Strawser v. Reading Co.

• Citation: 80 F. Supp. 455
• Decision Date: 22 October 1948
• Docket Number: Civ. A. No. 8206.
• Parties: STRAWSER v. READING CO.
• Court: U.S. District Court — Eastern District of Pennsylvania

80 F. Supp. 455

STRAWSER v. READING CO.

Civ. A. No. 8206.

United States District Court E. D. Pennsylvania.

October 22, 1948.

Maurice Abrams, of Philadelphia, Pa., for plaintiff.

Frederick H. Knight, Miles W. Kirkpatrick and Morgan, Lewis & Bockius, all of Philadelphia, Pa., for defendant.

McGRANERY, District Judge.

This is an equitable action brought by a former employee of defendant, The Reading Company. The substance of the allegations in the complaint is that plaintiff, Mary Strawser, was laid off by defendant in violation of the terms of a collective bargaining agreement applicable to her and entered into between the Brotherhood of Railroad Trainmen and the defendant. Plaintiff seeks restoration to her rightful position on defendant's seniority list and recompense for her loss of wages. Defendant has filed a motion to dismiss for lack of jurisdiction. The complaint alleges that petitioner and defendant are both citizens of Pennsylvania but that jurisdiction of this suit is conferred by 28 U.S.C.A. § 41(8),¹ which provides that:

"The district courts shall have original jurisdiction as follows: Eighth. Of all suits and proceedings arising under any law regulating commerce."

Plaintiff argues that the Railway Labor Act of 1934, 45 U.S.C.A. § 151 et seq., is a law "regulating commerce" and that this suit arises under it. Defendant, in effect, concedes the first part of this contention but disputes the second.

The question at issue in the instant case has been raised not infrequently in the lower federal courts. Thus, Burke v. Union Pacific Railroad Co., 10 Cir., 129 F.2d 844, involved an action by a yard switchman against the railroad employer for breach of contract as evidenced in rules and regulations agreed to by the Brotherhood and the carrier. The Circuit Court affirmed a dismissal of the complaint for lack of jurisdiction. Similarly, in Shipley v. Pittsburgh and Lake Erie Railroad Co., D.C., 70 F.Supp. 870, 878, where railroad employees sued to recover extra compensation under a collective bargaining agreement, the Court said:

"I believe that my position was not well taken in the conclusion which I formerly reached, in holding that the facts in the instant case raise a question under the * * * Railway Labor Act * * * Although the parties to this proceeding were governed by the act, the right of action, if one exists, is based on the alleged breach of a custom which it is alleged should be considered a part of the contract; the cause of action does not arise under the Railway Labor Act but only from the consequent contractual relations of the parties. The wrongful breach of such contractual relations does not confer jurisdiction upon the federal court unless there is a diversity of citizenship and the jurisdictional amount * * *."

Although there are some decisions to the contrary, Primakow v. Railway Express Agency, D.C., 57 F.Supp. 933; Illinois Cent. R. Co. v. Moore, 5 Cir., 112 F.2d 959, reversed on other grounds, 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, these would seem to be a minority view. Cf Randolph v. Missouri-Kansas-Texas R Co., D.C., 68 F.Supp. 1007, affirmed 8 Cir., 164 F.2d 4; Southern Railway Co. v. Order of Railway Conductors of America, D.C., 63 F.Supp. 306; Delaware, Lackawanna and Western Railroad Co. v. Slocum, D.C., 56 F.Supp. 634; Barnhart v. Western Maryland R. Co., 4 Cir., 128 F.2d 709; Swartz v. South Buffalo R. Co., D.C., 44 F.Supp. 447.

The Supreme Court dealt with the applicability of 28 U.S.C.A. § 41(8) in an analogous situation in American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 765, 90 L.Ed. 873, where the Court said:

"The bill alleges a conflict between the Florida law and the National Labor Relations Act. The theory of the bill is that labor unions, certified as collective bargaining representatives of employees under that Act, are granted as a matter of federal law the right to use the closed-shop agreement or, alternatively, that the right of collective bargaining granted by that Act includes the right to bargain collectively for a closed shop. * * * And since the right asserted is derived from or recognized by a federal law regulating commerce, a majority of the Court conclude that a suit to protect it against impairment by state action is a suit `arising under' a federal law `regulating commerce.' Cf. Mulford v. Smith, 307 U.S. 38, 46, 59 S.Ct. 648, 651, 83 L.Ed. 1092; Peyton v. Railway Express Agency, 316 U.S. 350, 62 S.Ct. 1171, 86 L.Ed. 1525; Parker v. Brown, 317 U.S. 341, 349, 63 S.Ct. 307, 312, 87 L.Ed. 315; Tunstall v. Brotherhood of Locomotive Firemen, and Enginemen, 323 U.S. 210, 213, 65 S.Ct. 235, 237, 89 L.Ed. 187."

The Tunstall case 323 U.S. 210, 65 S.Ct. 237, cited in that opinion decided that an equitable suit to compel a union bargaining representative to represent the petitioner without discrimination because of race...