Before MAJOR, Chief Judge, and DUFFY and SWAIM, Circuit Judges.
The Order of Railroad Telegraphers (hereinafter referred to as Telegraphers) filed a claim before the National Railroad Adjustment Board, Third Division (hereinafter referred to as the Board), against the Illinois Central Railroad Company (hereinafter referred to as Carrier), asserting that an agreement between the Carrier and Telegraphers covered the work of a position on the property of the Carrier in Palestine, Illinois, which was then being performed by D. A. Shears, a member of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees (hereinafter referred to as Clerks).
After this claim was filed with the Board, the Carrier was informed in writing by the Clerks that in the event the employment rights of the present incumbent of the position in question are adversely affected by the claim filed by the Telegraphers, the Clerks will present and prosecute a claim against the Carrier based upon the same employment rights which are involved in the Telegraphers' proceeding.
Thereafter, the Carrier filed its submission with the Board, stating that the employment in controversy was plain, ordinary clerical work of the type customarily performed by clerical personnel on the Carrier's property and in the industry generally, and that the claim was in reality a dispute between the Telegraphers and the Clerks and should be dismissed unless the Board gave each organization an opportunity to present its side of the case. Then ten regular members of the Board, consisting of five carrier members and five labor members, deadlocked on the merits of the Telegraphers' claim, following which a Referee was appointed by the National Mediation Board, pursuant to Sec. 3, First (l) of the Railway Labor Act, 45 U.S.C.A. § 153, First (l), to act as a member of the Board for the purpose of making an award.
On May 13, 1953, the Telegraphers' claim came before the Board for hearing, at which time a question was raised by Mr. Horsley, a carrier member that, no notice had been served on the Clerks or on members of the craft represented by the Clerks "who were directly involved in the claim." A vote was taken on the question of giving notice, which resulted in a tie, the five carrier members voting to give notice and the five labor members against. The Referee abstained from voting.Mr. Horsley thereupon, the said Referee being present, objected to further proceedings in said matter until the Board had complied with Sec. 3(j) of the Railway Labor Act relative to the giving of notice to parties involved. Notwithstanding this objection, the hearing was resumed, with the Referee present and acquiescing in such action.
On May 22, 1953, the Carrier filed the instant action against the Board, each of the ten individual members of the Board, and Donald F. McMahon, acting as Referee and member of the Board by direction of the National Mediation Board. The complaint recited in detail the facts outlined above and alleged that "the Board does not intend to and that it will not give the statutory notice to the Clerks and to the said D. A. Shears, or to either of them;" and that further demand that the Board do so would be unavailing and that the Board would hold further proceedings in the matter without giving such notice "unless such action is enjoined" by the court.
The complaint also alleged that "for several years last past the Board has continuously and deliverately pursued, and continues to pursue, a custom and practice of denying the right of participation in any claim pending before it to any party or employee involved but not formally served with notice of the proceeding. That said custom and practice excludes employees and unions other than the one filing the claim with the Board and those seeking to represent them from participating in hearings before the Board." This allegation is supported by the affidavit of a carrier member and is not disputed.
The complaint prayed for "a preliminary restraining order and a temporary injunction to be made permanent on final hearing: (1) Directing the defendants, and each of them, to forthwith serve or cause to be served due notice of the claim filed against plaintiff by the Order of Railroad Telegraphers in Docket No. TE-5722," upon Shears and the Clerks "as required by Section 3(j) of the Railway Labor Act", 45 U.S.C.A. § 153(j), and "(2) Restraining and enjoining the defendants herein, and each of them, from proceeding with any disposition of said claim until such due notice has been served upon" Shears and the Clerks.
Telegraphers as an intervening defendant filed an answer in opposition to the Carrier's motion for a preliminary injunction. This answer alleged lack of jurisdiction by the court to grant injunctive relief for the reason that the judicial review of awards of the Board provided by the Railway Labor Act in Carrier has not exhausted its adminactions to enforce is exclusive; that the istrative remedies; that the Board, with the Referee sitting as a member thereof, has not made, but will make unless enjoined, a final determination of the Carrier's contentions, including its contention that any award in favor of Telegraphers would be invalid unless notice is given to the Clerks; that the complaint is premature because the Referee may decide Telegraphers' claim in favor of the Carrier, either on the question of notice or on the merits, in which case the Carrier cannot be injured; that, if the case should be decided in favor of Telegraphers, the Carrier, if correct on its contention as to notice, will have an adequate defense to any suit for enforcement of the award, which defense constitutes an adequate remedy at law; that the Clerks has its own contract with the Carrier governing the performance of work by members of that craft and it is, therefore, neither a necessary nor a proper party in the proceeding before the Board, and, finally, Telegraphers alleged that the record shows that the Clerks had actual knowledge of the pendency of the claim before the Board and that such knowledge dispenses with the necessity of giving formal notice. Telegraphers, therefore, asked that the motion of the Carrier for a preliminary injunction be denied.
The five labor members of the Board also filed an answer, objecting to the granting of a preliminary injunction as sought by the Carrier for substantially the same reasons as those asserted by the Telegraphers, and also filed a motion to dismiss the complaint for reasons similar to those set forth in their answer. The carrier members of the Board answered the complaint and generally agreed with the position of the Carrier as set forth in its complaint.
The Board, the Referee and the "United States of America, the latter being the real party in interest under the Railway Labor Act [45 U.S.C.A. § 151 et seq.], and on which service was made in accordance with Rule 4(d)(4) and (5) of the Federal Rules of Civil Procedure [28 U.S.C.A.]," filed a motion to dismiss the complaint on the grounds that (1) the complaint shows on its face that it is prematurely brought, (2) the complaint fails to state a claim upon which relief can be granted, and (3) plaintiff is not threatened with irreparable injury arising out of any threatened action by the Board.
We discern no substantial dispute as to the facts; at any rate, there is no attack upon the findings as made by the district court, which are predicated upon the pleadings and numberous exhibits attached thereto. The court specifically found that the proceeding before the Board involved the employment rights of certain employees to a position then held by D. A. Shears, a member of the Clerks' union, and that Shears and the members of the craft represented by the Clerks would be affected by and are involved in the Board proceeding. The court found that no notice of the proceeding had been served upon Shears, that there was nothing in the record to show that he had actual knowledge thereof and that no formal notice had been served upon the Clerks' union or the constituents thereof. The court found: "The Third Division of the National Railroad Adjustment Board has for several years continuously pursued, and continues to pursue, a custom and practice of denying to individuals involved in disputes before the Board their statutory and constitutional rights to participate in the hearings before the Board if said individuals have not been formally served with notice of the proceeding." And the court concluded that such custom and practice "is a denial of due process of law in contravention of the Fifth Amendment," and "The notice required by Section 3, First (j) of the Railway Labor Act is jurisdictional and if the Board fails to comply with this Section of the statute it is acting without statutory authority. The National Railroad Adjustment Board may not assert its general power under the Railway Labor Act and at the same time disregard the essential conditions imposed upon it by Congress for the exercise of such power."
The court denied the motion of the Board and the labor members thereof to dismiss the complaint, and by order enjoined the Board, its members and the Referee from proceeding in Docket No. TE-5722 (this being the Telegraphers' claim in controversy) "unless and until they give formal notice" to D. A. Shears and the ...