The opinion of the court was delivered by: GRIM
Plaintiffs are asking in this complaint:
(a) a determination by the court by way of a declaratory judgment or otherwise that the union and the railroad conspired to act in concert and with hostile discrimination to maintain two unequal pay scales for tallymen;
(b) damages against the union for this conspiracy contrary to the Railway Labor Act;
(c) damages against the union for the unlawful discrimination practiced against the plaintiffs equal to pay losses from 1950 to the day of judgment;
(d) a return of union dues collected during the aforesaid period;
(e) a mandatory injunction compelling the union to invoke the remedies of the Railway Labor Act to resolve the dispute as to wages of tallymen in the Eastern Region of the railroad.
Defendant union has filed a motion to dismiss, which creates the question now before the court.
Three issues are raised by this motion: (1) Do the plaintiffs have a cause of action? (2) If so, have they properly stated this cause of action? (3) Does res judicata prevent them from proceeding with the prosecution of their cause of action, if they have one?
I. DO THE PLAINTIFFS HAVE A CAUSE OF ACTION?
Where there is hostile discrimination against members of a railroad craft union because of the race of the people discriminated against, it is clear that the group discriminated against has a cause of action against the union under the Railway Labor Act to right this wrong. Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S. Ct. 226, 89 L. Ed. 173 (1944); Brotherhood of R.R. Trainmen v. Howard, 343 U.S. 768, 72 S. Ct. 1022, 96 L. Ed. 1283 (1952); Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). It is not so clear, however, whether this principle (hostile discrimination because of race) applies also to situations where, as alleged in the present case, there is hostile discrimination because of something other than race. My conclusion, however, is that it does and that the instant case presents such a situation.
The principle under which a cause of action arises under the Railway Labor Act when there is hostile discrimination by a union against certain of its members has been stated in Steele v. Louisville & N.R. Co., 323 U.S. 192, 202, 65 S. Ct. 226, 232 (1944):
'The fair interpretation of the statutory language is that the organization chosen to represent a craft is to represent all its members, the majority as well as the minority, and it is to act for and not against those whom it represents. 3 It is a principle of general application that the exercise of a granted power to act in behalf of others involves the assumption toward them of a duty to exercise the power in their interest and behalf * * *.'
A more explicit explanation of this cause of action under the Railway Labor Act was stated in a similar case, Tunstall v. Brotherhood, 323 U.S. 210, 213, 65 ...