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PIRONE v. PENN CENT. CO.

January 23, 1974

Frank Pirone et al., Plaintiffs
v.
The Penn Central Company et al., Defendants. Charles Scofield et al., Plaintiffs, v. The Penn Central Company et al., Defendants


Bonsal, District Judge.


The opinion of the court was delivered by: BONSAL

These two class actions arise from the merger of the Pennsylvania Railroad Company ("Pennsylvania") and the New York Central Railroad Company ("Central"), and the inclusion, following the merger, of the New York, New Haven and Hartford Railroad Company ("New Haven") to form the present Penn Central Transportation Company. *fn1" Plaintiffs in both cases are or were members of the defendant Railway Marine Region ("RMR"), which at all times relevant to this action was, pursuant to the Railway Labor Act, plaintiffs' exclusive collective bargaining representative. Plaintiffs claim that RMR and the other defendant unions have violated their duty of fair representation by merging seniority rosters in a manner discriminatory against the plaintiffs, and that the defendant railroad has joined in the unlawful discrimination. Jurisdiction is asserted under 28 U.S.C. § 1337.

Class determinations were made in both cases. The class of plaintiffs in Pirone consists of all persons who were formerly employed as deckhands in the Central marine department prior to Central's merger with Pennsylvania, effective February 1, 1968, and who are or were at the time of the merger, members of, or represented for purposes of collective bargaining by, the defendant unions, excluding those persons who have disassociated themselves from the action. The class in Scofield consists of all persons who were formerly employed as deckhands in the New Haven marine department prior to New Haven's inclusion into Penn Central, effective January 1, 1969, and who are or were at the time of the inclusion, members of, or represented for purposes of collective bargaining by, the defendant unions, excluding those persons who have disassociated themselves from the action. The Pirone and Scofield cases were consolidated for purposes of trial only by Order filed September 4, 1973.

 Defendant RMR is a subordinate body and a "region" of the defendant Inland Boatmen's Union of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District ("IBU"). IBU is an affiliate of the defendant Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District ("A & G District"). A & G District is an autonomous affiliate of the Seafarers International Union of North America, AFL-CIO ("SIUNA").

 Defendant Gomer P. McGinty, at all times relevant, was the Regional Director of RMR. During the trial, the plaintiffs entered into a stipulation dismissing the complaint as to defendant McGinty individually.

 Shortly after the complaint in Pirone was filed, the Pirone plaintiffs sought a temporary injunction, pending the determination of the action, to restrain Penn Central and the defendant unions from proceeding under an agreement relating to seniority rights. After a hearing on August 8, 1968, Judge Pollack denied the temporary injunction, finding that "[the] position of the defendants in the suit has a strong semblance of disinterested fairness and merit," (Transcript at 189) and that "the testimony tends to give a rational explanation for the seniority provisions in the combined arrangement effective as of June 1, 1968" (Transcript at 189-190). Judge Pollack also pointed out the availability of "the speedy and possibly more efficient and economical grievance machinery set up by the contracts." (Transcript at 190-191).

 The parties having waived a jury, both cases were tried before the court on October 23, 24, and 25, 1973. From the papers on file and the evidence introduced at trial, the following facts appear.

 On May 20, 1964, Pennsylvania and Central entered into an "Agreement for Protection of Employees in Event of Merger of Pennsylvania and New York Central Railroads" ("1964 Protective Agreement") with a number of labor organizations, including SIUNA, acting on behalf of RMR. The 1964 Protective Agreement provides, inter alia, that

 
". . . none of the present employees of either of the said Carriers shall be deprived of employment or placed in a worse position with respect to compensation, rules, working conditions, fringe benefits or rights and privileges pertaining thereto at any time during such employment."

 The Interstate Commerce Commission made compliance with the 1964 Protective Agreement a condition of the authorization for the merger of Pennsylvania and Central.

 At a time just prior to the merger, Pennsylvania deckhands enjoyed steady employment. Pennsylvania had 35 crews of 3 men each working on tug boats and about 25 men working in shore positions. The remainder of the 221 persons on the Pennsylvania deckhand seniority roster worked steadily as extra employees. On the other hand, Central deckhands, at the same period in time, worked only sporadically. Central had 7 crews of 3 men each working on tug boats, and approximately 8 men working in shore positions. Of the remainder of the 101 persons on the Central deckhand seniority roster, about 64 held no regular jobs, and many were either on furlough or working intermittently as extra employees.

 The prospective merger of the Pennsylvania and Central deckhand seniority rosters generated considerable concern and bad feeling between Pennsylvania and Central deckhands, all of whom were represented by RMR. Pennsylvania deckhands feared that if the seniority rosters were "dovetailed," i.e., merged strictly on the basis of seniority with each of the constituent companies, they would lose their jobs to Central deckhands who had little or no work, but longer seniority. Central deckhands, on the other hand, feared that if the seniority rosters were "endtailed," i.e., merged by placing the Central roster below the Pennsylvania roster, they would lose seniority built up through the years. The officers of RMR informed the members that no agreement implementing the 1964 Protective Agreement would be entered into by RMR until the members had taken action to determine the method of merging the seniority rosters.

 At the regular monthly RMR membership meeting for the Port of New York held on April 15, 1968 in two parts, one at 10:00 a.m. and the second at 8:00 p.m., at the Union Hall in Jersey City, New Jersey, the issue of merging the Pennsylvania and Central deckhand seniority rosters was, after lengthy and heated discussion, brought to a vote. All members of RMR, not just Pennsylvania and Central deckhands, were allowed to vote. The officers of RMR did not vote. By a show of hands vote *fn2" totaling 79 in favor and 40 against, with 4 abstentions, the RMR membership elected to merge the seniority rosters by placing the Central roster on the bottom of the Pennsylvania roster.

 Disappointed with the outcome of the vote, plaintiffs Pirone, Elbert and several others in April and May 1968 obtained signatures on petitions from some 145 members of RMR protesting the "action taken or to be taken by Regional Director G. P. McGinty" in placing former Pennsylvania deckhands at the top of the seniority roster and former Central deckhands at the bottom of the seniority roster, and urging dovetailing as the only fair method of merging the seniority rosters. Plaintiff Pirone brought the signed petitions to the SIUNA office in Brooklyn, New York where he met with Earl Shepard, then National Director of IBU. Shepard advised that the problem was one to be handled by RMR.

 As a result of the dissatisfaction with the April 1968 vote, the RMR leadership decided to call for a second vote on the issue of merging the Pennsylvania and Central deckhand seniority rosters. Notice was widely posted throughout the harbor, and a second vote was held at the regular monthly RMR membership meeting for the Port of New York on June 10, 1968. Again the vote, by a margin of 87 to 29, with 1 abstention, was in favor of endtailing the seniority rosters with the Central roster on the bottom. Plaintiff Pirone ...


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