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Birkholz v. Dirks

February 12, 1968


Schnackenberg, Kiley and Swygert, Circuit Judges.

Author: Kiley


The Switchmen's Union of North America (SUNA) and six of its members sued, individually and as representatives of all members of SUNA who are yard service employees on the Milwaukee, St. Paul, and Pacific Railroad (Milwaukee), seeking a judgment declaring the union shop agreement between the Milwaukee and the Brotherhood of Railroad Trainmen (Trainmen) void, and seeking damages and injunctive relief. The district court after a hearing dismissed the suit and SUNA and the representative employees appeal. We reverse.

The Trainmen's Union has, since the 1926 adoption of the Railway Labor Act, served as bargaining agent for the Milwaukee's yard service employees. Both SUNA and the Trainmen are among the five national operating craft unions represented on the National Railroad Adjustment Board under Sec. 153(h) of the Railway Labor Act, 45 U.S.C. Since the Trainmen's Union has been the bargaining agent, some yard service employees have held cards in SUNA rather than in the Trainmen.

On November 14, 1966, SUNA filed a petition before the National Mediation Board for a representative election seeking certification as bargaining agent for all yard service employees of the Milwaukee. Two days later the Trainmen served notice on the Milwaukee for modification of the existing agreement, made in 1953. On February 1, 1967, the agreement was modified by adding the union shop amendment in dispute.*fn1 SUNA then brought this suit to void the amendment on the ground that it violated Section 2 Eleventh(c) of the Railway Labor Act.*fn2

The district court in dismissing SUNA's complaint decided that the Milwaukee and Trainmen could contract to require members of SUNA to join the Trainmen despite the language of 2 Eleventh(c) because SUNA did not support the bargaining agreement's grievance committee, and had no obligation to the Milwaukee employees; and because the court was persuaded by defendants' argument that 2 Eleventh(c) must be restrictively interpreted to permit the type of union shop clause in the Trainmen's contract because the only purpose of 2 Eleventh(c) was to prevent an employee who temporarily changed crafts from being required to change unions and the contract provision fulfills this purpose. The court relied upon Pennsylvania R. Co. v. Rychlik, 352 U.S. 480, 492, 1 L. Ed. 2d 480, 77 S. Ct. 421, and Rohrer v. Conemaugh & Black Lick R.R. Co., 359 F.2d 127.

The Trainmen and Milwaukee concede that their union shop clause violates Sec. 2 Eleventh(c) of the Railway Labor Act if that section is read literally. We agree. Par. (c) qualifies the right to enter into a union shop agreement given under Par. (a).*fn3 Under Par. (c) the membership requirement of the union shop clause must be satisfied as to employees "in engine, train, yard or hostling service" by membership in any union "national in scope, organized in accordance with the Act" which admits to membership any employee in a craft covering any of the services designated. It is plain that under the literal language of Par. (c) any requirement of membership in the Trainmen's Union negotiated under Par. (a) would have to permit alternative membership in SUNA since SUNA admits yard service employees to membership, and is, as the district court found, "national in scope and organized in accordance with the Act."

The union shop agreement signed by the Milwaukee and the Trainmen does not permit yard service employees to maintain alternate membership in SUNA. Under the agreement all operating craft employees must belong to the Trainmen unless they belong to another union which is national in scope and has a contract with the Milwaukee and unless the particular yardman concerned has interchangeable rights, i.e., the right to be employed in another craft in addition to yard service. Thus the contract requires two conditions, in addition to the national in scope requirement of the Act, before alternate union membership is permissible. Under this agreement a yard service employee's membership in SUNA cannot serve as a substitute for membership in the Trainmen since SUNA has no contract with the Milwaukee and since most yard service employees do not have interchangeable rights.

The vital issue before us is whether Sec. 2 Eleventh(c) renders the February 1, 1967 union shop clause of defendants' agreement void. We think that the literal reading of Sec. 2 Eleventh(c) expresses the intention of Congress as demonstrated by the legislative history of the Act.

The legislative background of Sec. 2 Eleventh(c) is well known. In 1934 Congress, in an effort to combat company dominated unions which were then prevalent on railroads, outlawed the union shop. In 1951, however, railway labor organizations sought the authorization of union shop agreements. Congress was agreeable to authorizing the union shop but in hearings encountered the problem of intercraft mobility. Operating employees organized along craft lines frequently changed crafts either through temporary promotions or demotions as the railroad's needs for workers of a particular craft dictated. An employee who worked in one craft and belonged to his craft union might, for example, upon being promoted to another craft be required by a union shop agreement to belong to the union which represented the new craft to which he had been temporarily promoted.He would then be faced with the choice of either maintaining dual union membership or of quitting his old union and perhaps sacrificing interests in pensions and other benefits under his original craft membership. The problem of intercraft mobility could also affect union members who have no interchangeable rights in another craft.The union to which these members belong might lose its majority to another craft union whose members have interchangeable rights with the first craft and are transferred into that craft. The craft union whose members had interchangeable rights could then negotiate a union shop agreement requiring the employee in the first craft to quit his now minority union or maintain dual union membership.

The evil of placing upon the operating employee the choice of maintaining dual union membership or of quitting his old union was recognized by Congress at the time proposals for authorizing the union shop were being considered. Three proposals for preventing this evil and solving the problem of intercraft relationships among operating employees were considered. The first proposal was aimed at protecting employees from denial of membership in the bargaining union because of membership in another union. This would have protected, for example, a member of the firemen's union from being denied membership in the engineers' union and thereby being denied work in a unit represented by the engineers. All operating unions objected to this proposal because it would not eliminate the choice of maintaining dual union membership or of quitting the union the employee had belonged to in the past.

The second solution was presented by the Trainmen. Under this proposal the union membership requirement authorized by Sec. 2 Eleventh (a) could be satisfied with respect to closely related crafts where the employee held employment rights in more than one, or promotional rights from one, to another, by membership in the craft union which represents the employees in any craft in which he is entitled to work. In other words, the employee member of one of the five crafts could satisfy the membership requirement only by membership in the union that is the bargaining agent for the craft in which he is working or in a union that is the bargaining agent for another craft in which he is also entitled to work.

This second proposal would have provided the identical amount of protection for minority union members as does the contract entered into by the Trainmen and the Milwaukee and as would Sec. 2 Eleventh (c) if interpreted in the manner urged by the Trainmen. The Trainmen's proposal was rejected by Congress. While it is clear that the Trainmen's proposal would adequately protect the employee who was transferred from one craft to another and did not wish to give up membership in the union which represented his original craft, the proposal would offer no protection to the operating craft employee whose union became a minority union due to an influx of transferees from another craft, nor would the proposal give recognition to the operating craft tradition of permitting membership in minority unions.

The third proposal was a prohibition against requiring membership in more than one labor organization. This would have permitted an employee represented by an operating craft union to maintain membership in a ...

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