Brand v. Pennsylvania R. Co., 9913.

• Decision Date: 23 February 1938
• Docket Number: No. 9913.,9913.
• Citation: 22 F. Supp. 569
• Parties: BRAND et al. v. PENNSYLVANIA R. CO. et al.
• Court: U.S. District Court — Western District of Pennsylvania

22 F. Supp. 569

BRAND et al. v. PENNSYLVANIA R. CO. et al.

No. 9913.

District Court, E. D. Pennsylvania.

February 23, 1938.

Bernard J. Kelley, of Philadelphia, Pa., for plaintiffs.

J. Hampton Barnes, of Philadelphia, Pa., and Frank L. Mulholland, of Toledo, Ohio, for defendants.

DICKINSON, District Judge.

Leave was given the parties to submit briefs, which we have now received.

The Fact Situation.

The complaint of the plaintiffs is an appealing one. The objective of the bill is to secure to them what are called seniority rights of employment, which have become a very, if not the most, important feature of their contracts of employment. Modern methods of our industrial life have brought it about that industrial activities have become centered and concentrated in large combinations so that the individual employee who has accepted employment with one of them and who continues in the employment for any length of time must devote himself to that service. This is as inexorable as if he had been sentenced for life to that relation. This is because after some years of service he becomes unfitted for employment elsewhere and especially because after he has reached the age of forty he finds he cannot secure such employment. This truth makes pathetic the statement in this bill that "plaintiffs have no other vocation, profession or means of livelihood" than that which they have for years been following and that their "average age is now about 54 years." The feeling is so general as to be universal that continuance of employment should be accorded by preference to those who have longest served. This is known as the right of seniority and is recognized as a right. It is of this right the plaintiffs complain they are being deprived and to secure which they have filed this bill. Seniority cannot be determined without a date from which it is to be determined, and opinions may differ as to what that date in an individual case may be. The basis of the claim of the plaintiffs to such seniority cannot be stated within manageable limits and need not be set forth because they aver they are possessed of the right, and on this motion all the averments of the bill must be accepted. Activities as far reaching as those of a great railroad corporation cannot be conducted without confiding its work to what are called divisions or departments. Employment may be in any of these departments or an employee might temporarily or permanently be transferred from one department to another. Conflicting claims to priority may thus easily arise. In the organization of this railroad each department had a superintendent. The plaintiffs were entered on the seniority list in what was called car record office operating department. This department was afterwards split into two divisions, one the office of the superintendent car service or car service department; the other the office of the superintendent stations and transfers. The employees had their own representative organizations. One was that of the "Brotherhood of Railway & Steamship Clerks, Freight Handlers Express and Station Employees." A controversy was initiated between this organization and the superintendent car service department over seniority rights. There is likewise a board constituted by authority of the Act of Congress of May 20, 1926 and its amendment of June 21, 1934, 45 U.S.C.A. § 151 et seq. This board is known as the Pennsylvania Railroad Clerical & Miscellaneous Forces Board of Adjustment, and has been named as one of the defendants in this bill. The controversy above mentioned was submitted to this board by the railroad company and the said brotherhood. Application was made to the National Mediation Board for the appointment of a referee to determine the said controversy and Milton Handler, Esq., who has been made a party defendant, was appointed. The referee made his findings and determinations and thereafter the board of adjustment before mentioned adopted and proclaimed the findings of the referee as its own. These findings, the plaintiffs aver, are injurious to their rights of seniority and were made without notice to them or opportunity afforded them to present their claims. On learning of the award of the referee, the plaintiffs protested to the board of adjustment and demanded a hearing which was denied them. It is further averred that, if the Pennsylvania Railroad Company complies with the order and award of the referee and board of adjustment, it will do a great injury to the plaintiffs.

The bill in consequence prays: (1) That the order and award of the referee be declared to be null and void; (2) that the defendant board of adjustment be enjoined from enforcing the award; (3) that the railroad company by mandatory order be required to restore to employment those of the plaintiffs who have been furloughed under the provisions of said award; (4) together...