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August 4, 1972

Henry J. Pompeo, Plaintiff
Erie-Lackawanna Railroad Company, Defendant

Curtin, D. J.

The opinion of the court was delivered by: CURTIN


On May 20, 1958, plaintiff was discharged by the Delaware, Lackawanna & Western Railroad (now part of the Erie-Lackawanna Railroad Company) because he had falsely stated on his employment application in May, 1950 that he had not been arrested or convicted. He successfully appealed the dismissal to the National Railroad Adjustment Board which, on December 16, 1960, reinstated him, providing as follows:

. . . the claimant [shall be] reinstated with seniority rights unimpaired, vacation privileges preserved, and payment for each day lost from the carrier's service from May 20, 1958.

 At that time, Section 3(p) of the Railway Labor Act, 45 U.S.C. § 153(p), permitted an action de novo in the district court in which the findings and order of the Board were deemed to be prima facie evidence of the facts therein stated. When the railroad refused to comply with the award of the Board, plaintiff instituted this suit on February 20, 1962.

 The case was tried on December 8, 1964 before Judge John O. Henderson sitting with a jury. In addition to being instructed to consider whether plaintiff had made a false answer to the question about his arrest and conviction record, the jury was instructed to consider whether plaintiff had given a false answer when he denied ever being injured. In fact, he had injured his wrist in the service and had been awarded a permanent partial disability. During the proceeding before the Board, the railroad had not relied upon the withholding of the information about the injury. The jury was unable to agree upon a verdict.

 Before the case was again set for trial, the Supreme Court, on December 8, 1965, decided Gunther v. San Diego & A.E. Ry., 382 U.S. 257, 15 L. Ed. 2d 308, 86 S. Ct. 368 (1965), which provided that awards of the Board were final and binding except insofar as they provided for monetary damages. Plaintiff then moved for summary judgment granting reinstatement. By decision dated July 11, 1966, Judge Henderson enforced that portion of the Board's award requiring reinstatement, but he held that computation of monetary damages must await further proceedings. An order putting the court's decision into effect was not entered until January 19, 1967. The order provided that plaintiff was to be reinstated "subject to all rules and regulations of the Erie-Lackawanna Railroad Company." This language was intended to make clear that plaintiff was required as a condition of reinstatement to submit to medical examination to determine whether he was physically qualified to return to work and to perform the duties he had performed prior to his discharge. The results of examination were not received until March 7, 1968, on which date plaintiff was notified that he had been found unqualified for further employment.

 In the meantime, on June 20, 1966, the Railway Labor Act was amended by Public Law 89-456. The effect of the amendment was to make a money award, as well as an award of other relief "final and binding upon both parties to the dispute." 45 U.S.C. § 153(m). On June 24, 1968, Judge Henderson held that the amendment applied to the instant case but ordered the case remanded to the Board on the ground that the award was "incomplete." Judge Henderson wrote:

No amount is mentioned in the Board's award. . . . The present award is silent as to the length of time such payment is to continue; the rate of pay per day; whether deductions should be made from outside earnings of the plaintiff during the period of the award; and other questions of damages which are in issue.

 On December 13, 1971, the Board issued an "Interpretation" of its earlier order. The Board wrote:

. . . the award as originally written, made no provision for deduction of outside earnings, and there was no intent to provide for deduction of outside earnings. As the parties have determined the amounts which are in question, no discussion of such earnings will be made here.

 After the order of the Board was received by the Clerk of this court, plaintiff moved for summary judgment or, in the alternative, for "such further proceedings in the action as are just." Defendant cross-moved for vacation of Judge Henderson's order of January 19, 1967, requiring plaintiff's reinstatement by defendant, or, in the alternative, for suspension of the order pending further proceedings. Defendant also cross-moved for an order limiting the issue of damages to a period from May 20, 1958 to the date of plaintiff's reinstatement, for an order setting the scope of the trial of the issue of damages, for an order granting discovery on the issue of damages, *fn1" for an order denying interest on any award of damages, and for an order denying or limiting allowance of an attorney's fee.

 At the request of Judge Henderson and with the consent of the parties, the motions were transferred to my part for decision. After considering the original papers filed in support of the motions, I entered on April 13, 1972 an order directing the parties to file additional affidavits. After considering all of the above material, the court is now ready to decide the motions.

 Turning first to defendant's cross motion for vacation or suspension of Judge Henderson's order of January 19, 1967, defendant argues that the Board's order of reinstatement should be set aside "for failure of the order to conform, or confine itself, to matters within the scope of the [Board's] jurisdiction." 45 U.S.C. § 153(p). Defendant's contention rests upon Judge Henderson's instructions to the jury at trial of the case in 1964, prior to the Supreme Court's decision in Gunther, supra, and prior to the 1966 amendments to the Act. Judge Henderson instructed as follows:

Now upon reviewing the findings of the Adjustment Board, you will not be able to understand what violation of plaintiff's legal and contractual rights justify its award. I charge you that the findings of the Board, on the issues before it, do not substantiate its award for the reason that the findings ...

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