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June 28, 1967

Merle Palmieri, Plaintiff
United Steelworkers Of America et al., Defendants

Rosenberg, D.J.

The opinion of the court was delivered by: ROSENBERG

This matter is here on motions by both defendants for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. The plaintiff brought this action upon a claim of alleged discriminatory discharge in violation of a right arising out of the Railway Labor Act (45 U.S.C. ยง 151 et seq.). He contends that he was discriminatorily discharged by the railroad and that the Union and the railroad discriminatorily refused to process the plaintiff's grievance.

 This action was filed following a dismissal of an earlier action by this plaintiff against the same defendants at Civil Action 66-123. In the earlier action, a motion to dismiss the complaint was made by the defendants on the grounds that it lacked judicial diversity requirements. After argument the hearing judge allowed the plaintiff ten days to amend. This the plaintiff failed to do and the action was thereafter dismissed.

 The plaintiff in the complaint here filed claims the right to an action based upon the Railway Labor Act and essentially charges both the defendants with discrimination against him, and failure to protect the plaintiff as one of the members of the defendant Union and as the employee of the other defendant. *fn1"

 In the complaint the charge is made that a Collective Bargaining Agreement was entered into between both defendants on August 14, 1962; that the railroad failed to honor the plaintiff's seniority rights after placing him on furlough status; that some mixup arose as to the last known address of the plaintiff; that the plaintiff attempted to secure representation from the defendant Union in grievance procedures by which the plaintiff's rights would be protected and adjudicated; that both defendants discriminatorily refused to process his grievance either severally or jointly; that this resulted in immediate loss of work and seniority rights of the plaintiff to which he was entitled; and that the plaintiff was in need of equitable relief and desires, after final hearing, such other relief as would appear proper.

 It will not be necessary here to discuss any of the specific provisions of the Railway Labor Act. Suffice to say that judicial decisions have determined that under the Act a federal court has jurisdiction to entertain an action by an employee against his union and his employer based upon discriminatory treatment. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Ford Motor Company v. Huffman, 345 U.S. 330, 97 L. Ed. 1048, 73 S. Ct. 681 (1953); Brotherhood of Railway Firemen v. Howard, 343 U.S. 768, 96 L. Ed. 1283, 72 S. Ct. 1022 (1952); Steele v. Louisville & Nashville R. Co., supra; Gainey v. Brotherhood of Railway & Steamship Clerks, Inc., 313 F.2d 318, C.A. 3, 1963; Hardcastle v. Western Greyhound Lines, 303 F.2d 182, C.A. 9, 1962; Cunningham v. Erie R.R. Co., 266 F.2d 411, C.A. 2, 1959; Mount v. Grand Int'l Brotherhood of Locomotive Engineers, 226 F.2d 604, C.A. 6, 1955, cert. den. 350 U.S. 967, 76 S. Ct. 436, 100 L. Ed. 839, 1956.

 However, to support an action based upon discriminatory conduct, the plaintiff must show bad faith or improper motivation on the part of the defendants. As stated in the Gainey case, supra, 313 F.2d at 322, the discrimination must be "hostile":

"The Steele rule is that a union which possesses the power to act for all employees of a bargaining unit has the corresponding duty to represent all the members of the unit fairly, impartially and in good faith, without 'hostile discrimination' against any of them. . . In order to come within its ambit, the complaint before us must have more than conclusory statements alleging discrimination. In particular plaintiffs must make a showing that the action or inaction of the statutory representative complained of was motivated by bad faith, for the gravamen of the rule is 'hostile discrimination '. An allegation that certain conduct of the Brotherhood or a condition permitted to exist by it is 'invidious' and 'discriminatory ', without a concomitant identification of lack of good faith, will not set forth a claim sufficient to call for the use of the Steele doctrine."

 The Gainey case involved a motion to dismiss the complaint. The instant motions for summary judgment under Federal Rule of Civil Procedure 56 are of broader scope and in the determinations thereof reference may be made to depositions, affidavits, admissions and answers to interrogatories of record.

 Under the Gainey case then, it would appear to me that a motion to dismiss could find sufficiency in attacking the complaint alone, without necessity for support in any depositions or the like. Thus we examine the complaint and find that it makes but a simple statement in the second part of paragraph 1, that jurisdiction is based upon "the provisions of the Railway Labor Act requiring both union representatives and employers to provide protection to its members and employees without discrimination to any one group or person." This paragraph further explains that the plaintiff seeks injunctive relief and damages resulting from a discriminatory discharge of the plaintiff.

 In the fourth paragraph it is stated that the plaintiff attempted to secure representation from the defendant union in the grievance procedure, but both defendants discriminatorily refused to process his grievance or to take any affirmative action on this case. This is the only averment made to support the essential element of this action, i.e., that the defendants were motivated by bad faith and were guilty of hostile discrimination against him.

 However, it is not necessary to make a determination on the lack of these necessary elements in the complaint, for in this record there are statements by the plaintiff which indicate that he possesses no facts which will indeed supply the necessary elements to make out his case. In fact his statements support the defendant's contentions.

 The record shows that the plaintiff was hired by the defendant railroad on January 26, 1960; on June 1, 1960, he was furloughed; his residence at that time was in Johnstown, Pennsylvania; subsequently he moved to Oakland Township, Pennsylvania; on September 3, 1964, the railroad recalled the plaintiff by letter directed to the Johnstown address; the letter was returned and marked "Gave no address"; twenty days after the letter of recall, the railroad sent another letter to the plaintiff advising him that he was terminated for failing to return to service, which letter was returned and marked as was the first letter; on November 11, 1964, the plaintiff contacted the railroad and was hired as a new employee in a probationary capacity; he then contacted the Union for aid in reinstatement as an old employee; there is disagreement as to whether a grievance was actually filed with the Union; however, the Union representatives took the complaint to the company and considerable discussion occurred; finally, after much discussion, the plaintiff accepted the Union representatives' advice to continue on with the job as a new employee and to continue conciliatory action, although this was unsuccessful, and not to process a grievance; and on December 30, 1964, within the probationary period, he was discharged as an unsatisfactory employee. *fn2"

 The complaint evidently for the first time thereafter arose when the plaintiff was unsuccessful in his action against the company for wrongful dismissal. The plaintiff's complaint then is directed to alleged discriminatory conduct of the defendants surrounding the recall of September 1964 and the status of employment in November 1964.

 The plaintiff's deposition, taken on October 17, 1966, does not present any factual substance to support his position that "both defendants discriminatorily refused to process plaintiff's grievance and severally and jointly refused to take any affirmative action on his case." An attempt was there made to elicit specific facts in support of the plaintiff's claim of discriminatory treatment. Reference to the deposition is necessary. At pages 104-105:

"Q. I think, Mr. Palmieri, you started to suggest a while ago that you could understand why Hagans and Louditch *fn3" were acting as they did. I think you said they were trying to resolve it peacefully and try to work it out peacefully?
"A. Yes. I have no complaint on that; I felt it was the best idea. . . . At that time I thought it was the best idea, because it was his theory that had I continued employment there with the company, that I would be - in other words, in his words was this: 'Mr. Palmieri, I'm not going to be working with these people, you are. Let me do the best thing by getting this resolved without any trouble and get you back on the job in the good standing of the company and we can get this thing so you can live with them once you're back.'"

 To the same effect, at pages 85-86:

"A. . . . In other words, it was explained to me by Mr. Louditch in such words as this: He says, 'Now, Merle, we are going to try to resolve this problem with the company without creating a big hassle over it, if we can,' and he said, 'I think we can;' this would be the wisest move on my part, being what I would be working with them there; I would have to live with these people - with the company; therefore, he says - he ...

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