union's own internal procedures. An overt, hostile and invidious discrimination must be demonstrated in order to raise such ground. None of those cases gives color to the assertion that there is a federal question presented by the instant complaint. For that matter, paragraph XVII of the complaint itself concedes that in the absence of the purported agreement of 1951 the Railroad is legally entitled to maintain a differing wage rate for tallymen in different geographic locations.
D. Allegations of Facts Themselves Inconsistent with Facts Essential to Recovery
Before consideration of other grounds of objection, the hornbook rule is recognized that a complaint must be dismissed where it contains admissions or allegations which themselves are inconsistent with facts essential to recovery. This salutary rule is designed to prevent the courts and litigants from being subjected to the inconvenience and expense of patently defective actions. It may well be applied to the present complaint in a number of instances.
As an example, one sees that the complaint states an agreement, and yet the supporting exhibit shows itself, by its date as well as its own language, to be an offer or attempt at negotiation.
The complaint bases jurisdiction in this court on the act, yet tacitly confesses that it seeks to avoid or bypass that Act by allegations of discrimination.
Further inconsistencies have been seen and will appear. Suffice it to say that the objections of defendants on this score are upheld.
E. Failure to Show Exhaustion of Administrative or Contractual Remedies
It has been ruled above that the remedies under the Act are exclusive, and that plaintiffs clearly have not followed them, and that compliance with such procedures are prerequisite. 45 U.S.C.A. § 153, First (i); Slocum v. Delaware, L. & W.R. Co., 1950, 339 U.S. 239, 70 S. Ct. 577, 94 L. Ed. 795.
Apart from the Act, however, there is the procedure of the collective bargaining agreement and the internal procedure of the Brotherhood. That agreement and those regulations are before this court. The complaint has stated the existence of the collective bargaining agreement, and named the Brotherhood as the duly authorized bargaining agent for these plaintiffs. The defendant Brotherhood therefore quite properly incorporated in its motion the Constitution of the Grand Lodge and the By-Laws of the Pennsylvania Railroad System Board of Adjustment of the Brotherhood. Fagan v. Pennsylvania Railroad Company, D.C.M.D.Pa.1959, 173 F.Supp. 465. Those exhibits disclose a system of remedies for redressing any wrong which a member may suffer.
The rights and duties of that constitution and by-laws have been held to be fair and in compliance with fundamental justice and due process in three recent cases decided in Pennsylvania. Grand Lodge of the Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express and Station Employees v. Girard Lodge, No. 100, 1956, 384 Pa. 248, 120 A.2d 523; McGovern v. Brotherhood of Railway Clerks, Court of Common Pleas No. 2, Philadelphia County, September Term, 1956, No. 3908; Fagan v. Pennsylvania Railroad Company, D.C.M.D.Pa.1959, 173 F.Supp. 465, 469.
It is true that plaintiffs allege that they
'* * * have no remedy within the Brotherhood since this complaint against the Pennsylvania Railroad Company has gone unheeded by all echelons of the Brotherhood since 1951.'
That statement (Par. XV), otherwise unsupported, gives no indication that the internal procedure has been followed. Since that procedure has recently been analyzed in the opinion of Judge Follmer in the Fagan case, heretofore cited, to go over the entire ground seems unnecessary. See Fagan v. Pennsylvania Railroad Company, D.C.M.D.Pa.1959, 173 F.Supp. 465. It is patent that plaintiffs have failed to exhaust their administrative remedies within the Brotherhood and under their collective bargaining agreement, which is prerequisite to judicial relief. Trainer v. International Alliance of Theatrical Stage Employees, 1946, 353 Pa. 487, 46 A.2d 463; cf. Underwood v. Maloney, D.C.E.D.Pa.1957, 152 F.Supp. 648, 658. Thus, quite apart from jurisdiction under the Act, the plaintiffs have failed to make a proper showing to entitle them to relief.
For the foregoing reasons the motions to dismiss made by the defendant Brotherhood and the defendant Railroad are in each case granted and it is accordingly ordered that the complaint in this cause filed by James A. Gainey and J. L. Young et al. be and the same is hereby dismissed.
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