Latham v. Baltimore and Ohio Railroad Company

• Decision Date: 15 January 1960
• Docket Number: Docket 25731.,No. 66,66
• Citation: 274 F.2d 507
• Parties: Edwin E. LATHAM, Arthur Combs, Beecher H. Steele, Dennis J. Clark, James Devine, Harry P. Schaeffer, James R. Willhoit, Elmer F. Derry, Robert E. Feldman and Carl Lennox, Plaintiffs-Appellants, and H. L. Kester, Jr., Plaintiff, v. BALTIMORE AND OHIO RAILROAD COMPANY, Defendant-Appellee, Brotherhood of Railroad Trainmen, an Unincorporated Association, et al., Third-Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

274 F.2d 507 (1960)

Edwin E. LATHAM, Arthur Combs, Beecher H. Steele, Dennis J. Clark, James Devine, Harry P. Schaeffer, James R. Willhoit, Elmer F. Derry, Robert E. Feldman and Carl Lennox, Plaintiffs-Appellants, and H. L. Kester, Jr., Plaintiff, v. BALTIMORE AND OHIO RAILROAD COMPANY, Defendant-Appellee, Brotherhood of Railroad Trainmen, an Unincorporated Association, et al., Third-Party Defendants-Appellees.

No. 66, Docket 25731.

United States Court of Appeals Second Circuit.

Argued November 18, 1959.

Decided January 15, 1960.

Norman M. Spindelman, Rochester, N. Y. (Meyer Fix, Rochester, N. Y., on the brief), for plaintiffs-appellants.

S. R. Prince, Baltimore, Md. (William C. Combs, Rochester, N. Y., on the brief), for defendant-appellee Baltimore and O. R. Co.

Charles J. McDonough, Buffalo, N. Y. (Wayland K. Sullivan, Cleveland, Ohio, for Brotherhood of Railroad Trainmen, Harold C. Heiss and Russell B. Day, Cleveland, Ohio, for Brotherhood of Locomotive Firemen & Enginemen, on the brief), for third-party defendants-appellees, the Brotherhoods.

Before MAGRUDER, MEDINA and FRIENDLY, Circuit Judges.

MEDINA, Circuit Judge.

Plaintiffs, former employees of the defendant-appellee Baltimore and Ohio Railroad Company, and former members of the third-party appellees, the Brotherhood of Railroad Trainmen and the Brotherhood of Locomotive Firemen & Enginemen, appeal from a summary judgment dismissing their complaint with prejudice. The claims of certain other plaintiffs, also former employees of the B & O and former members of the Brotherhoods, were reserved for trial and the partial judgment appealed from was entered pursuant to the procedure prescribed in F.R.Civ.P., rule 54(b). We understand from the briefs that a cross-appeal by the Brotherhoods has been withdrawn and it is dismissed, without costs.

On October 1 and November 1, 1951 union shop agreements with B & O, negotiated by BRT and BLFE as collective bargaining agents, as authorized by the Railway Labor Act, as amended, 64 Stat. 1238 (1951), 45 U.S.C.A. § 152, Eleventh (a) and (c), became effective. Appellants were already members of BRT and BLFE or became members shortly thereafter. While the maintenance of union membership was made "a condition of their continued employment," the statute as amended also provided that this condition would be satisfied "if said employee shall hold or acquire membership in any one of the labor organizations, national in scope, organized in accordance with this chapter and admitting to membership employees of a craft or class in any of said (railroad) services." During the year 1952 and thereafter appellants voluntarily withdrew from the Brotherhoods, no longer paid dues and ceased to be members of these two unions. Prior to the initiation of any of the administrative proceedings designed to terminate their employment by B & O appellants joined a rival union, United Railroad Operating Crafts, believing that it was "national in scope," and organized in accordance with the statute, and that membership in UROC was a compliance with the condition specified in the statute. It was not until February 25, 1957 that the Supreme Court decided in Pennsylvania Railroad Company v. Rychlik, 352 U.S. 480, 77 S.Ct. 421, 422, 1 L.Ed. 2d 480, that UROC was not "national in scope," as defined in the 1951 Amendment above referred to.

In the meantime, the Brotherhoods contended that membership in UROC was not a sufficient maintenance of union status to protect the employment of appellants by B & O. Accordingly, appellants were cited by the Brotherhoods for failure to maintain union membership as required by the union shop agreements, the usual notices were sent, hearings were demanded in due course by each of the appellants and these hearings were held. In each case it was proved that the employee had voluntarily withdrawn from the Brotherhood of which he had previously been a member, that he had not paid his dues, and that he had joined UROC. Appellants offered no proof of any alleged discrimination by the unions. In due course each of the hearings resulted in decisions adverse to appellants, and most or all of them appealed. Finally, the disputed issue was submitted to the National Railroad Adjustment Board and the proposed action of the carrier in terminating the employment of appellants was "sustained." During the pendency of these appeals a number of other B & O employees left UROC and some of them were taken back into the fold by the Brotherhoods. The result of each of the administrative proceedings commenced against appellants was the termination of the employment of each of them by the B & O in the months of March, April and May of 1956; and the basis of such termination in each case was that they had not paid dues to and had ceased to be members of the Brotherhoods, facts which appellants had never denied. The sole issue at any time tendered by any of appellants in these administrative proceedings was that membership in and payment of dues to UROC was a sufficient union membership to protect employment by the railroad. The incidental references to the reinstatement of some railroad workers in the testimony in one or two of the appeals records have, we think, no significance.

On June 1, 1956 this action was commenced and the judgment prayed in behalf of each appellant was for money damages for wrongful discharge. The sole defendant was the B & O; no claim whatever was at any time asserted by appellants against the Brotherhoods in the District Court. As the employment of each appellant had been terminated at the behest of the Brotherhoods, as above stated, the B & O asserted a third-party claim against the Brotherhoods, the general effect of which was to pray for judgment against the Brotherhoods in the amount of any recovery by appellants on the theory that the termination of appellants' employment was due solely to proceedings initiated by the Brotherhoods and prosecuted in accordance with the terms of the union shop agreements.

Appellants contend: (1) that they should have been permitted to try out the alleged issue of whether or not they were dismissed from employment not for non-payment of dues but as a measure of discrimination against them because they joined UROC; and (2) that their allegation that membership in the Brotherhoods was not available to them upon the same terms and conditions "as are generally applicable to any other member" and that B & O had knowledge of this presents a triable issue because they claim to be able to prove that applications for reinstatement by the Brotherhoods had been denied or would have been denied to these appellants whereas others who left the Brotherhoods and joined UROC were taken back.

The pertinent allegations of the complaint are:

14. At the time when the defendant issued its final order of discharge, it, through its agents and employees, well knew that the plaintiffs had applied to the respective Brotherhoods for membership and that membership was not available to them.

15. The Brotherhoods, acting as bargaining representatives for the respective classes to which the plaintiffs belonged have complained to the defendant and other carriers about large numbers of their members who resigned membership and became members of United Railroad Operating Crafts, a union national in scope and organized in accordance with the provisions of the Railway Labor Act, which these plaintiffs joined. Plaintiffs joined said UROC as did hundreds of others, believing in good faith that it was a labor organization, membership in which, under the terms of the Railway Labor Act, would preclude their discharge under any Union Shop Agreement. Plaintiffs allege that said UROC is a labor organization national in scope and subject as a matter of law to be recognized as such, so that membership therein precludes the discharge of the plaintiffs under the said purported Union Shop Agreement. The Brotherhoods representing the respective classes and crafts of employees to which the plaintiffs belonged, have, however, readmitted and reinstated many of these said employees, but unreasonably and unjustifiably discriminated against plaintiffs in refusing to reinstate them and accept them to membership, all to the knowledge of the defendant.

While diversity is alleged and not denied in the B & O answer, the claim argued before us is one of federal right asserted under the Railway Labor Act, a wrongful discharge "in violation of their rights under Section 152" of the Railway Labor Act (complaint, paragraph 16). The anomaly is that the main thrust of the claim as originally formulated, revolving around the contention that UROC was a union "national in scope," is now necessarily abandoned and peripheral allegations are now relied upon to spell out a violation of the statute. In any event, we shall assume arguendo that appellants' claim is based not only on an alleged violation of the statute, but also on an alleged breach by the railroad of the union shop agreements. Whether the action is viewed as one for wrongful discharge in breach of the union shop agreements or for wrongful discharge in violation of the Railway Labor Act the problem is virtually the same, as the provisions of the statute are substantially incorporated in the agreements.

In support of their contentions appellants rely upon our decision in Cunningham v. Erie R. Co., 2 Cir., 1959, 266 F. 2d 411, 412. There we found there was a triable issue, whether Cunningham's union membership had or had not been terminated for a "reason other than the failure of the employee to tender the periodic dues." As this issue had not been resolved in the findings made in the District Court after a non-jury trial, we remanded the case for retrial. We are at a loss to perceive how this ruling in Cunningham helps appellants. There could not possibly have been any discrimination connected with their voluntary act of resigning from the Brotherhoods in order to join UROC.

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