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March 7, 1958

Robert POWELL et al.

The opinion of the court was delivered by: KIRKPATRICK

This action, though not such in form, has become, in substance, a suit for the enforcement of an order of the National Railroad Adjustment Board. The order in question was dated January 25, 1949, and was based upon two grievances, filed in 1944 and 1945 by the Brotherhood against the Pennsylvania Railroad, complaining of its use in two of its freight stations of employees of an independent contractor (Pilot Contracting Company), thereby depriving its regular employees of the opportunity to earn overtime. It awarded overtime pay to employees 'covered by the Agreement' (collective bargaining agreement of May 1, 1942) but otherwise unidentified. No payments under the order were made to anyone for more than seven years and until after this suit was begun. Then the Railroad deposited $ 300,000 (plus $ 25,000 for costs) with the clerk of the court pursuant to a stipulation agreed to by all parties to this action, which provided among other things that 'the Court by appropriate proceedings will determine the claimants entitled to share in the $ 300,000 fund.'

The stipulation limits the persons entitled to share to claimants who were (1) 'employed by the Pennsylvania Railroad Company in the Philadelphia area', (2) 'in the classes represented by the Brotherhood on dates when Pilot employes were used', and (3) 'who by reason of the use of Pilot employes were defeated in their desire and ability, based on availability, to perform overtime work'. The Court is bound to carry out the terms of the stipulation, but it must be assumed that in entering into the stipulation it was the purpose and intent of the parties that the money should go to the persons for whose benefit the award was made. This requires a consideration of the grievance upon which the award was made, the terms of the award itself and the surrounding circumstances.

 The grievance filed in 1944 reads 'Filing claim * * * in behalf of Albert Farrier * * * and all other employes working at South Phila. Freight Station who are represented and will be designated by the Brotherhood to participate in this claim.' The later grievance was in substantially the same form but filed on behalf on the employees of the Philadelphia Transfer.

 In 1949 the Railroad Adjustment Board acting on these grievances made the order referred to above, reading in part, 'If on a proper showing it can be proven that employes covered by the Agreement were defeated in their desire and ability, based on availability, to perform overtime work, then they are to be compensated at the rate of pay covered in their collective Agreement with the Carrier.'

 The Brotherhood and the Railroad were unable to arrive at any agreement as to who were entitled to participate and how much each should receive under this award. This suit was then brought as a class action against both the Brotherhood and the Railroad because of their failure to put the order of the Adjustment Board into effect.

 The record plaintiffs contend that the only persons entitled to share are those whose names appear on a list prepared by the Brotherhood after the Board's decision was handed down and subsequently revised but never agreed to by the Railroad. This list consists of about 800 names and includes employees working during the Pilot contract period, not only at the South Philadelphia Freight Station and Philadelphia Transfer, but all over the Philadelphia area. All the employees named in it were members of the Brotherhood at the time of the Pilot contract and also at the time the list was made up. The attorneys for the plaintiffs hold powers of attorney from most of them.

 The Brotherhood's present contention is that all employees, whether members of the Brotherhood or not, who were employed at either of the two freight stations, are entitled to share. It is estimated that perhaps as many as 4,000 employees could participate under this view. Since the collective bargaining agreement provided that all claims for compensation must be filed within 90 days of the date on which the claim arose, the only persons entitled to share in the money now deposited in court are those for whom the Brotherhood was acting when it filed the grievances.

 Moreover, due to the impracticability of determining in the case of each employee in the entire Philadelphia area his desire and availability to perform overtime work at the two places in question, I think that, even if there were no other reasons for so doing, it would be reasonable to limit the employees entitled to share to those who were during the 'Pilot' period employed at South Philadelphia and Philadelphia Transfer, being influenced by what seems to be a reasonable assumption that they were desirous of earning overtime and available for it and that employees in other places in the Philadelphia area were not.

 The next question is as to whether non-union employees, as well as members of the Brotherhood, are entitled to share. At the time these claims arose, approximately one-third of the employees at these two freight stations were union members. The Brotherhood's Protective Laws (Sec. 10(c)) provided 'No grievance originating prior to the time the aggrieved became a member of the Brotherhood * * * shall be considered.' The plaintiffs argue from this that the Brotherhood could not have filed the claim on behalf of non-union members and that, therefore, non-members are not entitled to share in the money in court, since their claims were not filed within 90 days of the time when the claim arose. This argument is a weighty one and is perhaps in accordance with what the Brotherhood thought it was doing. At least, it has so conducted itself until quite recently. The persons designated by it from time to time were always members of the Brotherhood in good standing at the time the designation was made. However, I do not think that, even if a specific intent on the part of the Brotherhood to represent only Brotherhood members were shown, it could limit the effectiveness of the award of the Board in view of what appears to have been the clear intention of the Board to dispose of the entire dispute, as indicated by its use of the phrase 'employes covered by the Agreement'. The thing to be ascertained is not what the Brotherhood thought or intended but what the Adjustment Board actually did.

 The Brotherhood was under a duty to represent all of the members of the craft. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80. The grievance filed, though ambiguous, can be read as carrying out this duty since it refers to those represented by the Brotherhood. *fn1" There is nothing in the claim limiting it to particular persons and it expressly provided that the Brotherhood would designate specific individuals entitled to relief after the award was made.

 The existence of the Protective Law referred to above cannot affect the result. A person or union will be assumed to act in accordance with the duty which it owes to those whom it represents as a collective bargaining agent, rather than be assumed to favor a segment of those whom it represents, namely, its own dues paying members. The Court of Appeals for the Third Circuit was presented with a similar problem in Kirby v. Pennsylvania Railroad, 188 F.2d 793, 796. In that case the plaintiffs, seeking to enforce an order of the Adjustment Board, were clearly not those who had prosecuted the grievance. Judge Goodrich said 'The statute provides for enforcement of a Board order not only at the suit of petitioner before the Board, but the 'any person for whose benefit such order was made.' We conclude that plaintiffs' complaint is sufficient to show that they are persons for whose benefit Award No. 4291 was made, and that they have standing to seek enforcement of it.'

 I cannot distinguish the present case from the Kirby case on the ground that this action is not, in form, to enforce an order of the Railroad Adjustment Board but is rather a suit against both the Brotherhood and the Railroad because they failed to comply with an order. The only persons entitled to bring such an action would, of course, be those who were the beneficiaries of the award, and I conclude that the intended beneficiaries of the award were those employed in job classifications doing work similar to the work done by the contractor's employee at either the South Philadelphia Freight Station or the Philadelphia Transfer during the times in question, whether they were members of the Brotherhood or not.

 The formula submitted by the Brotherhood for dividing the money among those entitled to it seems to offer a practicable and reasonable approach to the problem. However, the money available should not be divided by the number of employees entitled to share in theory, but should be divided by the number of claimants who ...

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