Smith v. B & O R. CO.

• Decision Date: 25 June 1979
• Docket Number: Civ. No. Y-78-26.
• Citation: Smith v. B & O R. CO., 473 F. Supp. 572 (D. Md. 1979)
• Parties: Wallace T. SMITH et al. v. The B & O RAILROAD COMPANY et al.
• Court: U.S. District Court — District of Maryland

473 F. Supp. 572

Wallace T. SMITH et al. v.The B & O RAILROAD COMPANY et al.

Civ. No. Y-78-26.

United States District Court, D. of Maryland.

June 25, 1979.

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L. Robert Evans and Peter Max Zimmerman, Towson, Md., for plaintiffs.

H. Russell Smouse and Joseph B. Geyer, Baltimore, Md., for defendantsB & O R. Co. and Western Maryland Ry. Co.

Norris W. Tingle, Baltimore, Md., and Norton N. Newborn, Cleveland, Ohio, for defendant United Transp. Union.

JOSEPH H. YOUNG, District Judge.

Wallace T. Smith and others seek declaratory, injunctive and punitive and compensatory monetary relief against the defendants, The Baltimore & Ohio Railroad Company(hereinafter "B & O"), The Western Maryland Railway Company(hereinafter "Western Maryland"), and United Transportation Union (hereinafter "United").The defendants have moved for summary judgment, the plaintiffs have moved for certification of a class and for an order compelling discovery.

I.THE FACTS

Plaintiff Smith, an employee of B & O is chairman of Local 600 of United's East End Cumberland Division.Plaintiffs Miller, Kasecamp, Bruno and Long are also B & O employees and United members.The defendants are two railroad companies—both subsidiaries of the Chessie System—and the union which represents their employees.

Prior to 1975, the B & O and Western Maryland railroad systems were managerially as well as geographically distinct.On June 20, 1975, however, the Chessie System gave notice of its intention to merge the yard operations of the two into a single unit at Cumberland, Maryland.This consolidation required an integration of work forces which had been operating at Western Maryland's Knob Mount and Ridgely yards with the existing B & O crew at Cumberland.From July to December, 1975, negotiations dealing with the impact of the consolidation upon the workers at each yard were held between the union and the two railroads.Attending these negotiations were various persons representing Chessie, B & O, Western Maryland and United, including Plaintiff Smith.

Following an examination of test statistics from May, 1974 to April, 1975, the parties agreed to a work equity ratio of approximately eighty-twenty between B & O and Western Maryland—i. e., B & O employees would do 80% of the work in the consolidated yard, and Western Maryland would do 20%.To allocate the work according to this agreed division, a joint service list or "numbers system" was adopted.¹Considerable uncertainty surrounds Smith's position on the "numbers system."In an affidavit, Smith has stated that he"definitely opposed the implementation of the numbers system. . . ."SeeExhibit I of Plaintiff's Answer to Motions for Summary Judgment, at 6.Plaintiff Bruno has also referred to a union meeting at which Smith voiced his opposition to the system.SeeExhibit 2 of Plaintiff's Answer, at 1-2.Moreover, deponents Van H. Parsons, Paul R. Bennett and George P. Stanton—all present or former officials of one of the defendants—have stated that Smith did not oppose this manner of allocation.SeeDepositions of Stanton, at 79;Parsons, at 53, andBennett, at 14.

The various statements presently in the record also leave unclear the alleged agreement of the railroads to shift all of the work which had been done at the Western Maryland yards to the B & O yard.Smith has stated that he was never informed that the railroads had planned to move some of the former Western Maryland workers to Connellsville, Pa. and to a yard in West Virginia.In their depositions, however, Charles Schuler and Walter Nelson, both officers of Chessie, state that it had divulged all of its plans for relocation of rail operations at the outset of the negotiations.

On December 4, 1975, the consolidation agreement was executed in Baltimore, Maryland.The identity of all who attended the signing is also unclear.Stanton has stated that he is uncertain who was present, but he believes none of the local union members attended.SeeStanton's depositionat 108-09.Plaintiff Smith has said that he was not present.See affidavit, at 7.Shortly after the execution of the agreement, dissension and unrest apparently increased among the B & O workers, and on December 21, 1975, a general meeting was held to allow them to air their grievances.It was at this meeting that Smith attacked the use of the "numbers system," and called for a revision of the consolidation agreement.SeeBruno's affidavit, at 1-2;Deposition of Stanton, at 112.

On December 29, 1975, Smith in a letter to the General Secretary and Treasurer of United's Board of Appeals, challenged the consolidation agreement on behalf of Local 600.On January 7, 1976, he was informed that his letter would not be accepted as an appeal, because it did not contain supporting evidence as prescribed by United's Constitution.A second letter from Smith, dated March 10, 1976, was also rejected because it was filed more than ninety days after the challenged agreement.

In the Spring of 1976, a referendum was held to test the attitude of the membership of United's B & O and Western Maryland locals as to the "numbers system."The B & O locals voted to abolish the "numbers system" in favor of a "straight seniority" system of job allocation.The Western Maryland locals, however, voted to retain the "numbers system."The leadership of the Union was unable to agree on steps to be taken to placate the dissatisfied B & O employees.SeeDeposition of Al H. Chesser (President of the U.T.U.), at 21-22.

The economic effect of the consolidation agreement on the B & O union members has been variously described.Mario Delsignore, one of Western Maryland's trainmasters, stated that only three B & O workers were furloughed as a result of the consolidation —all of whom were later recalled.SeeDepositionat 109-112.The plaintiffs, however, have alleged that as many as 35 B & O employees were "displaced" as a result of the agreement because the Western Maryland men who came to the Cumberland yard "did not bring their work with them."Plaintiff Smith has graphically described the injury which the B & O employees have allegedly suffered:

I became aware very quickly that the amount of work in the combined yard after the consolidation in or about January, 1976 was about the same as the amount of work before the consolidation.The difference was now that approximately thirty-five (35) Western Maryland employees came into the yard, to share in approximately the same amount of work.If there was any addition to the amount of work, it was extremely insignificant.The result of this was that the B & O men lost their assignments to the Western Maryland men.In other words, the thirty-five (35) or so Western Maryland employees came into the combined yard and displaced the B & O employees.These employees had to apply for road jobs or jobs at other locations where they had seniority rights, all less preferred jobs, with varying times, hours, and wages.Moreover, a similar number of B & O employees, those with least seniority, were furloughed, at least for a period of time until recalled due to attrition or other events.My examination of records kept in the ordinary course of business of Local 600 indicates that twenty (20) B & O employees of the East End Division were furloughed in early January, 1976, following the consolidation.In addition, because of my familiarity with the equity between B & O—East and B & O—West, I know that this means that an equivalent number of B & O employees must have been furloughed from the West End.Accordingly, approximately forty (40) B & O employees were furloughed.Based on my familiarity with conditions at the time, I conclude that these furloughs were essentially due to the absorption of the Western Maryland employees into the consolidated yard, and not to any other factor.I do not know of a single Western Maryland employee furloughed.In addition, my own experience in the yard, including my work as car retarder operator on the east-bound hump, indicates that the amount of new switching work following the consolidation was negligible.In fact, the amount of work since the consolidation, while variable, has remained at approximately the same level it was before the consolidation, this despite the additional Western Maryland employees.Mr. Delsignore's statement that there were only three furloughs of B & O employees is not true.In addition, although I do not know the precise dates of recall of the many furloughed employees, my recollection is that they extended into the Spring of 1976.

Smith's affidavit, at 8-9.(Emphasis added).

In December of 1977, the above-named plaintiffs filed suit in the Circuit Court of Baltimore County.²At the defendants' behest, the case was removed to this Court in January of 1978.In December of 1978, the plaintiffs were permitted to amend their complaint.They alleged that the defendants conspired to violate their rights under various agreements and laws, and that the Union breached its duty of fair representation by entering into this agreement, the defendant railroads being equally liable because they"participated" in the negotiations.The gravamen of these two claims will be more closely detailed in the following discussion of the propriety of granting summary judgment.

II.THE MOTION FOR SUMMARY JUDGMENT

A.JURISDICTION

Both B & O and United Transportation contend this Court lacks jurisdiction because the plaintiffs have not exhausted their contractual remedies under the grievance machinery in the collective bargaining agreement and the administrative remedies as set out in § 3 First (i) of the Railway Labor Act,45 U.S.C. § 151 et seq.(1954).This argument was urged by the defendants in their motion to dismiss.That argument was rejected in a letter dated March 29, 1978.Defendants have shown no more persuasive arguments to cause a review of the previous order.

Although a union...