Tunstall v. BROTHERHOOD OF LOCOMOTIVE F. & ENGINEMEN, 5125.

• Decision Date: 10 January 1944
• Docket Number: No. 5125.,5125.
• Citation: 140 F.2d 35
• Parties: TUNSTALL v. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN et al.
• Court: U.S. Court of Appeals — Fourth Circuit

140 F.2d 35 (1944)

TUNSTALL v. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN et al.

No. 5125.

Circuit Court of Appeals, Fourth Circuit.

January 10, 1944.

Charles H. Houston and Joseph C. Waddy, both of Washington, D. C. (Oliver W. Hill, of Roanoke, Va., on the brief), for appellant.

William G. Maupin and James G. Martin, both of Norfolk, Va. (Harold C. Heiss and Russell B. Day, both of Cleveland, Ohio, on the brief), for appellees.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PER CURIAM.

This is an appeal from an order dismissing a suit for lack of jurisdiction. Plaintiff is a Negro fireman employed by the Norfolk-Southern Railway Company and he brings the suit in behalf of himself and other Negro firemen employed by that company. The defendants are the railway company, the Brotherhood of Locomotive Firemen and Enginemen, certain subordinate lodges of that labor union and one of its officers. The gravamen of the complaint is that the union has been selected as bargaining agent of the firemen of the defendant railway company; that it excludes Negro firemen from membership; that it has negotiated a trade agreement with the company discriminating against Negro firemen; and that as a result of this agreement plaintiff has suffered discrimination with respect to seniority rights and has been damaged thereby. The relief asked is a declaratory judgment to the effect that the union as bargaining representative is bound to represent fairly and without discrimination all members of the craft, an injunction restraining the defendants from giving effect to the trade agreement in so far as it discriminates against Negro firemen and restraining the union from acting as bargaining representative of Negro firemen so long as it refuses to represent them fairly and impartially, an award against the union for damages sustained by plaintiff, and an order that plaintiff be restored to the position to which he would be entitled by seniority in absence of the contract.

There is no allegation of diversity of citizenship and jurisdiction of the suit can be maintained only on the ground that the controversy is one arising under the laws of the United States. In so far as the suit is grounded on wrongful acts of the defendants, it cannot be said to be one arising under the laws of the United States, even though the union was chosen as bargaining representative pursuant to such laws. Barnhart v. Western Maryland Ry. Co., 4 Cir., 128 F.2d 709: Teague v. Brotherhood of Locomotive Firemen and Enginemen, 6 Cir., 127 F.2d 53. We have considered whether jurisdiction might not be sustained for the purpose of declaring the rights of plaintiff to the fair representation for the purposes of collective bargaining which is implicit in the provisions of the National Railway Labor Act, 45 U.S.C.A. § 151 et seq. We think, however, that recent decisions of the Supreme Court hold conclusively that there is no jurisdiction in the federal courts to afford relief under the act except where express provisions of the act so indicate. Brotherhood of Ry. & S. S. Clerks, etc., v. United Transport Service Employees of America, 64 S.Ct. 260, decided Dec. 6, 1943; Switchmen's Union of North America, etc. v. National Mediation Board et al., 64 S.Ct. 95, decided Nov. 22, 1943; General Committee, etc., v. Southern Pac. Co., 64 S. Ct. 142, decided Nov. 22, 1943; General Committee, etc., v. Missouri-Kansas-Texas Railroad Co. et al., 64 S.Ct. 146, 150, decided Nov. 22, 1943. In the case last cited, the Supreme Court, after commenting upon various provisions of the act and the machinery provided for their enforcement, said:

"The new administrative machinery plus the statutory commands and prohibitions marked a great advance in supplementing negotiation and self-help with specific legal sanctions in enforcement of the Congressional policy.

"But it is apparent on the face of the Act that while Congress dealt with this subject comprehensively, it left the solution of only some of those problems to the courts or to administrative agencies. It entrusted large segments of this field to the voluntary processes of conciliation, mediation, and arbitration. Thus by § 5, First, Congress provided that either party to a dispute might invoke the services of the Mediation Board in a ...