BRO. OF RY., ETC. v. PHILADELPHIA, BETHLEHEM, ETC.

• Citation: 428 F. Supp. 1308
• Decision Date: 23 March 1977
• Docket Number: Civ. A. No. 75-2634.
• Parties: BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES, AFL-CIO v. PHILADELPHIA, BETHLEHEM & NEW ENGLAND RAILROAD COMPANY.
• Court: U.S. District Court — Eastern District of Pennsylvania

428 F. Supp. 1308

BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES, AFL-CIO v. PHILADELPHIA, BETHLEHEM & NEW ENGLAND RAILROAD COMPANY.

Civ. A. No. 75-2634.

United States District Court, E. D. Pennsylvania.

March 23, 1977.

Solomon I. Hirsh, Stephen B. Horwitz, Rosemont, Ill., for plaintiff.

Norbert F. Bergholtz, Dechert, Price & Rhoads, Philadelphia, Pa., for defendant.

MEMORANDUM OPINION AND ORDER

VanARTSDALEN, District Judge.

This is an action by the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO (the Union), brought under the Railway Labor Act (the Act), 45 U.S.C. § 151 et seq. The defendant is the Philadelphia, Bethlehem & New England Railroad Company (the Railroad), a Pennsylvania corporation engaged in interstate railroad transportation and thus a "carrier" as defined by section 1 First of the Act, 45 U.S.C. § 151 First. The complaint alleges a violation by the Railroad of sections 2 Third and Fourth of the Act, 45 U.S.C. §§ 152 Third, Fourth, and jurisdiction is premised upon 28 U.S.C. § 1337.¹

Presently before the court are defendants' motion to dismiss the complaint for lack of subject matter jurisdiction, defendants' motion to amend its answer in order to add a counterclaim, and cross motions by the parties for summary judgment.² For the reasons set forth below, defendants' motion for summary judgment will be granted, plaintiff's motion for summary judgment will be denied, and defendants' motion to amend its answer will also be denied.

I.

It would be appropriate at this stage to briefly set forth the general allegations of the parties.

The complaint alleges that on or about June 17, 1975, a meeting and conversation took place between D. S. Reimer, the Railroad's Director of Labor Relations and Joseph F. Hause, an employee of the Railroad and a member of Lodge 1115, a local affiliate of the Union. The Union further alleges that the meeting and conversation were initiated by Mr. Reimer for the purpose of encouraging Mr. Hause to take steps which would lead to decertification of the Union as the exclusive collective bargaining representative of certain employees of the Railroad. In furtherance of this purpose, Mr. Reimer tendered to Mr. Hause authorization cards of the United Steelworkers of America (another Union) for distribution among the Railroad's employees represented by the Union.

The Union contends that Mr. Reimer's conduct as an agent and officer of the Railroad was in direct violation of sections 2 Third and Fourth of the Act, which provide in pertinent part:

Third. Representatives, for the purposes of this chapter, shall be designated by the respective parties without interference, influence, or coercion by either party over the designation of representatives by the other; and neither party shall in any way interfere with, influence, or coerce the other in its choice of representatives. Representatives of employees for the purposes of this chapter need not be persons in the employ of the carrier, and no carrier shall, by interference, influence, or coercion seek in any manner to prevent the designation by its employees as their representatives of those who or which are not employees of the carrier.

Fourth. Employees shall have the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter. No carrier, its officers, or agents shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees, or to use the funds of the carrier in maintaining or assisting or contributing to any labor organization, labor representative, or other agency of collective bargaining, or in performing any work therefor, or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization, or to deduct from the wages of employees any dues, fees, assessments, or other contributions payable to labor organizations, or to collect or to assist in the collection of any such dues, fees, assessments, or other contributions: Provided, That nothing in this chapter shall be construed to prohibit a carrier from permitting an employee, individually, or local representatives of employees from conferring with management during working hours without loss of time, or to prohibit a carrier from furnishing free transportation to its employees while engaged in the business of a labor organization.

The Railroad denies that the conversation constitutes a violation of either section and seeks the protection of the proviso in section 2 Fourth which expressly permits conferral by employees with management during working hours.

The Union's prayer for relief seeks an injunction against further violations of the Act, punitive damages in the amount of $20,000.00, attorneys fees and costs, and an order that the Railroad post a notice at its place of business setting forth the rights of its employees under the Act to join and remain members of the Union and to assist the Union without any interference, influence, or coercion from the Railroad.

II.

The Railroad initially moves to dismiss the complaint for lack of subject matter jurisdiction. The motion is premised upon the contention that the Union is suing pursuant to sections 2 Third and Fourth of the Act for which there is no express or implied private cause of action, and thus there would be no jurisdiction under 28 U.S.C. § 1337. It is clear from a mere reading of the Act that Congress provided no express private civil remedy for violation thereof. Whether a private cause of action in federal court is to be implied requires a brief discussion.

In Texas & N.O.R.R. v. Brotherhood of Ry. and S.S. Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034 (1930), the Supreme Court held that section 2 Third of the Act was fully and directly enforceable by the federal courts. In so doing, the Court stated:

The definite prohibition which Congress inserted in the Act cannot therefore be overridden in the view that Congress intended it to be ignored. As the prohibition was appropriate to the aim of Congress, and is capable of enforcement, the conclusion must be that enforcement was contemplated.

281 U.S. at 569, 50 S.Ct. at 433. Section 2 Fourth was added to the Act four years after the Texas & N.O.R.R. decision, and in large part supplements and amplifies the section 2 Third prohibition against employer interference, influence or coercion with respect to employee self-organization or designation of a bargaining representative. See Railway Employees Department v. Hanson, 351 U.S. 225, 231, 76 S.Ct. 714, 100 L.Ed. 1112 (1956); Brady v. Trans World Airlines, Inc., 223 F.Supp. 361, 365 (D.Del. 1963), aff'd, 401 F.2d 87 (3d Cir. 1968), cert. denied, 393 U.S. 1048, 89 S.Ct. 680, 21 L.Ed.2d 691 (1969). Thus, subsequent to the time of the Supreme Court's pronouncement in Texas & N.O.R.R., supra, it could be said that both sections 2 Third and Fourth were directly enforceable in federal district court by way of a private civil action. However, in 1934, Congress amended the Act to increase the power and authority of the National Mediation Board³ and at the same time to provide explicit penal sanctions for violations of section 2.⁴ The Railroad argues that given this explicit increase in administrative authority to settle representational disputes and the explicit provisions for criminal liability, it is more likely as a matter of statutory construction that Congress removed the access to the federal courts via private civil actions expressly given in the Texas & N.O.R.R. case. This argument and its undergirdings, without more, are certainly persuasive. In fact, the argument that a private cause of action should not be implied under sections 2 Third and Fourth becomes almost compelling in light of recent Supreme Court and Third Circuit decisions addressing that general area of the law.⁵Piper v. Chris-Craft Indus., Inc., ___ U.S. ___, ___-___, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977); Cort v. Ash, 422 U.S. 66, 77-85, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); Rauch v. United Instruments, Inc., 548 F.2d 452 (3d Cir. 1976); Wolf v. Trans World Airlines, Inc., 544 F.2d 134 (3d Cir. 1976).

Nevertheless, it appears that the Third Circuit has considered the question, although without benefit of the decisions cited directly above, and has held that a federal district court has subject matter jurisdiction under 28 U.S.C. § 1337 to entertain a private civil suit for violations of sections 2 Third and Fourth of the Act. Brady v. Trans World Airlines, Inc., 401 F.2d 87 (3d Cir. 1968), aff'g 223 F.Supp. 361 (D.Del.1963), cert. denied, 393 U.S. 1048, 89 S.Ct. 680, 21 L.Ed.2d 691 (1969). Cf. Virginia Rwy. Co. v. System Federation No. 40, 300 U.S. 515, 545, 57 S.Ct. 592, 81 L.Ed. 789 (1937). Though I question seriously whether, given the precise issue today, the Third Circuit would again so hold, I am bound by the precedent in Brady, supra, and therefore assume jurisdiction over this complaint.

Defendants' motion to dismiss the complaint is denied.

III.

The parties have submitted to the court their respective motions for summary judgment pursuant to Fed.R.Civ.P. 56. It is unnecessary to discuss the familiar duties of the district court when faced with such motions other than to mention that the court's primary function is to determine whether any genuine issues of material fact exist and if there are no such issues, whether the moving party is entitled to judgment as a matter of law.

As set out above, the complaint is premised solely upon the contention that the...