Order of Railroad Telegraphers v. Union Pacific Railroad Co.

• Decision Date: 27 July 1964
• Docket Number: Civ. A. No. 8107.
• Citation: 231 F. Supp. 33
• Parties: The ORDER OF RAILROAD TELEGRAPHERS, St. Louis, Missouri, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Omaha, Nebraska, Defendant.
• Court: U.S. District Court — District of Colorado

231 F. Supp. 33

The ORDER OF RAILROAD TELEGRAPHERS, St. Louis, Missouri, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Omaha, Nebraska, Defendant.

Civ. A. No. 8107.

United States District Court D. Colorado.

July 15, 1964.

As Amended July 27, 1964.

Philip Hornbein, Jr., Denver, Colo., and Lester P. Schoene, Washington, D. C., for plaintiff.

Knowles & Knowles, E. G. Knowles, Clayton D. Knowles, and James F. Culver, Denver, Colo., H. Lustgarten, Jr., and James A. Wilcox, Omaha, Neb., for defendant.

CHILSON, District Judge.

This is an action to enforce an award of the National Railroad Adjustment Board.

The matter is before the Court upon a motion to dismiss, based on three grounds:

1. That the plaintiff is not a proper party to bring this action;

2. That the portion of the action seeking an accounting fails to state a claim upon which relief can be granted;

3. That the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees and certain clerical employees of the defendant are indispensable parties.

The Court has considered the briefs filed in support of and in opposition to the motion and has heard oral argument and is now duly advised.

The Court concludes that the first two grounds of the motion to dismiss should be denied.

It is therefore ordered that the motion to dismiss the complaint on the ground that the plaintiff is not a proper party to bring the action and to dismiss that portion of the action seeking an accounting be and the same is hereby denied.

As to the third ground of the motion, the Court is of the opinion that the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees is an indispensable party to this proceeding.

The reasons for this conclusion are hereinafter set forth.

On July 14, 1961, the Adjustment Board entered its Award No. 9988.

The award discloses that the plaintiff filed a claim with the Adjustment Board in which it contended that:

"(a) The Carrier has violated and continues to violate the agreement between the parties signatory thereto, when it requires or permits employes not covered by said agreement to `handle' train orders at West End Yard Office, Las Vegas, Nevada, and

"(b) that the Carrier has violated and continues to violate the agreement when it requires or permits other than those covered by said agreement to operate printing and/or mechanical telegraph machines used in the transmission or reception of messages and reports of record, and/or to perforate tape or cards as a function in the transmission or reception of messages and reports of record at the West End Yard Office, Las Vegas, Nevada, and

"(c) that for such violations the Carrier shall compensate the senior idle employe or employes covered by the Telegraphers' Agreement for the equivalent of a day's pay for each 8-hour shift, both day and night, since August 25, 1952, the date on which the new yard office at Las Vegas was placed in service, at the telegraphers' rate applicable to that particular location."

The controversy before the Board so far as pertinent here involved the question of whether the operation of certain electro-mechanical devices in the yard office of the carrier at Las Vegas, Nevada should be operated by telegraphers. Upon the installation of these devices, the operation of certain of these electro-mechanical devices was assigned by the defendant to clerical employees who are members of the Brotherhood of Railway Clerks. Plaintiff in its claim submitted to the Adjustment Board contends that this work should have been assigned to telegraphers, and that the failure to do so was a violation of the collective bargaining agreement entered into between the plaintiff and the defendant. The plaintiff also sought compensation for the telegraphers who were idled by this alleged violation.

In accordance with Title 45, United States Code, Section 153 first (j), which provides:

"Parties may be heard either in person, by counsel, or by other representatives, as they may respectively elect, and the several divisions of the Adjustment Board shall give due notice of all hearings to the employee or employees and the carrier or carriers involved in any disputes submitted to them",

the Board notified the president of the Brotherhood of Railway Clerks and the general chairman, Mr. Stanley B. Eoff, of the pendency of the controversy, the date of the hearing, and stated, "You will have the right to appear and file papers and any documents you desire in answer thereto, * * *". (See Exhibit A attached to defendant's reply memorandum).

The president of the Brotherhood of Railway Clerks took the position that this was solely a dispute between the defendant on the one hand and the plaintiff on the other, involving the interpretation of the agreement between them, and that the Clerks were not involved in the dispute as their rights are predicated upon a separate agreement between the Clerks' Brotherhood and the carrier. (See Exhibit B attached to the defendant's reply memorandum).

Standing upon this position the Clerks did not participate in the proceedings leading to the award here in question.

The Board found "* * * that the Carrier has violated the Telegraphers' Agreement when it permitted its clerical force to operate the two teletype receiving printers and the one teletype transmitter at its West End Yard Office", and awarded compensation to the idle employees covered by the Telegraphers' Agreement.

The plaintiff brings this action to enforce the award. The Clerks' Brotherhood had not been made a party to the action and the defendant, by its motion to dismiss, raises the question of the indispensability of the Clerks as parties.

The basic question here involved is whether or not the Clerks have such an interest in this litigation as to be indispensable parties thereto.

The plaintiff's position may be best illustrated by that taken by the Clerks' Brotherhood in its letter to the Adjustment Board, (Exhibit B attached to plaintiff's reply memorandum), which is that the present controversy is one involving solely the interpretation or application of an agreement between the plaintiff and defendant in which the Clerks have no interest.

The defendant on the other hand contends that inasmuch as the award in its ultimate effect gives to Telegraphers jobs now held by the Clerks, that the Clerks have such an interest in the litigation that they are indispensable parties.

Thus is posed the question of whether or not under the Railway Labor Act, two groups of employees competing for the same jobs under separate contracts with the same carrier shall be required to litigate their conflicting claims in the same proceeding, or should they be permitted to proceed in separate proceedings to have their rights under their respective agreements adjudicated separately.

Prior to case law to the contrary, the Adjustment Board refused to bring competing groups before it in one proceeding, acting on the assumption that the Board had no authority under the Act to consider two agreements simultaneously, each in the light of the other. See Missouri-Kansas-Texas R. Co. et al. v. Brotherhood of Railway and S.S. Clerks, (Seventh Cir.) 188 F.2d 302 at 305.

However, the case law is in substantial agreement that not only does the Board have such authority but a failure to exercise it by giving competing employees notice and an opportunity to be heard leaves the Board with no authority to enter an award. Brotherhood of Railroad Trainmen v. Templeton, (Eighth Cir.) 181 F.2d 527; Hunter v. Atchison, Topeka and Santa Fe Railway, (Seventh Cir.) 171 F.2d 594; Missouri-Kansas-Texas Railway Co. v. Brotherhood of Railway and S.S. Clerks, (Seventh Cir.) 188 F.2d 302; Allain v. Tummon, (Seventh Cir.) 212 F.2d 32; Order of Railroad Telegraphers v. New Orleans, Texas and Mexico Railway Co., (...