Alabaugh v. Baltimore and Ohio Railroad Company

• Court: U.S. Court of Appeals — Fourth Circuit
• Writing for the Court: PARKER, , and SOPER and DOBIE, Circuit
• Citation: Alabaugh v. Baltimore and Ohio Railroad Company, 222 F.2d 861 (4th Cir. 1955)
• Decision Date: 20 May 1955
• Docket Number: No. 6955.,6955.
• Parties: J. R. ALABAUGH, W. H. Schaver, J. W. Welman, E. J. Schwenninger, C. H. Smith, and C. B. Fledderman, Appellants, v. The BALTIMORE AND OHIO RAILROAD COMPANY, a body corporate, and Brotherhood of Locomotive Engineers, an unincorporated association, et al., Appellees.

222 F.2d 861 (1955)

J. R. ALABAUGH, W. H. Schaver, J. W. Welman, E. J. Schwenninger, C. H. Smith, and C. B. Fledderman, Appellants, v. The BALTIMORE AND OHIO RAILROAD COMPANY, a body corporate, and Brotherhood of Locomotive Engineers, an unincorporated association, et al., Appellees.

No. 6955.

United States Court of Appeals Fourth Circuit.

Argued April 15, 1955.

Decided May 20, 1955.

Duke Avnet, Baltimore, Md. (Avnet & Avnet, Baltimore, Md., and Harold Naughton, Cumberland, Md., on brief), for appellants.

S. R. Prince (E. H. Burgess, Baltimore, Md., on brief), for appellee The Baltimore and Ohio Railroad Company.

Harold N. McLaughlin, Cleveland, Ohio, and Bernard M. Savage, Baltimore, Md. (Donald W. Hornbeck and Richard C. Ogline, Cleveland, Ohio, on brief), for appellee General Committee of Adjustment of Brotherhood of Locomotive Engineers on Baltimore and Ohio Railroad.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an appeal from an order dismissing a suit for lack of jurisdiction. See Alabaugh v. Baltimore & O. R. Co., D.C., 125 F.Supp. 401. Plaintiffs are six locomotive engineers employed by the Baltimore & Ohio Railroad Company. The defendants are that company and the General Grievance Committee of the Brotherhood of Locomotive Engineers. The Brotherhood had entered into a union shop agreement with the B. & O. and had complained to the B. & O. that plaintiffs had failed to maintain union membership in accordance with the agreement. The B. & O. had notified plaintiffs that they would be dropped from service in accordance with its terms and they instituted this suit to enjoin their discharge. The court below dismissed the suit for lack of jurisdiction, because plaintiffs had not exhausted their administrative remedies before the National Railroad Adjustment Board and they have appealed from that order.

The controversy here arises out of a union shop agreement entered into between the B. & O. and the Brotherhood pursuant to the 1951 amendment of the Railway Labor Act. 45 U.S.C.A. § 152, Eleventh. That statute authorized union shop agreements requiring union membership of all employees. The authorization was that the agreement might require employees to become members of the labor organization representing their craft or class within sixty days of the making of the contract or of their employment whichever was later, with provision that no agreement should require membership of employees who were not admitted to membership on equal terms with other members or to whom membership was denied or terminated for any reason other than nonpayment of dues. A further provision was that the requirement as to membership would be satisfied by membership in any organization "national in scope" organized in accordance with the Railway Labor Act and admitting to membership employees of a craft or class in any of the railway services. As to employees not members of any labor organization at the time of the making of the agreement, they might be required to become members of the organization representing employees, with a proviso that nothing in that section of the statute or in the agreement should prevent an employee changing membership from one organization to another. The pertinent portions of the statute are set forth in the margin.¹

The agreement between the B. & O. and the Brotherhood provides that, as a condition of their continued employment, employees shall become members of the Brotherhood and thereafter maintain membership therein, subject to conditions similar to those set forth in the statute. It provides machinery for enforcing its provisions, requiring the Brotherhood to initiate proceedings for failure to comply and providing that any employee charged with such failure may request a hearing from the carrier, that the carrier shall make a determination of the facts after a hearing and that appeal may be taken to the highest officer of the carrier whose determination shall be final, except in case of a dispute between the carrier and the Brotherhood, as to which provision is made for reference to arbitrators whose action shall be final.

Plaintiffs were members of the Brotherhood in good standing at the time of the agreement and remained such until August 31, 1952, when they joined the United Railroad Operating Crafts, hereafter called UROC, a rival union, thinking, so they allege, that it was a union "national in scope" within the meaning of the Act, although it was later found not to occupy that status. One of them later joined the Brotherhood of Locomotive Firemen and Enginemen, a union admittedly national in scope. In October 1952 they were cited for failure to comply with the union shop agreement. Hearings were held on the charge in November of that year and in August 1954 a decision was rendered that they be dropped from their positions. Appeals from this decision were duly taken, but without success, and decision was rendered by the proper official of the B. & O. that they be dropped from service on October 8, 1954. They allege that on September 1 they made application for reinstatement to membership in the Brotherhood but that their application was rejected because they had previously joined the UROC and that this was discriminatory action on the part of the Brotherhood, which had a policy of reinstating members who were in arrears in the payment of dues. They instituted this action to enjoin their discharge, contending that their rights under the statute were being violated in that they had been discriminatorily denied reinstatement by the Brotherhood, that their cases had not been promptly handled as the statute requires, that they could not be discharged for failing to maintain membership in the Brotherhood but only for failing to acquire it and that the acquisition of membership in UROC was sufficient under the act, on the theory that, although UROC was not a union national in scope, this status was not required with respect to a change of membership.

We think that the suit was properly dismissed by the court below for failure of the plaintiffs to exhaust administrative remedies before the National Railroad Adjustment Board, which has been given by Congress primary original jurisdiction over controversies of this sort. The Railway Labor Act was passed to provide for the settlement of "all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions". 45 U.S.C.A. § 151a. By section 3 of the act, the National Railroad Adjustment Board was created and was expressly given jurisdiction over disputes involving various classes of employees including engineers. 45 U.S.C.A. § 153, subd. 1(h). By subsection (i) of that section 45 U.S.C.A. § 153, subd. 1(i), it was provided:

"(i) The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on June 21, 1934, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes."

The case here involves the rights of employees under a union shop agreement arrived at by collective bargaining. The interpretation of that agreement and the rights and grievances of employees thereunder are just the sort of matters that Congress intended to be handled in the first instance by the National Railroad Adjustment Board. Order of Railway Conductors v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318; Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Order of Railway Conductors of America v. Southern Ry. Co., 339 U.S. 255; Spires v. Southern R. Co., 4 Cir., 204 F.2d 453; Brotherhood of Locomotive Firemen and Enginemen v. Central of Georgia Ry. Co., 5 Cir., 199 F.2d 384, certiorari denied 345 U.S. 908, 73 S.Ct. 648, 97 L.Ed. 1344; Starke v. New York, Chicago & St. Louis R. Co., 7 Cir., 180 F.2d 569, 573. And, as said in the case last cited: "Congress having specifically conferred upon the Adjustment Board the authority to hear and determine plaintiff's grievance, it is not in the absence of express language to be implied that it also intended to confer jurisdiction upon the courts. Such a holding, as a reading of the above cases abundantly discloses, would seriously impair if not destroy the usefulness of the Act and the purpose which Congress sought to achieve."

In Slocum v. Delaware, L. & W. R. Co., supra, 339 U.S. 239, 242-244, 70 S.Ct. 577, 579, the Supreme Court, in holding the jurisdiction of the Board to be exclusive in cases involving grievances and disputes arising out of agreements between carriers and their employees, used the following language:

"The first declared purpose of the Railway Labor Act is `To avoid any interruption to commerce or to the operation of any carrier engaged therein\'. 48 Stat. 1186 (§ 2), 45 U. S.C. § 151a, 45 U.S.C.A. § 151a. This purpose extends both to disputes concerning the making of collective agreements and to grievances arising under existing agreements.

* * * * * *

"In this case the dispute concerned interpretation of an existing bargaining agreement. Its settlement would have prospective as well as retrospective importance to both the railroad and its employees, since the interpretation accepted would govern future relations of those parties. This type of grievance has long been considered a potent cause of friction leading to strikes. It was to prevent such friction that the 1926 Act provided for creation of various Adjustment Boards by

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