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March 18, 1964

August FULLER et al.
HIGHWAY TRUCK DRIVERS AND HELPERS LOCAL 107, an unincorporated association, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Hemingway Transport, Inc. and Novick Transfer Co., Inc.

The opinion of the court was delivered by: KRAFT

Before us now is plaintiffs' motion for preliminary injunction. The plaintiffs, all of whom were and are members of Highway Truck Drivers and Helpers Local 107 (hereafter Local 107) had been employed as truck drivers by the defendant, Novick Transfer Co., Inc. (hereafter Novick), an interstate carrier, at its Philadelphia terminal. Novick merged with Hemingway Transport, Inc. (hereafter Hemingway), which remanded as the surviving carrier. Hemingway and Novick, as employers, and Local 107, as exclusive bargaining agent for its members, including all Philadelphia terminal employees of Hemingway and Novick, were parties to a multi-employer, multi-union collective bargaining contract, which was in effect at the time of the merger.

Upon the merger, the plaintiffs became employees of Hemingway at its Philadelphia terminal and immediately the inevitable problem was presented, whether, for seniority purposes, they should be dovetailed with the original Hemingway drivers or be placed below the original Hemingway drivers on the seniority list.

 A grievance was initially filed by the original Hemingway drivers, who asked for a determination of their seniority status following the merger. Apparently the grievance was not submitted to the Joint Local Committee, possibly because the dispute was not one between employer and employees but was essentially between two groups of employees represented by the same union. The grievance was processed, however, to a hearing before the Joint Area Committee, comprised of three union and three employer representatives, none of whom were officers, employees or members of any of the present defendants. After a hearing at which both employee groups were heard, this Committee, on January 20, 1964, resolved the grievance by placing the former Novick drivers at the foot of the Hemingway seniority list. This decision was implemented before the present action was begun.

 The plaintiffs contend this decision was impermissible. They insist that the contract expressly provides for dovetailing of seniority in cases of merger like the present and assert that the failure to dovetail them is a breach of contract by the employer in which Local 107 has acquiesced in breach of its obligation to represent them fairly and impartially.

 Article 5, Section 1 of the contract provides:

 'Section 1. -- Seniority rights for employees shall prevail. Seniority shall be broken only by discharge, voluntary quit, or more than a two (2) year layoff. Any employee on the seniority list who is absent because of illness or injury shall accumulate seniority for the purpose of determining his place on the seniority list. * * * A list of employees arranged in the order of their seniority shall be posted in conspicuous place at their place of employment and a copy to the Union. There may be (at the Union's discretion) one road driver steward and one city driver steward and, in addition, one dock steward per shift in each terminal or operation. Such stewards shall be granted super-seniority for all purposes, including layoff, rehire, bidding and job preference. Any controversy over the seniority standing of any employee on the seniority list shall be submitted to the Joint Grievance Procedure. (Article 7).'

 Article 5, Section 4 of the contract provides:

 'Section 4. -- (a) The uniform rules as to application of seniority in the case of mergers, purchases, acquisitions and sales, etc. shall be those adopted by the Central States Joint Area Committee.'

 The seniority rules adopted by the Central States Joint Area Committee, in relevant part, provide:


 'Merger, purchases, acquisition, sale, etc.

 '1. If both carriers involved are solvent then the seniority lists of the two companied should be dovetailed so as to create a Master Seniority List based upon total years of service with either Company. This is known as dovetailing in accordance with years of seniority. * * *

 At the time of the hearing before us on the motion for preliminary injunction, the time within which the defendants were obliged to plead, answer or otherwise move had not yet expired and no answer or other motion of any defendant had yet been filed. However, defendants, by their counsel, challenged the suit as one not cognizable under Section 301 of the National Labor Relations Act, 29 U.S.C. § 185. Defendants asserted further that the decision of the Joint Area Committee is final and binding and that the Court is powerless to review its merits; that recourse to the National Labor Relations Board is plaintiffs' only remedy for alleged unfairness in representation by Local 107; that employer defendants are not charged with having knowingly participated in any alleged unfair representation by the union and no cause of action is stated against the employer defendant; that this Court, in any event, is precluded by the provisions of the Norris-LaGuardia Act from the entry of the injunction here sought. On the merits, defendants contend that the decision of the Joint Area Committee was both proper and permissible either as the determination of a submitted grievance or under Section 8 of the Central States Rules, supra; that the determination was both fair and proper in view of the fact that Hemingway had earlier merged with Brooks Transportation Company (hereafter Brooks) and that, following that merger, the original Hemingway drivers retained seniority over the former Brooks drivers. Defendants argue that to dovetail ...

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