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July 2, 1962

Lawrence W. LARSEN, Plaintiff,

The opinion of the court was delivered by: METZNER

This is an action by a former employee of defendant for wrongful discharge. Defendant moves pursuant to Fed.R.Civ.P. 12(b)(1, 6), 28 U.S.C.A. to dismiss the complaint, on the grounds that the court lacks jurisdiction over the subject matter, and that the complaint fails to state a claim upon which relief can be granted. Jurisdiction is based on diversity.

Defendant has submitted several affidavits which have not been considered by the court, *fn1" and the motion is disposed of solely on the legal questions raised by the motion.

The complaint alleges that plaintiff was employed by defendant as a pilot pursuant to a collective bargaining agreement. It further alleges that on March 15, 1959, plaintiff was in command of one of defendant's planes which crashed at Midway Airport in Chicago; that the crash was solely the result of an inaccurate weather forecast, extremely bad weather conditions, erroneous directions from the airport tower, and faulty plane instruments; and that plaintiff's conduct was in no way responsible for the crash and that he acted in accordance with ordinary standards of a properly qualified commercial airplane pilot and flight captain. On April 29, 1959, defendant gave plaintiff a notice of termination of employment, charging him with a failure to exercise proper professional proficiency during the crash.

 Plaintiff then requested a hearing on the dismissal notice pursuant to section 27 of the contract. The request was granted and the hearing scheduled for June 5, 1959. On that date the hearing was commenced, but adjourned before completion. Then, on June 26, 1959, defendant informed plaintiff that his right to a hearing was forfeited, and in January 1960 notified him that it considered the matter of a hearing closed, and that as a result plaintiff's employment was terminated. Plaintiff alleges that he never waived his right to a hearing, that defendant refuses to grant him a proper hearing, and defendant has aborted the procedures provided in the contract.

 The basis of plaintiff's first claim for relief is the refusal of defendant to complete the originally scheduled hearing, which he claims constitutes an unlawful discharge and a breach of contract.

 The second claim for relief is that the basis for the charge of unprofessional conduct asserted in the letter of April 29, 1959, was never specified, never supported by evidence produced by defendant, and is unjustified, and that termination of plaintiff's employment on the basis of an unsupported charge constitutes an unlawful discharge. Damages of $ 275,000 are claimed.

 Defendant's motion is based on four grounds. First, defendant contends that plaintiff has agreed to arbitration as the exclusive remedy for breaches of contract and may not, therefore, maintain this action. Further, it contends that plaintiff's failure to appeal to the System Board of Adjustment (hereinafter referred to as the Board), after having invoked the grievance procedure under the contract, constitutes a failure to exhaust his administrative remedies which precludes a suit for wrongful discharge.

 The second ground for defendant's motion is that the failure to appeal to the Board from the denial of the grievance on January 11, 1960 precludes suit, since the contract provides that any grievance decision not appealed within the time specified becomes 'final and binding.' In essence, it is the same contention as is made under the first ground. The determination of these two grounds depends on the application of the law of New York to the contract.

 The third ground of the motion is that plaintiff's request for a hearing constitutes an election to follow the grievance procedure rather than to sue, and that under federal law he is bound by his election of remedies.

 The fourth ground of the motion is that plaintiff's allegations concerning denial of a proper hearing, and denial of his grievance without supporting evidence, constitute matters within the exclusive jurisdiction of the Board, since they involve questions of the proper functioning of the grievance procedure.

 The facts alleged in the complaint must be taken as true for the purposes of this motion.

 The collective bargaining agreement provides that a pilot may not be dismissed without an investigation and hearing if the pilot makes written request therefor. Prior to such investigation and hearing, the company must notify the pilot in writing of the precise charges against him. The investigation and hearing are held by an operating official of the employer and shall be held within ten days after receipt of the written request. The employer shall announce its decision in writing within ten days after close of such investigation and hearing. Thereafter, the pilot may appeal the employer's decision to the 'Regional Operations Officer of the Company' by filing such appeal within ten days after receiving a copy of the company's decision on the investigation and hearing. Within ten days after the close of the hearing on the appeal, the regional operations officer shall furnish his decision in writing to the pilot. This is the handling 'in the usual manner' referred to in the Railway Labor Act. 45 U.S.C.A. § 184. The pilot may, within thirty days, further appeal an adverse ruling by the regional operations officer to the Board, which consists of two representatives of the Pilots Association and two representatives of the employer. The Board is created by the contract pursuant to section 184. The contract further provides that any decision made by the company, i.e., an operating official at the first stage or the regional operations officer of the company at the second stage, shall be final and binding unless appealed by the pilot within the time prescribed therein.

 In Moore v. Illinois Cent. R.R., 312 U.S. 630, 61 S. Ct. 754, 85 L. Ed. 1089 (1941), the Supreme Court held that the Railway Labor Act, 45 U.S.C.A. § 151 et seq., does not require an employee who claims an alleged wrongful discharge to exhaust the administrative remedies provided in the grievance and arbitration procedures before instituting a common law suit for damages. The Court held that the provisions in the Railway Labor Act for appeal to the Railroad Adjustment Board were purely voluntary in the type of case before it. In that case Moore had requested a hearing and appealed the adverse determination by the hearing officer to the general manager. He abandoned the appeal and instituted the suit for wrongful discharge in the state court, which was removed to the federal court. See 112 F.2d 959, 962 (5th Cir., 1940). The Court sustained a judgment for Moore. Slocum v. Delaware, L. & W.R.R., 339 U.S. 239, 70 S. Ct. 577, 94 L. Ed. 795 (1950), reaffirms Moore. The Supreme Court has specifically stated that the rule of the Moore case is an exception to the doctrine that the Board has primary jurisdiction in cases involving interpretation of collective bargaining agreements. Pennsylvania R.R. v. Day, 360 U.S. 548, 553, 79 S. Ct. 1322, 3 L. Ed. 2d 1422 (1959).

 The law relating to suits for wrongful discharge was further developed in Transcontinental & Western Air, Inc. v. Koppal, 345 U.S. 653, 73 S. Ct. 906, 97 L. Ed. 1325 (1953). *fn2" ...

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