The opinion of the court was delivered by: PALMIERI
Plaintiffs, members of Lodge 2053 of the defendant, Brotherhood of Railway and Steamship Clerks, and former employees of the defendant Railway Express Agency, Inc., have brought this action alleging that they were wrongfully laid off as a result of a contract violation on the part of both defendants and 'hostile discrimination' on the part of the Brotherhood. Plaintiffs request relief in the form of an order directing their reinstatement with back pay and requiring the Brotherhood to process their grievance. In the alternative, plaintiffs request damages for wrongful discharge. Defendants seek dismissal of the complaint on the ground that the court is not competent to proceed since the applicable provision of the Railway Labor Act, 44 Stat. 576 (1926), as amended, 45 U.S.C.A. 153,
requires plaintiffs to seek relief in an administrative proceeding before the National Railroad Adjustment Board. In the event that direct recourse to the court is permitted, defendants request summary judgment on the merits.
The complaint alleges that plaintiffs were formerly employed at the Communipaw Terminal of Railway Express in Jersey City, New Jersey and that on April 16, 1958, the defendants entered into a 'Special Agreement'
relating to the transfer of work and positions from the Communipaw Terminal to other terminals operated by Railway Express. The 'Special Agreement,' in restricting the number of men to be transferred and thereby precluding plaintiffs from obtaining employment, is alleged to violate Rule 22 of the collective bargaining agreement between Railway Express and the Brotherhood
and Resolution 213 of the Conventions of the Brotherhood.
Plaintiffs further allege that defendants' conduct constituted a violation of the Railway Labor Act because, pursuant to the 'Special Agreement,' processing of grievances was prohibited
and discrimination was practiced against plaintiffs in favor of employees at other terminals.
When the Baltimore and Ohio Railroad discontinued passenger service into the Communipaw Terminal in the spring of 1958, Railway Express substantially terminated its operations at Communipaw and rerouted traffic into its Pennsylvania Terminal. Railway Express advised the Brotherhood that Rule 22 could not be invoked to provide jobs at other terminals for Communipaw men. Railway Express took the position that the jobs which the Communipaw men had been employed to perform ceased to exist with the abandonment of service by the Baltimore and Ohio Railroad, leaving no express work or positions to be transferred. A committee of the District Board of Adjustment of the Brotherhood asked Railway Express to alleviate the situation by filling additional jobs that might be available at the Pennsylvania Terminal from the Communipaw roster. As a result of this proposal, the 'Special Agreement' was executed pursuant to which 65 Communipaw employees were given positions at the Pennsylvania Terminal.
It is plaintiffs' contention that the seniority rosters at the Pennsylvania and Communipaw Terminals should have been combined and that if such a combination had been effected, plaintiffs and other Communipaw employees would have displaced those employees at the Pennsylvania Terminal, members of Lodge 2147, whose seniority would have been lower on a combined list. Defendants maintain that Railway Express was under no contractual obligation to transfer any of the Communipaw men and that therefore, the 'Special Agreement' took no rights away from plaintiffs.
II -- Jurisdiction of the National Railroad Adjustment Board
Absent the charge of 'hostile discrimination' on the part of the Brotherhood, plaintiffs concede that the National Railroad Adjustment Board would be competent to resolve this dispute. See Pennsylvania R. Co. v. Day, 1959, 360 U.S. 548, 79 S. Ct. 1322, 3 L. Ed. 2d 1422; Slocum v. Delaware, L. W.R. Co., 1950, 339 U.S. 239, 70 S. Ct. 577, 94 L. Ed. 795; cf. Felter v. Southern Pacific Co., 1959, 359 U.S. 326, 327 note 3, 79 S. Ct. 847, 3 L. Ed. 2d 854. Concurring in the position taken by Railway Express that Rule 22 was not applicable to the Communipaw situation, the Brotherhood agreed not to file any grievance or claim on behalf of Communipaw employees who lost their jobs.
It is not disputed, however, that despite the Brotherhood's refusal to urge plaintiffs' theory of the scope and application of Rule 22, plaintiffs have standing to present their contentions to the Board. See Elgin, J. E.R.Co. v. Burley, 1945, 325 U.S. 711, 65 S. Ct. 1282, 89 L.ed. 1886, adhered to on rehearing, 1946, 327 U.S. 661, 66 S. Ct. 721, 90 L. Ed. 928. Plaintiffs' argument that the National Railroad Adjustment Board is not disinterested and would therefore deprive them of procedural due process is speculative in nature and, at this stage of the controversy, inadequate to frustrate the congressional purpose to place primary jurisdiction in the administrative tribunal. E. g., United Railroad Operating Crafts v. Pennsylvania R. Co., 7 Cir., 1954, 212 F.2d 938, 942; United Railroad Operating Crafts v. Wyer, D.C.S.D.N.Y., 115 F.Supp. 359, 365, affirmed, 2 Cir., 1953, 205 F.2d 153, certiorari denied, 1954, 347 U.S. 929, 74 S. Ct. 529, 98 L. Ed. 1081; cf. Edwards v. Capital Airlines, Inc., 84 U.S.App.D.C. 346, 176 F.2d 755, certiorari denied, 1949, 338 U.S. 885, 70 S. Ct. 186, 94 L. Ed. 543 (review on merits granted where court found system board biased).
III -- The Claims Asserted By Plaintiffs
In support of their contention that they are not required to seek an administrative remedy, plaintiffs explain that their complaint is designed to state two basic claims, both of which are appropriate for adjudication by the court. The first claim is said to present a 'federal question' arising under the Railway Labor Act. See 28 U.S.C. § 1337 (1958) (federal courts have jurisdiction of civil actions arising under any law regulating commerce). According to plaintiffs, the essence of their 'federal question' claim lies in the charge that the Brotherhood discriminated against some 82 members of Lodge 2053 by refusing to demand that Railway Express transfer these employees to other terminals when operations at Communipaw were terminated. This assertion, that the Brotherhood failed to represent the entire membership in good faith in entering into the 'Special Agreement,' is said to bring the dispute within the doctrine enunciated in Cunningham v. Erie R. Co., 2 Cir., 1959, 266 F.2d 411 and in other cases dealing with a union's statutory duty to represent all employees fairly and equally. See Conley v. Gibson, 1957, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80; Brotherhood of Railroad Trainmen v. Howard, 1952, 343 U.S. 768, 72 S. Ct. 1022, 96 L. Ed. 1283; Steele v. Louisville & Nashville R. Co., 1944, 323 U.S. 192, 65 S. Ct. 226, 89 L. Ed. 173; Mount v. Grand International Brotherhood of Locomotive Engineers, 6 Cir., 1955, 226 F.2d 604. The second claim is said to present a state cause of action for wrongful lay-off in violation of contract, a claim which is validly before the court since diversity of citizenship is admittedly present.
A. The Discrimination Claim
With regard to the claim alleged under the Railway Labor Act, the court has been instructed that the simple question to be resolved is this: 'does the dispute grow 'out of grievances or out of the interpretation or application of' the (collective bargaining agreement) or is it a question of statutory interpretation?' Latham v. Baltimore & O.R. Co., 2 Cir., 1960, 274 F.2d 507, 511; Cunningham v. Erie R. Co., supra at page 416 of 266 F.2d. If the question is one of statutory interpretation, the court is free to decide the controversy; if the interpretation or application of the collective bargaining agreement is basic to the dispute, primary jurisdiction rests in the National Railroad Adjustment Board.
To establish their principal charge against Railway Express, it is evident that plaintiffs seek an interpretation of the scope and application of a provision of the collective bargaining agreement. See Gainey v. Brotherhood of Railway and Steamship Clerks, D.C.E.D.Pa.1959, 177 F.Supp. 421, 429, affirmed, 3 Cir., 1960, 275 F.2d 342. Indeed, plaintiffs urge that it was incumbent upon the Brotherhood to challenge the Railway Express interpretation of Rule 22. By failing to do so and instead, concurring in the violation of Rule 22, the Brotherhood is said to have violated its statutory duty of good faith representation.
However, plaintiffs maintain that regardless of the nature of their direct charge against Railway Express,
the charge against the Brotherhood does not stem primarily from a dispute as to interpretation or application of the collective bargaining agreement. In their brief, plaintiffs state their position as follows:
'Assuming arguendo that Rule 22 were interpreted to permit the Special Agreement (and plaintiffs deny that it can be so interpreted) if the fact is that practice and precedent are such that the Brotherhood has consistently acted in a manner consistent with plaintiffs' view of Rule 22, then the sudden deviation without reason from such ...