Shiels v. Baltimore and Ohio Railroad Company

• Decision Date: 30 August 1957
• Docket Number: No. IP 56-C-231.,IP 56-C-231.
• Citation: 154 F. Supp. 917
• Parties: Fred H. SHIELS, Robert L. Swafford, Keith U. Clark, and R. D. Vernon v. The BALTIMORE AND OHIO RAILROAD COMPANY.
• Court: U.S. District Court — Southern District of Indiana

154 F. Supp. 917

Fred H. SHIELS, Robert L. Swafford, Keith U. Clark, and R. D. Vernon v. The BALTIMORE AND OHIO RAILROAD COMPANY.

No. IP 56-C-231.

United States District Court S. D. Indiana, Indianapolis Division.

August 30, 1957.

George Rose, Indianapolis, Ind., for plaintiffs.

Martz, Beatty & Wallace, Indianapolis, Ind., S. R. Prince and Joseph C. Wallace, Indianapolis, Ind., for defendant.

STECKLER, Chief Judge.

Fred H. Shiels and three similarly situated former employees of The Baltimore and Ohio Railroad Company (B&O) instituted this action on August 3, 1956, in the Superior Court of Marion County against B&O, asking $125,000 damages each for wrongful discharge. The case was removed to this court. This court has general jurisdiction by reason of diversity (28 U.S.C. § 1332) and because the proceeding arises under an act regulating commerce, as will appear. (28 U.S.C. § 1337). B&O's defense of jurisdictional pre-emption arising out of the primacy of the jurisdiction of the National Railroad Adjustment Board (NRAB) will be disposed of below.

Prior to the termination of their employment, plaintiffs were firemen in the craft represented for a long time on the B&O by the Brotherhood of Locomotive Firemen and Enginemen (BLF&E). On October 15, 1951, the BLF&E and the B&O entered into a union shop agreement, effective November 1, 1951. That agreement was authorized by the union shop amendment (P.L. 914, approved January 10, 1951; 64 Stat. 1238, ch. 1220) to the Railway Labor Act (45 U.S. C.A. §§ 151 et seq., at 152, Eleventh).

The union shop agreement (generally referred to below simply as the "agreement")¹ in Section 1 pertinently provides that locomotive firemen "as a condition of continued employment" must become members of the BLF&E within sixty (60) calendar days "and thereafter shall maintain membership in the Brotherhood."

Two of the plaintiffs were already members² and they continued their membership until July 1, 1952. Keith U. Clark, plaintiff, who was employed August 2, 1947, became a member of the BLF&E within the 60-day grace period after the effective date of the agreement. He also continued his membership until July 1, 1952. Robert L. Swafford was employed October 14, 1952. Under the agreement he was allowed a grace period of 60 days after employment to join. Despite the lapse of that period he was accepted as a BLF&E member on June 1, 1953, but he allowed his membership to lapse on July 1, 1953.

By allowing their BLF&E membership to lapse, all four plaintiffs concededly abandoned it. (Complaint, paragraph 15). Each on the date of abandonment became a member of an industrial type union, United Railroad Operating Crafts, known as UROC.

Following the abandonment of their membership in the BLF&E, due and orderly proceedings required under Section 5 of the union shop agreement were had in the case of each individual (affidavit of R. L. Harvey, paragraph 7; complaint, paragraph 11). After the BLF&E cited the four plaintiffs for nonmembership, in accordance with Section 5(a) of the agreement, B&O issued notices to each of them, pursuant to Section 5(b), and an initial union shop hearing was held.³ Following an adverse determination by B&O in each case, the plaintiffs appealed to the highest designated officer of B&O, pursuant to Section 5(c) of the agreement. Due and orderly appeals hearings were then held in each case,⁴ and the B&O held that the plaintiffs were in violation of the union shop agreement.⁵ On account of a temporary injunction issued by the Superior Court of Marion County in a class suit, there was certain delay by the B&O in effecting the actual terminations of employment, but in each case, following the dissolution of the injunction, letters of termination of employment were issued on March 22, 1956, and actual employment terminated within several days thereafter.

At the union shop hearings, each of the plaintiffs relied upon his undisputed membership in UROC as a primary satisfaction of the requirements of the agreement (Harvey affidavit, paragraph 11), citing Section 2 which pertinently provides as follows:

"Sec. 2. The requirements of membership provided for in Section 1 of this agreement shall be satisfied if any employee shall hold or acquire membership in any one of the labor organizations, other than the Brotherhood, national in scope, organized in accordance with the Railway Labor Act and admitting to membership employees of a craft or class in engine, train, yard or hosting service, that is, in any of the services or capacities covered in Section 3, First, (h), of the Railway Labor Act, defining the jurisdictional scope of the First Division of the National Railroad Adjustment Board. Provided, however, that nothing contained in this agreement shall prevent any employee from changing membership from one organization to another organization admitting to membership employees of a craft or class in any of the services above specified."

The quoted language of the agreement follows very closely the language of subparagraph (c) of Section 2, Eleventh of the Railway Labor Act (45 U.S.C.A. § 152, Eleventh (c)). Pertinently, that subparagraph reads:

"The requirement of membership in a labor organization in an agreement made pursuant to subparagraph (a) of this paragraph shall 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 * * *."

The agreement and the statute present one and the same question, namely, whether UROC was a labor organization "national in scope" at the pertinent time. Subparagraph (c) of the union shop amendment itself directly confers the right to satisfy the requirement of membership, by dictating that the requirements of membership "shall be satisfied" in specified circumstances, i. e., if such employees "hold or acquire" membership in any qualified labor organization "national in scope," etc. Subparagraph (c) did not command that the dependent union shop agreements expressly incorporate the federal right so created. The fact that this particular agreement did express the same right as a contractual right, in Section 2, does not operate to confer pre-emptive jurisdiction of this controversy upon the NRAB. This was the announced view of the Hammond Division of this Court in a remarkably similar case, McNamar v. Baltimore & Ohio Chicago Terminal Co., D.C.1957, 153 F.Supp. 835. There in overruling the railroad defendant's contention that the NRAB possessed exclusive primary jurisdiction, the court (Swygert, J.) said:

"The suit also involves an interpretation of the statute. The incorporation of the pertinent parts of the Railway Labor Act into the agreement makes it no less so. The ratio decidendi by which the Supreme Court sustained the courts' jurisdiction in Moore v. Illinois Central Railroad Company, 1941, 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, and in Steele v. Louisville & Nashville Railroad Company, 1944, 323 U. S. 192, 65 S.Ct. 226, 89 L.Ed. 173, are applicable and must be applied here. See: Rose, `The Railway Labor Act and the Jurisdiction of the Courts', 8 Lab.L.J. 9 (1957)." 153 F.Supp. 837.

Accordingly, the defendant's motion to dismiss for want of jurisdiction is overruled.

Even though plaintiffs in this action are not now claiming under any alleged membership in the UROC, it is of interest to note that since the filing of their complaint the Supreme Court has put to rest any claim they might have had at one time on the basis of membership in the UROC as a labor organization "national in scope." In the case of Pennsylvania R. Co. v. Rychilk, 1957, 352 U. S. 480, 77 S.Ct. 421, 429, 1 L.Ed.2d 480 the Supreme Court held:

"In other words, by writing into § 2, Eleventh (c), standards identical to those of Section 3, Congress in Section 2 was evidently making reference to those unions which had qualified as electors under Section 3 through the administrative procedure there expressly provided. * * * In short, Congress in Section 2 was referring to a group of unions already defined and constituted under the Section 3 procedures. And therefore an employee has available to him alternative membership only in such unions as have already qualified as electors under Section 3."

UROC has never qualified as an elector for the labor members of the NRAB under Section 3, First (f) of the Railway Labor Act.

Two of the plaintiffs have a separate basis for their contention that the B&O cannot justify their "discharges" under the provisions of the union shop agreement. Plaintiff Shiels joined the Brotherhood of Locomotive Engineers (BLE) about December 1, 1954, and plaintiff Swafford joined the BLE about November 1, 1954.⁶ Since the BLE is admittedly a labor organization "national in scope" the question is whether the subsequently acquired membership cancels earlier membership defaults of approximately 28 and 16 months respectively. This contention also depends upon the meaning of subparagraph (c) of the union shop amendment.

As the Supreme Court said in the Rychilk case of this very statute, it must be read "not in a vacuum, but in the light of the policies this Section was intended to serve, * * *" (352 U.S. 480, 77 S.Ct. 425, 1 L.Ed. 486). The discussion there of the policies shows abundantly that the right to "acquire" alternative membership in the future was not intended to operate as a cure for accrued defaults in required membership. It is this court's view that the tardy acquisition of BLE membership by these two plaintiffs did not immunize them from the penalties prescribed by the agreement. In the Rychilk case below (Rychilk v. Brotherhood of Railroad Trainmen, D.C.1955, 128 F.Supp. 449), the District Court denying an almost identical contention said:

"It would appear that the Act, however, contemplates the continued membership in a Union national in scope." (at page 456). (Italics added.)

See also Alabaugh v. Baltimore &...