The opinion of the court was delivered by: FREEDMAN
Plaintiff brought this action against the Brotherhood, the general chairman of its general grievance committee, Woodward, and the Railroad. He claims that he was wrongfully discharged from his employment by the Railroad as a locomotive fireman and that his discharge was caused by a notice from Woodward and the Brotherhood to the Railroad that he had violated the union shop agreement by neglecting to pay his union dues. Plaintiff alleges that in fact his delinquency in payment of dues was not the true reason for the notice to the Railroad, but that on the contrary the notice was given maliciously and unlawfully because Woodward knew that it was the custom of plaintiff and other members of his union lodge, acquiesced in by the union, to allow dues to accumulate for three or four months. (Complaint 5, 7 and 9.) He did not pay the union dues for the months of May, June and July 1954. On August 5, 1954, he was discharged by the Railroad. One day later, on August 6, 1954, he paid his dues for May, June, July and August 1954 by check which was deposited to the lodge's account, but which the lodge later repaid to him.
In these circumstances, plaintiff claims reinstatement in the Brotherhood, damages from Woodward and the Brotherhood for malicious inducement to breach of contract and for loss of wages, and reemployment by the Railroad with reinstatement of seniority.
The three defendants have filed motions for summary judgment.
We agree with the Court of Appeals for the Second Circuit in the Cunningham case that the controversy should not be cut up into segments and that the claim against the Railroad should be adjudicated in this suit.
The Railroad essentially is in the position of a bystander, albeit an interested one. It discharged plaintiff because of the notice it received from the Brotherhood. The Railroad claims that the Court has no jurisdiction over the subject matter of the suit because the National Railroad Adjustment Board has denied plaintiff's claim. The fact is that the Board denied plaintiff's claim for reinstatement on the express ground that it had no jurisdiction because he had failed to seek a hearing before the System Board of Adjustment set up by the union shop agreement. The Board's decision therefore was not a decision on the merits of plaintiff's claim. But as we have pointed out, plaintiff's suit is not the result of a dispute with the Railroad; it is rather a claim of discrimination alleged to have been practiced against him by the Brotherhood. Such a claim is cognizable here and not before the National Railroad Adjustment Board. His futile application to the Board does not oust the jurisdiction of the Court. Latham v. Baltimore and Ohio Railroad, 274 F.2d 507 (2d Cir. 1960).
There remains for consideration the claim against Woodward, the Brotherhood official. Woodward claims that since the suit against him is based on diversity of citizenship we are bound by Falsetti v. Local Union No. 2026, U.M.W.A., 400 Pa. 145, 172, 161 A.2d 882 (1960), which holds that no action lies against a union official acting in his official capacity. Plaintiff is a citizen of the State of New York, he was a member of the Newark, New Jersey, lodge of the Brotherhood, and he was employed on the New York Division of the Railroad. At this stage of the case we cannot determine that Pennsylvania law is applicable. Moreover, even if we should assume that the claim against Woodward could not be maintained under our diversity jurisdiction, he may, we think, be sued here for the violation of the Railway Labor Act. In any event, therefore, Woodward has not made a clear showing for dismissal of the action against him.
Accordingly we enter the following
And Now, January 9, 1962, the motions for summary judgment of W. B. Woodward, Jr., Brotherhood of Locomotive Foremen and Enginemen and The Pennsylvania ...