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February 23, 1955

N. P. RYCHLIK, individually and on behalf of and as representative of other employees of the Pennsylvania Railroad, Plaintiffs,
BROTHERHOOD OF RAILROAD TRAINMEN, an unincorporated association, Intervening Defendant, and Pennsylvania Railroad Company, Defendant

The opinion of the court was delivered by: KNIGHT

The above entitled matter comes before this Court on an order to show cause obtained by the plaintiff why an order should not be made restraining and granting certain injunctive relief against the defendants, Hartman, Sites, and Gaily, individually and as members of and representatives of the Brotherhood of Railroad Trainmen (hereinafter called 'BRT') and the Pennsylvania Railroad (hereinafter called 'Penn'). By consent of the parties, the BRT was permitted to intervene as defendants in place of the individuals, Hartman, Sites, and Gaily.

The complaint was verified, and attached thereto was an affidavit of the attorney for the plaintiff, purported to be made on knowledge and not on information and belief. It will be seen that numerous matters touching the determination herein are included in the affidavit which are not set forth in the complaint. It seems obvious that the attorney could have no personal knowledge of various of the alleged facts set forth in the affidavit. However, in view of the decision at which I arrive, the affidavit of the attorney will be considered.

 The defendants have moved to dismiss the complaint on the grounds that the plaintiff has not set forth a cause of action in his complaint; that the Court has no jurisdiction to determine the alleged issues involved; and that the alleged issues are solely within the determination of the System Board of Adjustment established pursuant to the Railway Labor Act, 45 U.S.C.A. § 151 et seq. As alleged in the Complaint, such employees were discharged by Penn upon notice served on or about January 17, 1955 and, as also alleged in the Complaint, during the year 1953 they 'allowed their membership to lapse'. The plaintiff timely appealed to the System Board of Adjustment and their appeal was pending until January 17, 1955, when the plaintiff was discharged. The delay apparently was caused by the effort to determine whether membership i the United Railroad Operating Crafts (hereinafter referred to as 'UROC') constituted compliance with Union Shop Agreement. Meanwhile the plaintiff continued in his employment till his discharge.

 A temporary restraining order was sought, but this was refused since the plaintiff had already been discharged. A permanent injunction is now sought for the reinstatement of the plaintiff and his fellow employees on the ground their discharge for non-compliance with the Union Shop Agreement between the BRT and Penn was illegal. A copy of such Agreement was attached as a part of the Complaint. It appears that plaintiff was a member of UROC at the time of his discharge and as appears from the discharge notice set out in the Complaint that plaintiff was discharged because membership in UROC did not constitute compliance with the Union Shop Agreement. (Exhibit A.) The BRT is a union organization, certified under the Railway Labor Act to represent operating employees of Penn employed as brakemen and conductors on its railroad lines. Plaintiff was a trainman.

 On or about the 26th day of March, 1952, BRT and Penn entered into a Union Shop Agreement, pursuant to the provisions of Sec. 2, Eleventh of the Railway Labor Act, as amended. (Exhibit A attached to the Complaint.) Plaintiff asserts that he joined the Switchmen's Union on July 31, 1954 and he presented proof of such membership at a hearing in Pittsburgh, Pa. on August 23, 1954. What his status was as regards UROC then or now does not appear.

 In the complaint there is no allegation that the plaintiff became a member of UROC, but the affidavit contains this statement: 'In or about February 2, 1953, the plaintiff, Rychlik, resigned his membership from the said BRT and became a member in good standing of the Railroad Operating Crafts, which the plaintiff fully believed in good faith to be a railroad union national in scope.'

 It is significant that this is made by the attorney for the plaintiff. It also appears from a further statement in such affidavit that plaintiff was a member of the BRT until in or about February, 1953. On August 23, 1954, at Pittsburgh, Penn., the plaintiff presented proofs showing that he had joined the Switchmen's Union of North America on July 31, 1954, and that the plaintiff was a member in good standing in the Switchmen's Union as of the time of the hearing; that since that time he has continued as a member in good standing of the Switchmen's Union of North America, which is recognized as being national in scope. It is alleged that there has been no conclusive determination of the status of the said UROC. On January 3, 1955, plaintiff was notified by the System Board of Adjustments of its decision that he had not complied with the Union Shop Agreement between the Penn and BRT (Exhibit 'B' attached to complaint). On January 14, 1955, he was orally notified by the defendant company that he was out of the service. On January 17, 1955, he received a written notification of the termination of his service as of January 14, 1955.

 There is nothing in the complaint or affidavit which shows that plaintiff ever resigned membership in the UROC.

 Section 153, Title 45, insofar as applicable, provides for the composition of Adjustment Boards and provides:

 ' § 153.

 'First. * * *

 '(h) The said Adjustment Board shall be composed of four divisions, whose proceedings shall be independent of one another, and the said divisions as well as the number of their members shall be as follows:

 'First division: To have jurisdiction over disputes involving train-and yard-service employees of carriers; that is, engineers, firemen, hostlers, and outside hostler helpers, conductors, trainmen, and yard-service employees. This division shall consist of ten members, five of whom shall be selected and designated by the carriers and five of whom shall be selected and designated by the national labor organizations of the employees. * * *

 'Second. Nothing in this section shall be construed to prevent any individual carrier, system, or group of carriers and any class or classes of its or their employees, all acting through their representatives, selected in accordance with the provisions of this chapter, from mutually agreeing to the establishment of system, group, or regional boards of adjustment for the purpose of adjusting and deciding disputes of the character specified in this section. In the event that either party to such a system, group, or regional board of adjustment is ...

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