Switchmen's Union v. Southern Pacific Company

• Decision Date: 05 March 1958
• Docket Number: No. 15148.,15148.
• Parties: SWITCHMEN'S UNION OF NORTH AMERICA, General Adjustment Committee — Southern Pacific Company, Switchmen's Union of North America; Neil T. Speirs, as International Vice President, Switchmen's Union of North America, and John R. Burge, as General Chairman and as Acting Chairman, Switchmen's Union of North America, Appellants, v. SOUTHERN PACIFIC COMPANY, a corporation, Brotherhood of Railroad Trainmen, a voluntary association; The General Committee, Brotherhood of Railroad Trainmen, a voluntary association; J. J. Corcoran, as General Chairman, General Committee, Brotherhood of Railroad Trainmen; J. E. Teague, as Secretary, General Committee, Brotherhood of Railroad Trainmen, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

253 F.2d 81 (1957)

SWITCHMEN'S UNION OF NORTH AMERICA, General Adjustment Committee — Southern Pacific Company, Switchmen's Union of North America; Neil T. Speirs, as International Vice President, Switchmen's Union of North America, and John R. Burge, as General Chairman and as Acting Chairman, Switchmen's Union of North America, Appellants, v. SOUTHERN PACIFIC COMPANY, a corporation, Brotherhood of Railroad Trainmen, a voluntary association; The General Committee, Brotherhood of Railroad Trainmen, a voluntary association; J. J. Corcoran, as General Chairman, General Committee, Brotherhood of Railroad Trainmen; J. E. Teague, as Secretary, General Committee, Brotherhood of Railroad Trainmen, Appellees.

No. 15148.

United States Court of Appeals Ninth Circuit.

April 30, 1957.

On Rehearing March 5, 1958.

Carroll, Davis & Burdick, Roland C. Davis, San Francisco, Cal., Anderson, Franklin & O'Brien, Portland, Or., Clifford D. O'Brien, Portland, Or., for appellants.

Burton Mason, W. A. Gregory, San Francisco, Cal., for Southern Pacific Company.

Hildebrand, Bills & McLeod, D. W. Brobst, Oakland, Cal., for respondent union.

Before DENMAN, Chief Judge, and POPE and CHAMBERS, Circuit Judges.

DENMAN, Chief Judge.

Switchmen's Union of North America, hereafter the Union, appeals from a decision of the district court on a complaint for declaratory relief filed by the Southern Pacific Company, hereafter the Company, holding valid a dues checkoff agreement between the Company and the Brotherhood of Railroad Trainmen, hereafter the Brotherhood. The Union in its cross complaint contended that this check-off agreement is invalid insofar as it is applicable to employees who are employed in the craft for which appellant Union is the certified bargaining representative.

It appears that the Brotherhood is the certified bargaining representative of the employees of the Company who are trainmen, and that the Union is the certified bargaining representative of the employees who are switchmen or yardmen. The Railway Labor Act provides that an employee in either of these crafts may satisfy the union shop agreement by belonging to either labor organization. 45 U.S.C.A. § 152, Eleventh (c). As applied to the facts in this case, this means that an employee although working as a trainman, a craft for which the Brotherhood is the bargaining representative, may belong to the Union, and an employee who is working as a switchman may choose to belong to the Brotherhood. In its complaint the Company alleged that its contract with the Brotherhood, which is the certified bargaining representative for the trainmen's craft, provides for the check-off of dues to the Brotherhood for all its members whether employed as trainmen or as switchmen,¹ and that this provision is valid under the Railway Labor Act. Both the Brotherhood and the Union were named defendants. The Brotherhood concurred with the Company's contention that the check-off agreement was valid, while the Union in its cross complaint alleged that it violated Section 2, Eleventh (b) of the Railway Labor Act, 45 U.S.C.A. § 152, Eleventh (b), insofar as it permitted the check-off of dues to the Brotherhood of its members who are regularly employed as switchmen, a craft for which appellant is the certified bargaining representative.

During the oral argument before this court the question arose whether the Company's complaint stated a cause of action warranting declaratory relief. Since the Company and the Brotherhood, as shown by their pleadings, agree that the provision in their contract for the check-off of dues is valid, there is hence no valid dispute between these two to invoke the declaratory jurisdiction of the district court, the Act providing for such relief "In a case of actual controversy within the jurisdiction * * *" of the district court. 28 U.S.C. § 2201. (Emphasis added.) Furthermore it does not appear that any switchman member of the Brotherhood is claiming that the conduct of the Company or the Brotherhood violates his rights under the Act, as in Tunstall v. Brotherhood, 1944, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187, or under the contract between the employer and the union, as in Primakow v. Railway Exp. Agency, D.C.E.D.Wis.1941, 57 F.Supp. 933.

Nevertheless, the carrier's complaint seeks to establish jurisdiction because an entire stranger to these transactions, the Switchmen's Union, contends that the agreements between the carrier and the Brotherhood are illegal.

Let it be assumed as follows: That the Railway Act makes illegal the checkoff by the carrier of dues to the Brotherhood of Railroad Trainmen paid by switchmen who are not members of Switchmen's union, which is the bargaining representative for the switchmen's craft.

It seems clear that no member of the Switchmen's union is in any way personally affected by non-member switchmen so paying dues to the Brotherhood. It is equally clear that the Switchmen's union, having a right to dues only from its members² has no concern with the acts of switchmen who are not its members.

It is reasonably to be contended it is the desire of the Switchmen's union to increase its membership by drawing into it a comparatively large number of switchmen who prefer not to remain members of the Brotherhood, although employed in a craft for which the Union is the certified bargaining representative.

It is seen, then, that only if John Smith, or Bill Jones, mere travelers on the railroad, could seek the federal courts to stop the wrongful acts of the company and the railway union, could it be said that the Switchmen's union is entitled to do so.

In each case cited in support of jurisdiction one of the following situations obtained:

(1) The suit was between parties to a contract for a determination as to its validity, e.g. South Side Theatres, Inc., v. United West Coast Theatres Corp., 9 Cir., 1944, 178 F.2d 648; Empire Box Corp. v. Willard Sulzberger Motors Co., D.C.N.J.1952, 104 F.Supp. 762; or

(2) The suit was brought by a business man or organization against a government official for a declaratory judgment that a contract or business practice did not violate a statute, and for an injunction against a threatened prosecution by the defendant official who was claiming that plaintiff was violating the state law, e.g. Sunshine Mining Co. v. Carver, D.C.Idaho 1940, 34 F.Supp. 274; or

(3) An action by an employee against a union or employer claiming that a practice or contract of the defendant infringed rights guaranteed to the plaintiff by statute, e.g. Tunstall v. Brotherhood, 1944, 323 U.S. 210, 65 S.Ct. 235; or

(4) An action by a union to force the employer to accord to its rights guaranteed to it by statute, such as its right to bargain with the employer, e.g. Texas & New Orleans R. R. Co. v. Brotherhood, 1930, 281 U.S. 548, 50 S.Ct. 427, 74 L. Ed. 1034.

It appears that none of these cases is analogous to the present case.

The case is remanded to the district court to dismiss the complaint for lack of jurisdiction to afford the claimed relief, unless within thirty days after the case is remanded to it the Company file with the district...