421 F2d 1400 Smith v. Atlantic Coast Line Railroad Company

421 F.2d 1400

M. Durwood SMITH, Plaintiff-Appellant,
ATLANTIC COAST LINE RAILROAD COMPANY (Now Seaboard Coast Line Railroad), Brotherhood of Railway, Airline and Steamship Clerks, et al., Defendants-Appellees.

No. 27985.

United States Court of Appeals, Fifth Circuit.

January 19, 1970.

M. Durwood Smith, pro se, C. Ray Greene, Greene, Greene, Kennelly & Stockton, Jacksonville, Fla., for plaintiff-appellant.

John S. Cox, Jacksonville, Fla., for Atlantic Coast Line Railroad Co.; Cox & Webb, Jacksonville, Fla., of counsel.

William H. Adams, Guy O. Farmer, II, Mahoney, Hadlow, Chambers & Adams, Jacksonville, Fla., Mulholland, Hickey & Lyman, James L. Highsaw, Jr., Washington, D. C., for Brotherhood of Railway, Airline and Steamship Clerks, and others; William J. Donlon, Gen. Counsel, Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes, Rosemont, Ill., of counsel.

Before JOHN R. BROWN, Chief Judge, and COLEMAN and CLARK, Circuit Judges.


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This is an appeal from an order of dismissal which, because of the use of affidavits and other materials, we treat as one for summary judgment for the Railroad and the Brotherhood. On this record we think the Judge was entitled to conclude that there was no genuine issue of fact regarding the failure of the employee to exhaust his remedies under the Railway Labor Act including the ultimate submission of this minor grievance to the Railway Labor Board of Adjustment. The result is that the judgment must be affirmed. But we stress that this is on the present record only and this is without prejudice to whatever rights the employee might have before the Railway Labor Board of Adjustment and this affirmance is in no sense to constitute res judicata, collateral estoppel or the like.