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July 17, 1954

SADLER et al.
UNION R. CO. et al.

The opinion of the court was delivered by: MARSH

1. The individual plaintiffs are citizens of Pennsylvania and are and have been nonoperating employees of the Union Railroad, hereinafter called carrier. They sue for themselves and as representatives of a class.

2. Local Lodge 1913, United Steelworkers of America (CIO), hereinafter called USA, was added as a party plaintiff by the court upon petition of the defendants other than the carrier. Lodge 1913 is and has been the bargaining representative under the Railway Labor Act, 45 U.S.C.A. § 151 et seq., of the carrier's employees, who are members of the nonoperating crafts or classes except signalmen, including the crafts or classes in which the individual plaintiffs belong. All of the individual plaintiffs are members of Local Lodge 1913.

 3. Defendant carrier is a corporation formed under the laws of the Commonwealth of Pennsylvania and is a common carrier engaged in interstate transportation, having its place of business in East Pittsburgh, Allegheny County, Pennsylvania.

 4. The defendant, Brotherhood of Railroad Trainmen, hereinafter called BRT, is an unincorporated labor organization, consisting of a grand lodge and many subordinate lodges, including defendant Lodges 872, 997 and 1018. These subordinate lodges of the BRT are composed of numerous yardmen, viz., conductors, brakemen, switchtenders and car-retarder operators. Since 1943 BRT, through Lodges 872, 997 and 1018, has been the collective bargaining representative under the Railway Labor Act of the operating crafts and classes of conductors, brakemen and switchtenders employed by the carrier. The aforesaid lodges are located within Allegheny County, Pennsylvania, within the jurisdiction of this court.

 5. Defendant H. R. Wadsworth is a member of and duly elected president of Lodge 872. Defendant J. E. Berggren is a member of and duly elected president of Lodge 1018. Defendant Herbert Thomas is a member of and the duly elected president of Subordinate Lodge 997. Defendant Q. C. Gabriel is a member of Lodge 872 and general chairman of the general grievance committee of the BRT on the carrier's property. These individual defendants reside within the jurisdiction of this court and except for Q. C. Gabriel are yardmen employed by the carrier.

 6. Defendants S. Gregor, G. D. Rhodes and W. J. Cleary are yardmen employed by the defendant carrier and are sued individually and as members of a class. These defendants are all residents within the jurisdiction of this court.

 7. The interest of all the members, subordinate lodges mentioned, and the BRT, are adequately represented by the defendants of record. The subordinate lodges are sued as representatives of certain operating employees of the defendant carrier, and all of the subordinate lodges, and of the Brotherhood itself.

 8. From April, 1914, to January 7, 1954, the carrier has maintained operations at the coal dock at Duquesne, Pennsylvania. During such time coal and fluorspar have been brought by barge to the coal dock and unloaded from said barges by hoist bucket into a tipple; from the tipple the commodities flowed by chute into freight cars for transportation to mills or to other destinations.

 9. From 1914 until January 7, 1954, the carrier's nonoperating personnel, hereinafter sometimes called carloaders, loaded the freight cars at the coal dock. This work included the following duties; after the cars were placed in the empty yard by train crews, the carloaders would prepare the car doors by locking them and packing the doors with excelsior where required, release the brakes and ride the empty cars. It was frequently necessary to use a pinch bar to start the cars moving along the empty track. When the cars were brought to a stop under the chute, a block was placed in front of the wheels or hand brakes were set, to prevent forward movement of the cars. During the loading operation it would be necessary to move the cars forward somewhat so that the commodity could be properly distributed therein. To accomplish this, the blocks would be pulled from in front of the wheels, or the hand brakes released, and the car permitted to drift forward, or be moved by pinch bar, for a short distance until it was in proper position, when its motion would be stopped by again laying blocks on the rails in front of wheels or by setting the hand brakes. These movements or respots were repeated until the cars were fully loaded, after which an employee rode the car over the scales and onto a track in the loaded yard, setting hand brakes on a sufficient number of cars to prevent their running out the other end of the track. When a track in the loaded yard was full, the coal dock employees would throw a switch to make the next track accessible, and fill that track, setting the requisite number of hand brakes. The loaded cars were then picked up by an engine and train crew, and moved to destinations, after being classified by a train crew.

 10. Since May 5, 1938, the carloaders at the coal dock have been members of the nonoperating class or craft of employees represented by the USA as bargaining representative under the Railway Labor Act, and until January 7, 1954, no yardmen or members of BRT had ever performed any of the work at the coal dock. Prior to 1938, the carrier's nonoperating personnel were not represented by any labor organization.

 11. Since 1938, USA and the carrier have entered into three collective bargaining agreements, viz.: May, 1938; January 19, 1942; and May 1, 1947. The latter agreement is still in full force and effect.

 12. The BRT entered into a collective bargaining agreement with the carrier, effective November 1, 1943, which, with some modifications and supplements, is still in force and effect. The BRT has been exclusive bargaining representative of yardmen employed by the carrier since June 2, 1943. Prior to 1943 and subsequent to 1938 two other unions successively represented the operating personnel.

 13. Since 1938 and until January 7, 1954, the nonoperating personnel have acquired seniority in the work at the coal dock under USA agreement with the carrier.

 14. During the latter part of 1950, BRT operating employees of the carrier complained of the work done by USA nonoperating personnel at the Duquesne coal dock. Time claims were filed requesting eight hours pay for an extra conductor and two brakemen, because the carloaders were allegedly performing the functions of operating personnel at the coal dock. These time claims were processed in accordance with the collective bargaining agreement between the carrier and the BRT, and consistently denied by the carrier.

 15. As an outgrowth of an averted strike, BRT and the carrier entered into a written agreement on July 3, 1953, creating a Special Board of Adjustment for the purpose of disposing of approximately 100 disputes between them, including the time claims of the BRT above mentioned.

 16. The agreement of July 3, 1953, provided that there should be established a Special board of Adjustment consisting of three members. One was to be selected by the carrier, one by the Brotherhood, and the third was to be appointed by the two members so selected by the parties. If the two members selected by the parties could not agree on a third, they were to jointly request the National Mediation Board to appoint a neutral member. The Board was to establish rules of procedure for itself. The Board was to have jurisdiction only of claims and grievances mutually agreed upon by the parties and designated as the 'Original list' of cases. An additional list of cases, designated as a 'supplemental list,' could be mutually agreed upon by the parties and submitted to the Board, if submitted prior to the Board's final meeting. The Board was not to have any jurisdiction or authority over disputes involving changes in rates of pay, rules, working conditions, or changing existing agreements. The Board was to cease to exist upon disposing of all claims and grievances submitted to it under the agreement and, by mutual agreement, the Board could be dissolved prior thereto. Cases could be withdrawn from the Board by mutual agreement of the parties. A majority of the Board was required to render an award, which was to be binding upon both parties to the agreement. A majority of the Board was competent to make such other rulings and decisions necessary to carry out the functions of the Board. Time limits were placed on the various steps provided for in the agreement, though the parties could agree to extend the period for making the awards.

 17. None of the plaintiffs or members of the class they represent, or the United Steelworkers of America, were parties to the agreement of July 3, 1953.

 18. Representative of USA did not agree with BRT and the carrier to establish this Special Board of Adjustment.

 19. Copies of the Special Board of Adjustment agreement were sent to the National Mediation Board in Washington, D.C. The parties to the agreement named their respective members to the Special Board and, since they were unable to agree on a neutral member, at their request the National Mediation Board preliminarily appointed the neutral member. The National Mediation Board assigned a number (No. 45) to the Special Board of Adjustment and fixed a date when the hearings for the Special Board would sit. The hearings began on August 31, 1953, and were concluded November 20, 1953. The National Mediation Board was kept informed of the action taken by the Board on the matters listed for decision and those items which were added or withdrawn. As the various awards were entered, copies of ...

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