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TOWNSEND v. NATIONAL RAILROAD ADJUSTMENT BOARD

January 6, 1954

TOWNSEND ET AL.
v.
NATIONAL RAILROAD ADJUSTMENT BOARD ET AL.



The opinion of the court was delivered by: Campbell, District Judge.

This suit is brought by three representative members of United Transport Service Employees (hereinafter referred to as "United"), an unincorporated labor association, against six members and the secretary of the Fourth Division of the National Railroad Adjustment Board (NRAB), the Chicago, Burlington & Quincy Railroad Company, and the Brotherhood of Sleeping Car Porters (hereinafter referred to as the "Brotherhood"). It is alleged in the complaint that United is the exclusive bargaining agent of a class of Burlington employees, including employees known as Zephyr Coach Porters, and that, under the terms of an agreement entered into between United and Burlington on January 1, 1950, the members of United, and no other employees, are entitled to do the work of Zephyr Coach Porters. It is next alleged that notwithstanding the terms of said agreement, the Brotherhood, another labor organization, has filed a claim with the NRAB asking that tribunal to determine that certain members of the Brotherhood are entitled to do all the work of Zephyr Coach Porters, and that the effect of said claim, if successful, would be to injure members of United by taking away their work. It is also alleged that no notice of any hearings or proceedings before the NRAB was given by the NRAB to plaintiffs, or to any officer, representative, or other person connected with United, and that United has asked the NRAB that it have an opportunity to be heard during said proceedings, but that the NRAB failed and refused to grant such an opportunity. Finally, it is alleged that the NRAB is about to adjudicate the matter submitted by the Brotherhood. Plaintiffs seek a permanent injunction, restraining each of the defendants from giving force or effect to the claim submitted by the Brotherhood to the NRAB, and directing the NRAB to declare the claim and the proceedings thereunder of no force and effect. Plaintiffs also seek costs, attorney's fees, and compensation for damages sustained as a result of the allegedly unlawful acts set forth in their complaint.

Three answers have been filed: one on behalf of Burlington and the three "carrier members" of the Fourth Division of the NRAB, one on behalf of the Brotherhood, and one on behalf of the three "labor members" of the Fourth Division. Neither Burlington nor the carrier members have interposed jurisdictional defenses, and each has agreed that the complaint states a claim upon which proper injunctive relief could be granted. The labor members and the Brotherhood do interpose jurisdictional defenses, and deny material allegations of the complaint. In addition, they contend that the complaint fails to state a claim upon which any relief could be granted.

At the hearing, after oral argument on the jurisdictional issue, the parties introduced evidence in support of their respective positions. On the basis of that evidence, the court now enters the following:

Findings of Fact

1. United is the bargaining agent of a certain class of Burlington employees. The Brotherhood is the bargaining agent of another class of Burlington employees.

2. United claims that the class of employees it represents are entitled to do all the work of Zephyr Coach Porters on Burlington trains 25 and 26. This claim is based upon the terms of an agreement entered into between United and Burlington on January 1, 1950. (Pl. Ex. 1).

3. The Brotherhood claims that the class of employees it represents are entitled to do all the work of Zephyr Coach Porters on Burlington trains 25 and 26. This claim is based upon the terms of an agreement entered into between the Brotherhood and Burlington on April 12, 1941. (Def. Ex. 2.)

4. The Brotherhood has submitted a claim to the Fourth Division of the NRAB. This claim has been docketed as Number 926. The Brotherhood therein asks that the NRAB find that members of the Brotherhood are entitled to do all the work of Zephyr Coach Porters on Burlington trains 25 and 26.

5. United has asked the NRAB that it be given notice of the pendency of the Brotherhood's claim, and an opportunity to be heard during the proceedings which will be conducted on said claim, pursuant to the provisions of Section 3, First (j) of the Railway Labor Act, 45 U.S.C.A. § 153, First (j). Three carrier members of the Fourth Division agreed that such notice should be given to United; three labor members decided that such notice should not be given. The matter was then referred to a referee, as provided in the Railway Labor Act, who decided that notice should not be given.

6. On September 1, 1953, the Fourth Division of the NRAB made an award in Docket Number 926. The award is numbered 921, and provides that Section 3, First (j) of the Railway Labor Act does not require that notice of the pendency of the Brotherhood's claim be given to the class of Burlington employees represented by United.

    "In summary, we are of the opinion that, in
  general, employes of the respondent carrier who
  possibly may be displaced or whose employment status,
  involving work being performed at time the claim is
  filed, may possibly be adversely affected as a result
  of an award by the Board, are employes `involved' and
  thus are entitled to due notice of hearing and the
  right to participate therein. Contrariwise, we think
  that employes of a carrier other than respondent, and
  `other' employes of respondent who have not been
  performing the work in dispute, are not employes
  `involved'".

8. The NRAB has not yet conducted a hearing on the Brotherhood's claim. The parties in this cause have agreed that unless notice is given to United as provided in Section 3, First (j) of the Railway Labor Act, United will be unable ...


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