Swygert, Chief Judge, Pell, Circuit Judge, and Eschbach, District Judge.*fn*
ESCHBACH, District Judge.
This cause is again before the court on plaintiffs-appellants' petition for rehearing. The petition will be denied.
On April 12, 1974, this court affirmed the order of the district court entered on December 14, 1972, dismissing plaintiffs-appellants' action without prejudice. The decision affirming the district court was entered after both sides were given ample opportunity to brief and orally argue the merits of their contentions. In their petition for rehearing, plaintiffs-appellants essentially seek to reargue points which have already been decided adversely to them. Once again we find no merit in plaintiffs-appellants' contentions.
One point raised by the petition for rehearing merits some discussion. Plaintiffs-appellants argue that this court based its decision in part on a misunderstanding of § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185. They argue that any person subject to the Railway Labor Act, 45 U.S.C. § 151 et seq., is exempted from § 301 coverage. However, the nonexistence of a remedy under § 301 does not in any way alter our earlier decision. In our opinion, we stated that:
Arguably, the appellants could have maintained an action under § 301. But, we need not decide that point since another ground exists for dismissing this action under any theory based on the no-strike or no reprisal agreement. (Emphasis added.)
The other ground upon which the decision was based was that plaintiffs-appellants were not entitled to injunctive relief. Clearly, any arguendo reference to the possibility of a § 301 action in our earlier decision has no bearing on the decision that the suit was not a proper one for injunctive relief. The district court properly dismissed the entire action. Thus, even if plaintiffs-appellants cannot maintain a § 301 action, that ground alone does not entitle them to either a rehearing or a reversal of the district court.
Additionally, it must again be pointed out that the action of the district court in dismissing the action without prejudice does not bar plaintiffs-appellants from seeking future relief. In our earlier opinion, we stated that plaintiffs-appellants were not precluded from bringing an action pursuant to 29 U.S.C. § 412 provided that it was not financed by NWA. Plaintiffs-appellants may also bring a suit financed by NWA if properly brought and if the proviso of 29 U.S.C. § 411(a) (4) is not violated. Nor did the dismissal by the district court bar any other relief under the Railway Labor Act, including any possible suit for breach of the duty of fair representation. In summary, if plaintiffs-appellants are disciplined, they are free to seek damages under any theory of action which they decide is applicable as long as the proviso of § 411(a) (4) is not violated.
Accordingly, the petition for rehearing ...