Petitioner, claiming that he was wrongfully discharged from his
employment by respondent railroad, filed a state court action based
on state law for breach of contract. The suit was removed to
Federal District Court, which dismissed the complaint for failure
to exhaust the remedies provided by the Railway Labor Act, and the
Court of Appeals affirmed.
Held: Since the source of petitioner's right not to be
discharged and of his employer's obligation to restore him to his
regular employment following an injury is the collective bargaining
agreement, petitioner must follow the grievance and arbitration
procedures set forth in the Railway Labor Act.
Moore v.
Illinois Central R. Co., 312 U. S. 630,
overruled. Pp.
406 U. S.
321-326.
441 F.2d 1222, affirmed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ.,
joined. DOUGLAS, J., filed a dissenting opinion,
post, p.
406 U. S. 326.
POWELL, J., took no part in the consideration or decision of the
case.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner brought suit in the state trial court of Georgia
seeking damages for alleged "wrongful discharge"
Page 406 U. S. 321
by the respondent.
* He alleged that,
prior to an auto accident in 1967, he had been an employee in good
standing of the respondent, employed "under specified conditions
and with a stipulated schedule of benefits." He alleged that,
following the accident, he had fully recovered and was physically
able to resume his work for respondent, but that respondent had
refused to allow him to return to work, and that respondent's
actions amounted to a wrongful discharge. He prayed for damages
consisting of loss of past and future earnings and for attorneys'
fees. Respondent removed the case to the United States District
Court, and there moved to dismiss the complaint for failure to
exhaust the remedies provided by the § 3 First (i) of the Railway
Labor Act, 44 Stat. 579, as amended, 48 Stat. 1191, 45 U.S.C. § 153
First (i).
See also 1966 amendments to § 3 Second, 80
Stat. 208. The District Court granted the motion, and the Court of
Appeals for the Fifth Circuit affirmed. We granted certiorari, 404
U.S. 955, and are once more confronted with the question of whether
Moore v. Illinois Central R. Co., 312 U.
S. 630 (1941), should be overruled.
Moore held that a railroad employee who elected to
treat his employer's breach of the employment contract as a
discharge was not required to resort to the remedies afforded under
the Railway Labor Act for adjustment and arbitration of grievances,
but was free to commence in state court an action based on state
law for breach of contract. The result was supported by the Court's
conclusion that the procedures for adjustment of "minor
Page 406 U. S. 322
disputes" under the Railway Labor Act had been intended by
Congress to be optional, not compulsory, and that, therefore, a
State was free to accord an alternative remedy to a discharged
railroad employee under its law of contracts. The basic holding of
Moore was reaffirmed, and its state law aspects amplified,
in
Transcontinental & Western Air, Inc. v. Koppal,
345 U. S. 653
(1953). There, it was held that, if state law required the employee
to exhaust administrative remedies provided for in his contract of
employment before resorting to court, a federal diversity court
should enforce that requirement.
Later cases from this Court have repudiated the reasoning
advanced in support of the result reached in
Moore v. Illinois
Central, supra. Fifteen years ago, in
Brotherhood of
Railroad Trainmen v. Chicago R. & I. R. Co., 353 U. S.
30,
353 U. S. 39
(1957), this Court canvassed the relevant legislative history and
said:
"This record is convincing that there was general understanding
between both the supporters and the opponents of the 1934 amendment
that the provisions dealing with the Adjustment Board were to be
considered as compulsory arbitration in this limited field."
When the issue was again before the Court in
Walker v.
Southern R. Co., 385 U. S. 196
(1966), it was observed:
"Provision for arbitration of a discharge grievance, a minor
dispute, is not a matter of voluntary agreement under the Railway
Labor Act; the Act compels the parties to arbitrate minor disputes
before the National Railroad Adjustment Board established under the
Act."
385 U.S. at
385 U. S.
198.
Thus, the notion that the grievance and arbitration procedures
provided for minor disputes in the Railway Labor Act are optional,
to be availed of as the employee or the carrier chooses, was never
good history, and is no longer good law.
Page 406 U. S. 323
The related doctrine expressed in
Moore and
Koppal, that a railroad employee's action for breach of an
employment contract is created and governed by state law, has been
likewise undercut by later decisions. In
Machinists v. Central
Airlines, 372 U. S. 682
(1963), an agreement required under § 204 of the Railway Labor Act
was said to be
"like the Labor Management Relations Act § 301 contract . . . ,
a federal contract, and . . . therefore governed and enforceable by
federal law in the federal courts."
372 U.S. at
372 U. S. 692.
A similar result was reached under § 301(a) of the Labor Management
Relations Act in
Textile Workers v. Lincoln Mills,
353 U. S. 448
(1957).
In
Republic Steel Corp. v. Maddox, 379 U.
S. 650 (1965), the Court deduced from the Labor
Management Relations Act a preference for the settlement of
disputes in accordance with contractually agreed-upon arbitration
procedures. It accordingly held that, before a state court action
could be maintained for breach of such a contract, the employee
must first "attempt use of the contract grievance procedure agreed
upon by employer and union as the mode of redress." 379 U.S. at
379 U. S. 652.
In
Maddox, the Court not only refused to extend
Moore to save state court actions for breach of contract
under § 301 of the Labor Management Relations Act, but intimated
that its rule might well not survive even in Railway Labor Act
cases. Indeed, since the compulsory character of the administrative
remedy provided by the Railway Labor Act for disputes such as that
between petitioner and respondent stems not from any contractual
undertaking between the parties, but from the Act itself, the case
for insisting on resort to those remedies is, if anything, stronger
in cases arising under that Act than it is in cases arising under §
301 of the LMRA.
The fact that petitioner characterizes his claim as one for
"wrongful discharge" does not save it from the Act's
Page 406 U. S. 324
mandatory provisions for the processing of grievances.
Petitioner argues that his election to sever his connection with
the employer and treat the latter's alleged breach of the
employment contract as a "discharge" renders his claim sufficiently
different from the normal disputes over the interpretation of a
collective bargaining agreement to warrant carving out an exception
to the otherwise mandatory rule for the submission of disputes to
the Board. But the very concept of "wrongful discharge" implies
some sort of statutory or contractual standard that modifies the
traditional common law rule that a contract of employment is
terminable by either party at will. Here, it is conceded by all
that the only source of petitioner's right not to be discharged,
and therefore to treat an alleged discharge as a "wrongful" one
that entitles him to damages, is the collective bargaining
agreement between the employer and the union. Respondent in this
case vigorously disputes any intent on its part to discharge
petitioner, and the pleadings indicate that the disagreement turns
on the extent of respondent's obligation to restore petitioner to
his regular duties following injury in an automobile accident. The
existence and extent of such an obligation in a case such as this
will depend on the interpretation of the collective bargaining
agreement. Thus, petitioner's claim, and respondent's disallowance
of it, stem from differing interpretations of the collective
bargaining agreement. The fact that petitioner intends to hereafter
seek employment elsewhere does not make his present claim against
his employer any the less a dispute as to the interpretation of a
collective bargaining agreement. His claim is therefore subject to
the Act's requirement that it be submitted to the Board for
adjustment.
The constitutional issue discussed in the dissent was not set
forth as a "question presented for review" in the
Page 406 U. S. 325
petition for certiorari, and therefore our Rule 23(1)(c)
precludes our consideration of it. "We do not reach for
constitutional questions not raised by the parties."
Mazer v.
Stein, 347 U. S. 201,
347 U. S. 206
n. 5 (1954).
The term "exhaustion of administrative remedies," in its broader
sense, may be an entirely appropriate description of the obligation
of both the employee and carrier under the Railway Labor Act to
resort to dispute settlement procedures provided by that Act. It is
clear, however, that, in at least some situations, the Act makes
the federal administrative remedy exclusive, rather than merely
requiring exhaustion of remedies in one forum before resorting to
another. A party who has litigated an issue before the Adjustment
Board on the merits may not relitigate that issue in an independent
judicial proceeding.
Union Pacific R. Co. v. Price,
360 U. S. 601
(1959). He is limited to the judicial review of the Board's
proceedings that the Act itself provides.
Gunther v. San Diego
& A. E. R. Co., 382 U. S. 257
(1965). In such a case, the proceedings afforded by 45 U.S.C. § 153
First (i), will be the only remedy available to the aggrieved
party.
In
Walker v. Southern R. Co., 385 U.
S. 196 (1966), the Court noted that there had been
complaints not only about the long delay in processing of
grievances on the part of the Adjustment Boards, but also about the
fact that a more extensive right of judicial review of Board action
was accorded to carriers than to employees. The Court noted that
Congress, by Public Law 89-456, 80 Stat. 208, effective June 20,
1966, had legislated to correct these difficulties, but observed
that the employee in
Walker had not had the benefit of
these new procedures. It therefore declined, "in his case," 385
U.S. at
385 U. S. 199,
to overrule
Moore. Petitioner Andrews, however, would, in
the prosecution of his claim before the Adjustment Board, have the
benefit of these
Page 406 U. S. 326
improved procedures. We now hold that he must avail himself of
them, and, in so doing, we necessarily overrule
Moore v.
Illinois Central R. Co., supra.
Affirmed.
MR. JUSTICE POWELL took no part in the consideration or decision
of this case.
* References throughout the opinion to respondent are to the
Georgia Railroad Co., which consisted of properties leased by
Louisville & Nashville Railroad Co. and Seaboard Coastline
Railroad Co. The petitioner alleged in his complaint that the
Georgia Railroad Co. had refused to allow him to return to
work.
MR. JUSTICE DOUGLAS, dissenting.
I
If this employee wanted reinstatement and back pay, there would
be merit in remitting him to the remedies under the Railway Labor
Act. But he does not want that relief. Rather, he desires to quit
the railroad, to have no further jobs with it, and to be
compensated in dollars for his wrongful discharge.
The cases on which the Court relies to overrule
Moore v.
Illinois Central R. Co., 312 U. S. 630, are
quite different.
Brotherhood of Railroad Trainmen v. Chicago R.
& I. R. Co., 353 U. S. 30,
involved claims of existing employees not for damages for wrongful
discharge, but for "additional compensation" and for
"reinstatement," and involved a "minor" dispute, that is, a
controversy "over the meaning of an existing collective bargaining
agreement."
Id. at
353 U. S. 32-33.
Machinists v. Central Airlines, 372 U.
S. 682, also involved reinstatement "without loss of
seniority and with back pay."
Id. at
372 U. S. 683.
In
Republic Steel Corp. v. Maddox, 379 U.
S. 650, the aggrieved employee wanted "severance pay"
allegedly owed under the collective bargaining agreement.
Id. at
379 U. S. 650-651.
In
Walker v. Southern R. Co., 385 U.
S. 196, the dispute basically involved an issue of
seniority, though the opinion does not disclose it. [
Footnote 1]
Page 406 U. S. 327
The complaint in this case alleges that, following an automobile
accident in which the petitioner employee was involved, the company
refused to allow him to go to work on the ground he had not
recovered sufficiently to perform his former duties. No issue
involving the collective bargaining agreement was tendered.
Petitioner -- rightly or wrongly -- claimed this was a discharge,
and that, under Georgia law, governing the place where he worked,
he had been deprived of wages from the time he recovered from the
accident, and that he was deprived "of the expectancy of future
earnings . . . until the date of his scheduled retirement."
In other words, he asks or no relief under the collective
agreement, he does not ask for reinstatement or severance pay, he
does not ask for continued employment. He is finished with this
railroad, and turns to other activities; he seeks no readmission to
the collective group that works for the railroad. He leaves it
completely, and seeks damages for having been forced out. [
Footnote 2]
Page 406 U. S. 328
To remit him to the National Railroad Adjustment Board is to
remit him to an agency that has no power to act on this claim. We
said as much in
Slocum v. Delaware, L. & W. R. Co.,
339 U. S. 239.
That case involved a grievance that "concerned interpretation of an
existing bargaining agreement."
Id. at
339 U. S. 242.
We therefore held that the employee first had to exhaust his
remedies before the Adjustment Board. We distinguished the case
from
Moore as follows:
"Our holding here is not inconsistent with our holding in
Moore v. Illinois Central R. Co., 312 U. S.
630. Moore was discharged by the railroad. He could have
challenged the validity of his discharge before the Board, seeking
reinstatement and back pay. Instead, he chose to accept the
railroad's action in discharging him as final, thereby ceasing
to
Page 406 U. S. 329
be an employee, and brought suit claiming damages for breach of
contract. As we there held, the Railway Labor Act does not bar
courts from adjudicating such cases.
A common law or statutory
action for wrongful discharge differs from any remedy which the
Board has power to provide, and does not involve questions of
future relations between the railroad and its other employees. If a
court, in handling such a case, must consider some provision of a
collective bargaining agreement, its interpretation would, of
course, have no binding effect on future interpretations by the
Board."
339 U.S. at
339 U. S. 244.
(Emphasis added.)
The Adjustment Board has considerable expertise in construing
and applying collective bargaining agreements, as respects
severance pay, seniority, disciplinary actions by management, and
the various aspects of reinstatement. But the body of law governing
the discharge of employees who do not want or seek reinstatement is
not found in customs of the shop or in the collective agreement,
but in the law of the place where the employee works. The
Adjustment Board is not competent to apply that law. In the first
place, the members of the four divisions of the Adjustment Board
authorized by 45 U.S.C. § 153 First (b) presumably do not know the
local law governing the employee employer relationships in all of
the States where railroads run. In the second place, the personnel
of these divisions of the Adjustment Board may occasionally have
lawyers on them, but law-trained members are the exception, not the
rule. In the third place, an employee seeking damages for
reinstatement is normally entitled to a jury trial, and no division
of the Adjustment Board ever pretends to serve in that role.
The Board, we now know, is made up of laymen; those laymen have
no insight into the nuances of Georgia
Page 406 U. S. 330
law on the question of damages, and they obviously cannot even
purport to give the remedy in damages which a "court suit"
entails.
The regime of mediation and arbitration under collective
bargaining agreements, such as the one we upheld in
Textile
Workers v. Lincoln Mills, 353 U. S. 448, and
those we have cited under the Railway Labor Act, are important in
stabilizing relations between unions and employers.
See U.S. Bulk Carriers v.
Arguelles, 400 U. S. 351,
400 U. S.
355-356. But where the collective bargaining agreement
is not directly involved, and certainly where the individual
employee, who tenders his grievance, wants to quit the railroad
scene and go elsewhere and sever his communal relation with union
and railroad, the case falls out of the ambit of authority given to
the mediation or arbitration agencies.
The courthouse is the forum for that litigant, and I would never
close its door to him unless the mandate of Congress were clear.
Even then, I do not see how the Seventh Amendment could be
circumvented: "In Suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury
shall be preserved."
Though the case is in the federal courts, this employee sues to
enforce a common law right recognized by the State of Georgia. The
only place he can get a trial by jury is in a court. If he sues
under a collective bargaining agreement, he does not sue at common
law, but under a statutory federal regime. Yet that is not this
case.
Everyone who joins a union does not give up his civil rights. If
he wants to leave the commune and assert his common law rights, I
had supposed that no one could stop him. I think it important under
our constitutional regime to leave as much initiative as possible
to the individual. What the Court does today is ruthlessly
Page 406 U. S. 331
to regiment a worker and force him to sacrifice his
constitutional rights in favor of a union. I would give him a
choice to pursue such rights as he has under the collective
agreement and stay with the union, [
Footnote 3] or to quit it and the railroad and free
himself from a regime which he finds oppressive. I would construe
the federal law as giving the employee that choice. The choice
imposed by the Court today raises serious constitutional questions
[
Footnote 4] on which we have
not had the benefit of any argument. This is a plain, ordinary,
common law suit not dependent on any term or provision of a
collective bargaining agreement. I cannot, therefore, join those
who would close the courthouse door to him. Under the First
Amendment, as applied to the States by the Fourteenth, he is
petitioning the Government "for a redress of grievances" in the
traditional manner of suitors at common law, and, by the Seventh
Amendment, is entitled to a jury trial.
II
As noted, my basic disagreements with the majority concern the
validity of the two assumptions implicit in its holding: (a) that
the collective agreement will be sufficiently implicated in this
dispute to warrant the application of federal substantive law, and
(b) that Congress has vested the Board with jurisdiction to
entertain
Page 406 U. S. 332
nonreinstatement grievances such as Andrews' complaint. But,
even taking these assumptions as correct for purposes of argument,
I believe the Court has erred.
The majority does not hold that Congress has mandated that the
statutory procedure be the exclusive route for adjusting Andrews'
grievance. Indeed, that path was foreclosed by our decision in
Walker v. Southern R. Co., 385 U.
S. 196, holding that, prior to the 166 amendments,
Congress had evinced no such purpose, and by the fact that nothing
in the 1966 amendments themselves evidences an intention to render
the statutory channel exclusive for nonreinstatement claims.
[
Footnote 5] Rather, today's
result is grounded in the authority of the federal courts to
fashion the substantive law to be applied to collective agreements.
Machinists v. Central Airlines, 372 U.
S. 682,
372 U. S. 695;
see also Textile Workers v. Lincoln Mills, 353 U.
S. 448. Even under that assumption, I would not impose
the exhaustion requirement upon this narrow and readily
identifiable group of dischargees.
There is no equation of the substantive law to govern agreements
under § 301 of the Labor Management Relations Act, into which
exclusive arbitration clauses may voluntarily be inserted by the
parties and the substantive law to govern railroad contracts, onto
which the statutory grievance procedure is superimposed by law. One
would not suppose that every doctrine developed under the Labor
Management Relations Act, 61 Stat. 136, should be carried over into
the apparatus created by the Railway Labor Act. A salutary doctrine
under one measure may serve no worthwhile purpose under the other.
Yet today the majority transplants
Page 406 U. S. 333
the
Maddox rule in the foreign soil of the railroad
world without any discussion of the ends to be served. Even
Maddox cautioned against that result, stating that any
overruling of
Moore should come only after
"the various distinctive features of the administrative remedies
provided by [the Railway Labor] Act can be appraised in context,
e.g., the make-up of the Adjustment Board, the scope of
review from monetary awards, and the ability of the Board to give
the same remedies as could be obtained by court suit."
379 U.S. at
379 U. S. 657
n. 14.
It is said that the fact that Congress (rather than private
parties, as in
Maddox) fashioned the instant adjustment
procedure somehow reinforces a presumption of exclusivity. Yet it
is difficult to perceive how that can be when it is also conceded,
as mentioned earlier, that Congress itself has never designed its
prescription to be the sole avenue of redress for this limited
class of claimants. Rather, the significance of the statutory
source of this procedure lies in its inflexibility and immunity
from modification through collective bargaining. Unlike the
Maddox rule, what is done today cannot be undone tomorrow
through contract negotiation. [
Footnote 6] That difference would seem to warrant caution
to ensure that more is to be gained than lost by closing the
courthouse door.
One clear disadvantage counsels against today's holding. Given
the nature of permanent dischargees' weak positions
vis-a-vis their former unions, the personnel manning the
adjustment mechanism, its haphazard decisional process, and the
absence of judicial review of Board decisions, the risk is
substantial that valid complaints
Page 406 U. S. 334
of permanent dischargees such as Andrews will be unfairly
treated.
The machinery erected by the Railway Labor Act was not meant to
be judicial in nature. Rather, it was designed as an arbitration
process in which the union and the carrier occupy opposite sides of
a bargaining table. As a substitute for the economic battleground,
the process envisions decisionmaking on the basis of strength and
accountability to the interests represented. Unions will often
press one grievance at the expense of another. If Andrews were a
continuing union member perhaps he would receive equal
representation. But because the union will not have to answer to
him if his claim is lost, the union may yield its merit in the
log-rolling process carried on with management. I now have doubt
that the reasoning of
Maddox was sound insofar as we
opined that a union agent will have sufficient interest in
faithfully prosecuting the complaint of a former member who "has
lost his job and is most likely outside the union door looking in,
instead of on hand to push for his claim." 379 U.S. at
379 U. S. 653
(majority opinion), and
379 U. S. 668
(Black, J., dissenting). Indeed, only this Term, in
Chemical
Workers v. Pittsburgh Glass, 404 U. S. 157, we
refused to permit a union to represent nonvoting pensioners,
holding that, under the National Labor Relations Act, 49 Stat. 449,
as amended, 29 U.S.C. § 151
et seq., the company was not
required to bargain with respect to pension plans affecting
inactive retirees. We reasoned that
"the risk cannot be overlooked that union representatives, on
occasion, might see fit to bargain for improved wages or other
conditions favoring active employees at the expense of retirees'
benefits. [
Footnote 7]"
Id. at
404 U. S.
173.
Page 406 U. S. 335
Beyond the inherent risk of compromise of a dischargee's claim,
there lie still further obstacles to fair treatment. First, the
internal procedures used by the Board are far afield from those
normally associated with impartial adjudication. The Board is
exempt from the Administrative Procedure Act, § 2(a)(1), 5 U.S.C. §
551(1). One account of its
ad hoc procedures leaves little
doubt that, before that forum, Andrews will have no means of
proving his allegations:
"As the Board has operated in practice, the procedures followed
in holding hearings have been quite informal, and have differed
from the trial-type hearings conducted by other agencies
established and maintained by the Federal Government. Disputes are
referred to the Adjustment Board by the filing of written
submissions. Each submission contains a statement of claim,
accompanied by a statement of facts. If the parties can agree, a
joint statement of facts is filed; if they cannot agree, separate
submissions are filed, stating the facts separately. All
submissions are in writing. Parties may be heard in person, by
counsel, or by other representatives as they elect. . . . It would
be most extraordinary for live testimony to be given by witnesses.
There is no requirement that a factual submission or other
Page 406 U. S. 336
written statement be sworn. There is no cross-examination of
witnesses, and no record or transcript of the proceedings. There is
no provision for issuance of subpoenas or compulsory attendance of
witnesses."
Hearing on H.R. 706 [1966 Railway Labor Act amendments] before
the Subcommittee on Labor of the Senate Committee on Labor and
Public Welfare, 89th Cong., 2d Sess., 49 (1966).
All of this might be made tolerable if, at some point in his
journey, Andrews could look forward to a judge's inquiry into the
affair. But the fact is that whatever order by whatever process the
Board may enter will be virtually immune from any judicial review,
because an award, either of the Adjustment Board or of a special
board, is reviewable only for fraud or for lack of jurisdiction. 45
U.S.C. § 153(p) (proviso).
On the other side of the balance, it could not be claimed that
permitting a judicial remedy (in addition to an administrative one)
would risk economic warfare, especially in light of the estranged
relationship of permanent dischargees to their former unions. Nor
could it be claimed that a judicial remedy would risk nonuniformity
in interpretation of collective agreements, inasmuch as courts as
well as the Board would be obliged to apply a single body of
federal common law.
See Maddox, supra, at
379 U. S. 658
n. 15.
In summary, the danger of unfair treatment of the clearly
identifiable class of dischargees represented by Andrews is so
great, without any compensating advantages, that I would not
confine these claimants to the administrative remedy.
[
Footnote 1]
The opinion of the Court of Appeals in the
Walker case
makes clear that the seniority dispute was based on the collective
agreement. 354 F.2d 950.
[
Footnote 2]
The Georgia law of "wrongful discharge" seems to amount to a set
of common law axioms of construction to fill in the ambiguities in
employment contracts and employment relationships. If there is a
contract, however, which expressly addresses the issue, the
contract, and not the construction axioms, controls. For example,
unless a contract provides otherwise, disobedience is a ground for
discharge,
Georgia Coast & Piedmont R. Co. v.
McFarland, 132 Ga. 639, 64 S.E. 897, as is disrespectful
language,
Wade v. Hefner, 16 Ga.App. 106, 84 S.E. 598. If
the employment contract, whether oral or written, provides that the
worker may be fired only if his performance is unsatisfactory, he
may not be discharged only for economic necessity,
Lummus
Cotton Gin Co. v. Baugh, 29 Ga.App. 498, 116 S.E. 51, although
"mitigating factors" may generally be a defense.
Walker v.
Jenkins, 32 Ga.App. 238, 123 S.E. 161.
But where the language of the agreement is clear, that language
controls, and not the rules of construction. Thus, if the parties
provide that the employer may fire at will, no discharge can be
wrongful.
Webb v. The Warren Co., 113 Ga.App. 850, 149
S.E.2d 867.
The general presumption is that hiring is terminable at will,
unless some definite period of employment is provided or inferable
from the relationship. Ga.Code Ann. § 66-101 (master and servant).
The intent of the parties is the guide to determine if the courts
may look to custom or the pay interval, if the contract is
otherwise ambiguous.
Odom v. Bush, 125 Ga. 184, 53 S.E.
1013. Thus, if the worker is paid monthly, he must be given 30
days' notice.
As to damages, once it is shown that the discharge was wrongful,
the measure of damages is the difference between the rate of pay
and what the dischargee might have been able to earn in other
employment. Ga.Code Ann. § 216. The fact that the employer
prevented the employee from performing the remainder of the service
is not a bar to recovery on that portion of the term.
Irwin v.
Young, 91 Ga.App. 773,
87 S.E.2d
322.
For Andrews to recover on a damages theory, it appears that it
would be necessary for him to show first that he was not
dischargeable at will. We do not know from the pleadings what proof
Andrews will tender. So far as we can now tell, the collective
agreement is not in issue. His complaint does not state the source
of the employer's duty; and respondents allege that the collective
agreement creates no such duty. As to damages, it is also
impossible to say that any terms of the collective agreement will
be relevant to this dispute.
[
Footnote 3]
The Board is currently disposing of petitions at the rate of
about 1,500 annually. At that rate, the Board will eliminate its
present backlog of slightly more than 3,000 cases in two years.
Thirty-Seventh Annual Report of the National Mediation Board 95
(Table 9) (1971).
[
Footnote 4]
Constitutional issues not raised by the parties are at times
passed upon by the Court. For a notorious example,
see Erie R.
Co. v. Tompkins, 304 U. S. 64, and
Butler, J.'s comments,
id. at
304 U. S. 88-89.
See also Mapp v. Ohio, 367 U. S. 643,
367 U. S.
673-677 (Harlan, J., dissenting);
Redrup v. New
York, 386 U. S. 767,
386 U. S.
771-772 (Harlan, J., dissenting).
[
Footnote 5]
Nothing in the 1966 amendments nor their related legislative
history even suggests or hints at a design to overrule
Moore v.
Illinois Central R. Co., 312 U. S. 630.
See H.R.Rep. No. 1114, 89th Cong., 1st Sess. (1965);
S.Rep. No. 1201, 89th Cong., 2d Sess. (1966).
[
Footnote 6]
It was expressly observed by the majority in
Republic Steel
Corp. v. Maddox, 379 U. S. 650,
379 U. S.
657-658, that bargaining parties could avoid the force
of that opinion simply by agreeing that arbitration was not the
exclusive remedy.
[
Footnote 7]
One commentator on the Act has warned that representation by a
union may be a critical factor in obtaining a favorable award:
"[A]n individual's efforts will presumably be less effective
than that of a union, particularly since the grievance will
ultimately be resolved by a board composed in part of
representatives of affected unions."
Risher, The Railway Labor Act, 12 B.C.Ind. & Com.L.Rev. 51,
72 (1970). The plight of the unionless grievant is more alarming
when viewed in light of the unsatisfactory record under the
Act:
"
The Railway Labor Act is special privilege
legislation, the product of the once great political power of
the railroad unions. It has been administered as such. This
accounts for the dismal administrative records of the National
Mediation Board and the National Railroad Adjustment Board in . . .
protection of individual rights, and grievance adjustments."
Northrup, Foreword to Risher, The Railway Labor Act,
supra, at 52.