of the Fifth Amendment. It is not the usual practice in this country to permit one party to a lawsuit two chances to prevail, while the other has only one, nor to permit one party but not the other to get a jury determination of his case. See Pennsylvania R. Co. v. Day, 360 U.S. 554, 79 S.Ct. 1326 (dissent.)

The result is that I would remand the case to the District Court for trial.