The opinion of the court was delivered by: LA Buy, District Judge.
Plaintiff, Seaboard Air Line Railroad Company, a Virginia
corporation, owning and operating lines through the states of
Virginia, North Carolina, South Carolina, Georgia, Florida, and
Alabama, has filed an action to restrain the enforcement of a
Third Division NRAB award 7816, and to declare such award null
and void for failure to give notice and opportunity to be heard
to certain employees involved in the dispute as required by
45 U.S.C.A. § 153, First, (j).
Defendants are members of the Third Division, NRAB; the Referee
and Executive Secretary of the Third Division; the Brotherhood of
Railway and Steamship Clerks, Freight Handlers, Express and
Station Employees and its representatives; The American Railway
Supervisors Association and its representatives; the Brotherhood
of Railway Carmen and its representatives; and the Railway
Employees Department, AFL-CIO and its representatives.
Briefly, the dispute upon which the award was made stems from a
claim filed by the clerks that the task of filling out repair
cards on plaintiff's cars and cars of other railroads at
facilities operated by the plaintiff for the making of repairs
belonged to them. Said work is being performed by foremen and
supervisors represented by the defendant, American Railway
Supervisors Association, or by carmen and car inspectors
represented by the defendant, Brotherhood of Railway Carmen and
Railway Employees Department, AFL-CIO. These defendant unions and
their representatives have not attempted to intervene during the
course of the Third Division proceedings.
The carrier and the carrier members of the Third Division
requested that notice be given to the mechanical employee in
order that opportunity be given to them to be heard. Such notice
and opportunity were not extended to them. The Third Division,
the carrier members dissenting, sustained the claim of the
clerk's to the disputed work.
The plaintiff states that it has been presented with a demand
that it enforce the award granting such work to the clerks and
that it is also faced with demands from the representatives of
the incumbent employees performing said work that they be
continued in work.
The United States Attorney, on behalf of the members of the
Third Division, NRAB, has filed a motion to dismiss the carrier's
action for the reason that it is prematurely brought and that the
plaintiff has not exhausted its administrative remedies. The
court is of the opinion that this action is not premature and may
properly be brought before enforcement proceedings are commenced.
Nord v. Griffin, 7 Cir., 1936, 86 F.2d 481, certiorari denied
300 U.S. 673, 57 S.Ct. 612, 81 L.Ed. 879; Hunter v. Atchison, T. &
S.F. Ry. Co., 7 Cir., 1948, 171 F.2d 594, certiorari denied
Shepherd v. Hunter, 337 U.S. 916, 69 S. Ct. 1157, 93 L.Ed. 1726;
Missouri-Kansas-Texas R. Co. v. Brotherhood Railway & Steamship
Clerks, 7 Cir., 1951, 188 F.2d 302; Allain v. Tummon, 7 Cir.,
1954, 212 F.2d 32.
The defendant labor members of the Third Division,
individually, and as members of the NRAB, and the other
defendants, including the other unions, have filed a motion to
dismiss the complaint for the reason (1) the court lacks
jurisdiction of the subject matter of the complaint, and (2) the
complaint fails to state a claim upon which relief can be
granted. The carrier members of the Third Division and the
carrier rely on the statutory language of § 153, First (j),
45 U.S.C.A., that the several divisions of the Adjustment Board.
"shall give due notice of all hearings to the
employee or employees and the carrier or carriers
involved in any dispute submitted to them."
Great reliance is placed by defendants on language used by the
Supreme Court of the United States in Whitehouse v. Illinois
Central R. Co., 1955, 349 U.S. 366, 75 S.Ct. 845, 99 L.Ed. 1155,
and it is contended that it casts grave doubt upon the Seventh
Circuit interpretation of the notice requirement. Since no
definitive ruling was made by the Supreme Court based on such
language, this court adheres to the Seventh Circuit
interpretation of the notice section of the Act.
In addition, although the Seventh Circuit has consistently held
that actual though not formal notice with opportunity to be heard
is required to third persons whose interests may be adversely
affected, it is stressed that an important distinction exists in
the instant case in that each Division is "forbidden" by statute
from asserting jurisdiction over employees in crafts and classes
not included within their jurisdiction. It is contended that no
Division has the right or jurisdiction to resolve any matters
submitted by employees of a class or craft over which another
Division is vested with jurisdiction.
Do the separate jurisdictions of the four Divisions of the NRAB
render the requirement of notice of all hearings to the "employee
or employees and the carrier or carriers involved in any dispute"
meaningless unless such right to notice be construed to operate
only between the divisional crafts or classes? The statutory
section setting up the divisions of the NRAB nowhere in the grant
of jurisdiction expressly or by implication confines exercise of
division jurisdiction to disputes only to the classes or crafts
set forth. The word used is "involving" which is not a term of
exclusion. Where overlapping of work occurs either through
contract or custom or usage, such overlap may involve classes or
crafts and employees in separate divisions of the NRAB. The
statute does not deprive any of these divisions of jurisdiction
because other classes or crafts are concerned. There are cases
which have upheld the right of employees who belong to no class
or craft represented in the Divisions to notice by the Division
which is considering the disputed work on the claim of right of a
class or craft within its divisional bounds. See Hunter v.
Atchison, T. & S.F. Ry. Co., supra. Furthermore, the requirement
of notice states "employees" involved and does not limit that
category by any reference to divisional crafts or classes. This
Circuit has held in the Hunter cases, and see 188 F.2d 294, that
an employee is involved in a dispute within the meaning of
Section 3 of the Railway Labor Act if he will or could be
adversely affected by an adjudication of the dispute. The court
is of the opinion the statutory language used to define the
jurisdiction of the divisions by crafts or classes or employees
cannot be held by implication to exclude other crafts or classes
where a dispute of their own craft or class will necessarily
affect another class or craft whose rights should also be
considered. See Townsend v. National R.R. Adjustment Bd.,
D.C.Ill. 1954, 117 F. Supp. 654.
The court is of the opinion the motions to dismiss should be
overruled and an order in accord therewith ...