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OTTEN v. BALTIMORE & OHIO R.R. CO.

July 8, 1955

Theodore F. OTTEN, Plaintiff,
v.
BALTIMORE & OHIO RAILROAD COMPANY and The Staten Island Rapid Transit Railway Company, Defendants, International Brotherhood of Electrical Workers, Intervenor-Defendant



The opinion of the court was delivered by: BYERS

This plaintiff was formerly an employee of the Staten Island Rapid Transit Railway Company now the sole defendant, continuously from February 1, 1941 until March 1, 1953 when he was discharged because of his failure to join the International Brotherhood of Electrical Workers, the intervening defendant. That was the union with which his employer entered into a union shop agreement bearing date August 28, 1951.

The agreement was sanctioned by the applicable provisions of the Railway Labor Act as amended in 1951, see Title 45 U.S.C.A. § 152.

 The plaintiff cause is discussed in the opinion of the Court of Appeals for this Circuit, reported in 205 F.2d 58. There the court affirmed an order of Judge Abruzzo who had denied plaintiff's motion for a temporary injunction, and for the appointment of a three judge court, Tit. 28 U.S.C. § 2282, to pass upon plaintiff's suit for a final injunction based upon the alleged unconstitutionality of the said 1951 amendment.

 Since the court was dealing with an order, the occasion was probably not technically appropriate for directing a judgment of dismissal, although the opinion seems to indicate that inevitable outcome of the litigation.

 It was deemed this court's duty when the case was called for trial, to receive all testimony deemed to be relevant by the litigants, and to make findings to the end that the decree to be entered shall be in legal form for review.

 That which was offered at the trial was little if any in extension of the facts as discussed in the opinion of the Court of Appeals. Thus nothing is seen to be presently required by way of discussion in making the following:

 Findings of Fact

 1. The plaintiff Theodore F. Otten, being then 'a third-rail maintainer' in the employ of the Staten Island Rapid Transit Railway Company, was discharged from his employment for the sole reason that he refused to join the International Brotherhood of Electrical Workers.

 2. He had been continuously in the said employ from February 1, 1941, and his work record was excellent.

 3. The said discharge was ordered by virtue of the provisions of a union shop agreement bearing date of August 28, 1951 between his employer and the intervening defendant, which was the duly qualified collective bargaining representative of the craft in which the plaintiff pursued his calling.

 4. The said contract was entered into pursuant to the applicable provisions of the Railway Labor Act as amended in 1951.

 5. The said discharge was ordered by the defendant pursuant to demand made by the intervening defendant for the reason that the plaintiff refused to become a member of that union.

 6. The plaintiff's refusal to join the said union was a matter of conscience, based upon the teachings of the religious body of which he was a member, and not because of any hostility upon his part to labor unions in general, or the intervening defendant in particular.

 7. The said discharge resulted in financial loss on the part of the plaintiff, namely, his loss of pay ...


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