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October 2, 1952


The opinion of the court was delivered by: MARSH

This is an action brought on January 22, 1951, under the Railway Labor Act, 45 U.S.C.A. 151 et seq., to enforce an order of the National Railroad Adjustment Board, Third Division. The plaintiffs are the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, a voluntary unincorporated association, which sues as the representative of the employees on behalf of whom this action is brought; and S. V. W. Loehr who sues individually and as General Chairman of the Pennsylvania Railroad System Board of Adjustment of the Brotherhood. Defendant. Pennsylvania Railroad Company, is a Pennsylvania corporation engaged in the business of an interstate common carrier. *fn1"

Briefly, the complaint alleges that defendant, on or about May 11, 1946, and July 13, 1946, abolished the positions of a large number of 'Truckers' employed at Philadelphia Transfer in violation of a collective bargaining agreement; that an independent contractor was hired to perform the duties and work formerly done by said employees; that the 70 persons named in Paragraph X of the complaint- 39 whose jobs were abolished on or about May 11, 1946, and 31 whose jobs were abolished on or about July 13, 1946- had their claims presented to defendant by the Brotherhood; that defendant denied said claims; and that plaintiff Brotherhood, acting in all respects as the duly designated and lawfully authorized representative of said employees, submitted the dispute to the National Railroad Adjustment Board which, by Award 4291, dated January 25, 1949, held the collective bargaining agreement had been violated and ordered that the positions be re-established. *fn2"

 Defendant filed a motion to dismiss this action. Several reasons advanced by defendant in its written motion were not pressed since they had been decided adversely to defendant in Kirby v. Pennsylvania Railroad Company, 3 Cir., 1951, 188 F.2d 793, reversing D.C.E.D. Pa. 1950, 92 F.Supp. 417. The Kirby case is a companion case involving Award 4291. The questions which we are called upon to decide are:

 1. Is the award and order of the Board void and unenforceable because persons who would be ousted from the positions in question received no notice and had no knowledge of the hearing held before the Board?

 2. Does the award which on its face refers to positions abolished effective May 13, 1946, also cover employees whose jobs were abolished on July 13, 1946?

 The first question must be decided in the light of 45 U.S.C.A. 153, First(j), which provides '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.' The issue, therefore, is whether the employees who would be ousted if defendant were to comply with the award and order of the Board are involved in the dispute so as to be entitled to notice. Defendant's contention is that the positions formerly held by the persons enumerated in Paragraph X of the complaint were held by employees of defendant when the Board held its hearing and are now held by its employees and that these employees, who would have been displaced by compliance with the Board's award and order, are vitally interested in the dispute.

 On this aspect of the case, we are fortunate in that the Court of Appeals has already outlined the procedure to be followed. Judge Goodrich, speaking for the Court of Appeals, on remanding the Kirby case to the District Court for the Eastern District of Pennsylvania, stated in 188 F.2d at page 800 that 'On remand the trial court may hear evidence on the question of what employees, if any, would have been replaced by defendant's compliance with the Board's order, and whether they received notice or had knowledge of the proceedings. Then the court can determine whether these employees had such an interest as entitled them to notice of the Board hearing, and whether they received it or the equivalent. In the event that the defendant fails to meet the burden of upsetting the Board's award on this basis, the case then may proceed to a trial on the merits.' Defendant has filed affidavits by 24 of its present employees to the effect that they had no notice or knowledge of the hearing before the Board. These affidavits were not controverted. In respect to the first question, the motion will be treated as one for summary judgment under Rule 56 as provided in Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A.

 From the affidavits, we find that there were employees of defendant who would have been replaced if defendant had complied with the Board's award and order, and that these employees did not have notice or knowledge of the hearing before the Board. We further find, however, that they are not involved in the dispute within the meaning of the Railway Labor Act, 45 U.S.C.A. 153, First(j).

 In support of its contention, defendant cites Nord v. Griffin, 7 Cir., 1936, 86 F.2d 481; Estes v. Union Terminal Co., 5 Cir., 1937, 89 F.2d 768; Hunter v. Atchison, T. & S.F. Ry. Co., 7 Cir., 1948, 171 F.2d 594; Brotherhood of Railroad Trainmen v. Templeton, 8 Cir., 1950, 181 F.2d 527; and Missouri-Kansas-Texas R. Co. v. Brotherhood of Ry. & S.S. Clerks, 7 Cir., 1951, 188 F.2d 302. The Court of Appeals for the Third Circuit, in the Kirby case, supra, 188 F.2d at page 800, declared its view on four of the five cases cited by defendant as follows:

 'Who are 'employees involved' under the statutory language? The exact meaning has never been settled; perhaps it never can be.

 'The cases which have passed upon it have all involved factual situations quite different from ours. They involved disputes between two or three employees over seniority ratings (Nord and Estes cases, supra) or between two groups of workmen both long-time employees of the carrier, over which groups was entitled to do a particular type of work (Brotherhood of Railroad Trainmen and Hunter cases, supra). The interest of such employees, the extent to which the Board should be required to consider such interests, and the type of dispute involved were not even similar to our problem here.'

 We, therefore, must examine the facts before us to determine if defendant's employees were and are involved in the dispute. It is clear, and the cases so hold, that if A and B both want to perform the same job and the Board holds a hearing to determine which is entitled to perform the job both A and B are involved in the dispute and must receive notice of the hearing. Also, if the seniority date or rating of an employee is being attacked that employee is involved in the dispute and must receive notice of the hearing.

 The above situations, however, bear no similarity to the instant case. Here A performed a job which was abolished by his employer. The employer then hired B, an independent contractor, to do the work. Subsequently, but before the Board's hearing, C, defendant's employee, replaced B. Is C involved in the dispute between A and the employer as to the employer's right to abolish A's job? We think not. Granted that if A had greater seniority than C, C's seniority would be affected by A's reinstatement. But this only gives C an interest in the outcome of the dispute and does not mean that he is involved in the dispute. The fact that C's seniority would be affected is merely an incidental result of an adjudication in ...

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