Likewise, we are of the opinion that the Missouri-Kansas-Texas R. Co. case, supra, is not similar to the problem here as it involved an inter-union dispute.
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 favor of A. C's interest in the outcome of the dispute does not, ipso facto, mean that he has a right to be heard by the Board or that he is entitled to notice of the Board's hearing.
In the instant case, defendant asserts that its present employees were vitally interested in the dispute. With this assertion we fully agree. But what contribution could these employees have made to aid the Board in adjudicating the dispute? Defendant states that they could have shown, among other things, that the former employees had forfeited their seniority by failure to comply with the rules of the Master Agreement. This, however, was not germain to the issue before the Board. If the Board found, as it did, that the employer had no right to abolish the jobs then the former employees were entitled to be reinstated and did not have to comply with the rules of the Master Agreement. The question of whether the former employees forfeited their seniority was never reached by the Board. Although the present employees may be lowered on the seniority list, they do not thereby become necessary or indispensable parties to the dispute between the employer and the former employees. They are not involved in the dispute within the meaning and intent of 45 U.S.C.A. 153, First(j) and, therefore, were not entitled to notice. We find the Board's award and order valid and enforceable.
The second question which we are called upon to decide requires an interpretation of the Board's 'Award.'
The statement of claim presented to the Board reads as follows:
'(a) Rule 3-C-2 was violated by the Carrier when positions of Truckers, Philadelphia Transfer, held by Pattie S. Hayes, Mary Gambrell, Eula O. Smith, Ora Dorsey and others, were abolished effective May 13, 1946 and the work assigned to Contract Employees not covered by the Rules Agreement.
'(b) These positions be re-established and the incumbents, as well as any others adversely affected, be compensated for any monetary losses sustained. * * *
'Under the heading 'Award' the following appears:
"Claim (a) sustained.
'Claim (b) sustained on the re-establishment 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 question resolves itself into whether the Board's award and order are limited to those whose positions were abolished effective May 13, 1946, or whether the award and order include those whose positions were abolished on July 13, 1946. In respect to the positions abolished on or about July 13, the award on its face is too vague to include them; and there are no affidavits or other evidence for the court to consider. The complaint, however, contains the following allegation which we think the court must accept as true for the purpose of this phase of the motion. Paragraph XIV of the complaint states:
'In accordance with custom and practice of long standing in the handling of such matters by the said National Railroad Adjustment Board, all of the persons named in Paragraph X hereof, and on whose behalf individual claims in writing had been filed with defendant Railroad Company and processed as aforesaid, were not specifically named in the submission of the dispute to the said Board, the claims instead being submitted on behalf of 'Pattie A. Hayes, Mary Gambrell, Eula O. Smith, Ora Dorsey, and others'. Defendant Railroad Company fully understood such custom and practice, and had full knowledge that the claims being submitted to said Board were being submitted on behalf of each and everyone of the persons named in Paragraph X hereof, and that any award of said Board sustaining the claims of 'Pattie A. Hayes, Mary Gambrell, Eula O. Smith, Ora Dorsey, and others', would be intended by said Board, and considered by the parties to the dispute, as equivalent to and constituting an award in favor of each and every one of said persons named in Paragraph X hereof whose claims had been individually presented in writing and handled in the usual manner on defendant Railroad Company's property preliminary to the submission of the dispute to said Board.'
Thus, plaintiffs urge that defendant knew of the claims of the 31 employees whose jobs were abolished on or about July 13, 1946, as well as those whose jobs were abolished on or about May 13, 1946, and that defendant knew and understood that all 70 claimants were represented by those who presented their claims to the Board.
It may be that the allegations in the complaint set out above can be satisfactorily proved at the hearing on the merits. If so, the employees whose jobs were abolished on or about July 13, 1946, may be entitled to have the Board's order enforced on their behalf. At any rate, the court is of the opinion that an opportunity to present this evidence should be granted rather than summarily closing the door on the July 13th group.
The motion to dismiss, therefore, will be denied. An order will be entered in conformity with this opinion.