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BROGAN v. PENNSYLVANIA RAILROAD COMPANY

October 8, 1962

E.V. BROGAN ET AL., PLAINTIFFS,
v.
THE PENNSYLVANIA RAILROAD COMPANY, ET AL., DEFENDANTS.



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

Findings of Fact

1. The jurisdiction of this Court is invoked by the plaintiffs under Sections 28 U.S.C. § 1336, 28 U.S.C. § 1337, 49 U.S.C. § 5, 49 U.S.C. § 9, and 49 U.S.C. § 16, par. (12). The amount involved in this controversy exceeds the sum of $10,000.00, exclusive of interest and costs. The plaintiffs are citizens and residents of the State of New York. The defendant The Pennsylvania Railroad Company is a Pennsylvania corporation and the defendant The Pullman Company is an Illinois corporation.

2. Plaintiffs are four conductors of the defendant The Pullman Company (hereafter called Pullman) working on the sleeping car lines of the defendant The Pennsylvania Railroad Company (hereinafter called the Pennsylvania). The plaintiffs sue for themselves individually and for all others similarly situated (hereafter called Pullman conductors).

3. The Pennsylvania and Pullman are corporations which do business in the State of Illinois and each has an office and place of business in Chicago, Illinois. Each is a common carrier engaged in interstate commerce and is subject to Part I of the Interstate Commerce Act.

4. The Pennsylvania and most other railroads in the United States own various numbers of shares of stock of Pullman, representing in the aggregate all of the outstanding stock of Pullman, all of said stock having been acquired in 1947 pursuant to orders of the District Court of the United States for the Eastern District of Pennsylvania entered in Civil Action No. 994, in United States of America v. Pullman Company et al., 64 F. Supp. 108. These orders were entered after the Court had theretofore entered Findings of Fact, among which were the following:

    "65. The Pullman Company furnishes sleeping cars
  and sleeping car service. Its cars are hauled by the
  railroads, and its patrons are the passengers of the
  railroads on whose lines its cars are operated.
  Sleeping car service is a service that the railroads
  must render or have rendered by others in connection
  with their passenger transportation service.
    "66. The Pullman Company has always held itself out
  as a company furnishing complete sleeping car
  service, which consists of furnishing the necessary
  facilities, supplies and equipment, as well as
  supervision and the personal service of attendants.
  It has never held itself out to perform service in
  sleeping cars owned by others."

5. The Pennsylvania owns 118,298 shares of the total of 731,350 shares of Pullman now outstanding.

6. The contractual, financial, and other arrangements between the railroads and Pullman are governed by Orders of the Interstate Commerce Commission (hereafter called the Commission) entered in Docket 29592. The Commission, in its Report and Order in said docket, dated May 6, 1947, provided for the conduct of sleeping car service on a uniform and nondiscriminatory basis and approved and authorized a pooling of service and earnings subject to the conditions set forth in said Order. The Report of the Commission referred to in said Order is reported in 268 I.C.C. 473.

7. By a Supplemental Application dated June 3, 1947, the railroads, including the Pennsylvania, sought a revision in the pooling of service and earnings then existing and prayed that the Commission approve and authorize a proposed "Uniform Service Contract" and the pooling of service and earnings to result therefrom. On August 22, 1949 the Commission filed and entered an Order in said docket approving a pooling of service and earnings, as modified under the proposed Uniform Service Contract, subject to the conditions prescribed in its prior Report. The Report of the Commission referred to in said Order is reported in 276 I.C.C. 5. Except as modified by an Order of the Commission entered on or about April 29, 1955, reported in 294 I.C.C. 703, the Orders of the Commission aforesaid are still in full force and effect. Pullman now operates substantially all of the sleeping car services performed on the lines of the Pennsylvania and on most other railroads under and in accordance with the Uniform Service Contract, dated March 23, 1949, effective July 1, 1949, as amended and revised from time to time.

8. Pullman has not been a party, as applicant or otherwise, to the proceedings before the Commission in I.C.C. Docket No. 29592 concerning the pooling of service and of gross or net earnings by certain common carriers by railroad under and pursuant to the Uniform Service Contract.

9. No officer or director of Pullman is now, or has been since the year 1947, also an officer or director of the Pennsylvania or any other railroad company offering sleeping car service to the public on its lines.

10. The duly designated and authorized representative of plaintiffs and the Pullman conductors, under the provisions of the Railway Labor Act, is the Order of Railway Conductors and Brakemen, the successor organization of the Order of Railway Conductors of America, (hereafter called the Organization), and said Organization is not the duly designated and authorized representative of any craft or class of employees of the Pennsylvania under said Act.

11. In July of 1962 the Organization heard rumors that the Pennsylvania and Pullman had entered into an agreement, to become effective October 1, 1962, whereby pullman cars would be operated without the services of a Pullman conductor or a Pullman porter, but with all other services being furnished by Pullman. Officials of the Organization wrote to Pullman for details, but none was furnished.

12. After the filing of the Complaint herein on August 29, 1962, the submission by the plaintiffs of interrogatories, the taking by the plaintiffs of depositions, and the filing by the defendants of Answers, the plaintiffs learned the details of a new arrangement scheduled to begin October 1, 1962, by the Pennsylvania and Pullman, which had been requested by the Pennsylvania on May 29, 1962, for the operation of sleeping car service on the lines of the Pennsylvania, as follows:

    "Joint-lines sleeping car service", that is,
  service which begins, is performed, and ends, on the
  lines of the Pennsylvania and one or more additional
  railroads will not be affected;
    On "local sleeping car lines," that is, service
  which begins, is performed, and ends on the lines of
  the Pennsylvania, the Pennsylvania and Pullman each
  will perform a portion of the service, as follows:
    Pullman to furnish the sleeping cars, properly
  equipped, and to furnish with linen and other
  supplies;
    Pullman to perform electrical and air conditioning
  repairs on the cars and other yard and shop repairs;
  and
    Pullman to perform the cleaning of the interior of
  the cars.
    Pennsylvania to provide the porter, to arrange for
  the train conductor to collect sleeping car tickets,
  to handle collections, and to handle the control ...

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