jurisdictional dispute between the two unions which involves the interpretation of their respective contracts with the carrier, and should have left this question for determination by the Railroad Adjustment Board, pursuant to the requirements of the Railway Labor Act, 48 Stat. § 1185, 45 U.S.C.A. § 151 et seq.
However, since the Board made an award, the effect of which caused the loss of some jobs and changed the working conditions of the plaintiffs, as a class of employees, it also seems clear that a federal court has the power to restrain the enforcement of the said award and restore the status quo pending the submission of the dispute to the Railroad Adjustment Board or National Mediation Board under the terms and provisions of the Act.
In Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, at page 728, 65 S. Ct. 1282, at page 1292, 89 L. Ed. 1886, it was held that the Railroad Adjustment Board had jurisdiction under the Act to determine grievances and make awards which were binding upon the parties to the dispute, after notice and hearing. The purpose of the Act was to '* * * add decision where agreement fails * * *.'
In reversing an interpretation by a state court of collective bargaining agreements in the Slocum case (339 U.S. 239, 70 S. Ct. 580), the Supreme Court stated: 'We hold that the jurisdiction of the Board to adjust grievances and disputes of the type here involved is exclusive.'
In Order of Ry. Conductors of America v. Pitney, supra, a federal court's interpretation of a bargaining agreement was reversed for similar reasons.
Thus, we conclude an award made by a Special Board, without the consent of one group of employees involved in the dispute -- here, the plaintiffs -- is legally ineffective and, as to plaintiffs, a usurpation of statutory functions vested exclusively in the Railroad Adjustment Board by Congress, and a District Court has jurisdiction to restrain its enforcement. See Dwellingham v. Thompson, D.C.E.D.Mo.1950, 91 F.Supp. 787, affirmed sub. nom. Rolfes v. Dwellingham, 8 Cir., 1952, 198 F.2d 591.
Both the carrier in its brief and BRT in its request for findings and conclusions, contend that the Special Board is in effect a system, group, or regional board of adjustment, under Section 3, Subdivision Second, of the Act.
It is plain, however, that plaintiffs and their bargaining agent did not agree to the establishment of the Special Board. Therefore, it is not a system, group, or regional board. The contract creating it is signed only by the representatives of the carrier and BRT. Mutuality of agreement seems to be a statutory prerequisite to the establishment of a system, group, or regional board, and, where lacking, the award of any such Board is legally ineffective as to employees and their collective bargaining representative who do not agree or consent. In addition, the procedures set up in the agreement of July 13, 1953, creating the Special Board are at variance with the statutory requirements.
But, assuming that the Special Board was a system, group, or regional board, as defendants contend, and assuming that the plaintiffs had agreed or consented to its establishment, the award nonetheless is invalid because of the failure of the Board to give notice of all hearings to the plaintiffs as a class of employees involved in the dispute, as required by Section 3, First (j). In Hunter v. Atchison, T. & S.F. Ry. Co., 7 Cir., 1948, 171 F.2d 594, an injunction was granted against enforcement of the award of the statutory Adjustment Board because the district court found it to be void for lack of notice to one group of employees. See also Hunter v. Atchison, T. & S.F. Ry. Co., 7 Cir., 1951, 188 F.2d 294.
In Allain v. National Railroad Adjustment Board, D.C.Ill.1953, 120 F.Supp. 453, affirmed Allain v. Tummon, 7 Cir., 1954, 212 F.2d 32, an injunction was awarded for the same reason.
The Special Board did not give notice to any of the carloaders or their collective representative of the hearings held on September 11 and November 10, 1953. The fact that President Mathos, of Lodge 1913, USA, received actual notice of the reopened hearing held November 10, and was permitted by the Board to attend and give evidence, does not satisfy the requirement of Section 3, First (j) that the employees, as distinguished from their collective representative, be given actual notice of all hearings. Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, at pages 734 and 738, 65 S. Ct. 1282, 89 L. Ed. 1886; Allain v. National Railroad Adjustment Board, supra.
None of the litigants contend that the Special Board was a statutory board of arbitration as authorized by Sections 7, 8 and 9 of the Act; nor could it be successfully so contended because the plaintiffs' representative did not sign the agreement to arbitrate and no attempt was made to comply with the other requirements for statutory arbitration.
Plaintiffs assert in their brief that the Special Board was a common law board of arbitration, citing Dwellingham v. Thompson, 91 F.Supp. 787, supra. If plaintiffs' contention is correct, and we think it is, that case and the affirmation thereof in Rolfes v. Dwellingham, supra, indicate that the change in working conditions and loss of some jobs caused by the carrier's action on January 7, 1954, as a result of the award dated December 28, 1953, may be a violation of Section 2, Seventh, and Section 6, of the Act.
But it should not be understood that this court has found that Section 2, Seventh, and Section 6 have been violated by the carrier. To so find would require the court to interpret the two bargaining agreements involved in the light of long continued usage, custom and practice; and that is exactly what is proscribed prior to administrative determination under the Act. See Order of Ry. Conductors of America v. Pitney, supra, 326 U.S. at pages 565 to 567, 66 S. Ct. 322, 90 L. Ed. 318, inclusive.
But if the court cannot invade the exclusive jurisdiction of the administrative boards and interpret the bargaining agreements of the two unions involved prior to administrative determination, neither should the Special Board be permitted to do so without the consent of all parties.
BRT argues that plaintiffs suffered no irreparable damages and have an adequate remedy at law. Although the defendants do not cite the Pitney case, supra, it seems to some extent to support the BRT's contention. But in the Pitney case the carrier, acting through its trustee, agreed with the BRT in replacing ORC employees; here, the carrier disagreed with BRT but acted under the compulsion of the award in replacing USA carloaders. In addition, here, the working conditions have become more onerous for the carloaders because of the award, and while a future award of the N.R.A.B. in favor of the USA may allow back wages for the displaced carloaders and reasonable counsel fees, such an award would not compensate the carloaders who remain at the dock for the change in their working conditions whereby two men are now required to do all of the more burdensome physical labor which heretofore was divided among four or five men. We think these distinctions warrant preventative measures, and, as in the Dwellingham cases, an injunction restoring the status quo should issue.
Conclusions of Law.
1. The court has jurisdiction of the parties and of this proceeding under Section 1337, Title 28 U.S.C.A.
2. Insofar as the plaintiffs are concerned, the award promulgated by the Special Board of Adjustment is void and of no effect.
3. This court is without jurisdiction to make a decision on the merits of a jurisdictional dispute between BRT and USA involving the operation of railroad cars at the carrier's coal dock; the remedies afforded by the Railway Labor Act for the settlement of disputes such as here involved are exclusive.
4. The individual plaintiffs and the members of the class they represent should be restored to the status quo ante January 7, 1954, with respect to operating work on railroad cars which they previously performed at the carrier's coal dock, pending determination of the dispute under the provisions of the Railway Labor Act.
5. A Special Board of Adjustment was not a system, group, or regional board within the meaning and intendment of Section 3, subdivision Second, of the Railway Labor Act.
6. The plaintiffs suffered irreparable harm and damage for which they have no adequate remedy at law.
7. Defendants and each of them, and where applicable, their respective officers and agents, should be temporarily restrained from putting into effect the award of the Special Board of Adjustment insofar as it may cause loss of jobs or changes in working conditions of the plaintiffs or members of the class of employees they represent, as same existed prior to January 7, 1954, pending submission, within a reasonable time, of the dispute involved to the administrative boards provided by Congress in the Railway Labor Act.
The plaintiffs are directed to submit a form of decree within fifteen days of this date.