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ALLAIN v. NATIONAL R. ADJUSTMENT BOARD

May 6, 1953

ALLAIN ET AL.
v.
NATIONAL R. ADJUSTMENT BOARD, THIRD DIVISION ET AL.



The opinion of the court was delivered by: Barnes, Chief Judge.

This cause coming on to be heard on plaintiffs' motion for permanent injunction, and evidence having been taken and heard on January 5, 6 and 7, 1953, and counsel having submitted briefs and having argued orally to the Court on April 20, 1953 in this cause, and thereupon the Court, upon careful consideration of the pleadings, the evidence, the briefs and arguments of counsel, doth find the facts and Doth Order, Adjudge and Decree as Follows:

Findings of Fact.

1. Plaintiffs Frank Allain, Louis Hill, Barney Osborne and Charles Woods are citizens, residents and inhabitants of the State of California; plaintiff Richard W. Smith is a citizen, resident and inhabitant of the State of Illinois. Plaintiffs Allain, Hill, Osborne and Woods are employees of the defendant Western Pacific Railroad Company employed as "lounge or tavern car attendants." Plaintiff Richard W. Smith is the duly elected Secretary-Treasurer of the Joint Council Dining Car Employees, a voluntary unincorporated association composed of fifteen local trade unions whose members are employed in the dining car service of various railroads operating throughout the United States. One of such local trade unions is Dining Car Cooks and Waiters' Union, Local No. 456, which has its principal office and place of business at Oakland, California, and of which local trade union plaintiffs Allain, Hill, Osborne and Woods are members.

2. Prior to and after February 2, 1951, there were and are many persons who are similarly employed as "lounge or tavern car attendants," waiters-in-charge and waiters by said defendant Western Pacific Railroad Company in its dining car service, said class numbering more than forty persons. Plaintiffs Allain, Hill, Osborne and Woods belong to and are members of said class. The questions of law and fact to be determined herein are of common and general interest to the persons constituting such class and, particularly, any order entered herein will affect the job status of all members of said class. Plaintiffs Allain, Hill, Osborne and Woods are persons whose character in relation to said class render them fairly representative of said class, which class is so numerous as to make it impracticable to bring them all before the Court.

3. Defendants William H. Castle, R.H. Butler, Claude R. Barnes, C.P. Dugan, J.W. Whitehouse, E.T. Horsley, J.E. Kemp, G. Orndorff, R. Sarchet and J.H. Sylvester and Edward F. Carter as referee in Award 5123 are duly designated members of the Third Division, National Railroad Adjustment Board, and said Third Division, National Railroad Adjustment Board has its principal office and place of business in Chicago, Illinois. Defendant A.I. Tummon is the duly appointed Acting Secretary of Third Division, National Railroad Adjustment Board, and is a citizen, resident and inhabitant of the State of Illinois.

4. Defendant Western Pacific Railroad Company is a corporation organized and existing pursuant to the laws of the State of California having its principal office and place of business in San Francisco, California.

5. The Brotherhood of Railroad Trainmen is a voluntary unincorporated association and labor union having its principal office and place of business in Cleveland, Ohio. Frank W. Coyle, a duly elected Vice-President of said Brotherhood of Railroad Trainmen, maintained his office and place of business in the City of Chicago, State of Illinois. The Dining Car Stewards employed by defendant Western Pacific Railroad Company are represented for the purposes of collective bargaining by Brotherhood of Railroad Trainmen. The members of the Brotherhood of Railroad Trainmen constitute a class numbering approximately 200,000 and are, therefore, so numerous as to make it impracticable to bring them all before the Court. Said Frank W. Coyle was served with summons herein as Vice-President of the Brotherhood of Railroad Trainmen as certified collective bargaining representatives of the Dining Car Stewards employed by the defendant Western Pacific Railroad Company. Though said Frank W. Coyle has died since service of summons on him herein, he was a person whose character in relation to said Brotherhood of Railroad Trainmen was such that it could be reasonably expected that he would give notice of this suit to said Brotherhood. He was such a member of said class as would fairly assure the adequate representation of all persons either represented by said Brotherhood of Railroad Trainmen or members thereof, including Dining Car Stewards employed by the defendant Western Pacific Railroad Company.

6. Plaintiffs Allain, Hill, Osborne and Woods were employed as "lounge or tavern car attendants" in the dining car service of the defendant Western Pacific Railroad Company on Trains 17 and 18, known as the "California Zephyr," from March 20, 1949 until February 2, 1951. On February 2, 1951 defendant Western Pacific Railroad Company, acting through and by its duly authorized agents and employees, removed plaintiffs Allain, Hill, Osborne and Woods from the positions they occupied as "lounge or tavern car attendants" on said Trains 17 and 18, said trains then being operated by defendant Western Pacific Railroad Company. On February 2, 1951 defendant Western Pacific Railroad Company, acting through and by its duly authorized agents and employees, assigned four Dining Car Stewards, said Dining Car Stewards represented for purposes of collective bargaining by Brotherhood of Railroad Trainmen, to duty in the lounge or tavern cars then being a part of Trains 17 and 18 and then being operated by defendant Western Pacific Railroad Company, displacing plaintiffs Allain, Hill, Osborne and Woods on the said date.

7. Said displacement of plaintiffs Allain, Hill, Osborne and Woods with Dining Car Stewards by defendant Western Pacific Railroad Company was solely by virtue of and as a result of and in pursuance to a certain Award by Third Division, National Railroad Adjustment Board, known as Award No. 5123 and Order entered pursuant thereto by said Third Division, National Railroad Adjustment Board, and the sole factors which caused defendant Western Pacific Railroad Company to displace the named plaintiffs and supplant them with Dining Car Stewards was said Award No. 5123 and Order entered pursuant thereto.

8. No notice of any hearing, hearings or proceedings before said Third Division, National Railroad Adjustment Board, which hearing, hearings or proceedings resulted in the rendition of said Award No. 5123 and Order entered pursuant thereto, was given to plaintiffs, or any of them, or to any officer, representative, or other person in any way connected with said Dining Car Cooks and Waiters' Union, Local No. 456, or said Joint Council Dining Car Employees by said Third Division, National Railroad Adjustment Board, nor any member thereof, nor by any agent or employee thereof.

9. Neither plaintiffs, nor any of them, nor any member of the class they here represent, nor any official or officials, agents or employees of said Dining Car Cooks and Waiters' Union, Local No. 456, the certified collective bargaining representative of the class and craft of employees to which plaintiffs belong and here represent, nor any official or officials, agents or employees of said Joint Council Dining Car Employees, nor any official or officials, agents or employees of Hotel and Restaurant Employees and Bartenders' International Union of North America with which said International Union said Dining Car Cooks and Waiters' Union, Local No. 456, and said Joint Council Dining Car Employees are affiliated, had actual knowledge of the hearing, hearings or proceedings of said Third Division, National Railroad Adjustment Board which resulted in the rendition of said Award No. 5123 and the Order entered pursuant thereto. Neither plaintiffs nor any member or members of the class they here represent, nor any official, or officials, agents or employees of said Dining Car Cooks and Waiters' Union, Local No. 456, or of said Joint Council Dining Car Employees, were afforded any opportunity to be heard in any hearing, hearings or proceedings of said Third Division, National Railroad Adjustment Board which resulted in the rendition of said Award No. 5123 and Order entered pursuant thereto.

10. The claim submitted to the Third Division, National Railroad Adjustment Board by defendant Brotherhood of Railroad Trainmen, on which claim said Third Division, National Railroad Adjustment Board rendered said Award No. 5123 and the Order entered pursuant thereto, directly related to and involved the work being performed by plaintiffs Allain, Hill, Osborne and Woods as "lounge or tavern car attendants" on Trains 17 and 18 operated by defendant Western Pacific Railroad Company from the period of March 20, 1949 to February 2, 1951, and thereafter for all subsequent time material hereto, although said claim was couched in terms "for the hours accruing when No. 18, (California Zephyr), departed Oakland Mole, March 20, 1949, and upon all subsequent dates when a lounge buffet car upon which food is served is operated without a Dining Car Steward in charge * * * This claim * * * includes the operation of Train No. 17 (California Zephyr) between Salt Lake City and Oakland Mole, from the inaugural date of its operation beginning March 21, 1949 when a lounge buffet car is operated upon which food is served without a Dining Car Steward in charge and for all subsequent dates * * *."

11. Plaintiffs, by reason of their said displacement, have suffered loss of wages and loss of substantial benefits accruing to them based upon their wages as "lounge or tavern car attendants" pursuant to the Railroad Retirement Act of 1937, as amended, 45 U.S.C.A. ยง 228a et seq. The existence of said Award No. 5123 and the Order entered pursuant thereto, resulting in displacement of plaintiffs, will clearly produce the result that there will be fewer jobs available in the future for ...


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