Lumbard, Chief Judge, Medina, and Kaufman, Circuit Judges. Lumbard, Ch. J. (concurring in part and dissenting in part).
In this action by certain employees of New York Central Railroad, located at Grand Central Terminal, against the Railroad and their Brotherhood collective bargaining agent and their local Lodge 1085, it was charged that a certain agreement of August 18, 1965, between the Railroad and the Brotherhood amounted to a discrimination against the employees at Grand Central Terminal. The first count of the complaint asserted that the terms of transfer of certain work from Mott Haven Yard to Grand Central Terminal granted "super-seniority" to the transferred Mott Haven Yard men to the detriment of plaintiffs, in violation of the duty of the Brotherhood fairly to bargain on behalf of all the employees it represents, and that in accomplishing this end the officers of the Brotherhood "agreed, colluded and conspired" with the Railroad. The second count alleged the same "super-seniority" as the imposition of "discipline," in violation of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. Sections 412, 529, for failure to afford plaintiffs the procedural safeguards prescribed by the terms of the statute. The action was designed to prevent the names of the men to be transferred from the Mott Haven Yard from being added to the Grand Central Terminal seniority roster except at the bottom. So, before the date of transfer, plaintiffs moved for a preliminary injunction restraining the Railroad from putting the dove-tailing seniority plan into effect, and the Railroad made a cross-motion to dismiss the complaint under F.R. Civ. P. 12(b)(6) and 12(b)(1). The Brotherhood was not made a party to these proceedings, as neither the motion papers on the application for the temporary injunction nor those supporting the cross-motion to dismiss were served on the Brotherhood or its counsel. The result was an order: (1) denying the motion for a preliminary injunction; (2) dismissing the first count of the complaint "with prejudice" for failure to state a claim for relief; and (3) dismissing the second count for lack of subject matter jurisdiction. Judge Levet's memorandum opinions are not reported. Plaintiffs appeal, and a certificate under F.R. Civ. P. 54(b) makes it proper for us to consider the order appealed from in its entirety.
As every phase of the controversy was thoroughly explored in the affidavits in support of and in opposition to the motion for a temporary injunction, and all the relevant documents were before the Court below, we think the motion to dismiss under Rule 12(b)(6) should have been treated as a motion for summary judgment.*fn1 When the chronology is straightened out and the sequence of events is described, including the various collective bargaining agreements that preceded the one of August 18, 1965, it clearly appears that many questions of interpretation of various provisions in the series of collective bargaining agreements lie at the base of what plaintiffs allege as "discrimination" against them, that the decision of these questions was within the exclusive competence of the appropriate Adjustment Board, and that summary judgment should have been granted dismissing the first count of the complaint for lack of jurisdiction over subject matter. The August 18, 1965 agreement, which lies at the very center of the case, was merely one of a series of agreements implementing prior collective bargaining agreements in specific instances where work was to be transferred, abandoned, contracted out or similarly adjusted. We have decided: (1) summary judgment should have been granted dismissing as against the Railroad the first count of the complaint, based upon alleged discrimination in violation of the Railway Labor Act, for lack of subject matter jurisdiction; (2) the second count was properly dismissed as against the Railroad as matter of law for lack of subject matter jurisdiction; and (3) the motion for a temporary injunction was properly denied.
Prior to 1962, except where a shop or repair facility was wholly discontinued, the various successive collective bargaining agreements did not permit the Railroad to accredit transferred employees, whether following their work or not, with seniority accumulated at their last locality of employment. The requirement was that such transferees be treated as junior employees in respect of length of service at the point to which they were transferred.*fn2
In 1962 a new agreement was negotiated by the nonoperating unions with the Railroad. It required 60 days' notice to union officials when work was proposed to be transferred, with a provision for discussion of the matter before the change was made. If any new jobs were to be created at the location to which work was transferred, the employees at the original location had first rights to these jobs, according to seniority; and transferred employees were to be "included on the appropriate seniority roster at the new location with full seniority effective with the date of assignment." This procedure of dove-tailing seniority was apparently adopted without protest. The 1962 contract also prescribed certain pay guarantees for transferred employees and unemployment insurance benefits for men whose low seniority prevented them from obtaining new jobs at the transferee location. This agreement, dated April 3, 1962, was to "become effective February 1, 1962 and will continue in effect thereafter subject to the provisions of the Railway Labor Act as amended."
In 1964, a mediation agreement was negotiated at Washington, D.C., between the shop crafts unions, including the carmen's union, and the major United States rail carriers, including New York Central.
Provision is made in the 1964 agreement for notice by a carrier of its intention to transfer work between locations and for discussions with the employees' representative concerning such proposed transfer. Any employee continued in service after a particular "coordination" is assured that he will not be placed in a worse position with respect to compensation and rules governing working conditions than he occupied at the time of the "coordination," this guarantee to continue for up to 5 years. On the other hand, an employee who is "deprived of employment" as a result of a "coordination" is provided with a "dismissal allowance" equal to 60% of his average monthly compensation over the previous twelve months, and the duration of these monthly payments, up to a maximum of 60 months, is keyed to length of service. An employee is considered "deprived of employment" and entitled to this "coordination" allowance:
1. When the position which he holds on his home road is abolished as result of coordination and he is unable to obtain by the exercise of his seniority rights another position on his home road or a position in the coordinated operation, or
2. When the position he holds on his home road is not abolished but he loses that position as a result of the exercise of seniority rights by an employee whose position is abolished as a result of said coordination, or by other employees, brought about as a proximate consequence of the coordination, and if he is unable by the exercise of his seniority rights to secure another position on his home road or a position in the coordinated operation. [Article I -- Employee Protection, Section 6(c).]
Section 11 of Article I, which deals with transfer of work procedures, is most significant, in the context of the facts of this case:
When positions are abolished as a result of changes in the carrier's operations * * * and all or part of the work of the abolished positions is transferred to another location or locations, the selection and assignment of forces to perform the work in question shall be provided for by agreement of the General Chairman of the craft or crafts involved and the carrier establishing provisions appropriate for application in the particular case; provided however, that under the terms of the agreement sufficient employees will be required to accept employment within their classification so as to insure a force adequate to meet the carrier's requirements. In the event of failure to reach such agreement, the dispute may be submitted by either party for settlement as hereinafter provided.
What this means is that, in specific instances of "coordinations" under the 1964 national agreement, separate implementing agreements are to be negotiated by and between the General Chairman of the craft involved and the carrier regarding the details of each "coordination," subject to the over-all policies described in the master agreement.
This brings us to the agreement of August 18, 1965, which appellants assert is invalid by reason of discrimination. In compliance with the provisions of the 1964 agreement, and on July 16, 1965, the Railroad gave notice to five affected unions of a plan to transfer the terminal servicing of five trains from its Mott Haven Yard in the Bronx to Grand Central Terminal. The Railroad proposed to reduce the work force at Mott Haven by 107 men, including 69 carmen, helpers and cleaners, and to establish 81 new positions at Grand Central Terminal, 52 of which were carmen, helpers and cleaners. Similar notices were posted on bulletin boards for the information of all the employees. In further compliance with the national agreement, union and railroad representatives met to negotiate the terms of the proposed transfer. The result of these negotiations was the contract, dated August 18, 1965, between the Railroad and the Brotherhood of Railway Carmen and the Sheet Metal Workers International Association.
After stipulating the number of jobs to be transferred,*fn3 the agreement prescribed the following procedure for filling them. Qualified bidders at Mott Haven were to have preference to the new positions, in order of seniority. If any positions were not bid in by the Mott Haven men, the Grand Central Terminal employees were then eligible for them. Most importantly, Section IV provided:
Employees transferring to Grand Central Terminal hereunder will be included on the appropriate seniority roster with full seniority, effective with the date of assignment. Simultaneously, such employee's seniority, at Mott Haven will be terminated.
And most of the provisions of the 1964 national agreement were expressly made applicable to the transfer.
The dove-tailing of seniorities is what appellants characterize as "super-seniority." This is alleged to constitute discrimination because some of the 173 car cleaners, repairmen and helpers employed at Grand Central Terminal, the appellants, had been transferred to Grand Central Terminal from other facilities prior to 1962, in accordance with the practices outlined in Rule 29 of the pre-1962 agreements.*fn4 The claim is that the newly transferred men are receiving preferential treatment and that this may result in a loss of jobs by some of the appellants when work is cut back.*fn5
As the August 18, 1965 agreement was to take effect on September 18, 1965, this action was commenced on September 17, 1965, and Judge Herlands, having denied an ex parte application for a temporary restraining order, signed an order to show cause which brought on for hearing before Judge Levet the motion for a preliminary injunction to which reference has been made. By cross-motion for dismissal of the complaint, also above referred to, the entire controversy, except insofar as it affected the brotherhood ...