Pellicer v. BROTHERHOOD OF RY. & SS CLERKS, ETC.

• Decision Date: 16 November 1953
• Docket Number: Civ. A. No. 2591-J.
• Citation: 118 F. Supp. 254
• Parties: PELLICER et al. v. BROTHERHOOD OF RY. & S.S. CLERKS, FREIGHT HANDLERS, EXPRESS & STATION EMPLOYEES et al.
• Court: U.S. District Court — Southern District of Florida

118 F. Supp. 254

PELLICER et al. v. BROTHERHOOD OF RY. & S.S. CLERKS, FREIGHT HANDLERS, EXPRESS & STATION EMPLOYEES et al.

Civ. A. No. 2591-J.

United States District Court S. D. Florida, Jacksonville Division.

November 16, 1953.

Martin J. Pearl and Thurman G. Justice, Jacksonville, Fla., for plaintiff.

Charles R. Scott, of Fleming, Jones, Scott & Botts, Jacksonville, Fla., for defendant Railway Express Agency, Inc.

Edward J. Hickey, Jr., of Mulholland, Robie & Hickey, Washington, D. C., and William L. Durden, of Durden, Whitehead, Hadlow & Adams, Jacksonville, Fla., for defendants Brotherhood of Ry. & S.S. Clerks, etc., and Silas McKinney.

SIMPSON, District Judge.

Plaintiff is an employee at Jacksonville, Florida, of the defendant Railway Express Agency and a member of the craft of clerks, freight handlers, express and station employees. Defendant Brotherhood of Railway and Steamship Clerks is the collective bargaining representative under the Railway Labor Act, 45 U.S.C.A. § 151 et seq., of the members of this craft. The wages, rules, and working conditions applicable to plaintiff's employment are established and governed by a bargaining agreement between the Express Company and the Brotherhood.

By this action plaintiff seeks, on his own behalf and on behalf of other employees alleged to be similarly situated, to have enjoined, as unlawful under the Railway Labor Act and the federal Constitution, an amendment to the bargaining agreement made by the Express Company and the Brotherhood in 1952 modifying seniority rights.

The material facts alleged in the complaint may be summarized as follows: Since the time of plaintiff's initial employment in 1929, agreements have been in effect between the Express Company and the Brotherhood covering plaintiff's hours of service, working conditions, and seniority rights. It is alleged that all such agreements except the one made in 1952 of which plaintiff complains prescribed certain prerequisites for acquiring seniority rights. A copy of such an agreement alleged to contain these requirements is attached as an exhibit to the complaint. In December of 1930 plaintiff's seniority was established pursuant to said requirements and his name and seniority date placed on a seniority roster posted in January 1931. It has similarly appeared on all rosters posted for the years 1932 to 1952.

It is further alleged that the defendant Silas McKinney, a colored employee of the Express Company at Jacksonville, did not appear on said roster or on any seniority roster posted during the period 1932-1952, and that neither McKinney nor any other colored employee of the craft at Jacksonville have ever validly acquired seniority rights.

As a result of an amendment to the agreement made by the Express Company and the Brotherhood in late 1952, a seniority roster was posted in January of 1953 which contained the name of the defendant Silas McKinney and the names of 531 other colored employees. A copy of said seniority roster, attached by plaintiff as an exhibit to the complaint, discloses that the seniority dates assigned to the colored employees have been integrated with the dates assigned to the white employees so as to result in a listing of employees, white as well as colored, in chronological order. The result is to place plaintiff and certain of the other white employees lower on the seniority roster than they were during the years 1932-1952 and now would be had not the integration of the colored employees been effected by agreement between defendants Brotherhood and Express Company.

Plaintiff asserts that the seniority dates assigned to the colored employees were never validly acquired pursuant to the requirements of the bargaining agreement as it existed prior to late 1952, and resulted only because of the allegedly invalid amendment to the agreement made in 1952.

No claim of discharge, layoff, loss of promotion rights, or the like is alleged to have resulted to plaintiff or to the employees which he purports to represent. The cause of action is based solely upon the claim that the 1952 agreement was unlawfully entered into and is unlawful in its terms and effects in violation of the Railway Labor Act and the Constitutional guaranty of equal protection because it was allegedly entered into only for the benefit and advantage of the colored employees of the Jacksonville seniority district and not for the benefit and advantage of all members of the craft or class.

The complaint was originally filed in the Circuit Court, Fourth Judicial Circuit, Duval County, Florida, from which it was removed jointly by all defendants to this Court pursuant to the provisions of Section 1441 of Title 28, U.S. Code, as a cause of action arising under a federal law regulating commerce as well as the Constitution and laws of the United States, and as such within the original jurisdiction of the federal district courts. 28 U.S.C.A. §§ 1331 and 1337.

All defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted.

At the outset, the question of jurisdiction of the subject matter of the complaint must be considered. If the asserted cause of action is based upon an alleged breach of a bargaining agreement, exclusive jurisdiction is vested in the National Railroad Adjustment Board by Section 3 of the Railway Labor Act, as amended, 45 U.S.C.A. § 153. Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Brotherhood of Locomotive Firemen & Enginemen v. Central of Georgia Railway Co., 5 Cir., 199 F.2d 384; Hettenbaugh v. Airline Pilots Ass'n International, 5 Cir., 189 F.2d 319.

But if the complaint alleges a violation of some right granted by a federal statute or by the federal Constitution, a federal question is presented and the court has jurisdiction. Tunstall v. Brotherhood of L. F. & E., 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187; Brotherhood of Locomotive Firemen & Enginemen v. Mitchell, 5 Cir., 190 F.2d 308; Hettenbaugh v. Airline Pilots Ass'n International, 5 Cir., 189 F.2d 319, 320.

Here it is clear that plaintiff does not base his cause of action on any alleged breach of a bargaining agreement. To the contrary, he specifically negates reliance on any provisions of the agreement which would require interpretation of application, and limits his cause of action to the claim that the 1952 amendment to the agreement made by the Express Company and the Brotherhood was unlawfully entered into and is unlawful in its terms and effects and thus is a violation of the Railway Labor Act and plaintiff's rights under the federal Constitution. The Railroad Adjustment Board clearly does not have jurisdiction to determine such a question. Consequently, the cause of action asserted is one within the jurisdiction of this Court.

It does not necessarily follow, however, because jurisdiction exists that the claim is well founded. It is well established that a failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 249, 71 S.Ct. 692, 95 L.Ed. 912; Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939. For reasons to be discussed, I am of the opinion...