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Myron v. Consolidated Rail Corp.

decided: January 8, 1985.

JOEL MYRON, PLAINTIFF-APPELLANT,
v.
CONSOLIDATED RAIL CORPORATION, DEFENDANT-APPELLEE



Plaintiff Joel Myron appeals from an order of the United States District Court for the Southern District of New York, John E. Sprizzo, J., granting defendant Consolidated Rail Corporation's motion for summary judgment. The order upheld the decision of the National Railroad Adjustment Board, which had sustained Myron's discharge by defendant. Affirmed. Judge Meskill concurs in a separate opinion.

Feinberg, Chief Judge, Mansfield and Meskill, Circuit Judges. Meskill, C.j.

Author: Feinberg

Joel Myron appeals from an order of the United States District Court for the Southern District of New York, John E. Sprizzo, J., granting a motion for summary judgment by defendant-appellee Consolidated Rail Corporation (Conrail). Conrail had discharged Myron for disloyalty. In accordance with the Railway Labor Act, 45 U.S.C. § 153 First (i), Myron petitioned the National Railroad Adjustment Board, Third Division (the Board), which sustained the discharge. On appeal from the judgment of the district court, Myron contends that the Board's decision violated the Railway Labor Act, and that Conrail violated his First and Fifth Amendment rights by discharging him.*fn1

We affirm the judgment of the district court.

I.

Briefly stated, the undisputed facts are as follows. Prior to April 1, 1976, Myron was an employee in the track department of the Lehigh Valley Railroad Company. On that date, he became an employee of Conrail when, pursuant to the Regional Rail Reorganization Act, 45 U.S.C. § 701 et seq., Conrail acquired Lehigh Valley's operations. While working for Lehigh Valley, Myron attended law school and received his law degree. In January 1977, he was admitted to the New Jersey bar. While with Conrail, Myron served as "Local Chairman" of Lodge 705, Brotherhood of Maintenance of Way Employees (the Union), which represented him and his fellow employees for the purposes of collective bargaining.

In the fall of 1978, Myron represented Robert J. Jacques in the state courts of New Jersey in a civil action growing out of Conrail's discharge of Jacques. In November 1978, Myron entered into a "limited partnership" agreement with Lonny Hirsch. The law firm of Hirsch & Myron represented several Conrail employees in Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq., actions against Conrail, although Myron claims to have played no role in those actions.

In December 1978, pursuant to the applicable collective bargaining agreement, Conrail charged Myron with various acts of disloyalty. In particular, it charged that both his representation of Jacques and his partnership with Hirsch violated company rules providing that "any act of hostility or willful disregard of the company's interest will not be condoned." Such a rule apparently was permissible under the collective bargaining agreement. After an investigatory hearing in early 1979, Myron was discharged for disloyalty. The discharge was sustained through each stage of the grievance procedure mandated by the collective bargaining agreement.

Myron then petitioned the Board, seeking reinstatement with full back pay. The Board sustained the discharge on both grounds advanced by Conrail, and Myron sought review in the district court. In an oral opinion after argument, Judge Sprizzo granted Conrail's motion for summary judgment, declining to overturn the Board's decision. This appeal followed.

II.

At the outset, we note that our scope of review is extremely limited. See Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 58 L. Ed. 2d 354, 99 S. Ct. 399 (1978); Skidmore v. Consolidated Rail Corp., 619 F.2d 157 (2d Cir. 1979), cert. denied, 449 U.S. 854, 66 L. Ed. 2d 66, 101 S. Ct. 148 (1980). The Railway Labor Act, 45 U.S.C. § 153 First (q), while providing for judicial review of Board decisions, states that

on such review, the findings and order of the division shall be conclusive on the parties, except that the order of the division may be set aside, in whole or in part, or remanded to the division, for failure of the division to comply with the requirements of this chapter, for failure of the order to conform, or confine itself, to matters within the scope of the division's jurisdiction, or for fraud or corruption by a member of the division making the order.

Appellant acknowledges this narrow standard of review, but nonetheless claims that he is entitled to relief. In essence, he argues as follows: the Union has a right under the Railway Labor Act to organize itself without interference from the carrier (in this case Conrail), see 45 U.S.C. § 152 Fourth, as well as a right under the Constitution to "employ counsel to represent its members," see United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 581, 28 L. Ed. 2d 339, 91 S. Ct. 1076 (1971); Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 5-8, 12 L. Ed. 2d 89, 84 S. Ct. 1113 (1964); by barring the Union from employing counsel of its choosing, Myron's discharge interfered with the Union's right to organize as it sees fit; therefore, the Board's decision upholding the discharge was not in compliance with the provisions of the Railway Labor Act.

Myron's argument fails on at least two grounds. First, the rights that he describes are the rights to organize and bargain collectively with the employer, which arise under the Railway Labor Act, and the rights of unions and their members to obtain legal advice and to hire their own attorneys. The cases Myron cites do not suggest that either a union or its membership has any right to be represented by a particular attorney (who is currently working for the same employer). Furthermore, ...


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