RUSSELL, Circuit Judge.
The appellant Michel instituted suit against the appellee, Louisville & Nashville Railroad Company, alleging that his discharge from employment by the appellee was an unjustified breach of an employment contract entered into by him with the railroad through his representative, the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station employees. He especially plead and relied upon Rule 19(a) of the contract of
employment.
It was also alleged that by reason of failure to give the notice provided, the prosecution of the charge had become barred. Damages were sought for breach of the contract. The defendant-appellee' responded with a motion for summary judgment, by which it was made to appear that the plaintiff had, through a union representative, prosecuted his claim for reinstatement to his former position and pay for time lost before the employer, as required by the agreement, and thereafter before the National Railroad Adjustment Board, Third Division. Further, that this was done, not only with full knowledge of plaintiff, but as a result of his vigorous insistence that his rights be protected by his union representative, and the institution of the proceeding before the Board expressly approved by letter.
Michel was notified by such representative of the hearing before the Adjustment Board and invited to attend.
The Adjustment Board, stating the “Claim * * * that Mr. J. B. Michel, Depot Ticket Clerk, New Orleans, La., shall be reinstated with seniority rights unimpaired, and be reimbursed for wage loss suffered retroactive to April 11, 1946,” (the date of dismissal), entered findings that the dismissal was justified.
The response in opposition to the motion for summary judgment is predicated upon a series of correspondence which seeks to establish, in substance, that the union representatives were reluctant to institute the proceeding to secure reinstatement and back pay, and only did so after vigorous prodding on behalf of Michel by his attorney at law (who also represents him upon this appeal) and after action by Michel’s local Lodge of the Brotherhood. Thus there is no substantial dispute as to the facts in the case, though the parties assert contrary conclusions of the legal effect of what is shown.
The motion for summary judgment was sustained and this action is specified as error for four reasons.
The primary question in the case is whether the voluntary submission of the
employee’s claim to the Division of the Railroad Adjustment Board having jurisdiction thereof, the prosecution of which was had with the full approval of the employee, and the determination of the claim upon the merits and adverse to the employee’s contentions, presented a bar to a subsequent suit upon the same employment contract between the claimant against the carrier in a suit at law for damages.
We are of the opinion that under these circumstances, the proceeding before the National Railroad Adjustment Board evidenced an election of inconsistent remedies in that it was an acceptance of one of the two means afforded by law for redress for any grievances or claim arising out of the alleged unjustified discharge of the then claimant, now appellant, Michel.
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RUSSELL, Circuit Judge.
The appellant Michel instituted suit against the appellee, Louisville & Nashville Railroad Company, alleging that his discharge from employment by the appellee was an unjustified breach of an employment contract entered into by him with the railroad through his representative, the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station employees. He especially plead and relied upon Rule 19(a) of the contract of
employment.
It was also alleged that by reason of failure to give the notice provided, the prosecution of the charge had become barred. Damages were sought for breach of the contract. The defendant-appellee' responded with a motion for summary judgment, by which it was made to appear that the plaintiff had, through a union representative, prosecuted his claim for reinstatement to his former position and pay for time lost before the employer, as required by the agreement, and thereafter before the National Railroad Adjustment Board, Third Division. Further, that this was done, not only with full knowledge of plaintiff, but as a result of his vigorous insistence that his rights be protected by his union representative, and the institution of the proceeding before the Board expressly approved by letter.
Michel was notified by such representative of the hearing before the Adjustment Board and invited to attend.
The Adjustment Board, stating the “Claim * * * that Mr. J. B. Michel, Depot Ticket Clerk, New Orleans, La., shall be reinstated with seniority rights unimpaired, and be reimbursed for wage loss suffered retroactive to April 11, 1946,” (the date of dismissal), entered findings that the dismissal was justified.
The response in opposition to the motion for summary judgment is predicated upon a series of correspondence which seeks to establish, in substance, that the union representatives were reluctant to institute the proceeding to secure reinstatement and back pay, and only did so after vigorous prodding on behalf of Michel by his attorney at law (who also represents him upon this appeal) and after action by Michel’s local Lodge of the Brotherhood. Thus there is no substantial dispute as to the facts in the case, though the parties assert contrary conclusions of the legal effect of what is shown.
The motion for summary judgment was sustained and this action is specified as error for four reasons.
The primary question in the case is whether the voluntary submission of the
employee’s claim to the Division of the Railroad Adjustment Board having jurisdiction thereof, the prosecution of which was had with the full approval of the employee, and the determination of the claim upon the merits and adverse to the employee’s contentions, presented a bar to a subsequent suit upon the same employment contract between the claimant against the carrier in a suit at law for damages.
We are of the opinion that under these circumstances, the proceeding before the National Railroad Adjustment Board evidenced an election of inconsistent remedies in that it was an acceptance of one of the two means afforded by law for redress for any grievances or claim arising out of the alleged unjustified discharge of the then claimant, now appellant, Michel.
There would seem to be no occasion here for any detailed discussion of the purpose and effect of the Railway Labor Act, 45 U.S.C.A. Section 151, et seq. This subject has received exhaustive consideration in Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886; Id., 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928; Washington Terminal Co. v. Boswell, 75 U.S.App.D.C. 1, 124 F.2d 235, affirmed by an equally divided Court, 319 U.S. 732, 63 S.Ct. 1430, 87 L.Ed. 1694, and others which could be mentioned. Suffice it here to say that Congress provided procedure whereby the carriers and their employees might obtain a speedy and just determination of grievances by a body recognized as qualified by experience to settle such disputes by a hearing, which even if informal from the judicial standpoint, nevertheless affords opportunity for presentation and determination of claims by the application of rules and principles developed by experience and well understood by carriers, their employees, and union representatives. Further reference to Slocum v. Delaware, L. & W. R. Co., supra, Order of Ry. Conductors v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318, and the Burley case, supra, manifest the important and significant role of the National Railroad Adjustment Board in effectuating the congressional intent to provide means for the effective settlement of disputes between carriers and their employees. There is, however, no requirement that an employee so prosecute his claim for relief for breach of an employment agreement before the Adjustment Board. He may proceed in the first instance by suit in the Courts to recover damages for breach of the contract. Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, and as further discussed in Slocum v. Delaware, L. & W. R. Co., supra. However, when there is a voluntary election to proceed in the manner provided by the Railway Labor Act, 45 U.S. C.A. § 151 et seq., supra, and the .claim pursued to a determination of the merits by the Adjustment Board, this procedure by both right and reason represents an élection of remedies which bars the independent suit which was otherwise available to the claim
ant. This construction finds strong support in the statute, especially the provision that “the awards shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award * *
In any event, it can not be questioned that by the Act Congress has established a forum for the settlement of such disputes to which the employee may resort if he so desires. Consequently, there would appear no reason for not enforcing in such instances the fundamental principle that where one of two inconsistent remedies are available, the election of one precludes recourse to the other. This has been the uniform holdings, correctly we think, of the Courts which have considered this question.
It follows therefore that in the present case, it appearing from the uncontradicted facts that the question of whether the discharge of the appellant, Michel, was justified, on the one hand, or constituted a violation of the employment agreement on the other, has, in proceedings in effect instituted and prosecuted by appellant, been determined adversely to his contentions, he is therefore not legally entitled to maintain the present suit upon the same claim.
It is asserted, however, that if the provisions of the statute and the award of the Adjustment Board be given the effect just indicated, then the statute is unconstitutional as evidencing a delegation of judicial power to the Adjustment Board. As we have seen, the statute provides the manner or system of procedure, as well as the finality of the result. This case presents the reverse of the question determined in Washington Terminal Company v. Boswell, supra, and New Orleans Public Belt Railroad Comm. v. Ward, 5 Cir., 182 F.2d 654, m that here the “finality” is operative against the employee, but this, as shown, results from a voluntary submission of the question to the Adjustment Board. It would seem clear that the award of a body, having a function of such importance as that recourse to it is requisite even before the institution of litigation in bankruptcy (Pitney case, supra), or State (Slocum case supra) Courts, is entitled to receive the finality provided by the statute against one who voluntarily invokes its jurisdiction.
As we view the matter, there is no occasion for any examination of the constitutional question sought to be presented, for the appellant having presented and prosecuted his claim, in the manner provided by the statute, which eventuated in an adverse award, must be held by such conduct and election to have waived the right to assail the constitutional. validity of the manner and extent of redress afforded by the terms of the statute under which he proceeded. Wall v. Parrot Silver & Cooper Co., 244 U.S. 407, 411, 37 S.Ct. 609, 61 L.Ed. 1229, and citations; Booth Fisheries v. Industrial Comm., 271 U.S. 208, 46 S.Ct. 491, 70 L.Ed. 908, and citations; Eliason v. Wilborn, 335 Ill. 352, 167 N.E. 101, 68 A.L.R. 350, and opinion affirming at 281 U.S. 457, 50 S.Ct. 382, 74 L.Ed. 962. We therefore do not consider the attack upon the constitutionality of the statute.
The remaining point relied upon by the appellant is determined adversely to his contentions by our ruling upon the primary question. The judgment of the trial Court sustaining the motion for summary judgment was proper, and it is
Affirmed.