407 F.2d 674 (2nd Cir. 1969), 211, O'Mara v. Erie Lackawanna Railroad Co.

Docket Nº:211, 32184.
Citation:407 F.2d 674
Party Name:John R. O'MARA, George McCormick, Julius Packard and Walter Daly, Plaintiffs-Appellants, v. ERIE LACKAWANNA RAILROAD COMPANY, International Brotherhood of Firemen and Oilers, Henry J. Czosek, Henry J. Czosek as Chairman of Local 826, and EdwardP. McEntee, Defendants-Appellees.
Case Date:February 24, 1969
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 674

407 F.2d 674 (2nd Cir. 1969)

John R. O'MARA, George McCormick, Julius Packard and Walter Daly, Plaintiffs-Appellants,

v.

ERIE LACKAWANNA RAILROAD COMPANY, International Brotherhood of Firemen and Oilers, Henry J. Czosek, Henry J. Czosek as Chairman of Local 826, and EdwardP. McEntee, Defendants-Appellees.

No. 211, 32184.

United States Court of Appeals, Second Circuit.

February 24, 1969

Argued Dec. 4, 1968.

Page 675

[Copyrighted Material Omitted]

Page 676

James P. Shea, Buffalo, N.Y. (Flaherty & Shea, Buffalo, N.Y., on the brief), for plaintiffs-appellants.

Richard F. Griffin, Buffalo, N.Y. (Moot, Sprague, Marcy, Landy & Fernbach, and Courtland R. LaVallee, Buffalo, N.Y., on the brief), for appellee, Erie Lackawanna Railroad Co.

Richard R. Lyman, Toledo, Ohio (Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, N.Y., and Mullholland, Hickey & Lyman, Toledo, Ohio, on the brief), for defendants-appellees Henry J. Czosek, Henry J. Czosek as Chairman, etc., and Edward P. McEntee, etc.

Before LUMBARD, Chief Judge, FRIENDLY, Circuit Judge, and FRANKEL, District Judge. [*]

LUMBARD, Chief Judge:

Plaintiffs brought his action in the District Court for the Western District of New York seeking damages for their allegedly wrongful discharge, without compensation, from employment as stationary engineers with the Erie Lackawanna Railroad. Joined as defendants with the Railroad are the International Brotherhood of Firemen and Oilers and several of its affiliates and officers. The complaint alleged that the union defendants had been guilty of 'hostile discrimination' in refusing to process plaintiffs' grievances against the Railroad.

The district court granted defendants' motion to dismiss the complaint, finding no basis for federal jurisdiction.

We reverse. We hold that the complaint, read in the generous spirit appropriate under the Federal Rules, states a federal claim against the union for breach of its duty of fair representation. On remand we grant plaintiffs leave to amend their complaint, if they can, to state a cause of action against the Railroad based on its having acted with knowledge of the union's discrimination. Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (U.S. Jan. 14, 1969); Ferro v. Railway Express Agency, Inc., 296 F.2d 847 (2d Cir. 1961)

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.

Prior to 1960 the plaintiffs were employed by the Delaware, Lackawanna & Western Railroad as stationary engineers in a power plant in Buffalo, New York. In that year the Delaware merged with the Erie Railroad, with the approval of the Interstate Commerce Commission, forming the present defendant Erie Lackawanna line. Plaintiffs were continued in their former positions by the merged line until 1962, when they were furloughed.

The complaint is very grudging in its recitation of the claims upon which federal jurisdiction is invoked. It is alleged that the 1962 furlough constituted a discharge of plaintiffs since they were never recalled and were in fact replaced by employees who had worked for the Erie Railroad before the merger. The complaint then claims that the discharges were the direct result of the 1960 merger, and violated 'the Interstate Act 49 U.S.C.A. § 5 et seq.' and the 'Implementing Agreement' between the Erie Lackawanna and its employees represented by defendant unions. A violation of the Railway Labor Act, 45 U.S.C.A. 151 et seq., is also alleged in that the Railroad failed to give the required 30 days written notice of an intended change in working conditions prior to the discharge of the plaintiffs.

Finally it is alleged that plaintiffs repeatedly requested the defendant unions and their officials to process their claims against the Railroad, but that these defendants 'have been guilty of gross...

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