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KIRBY v. PENNSYLVANIA R. CO.

August 3, 1950

KIRBY et al.
v.
PENNSYLVANIA R. CO.



The opinion of the court was delivered by: FOLLMER

This is an action brought under the Railway Labor Act, 45 U.S.C.A. § 151 et seq., for enforcement of an order of the National Railroad Adjustment Board. The plaintiffs are thirty-nine women residents of the City of Philadelphia, Pennsylvania, and the defendant is The Pennsylvania Railroad Company, a Pennsylvania corporation, having its principal office in the City of Philadelphia aforesaid.

The complaint alleges that plaintiffs were employed by defendant as truckers at its Philadelphia freight transfers under and pursuant to a certain agreement entered into between the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees and the defendant, effective May 1, 1942; that in violation of the terms of the agreement, defendant did, at a time beginning on or about March 15, 1945, and continuing to about October 23, 1946, abolish the positions of plaintiffs herein and did, beginning on or about May 16, 1946, and continuing thereafter, engage contract employees to perform the work of the abolished positions of the plaintiffs. The complaint further alleges that in consequence of the alleged violations of the contract by defendant the said Brotherhood submitted its statement of claim on behalf of certain named employees of defendant affected and 'any others adversely affected' to the National Railroad Adjustment Board, Third Division; that following a full and complete hearing, the Board on January 25, 1949, issued its Award No. 4291 as follows:

 "Claim (a) sustained.' (The Brotherhood's claim that the Agreement was violated by the defendant carrier in abolishing the positions of certain named employees 'and others.')

 "Claim (b) sustained on the reestablishment of the positions for those listed and others adversely affected; that monetary losses sustained be confined to proof of the same, with deductions allowed from earnings from other sources during the period under consideration."

 The complaint further alleges that on January 25, 1949, the Board, in conformity with its award above quoted, issued its order requiring defendant to comply with the terms of the award on or before April 1, 1949; that they, the plaintiffs, are persons included within the meaning of the phrase 'and others adversely affected' contained in the award of the Board and are therefore entitled, under the terms of the award and order, to be reinstated as employees of defendant and to receive the wages from the time of their alleged wrongful dismissal, less any sums earned by them in other employment during said period.

 Defendant moved to dismiss (a) because the complaint fails to state a claim upon which relief can be granted under the provisions of the Railway Labor Act; and (b) on the ground that the court lacks jurisdiction because the only claim alleged in the complaint upon which relief might be granted is an allegation of simple breach of contract, and it appears on the face of the complaint that there is no diversity of citizenship between the plaintiffs and the defendant.

 Award No. 4291 in Docket No. CL-4092 of the National Railroad Adjustment Board was by stipulation made a part of the record herein.

 The pertinent portions of the Railway Labor Act are, 45 U.S.C.A. § 153, subd. 1(j), (o) and (p):

 '(j)Parties may be heard either in person, by counsel, or by other representatives, as they may respectively elect, and 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 disputes submitted to them.'

 '(o) In case of an award by any division of the Adjustment Board in favor of petitioner, the division of the Board shall make an order, directed to the carrier, to make the award effective and, if the award includes a requirement for the payment of money, to pay to the employee the sum to which he is entitled under the award on or before a day named.

 '(p) If a carrier does not comply with an order of a division of the Adjustment Board within the time limit in such order, the petitioner, or any person for whose benefit such order was made, may file in the District Court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the carrier operates, a petition setting forth briefly the causes for which he claims relief, and the order of the division of the Adjustment Board in the premises. Such suit in the District Court of the United States shall proceed in all respects as other civil suits, except that on the trial of such suit the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated, and except that the petitioner shall not be liable for costs in the district court nor for costs at any subsequent stage of the proceedings, unless they accrue upon his appeal, and such costs shall be paid out of the appropriation for the expenses of the courts of the United States. If the petitioner shall finally prevail he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit. The district courts are empowered, under the rules of the court governing actions at law, to make such order and enter such judgment, by writ of mandamus or otherwise, as may be appropriate to enforce or set aside the order of the division of the Adjustment Board.'

 The complaint before the Adjustment Board was filed by the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station employees against the Pennsylvania Railroad Company. It alleges (a) that Rule 3-C-2 was violated by the Carrier when positions of Truckers, Philadelphia Transfer, held by four named individuals 'and others', were abolished effective May 13, 1946, and the work assigned to Contract employees all not covered by the Rules Agreement. It prays (b) that the said positions be re-established and the incumbents, as well as any others adversely affected, be compensated for any monetary losses sustained. The award then recites in extenso what purports to be the full complaint and the full answer of the carrier.

 The Findings of the Board are as follows:

 'Findings: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

 'That the Carrier and the Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway ...


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