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May 16, 1963


The opinion of the court was delivered by: WYATT

Defendant moves with supporting affidavits under Fed.R.Civ.P. 12 to dismiss the action (a) because the complaint fails to state a claim against defendant upon which relief can be granted and (b) because there is a lack of jurisdiction over the subject matter. In the alternative defendant moves with the same supporting affidavits under Fed.R.Civ.P. 56 for a summary judgment in its favor.

The motion for a summary judgment in favor of defendant is granted because there is no genuine issue as to any material fact and defendant is entitled to a judgment as a matter of law.

 The complaint contains two counts; the governing facts and law will be considered under each count separately.

 The First Count

 This is to enjoin alleged violations by defendant of the Railway Labor Act (45 U.S.C.A. § 151 and following). Plaintiff asserts that defendant, in violation of the Act, is modifying or changing rules or working conditions contained in a collective agreement.

 Plaintiff is a local labor organization affiliated with a national labor organization, the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes. The Brotherhood executed (on behalf of the employees) a collective agreement dated and effective September 1, 1949 which is still in effect and continues until changed as therein provided, 'or under the provisions of the amended Railway Labor Act'. The defendant Railway Express Agency, Inc., a corporation is the employer party to such agreement. The agreement, according to its title, governs 'hours of service and working conditions'.

 Plaintiff alleges that it represents the employees of defendant at Ardsley Terminal in Westchester County. The place and standing of plaintiff as any such representative is not clear. The complaint contains averments about the duty of plaintiff 'as representative of the Ardsley employees under the Railway Labor Act', about its 'statutory responsibilities as representative of the employees under the 45 U.S.C.A. Sec. 152', and about action by defendant to 'influence the employees in the choice and designation of their collective bargaining representative'.

 As already noted, however, the agreement on which this action is based was executed for the employees by the Brotherhood. While plaintiff may be a subdivision or affiliate of the Brotherhood, it appears from the papers submitted that the Brotherhood and not the plaintiff is the 'representative of the craft or class' for purposes of the Railway Labor Act (45 U.S.C.A. § 152, Fourth). See Ferro v. Railway Express Agency, Inc., 296 F.2d 847, at 850 (2d Cir., 1961), where the same collective bargaining agreement was under discussion.

 The agreement provides, among other things, for the establishment of 'seniority districts' (Rule 3; the provisions of the agreement are designated as 'Rules'). It appears that defendant's New Haven Express Terminal (located on the New Haven Railroad in the Bronx) was in one such seniority district, its Ardsley Terminal in another. It is said for plaintiff that the employees in these separate seniority districts 'are represented by different Lodges of the Brotherhood' (Complaint, par. 6).

 The New Haven Terminal was closed on January 14, 1963; the work and employees of the closed terminal were transferred by defendant to its Ardsley, Hoboken and Pennsylvania Station (New York) Terminals. Of the employees at the closed New Haven Terminal, 28 'active' employees and 27 'inactive' employees were transferred by defendant to the Ardsley Terminal. It is this transfer to Ardsley and the subsequent seniority status given to the transferred employees which caused the present controversy.

 Rule 22 of the agreement provides in relevant part as follows:

 'Positions or work involving a position may be transferred from one seniority district to another after conference and agreement between the management and the duly accredited representatives of the employes. Employes may follow their positions or work when same is transferred from one seniority district to another.'

 Rule 23 of the agreement is as follows:

 'When for any reason two or more offices or departments are consolidated, employes affected shall have prior rights to corresponding positions in the consolidated office or department. After such rights have been exercised these rules will govern.'

 Plaintiff claims that the transfers to Ardsley were without its consent or the consent of the Brotherhood and that Rule 22 and other Rules were violated by such transfers and also by the seniority given at Ardsley to those transferred there.

 Defendant makes as a principal contention that if Rule 22 is applicable, there was in fact an agreement by the Brotherhood to the transfers and that, in any event, what was done amounted to a consolidation and could be effected ...

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