The opinion of the court was delivered by: Sullivan, District Judge.
This is a suit arising under the Railway Labor Act, 45 U.S.C.A.
The plaintiff entered the employ of defendant railroad as a
dining car waiter in or about September, 1941. He remained in the
employ of the defendant in that capacity until the month of
September, 1947, at which time he was discharged by the
On or about September 17, 1947, he received from the
superintendent of dining service of the defendant railroad a
letter advising him that he was charged with violating certain
general rules of the railroad and advising him further that an
investigation into these charges would be held in the office of
the superintendent of dining car service on September 23. The
letter further advised plaintiff that "you are entitled to
employee representation of your own choice."
Plaintiff appeared at the specified time and place for the
hearing on the charges against him at which time he was
accompanied by certain individuals whom he had designated as his
representatives for purposes of the hearing.
Mr. Clifford J. Bueschel was in charge of the hearing and
investigation on that day. The plaintiff advised Mr. Bueschel
that he had designated the two individuals who accompanied him or
any one of them to act as his representative in the course of the
hearing to be conducted by Mr. Bueschel. Mr. Bueschel advised the
plaintiff and his designated representatives that the plaintiff
could be represented only by an employee of the defendant
railroad. Mr. Bueschel further advised the plaintiff and the
plaintiff's representatives that the hearing would not proceed
unless and until the plaintiff's designated representatives left
The defendant railroad rested its refusal to meet or deal with
the designated representatives of the plaintiff on the fact that
a contract which the defendant railroad had executed with a labor
organization known as Dining Car Employees Union Local 351,
contained provisions stating that employees could have as
representatives in such proceedings only an employee of the
Resting on his right under the Railway Labor Act to have a
representative of his own choice, plaintiff advised Mr. Bueschel
that unless he was permitted to be represented by a
representative of his own choice, he would withdraw from hearing,
which he did.
Shortly after September 24, 1947, plaintiff received a letter
from defendant railroad,
dated September 24, 1946, advising him as follows: "As a result
of your failure to attend investigation held in my office 1:38
P.M. Central Standard Time, Tuesday, September 23, 1947, this as
instructed in my letter to you September 17, 1947, you are
dismissed from the service effective today, September 24, 1947."
Plaintiff thereafter brought this action alleging that his
discharge involved a direct violation of the Railway Labor Act.
Statutory Provisions Involved.
Railway Labor Act, 45 U.S.C.A. § 151: "Sixth. The term
`representative' means any person or persons, labor union,
organization, or corporation designated either by a carrier or a
group of carriers or by its or their employees to act for it or
"The purposes of the Act are: (1) To avoid any interruption to
commerce or to the operation of any carrier engaged therein; (2)
to forbid any limitation upon freedom of association among
employees or any denial, as a condition of employment or
otherwise, of the right of employees to join a labor
organization; (3) to provide for the complete independence of
carriers and of employees in the matter of self-organization to
carry out the purposes of this Act; (4) to provide for the prompt
and orderly settlement of all disputes concerning rates of pay,
rules or working conditions; (5) to provide for the prompt and
orderly settlement of all disputes growing out of grievances or
out of the interpretation or application of agreements covering
rates of pay, rules, or working conditions.
"Second. All disputes between a carrier or carriers and its or
their employees shall be considered, and, if possible, decided
with all expedition, in conference between representatives
designated and authorized so to confer, respectively, by the
carrier or carriers and by the employees thereof interested in
"Third. Representatives, for the purposes of this Act, shall be
designated by the respective parties without interference,
influence, or coercion by either party over the designation of
representatives by the other; and neither party shall in any way
interfere with, influence, or coerce the other in its choice of
representatives. Representatives of employees for the purposes of
this Act need not be persons in the employ of the carrier, and no
carrier shall, by interference, influence or coercion seek in ...