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January 17, 1969

PENN CENTRAL COMPANY and Brotherhood of Locomotive Firemen and Enginemen by W. B. Woodward, Jr., Trustee ad litem and The Pennsylvania Railroad--Baltimore & Eastern Railroad--Brotherhood of Locomotive Firemen and Enginemen--System Board of Adjustment by D. L. Moore, S. L. Zane, N. H. Nelsen and J. W. Price, Trustees ad litem

The opinion of the court was delivered by: WOOD


 WOOD, District Judge.

 This is an action in equity removed from the state courts and seeking to abrogate a decision of the Railway Labor Act System Board of Adjustment that terminated plaintiff's employment as an engineman with the railroad. Plaintiff requests an injunction against enforcement of the System Board's decision, an order directing that the plaintiff's Railway personnel record be cleared, and an award for lost wages. We have decided that Mr. Struski should be reinstated and his seniority record cleared, but that he is not entitled to any damages. We have made the following findings of fact and conclusions of law:


 1. Mr. Peter J. Struski, the plaintiff in this action, was first employed by the Pennsylvania Railroad as a fireman on or about June 15, 1948. (N.T. 18) He was promoted from fireman to engineer in September 1957, but never worked as an engineer because his seniority did not qualify him for it. (N.T. 19)

 2. The defendant, Penn Central Transportation Company ("Railroad") is a corporation incorporated under the laws of Pennsylvania and engaged in business as a railroad carrier. (N.T. 12)

 3. The Brotherhood of Locomotive Firemen and Enginemen ("Firemen") is a labor union organized in accordance with the Railway Labor Act, 45 U.S.C.A. Section 151 et seq., and representing the employees of the Railroad in engine service, including the craft of firemen. (N.T. 13)

 4. The Brotherhood of Locomotive Engineers ("Engineers") is a labor union national in scope and also organized in accordance with the Railway Labor Act. (N.T. 14)

 5. On June 15, 1954, the Railroad entered into a union shop agreement with the Firemen as provided for in Section 2(11) of the Railway Labor Act, 45 U.S.C.A. ยง 152(11). This agreement was in effect during the period which this litigation is concerned with. (N.T. 15)

 6. The Pennsylvania Railroad, Baltimore & Eastern Railroad-Brotherhood of Locomotive Firemen and Enginemen-System Board of Adjustment ("System Board") is organized pursuant to the union shop agreement dated June 15, 1954 between the Railroad and the Firemen. (N.T. 13) It is comprised of two representatives of the Firemen and two representatives of the Railroad. (N.T. 61-2)

 7. Mr. Struski paid dues and was a member in good standing of the Firemen through January 1957. (N.T. 28) In February of 1957, he decided that he preferred to be a member of the Engineers union. He ceased paying dues to the Firemen and began paying dues to the Engineers. He was a member in good standing of the Engineers as of February 1957, and remained a member thereafter. (N.T. 28, 98-111, 115-16)

 8. On or about June 3, 1957, Mr. Struski received a letter from Mr. P. N. Mansfield, Superintendent of Transportation, stating that for failure to pay dues to the Firemen, Mr. Struski was in violation of the union shop agreement, (N.T. 22-3) and stated to him:


"You are, therefore, advised that as provided in Section 5(c) of the Union Shop Agreement of June 15, 1954, amended effective November 1, 1955, your seniority and employment in the crafts or classes represented by the Brotherhood of Locomotive Firemen and Enginemen shall be terminated ten days from the date of this letter, unless the attached notice is withdrawn by the Brotherhood in the interim or unless you request a hearing in the manner set forth below." (N.T. 23, Ex. P-1)

 9. Mr. Struski promptly sent the following reply to Mr. Mansfield:


"In reply to your letter dated June 3, advising me that I have failed to comply with the Union Membership Agreement. I have in my possession Receipts from the B of LEF up to and including January '57 and then receipts from the B of LE, Division 565, for the month of February and the months thereafter.


"I therefore request a hearing on the above matter unless notice is withdrawn by the Brotherhood.


"So will you kindly inform me as to my status before the ten days expire so I can let my Brotherhood handle my case?" (N.T. 23-6; Ex. P-2)

 10. Mr. Struski did not receive the prompt answer which he requested. (N.T. 26)

 11. The next communication Mr. Struski received from the Systems Board was on January 31, 1959. This was a formal notice of hearing of his case to be held in Philadelphia. (N.T. 29-30, 38)

 12. The meeting of the Systems Board which considered Mr. Struski's case was held on February 9, 1959. (N.T. 69) Mr. Struski did not appear at this meeting.

 13. The Clerk of the Systems Board did not know of any information before the Board concerning Mr. Struski's case than Mr. Struski's letter in June 1957 requesting a hearing. (N.T. 69-76)

 14. Mr. Turk, a representative of the Firemens Union on the Systems Board made a motion that since Mr. Struski failed to appear at the hearing the Board assumed that he waived his right to a hearing and should render its decision based on information that was available at the time which decision should be as follows:


"DECISION: Peter J. Struski has not complied with the membership requirements for continued employment as set forth in the Union Shop Agreement, effective July 1, 1954, amended November 1, 1955.


"The motion was seconded by Mr. Moore, ballots were spread, which resulted as follows:


"For the motion 4 -- against the motion -- 0." (N.T. 75)

  15. At the time of the meeting of the Systems Board, Mr. Struski was on furlough from his employment with the Railroad. (N.T. 29) He was informed by letter dated February 9, 1959, that his employment had been terminated. (N.T. 30)

 16. Sometime thereafter, Mr. Struski contacted a Mr. Blanton, the Chairman of Local 565 of the Engineers Union. Mr. Blanton wrote a letter to the Systems Board in Mr. Struski's behalf stating inter alia that Mr. Struski was a member in good standing of the Engineers Union, and that it was unfair to take advantage of Mr. Struski and cite him for a hearing while he was furloughed. He requested that Mr. Struski be returned to service in good standing. (N.T. 77-9)

 17. This letter was received by the Systems Board and copies sent to Board members for their consideration. (N.T. 79)

 18. Subsequently, Mr. Blanton referred Mr. Struski's case to legal representatives of the Engineers in Cleveland. (N.T. 31)

 19. A letter dated January 11, 1961, was sent from Mr. G. L. Buuck, General Chairman of the Brotherhood of Locomotive Engineers, to Mr. Herman Kendall, Manager-Labor Relations, Pennsylvania Railroad, stating that the


"* * * General Committee of Adjustment has turned this matter over to the Grand Office of the Brotherhood of Locomotive Engineers and its Legal Department for further handling.


"You will no doubt hear from our Legal Department in Cleveland within the next few days." (N.T. 97)

 20. Thereafter, the following letter dated February 3, 1961, was sent to the Firemens Union by H. F. Hempy, the Grand Secretary of the Engineers Union:


"This is to certify that according to the records of this Organization Peter J. Struski has held continuous membership in Division 565 since February 1, 1957." (N.T. 85-6, 92)

 21. Several other letters were also sent to the Systems Board on Mr. Struski's behalf, and a reconsideration of Mr. Struski's case was requested. The Systems Board did not convene formally to determine whether to reconsider Mr. Struski's case. The Clerk of the Systems Board communicated with each of the members and received authorization to send the following letter to Mr. Struski's legal representatives from the Engineer's Union:


"In view of the circumstances, the Board cannot reconsider Mr. Struski's case and the papers referred to the Board by Mr. Kendall are being returned to him." (N.T. 80-3)

 22. Mr. Struski still pays dues to, and is a member in good standing of, the Engineers Union. (N.T. 52)

 23. From the time of the termination of his employment with the Railroad until February 1962, Mr. Struski earned somewhat less than $70.00 per week for performing several different occasional jobs. (N.T. 36)

 24. Since February 2, 1962, Mr. Struski has been employed as an assembler for North American-Rockwell Corporation in Ashtabula, Ohio. From the date of his employment with North American in February 1962 through 1965, Mr. Struski was paid approximately $7,000.00 per year. (N.T. 36) In 1966 he was paid exactly $9,238.53. (N.T. 35; Ex. P-5) In 1967 he was paid exactly $7,745.94. (N.T. 35; Ex. P-6)

 25. The employee of the Penn Central Company immediately above the plaintiff on the Seniority Roster of Enginemen, Firemen and Hostlers, revised January 1, 1959, and posted May 15, 1959; was J. F. Wilson, employee No. E-255, with seniority date as fireman June 15, 1948 and seniority date as engineman September 3, 1957. (Stipulation)

 26. The employee of the Penn Central Company immediately below the plaintiff on the Seniority Roster of Enginemen, Firemen, and Hostlers, revised January 1, 1959, was G. J. Vivacqua, employee No. E-227, with seniority date as fireman August 2, 1948 and no seniority as engineman. (Stipulation) 27. The gross wages paid by the Penn Central Company to J. F. Wilson from 1959 to 1968, inclusive, were as follows: Year Gross Wages Paid 1959 n1 $ 2,321.62 1960 4,380.66 1961 1,843.36 1962 3,451.78 1963 6,098.39 1964 7,447.23 1965 9,705.22 1966 10,823.16 1967 10,941.12 1968 n2 8,344.39 Total $65,356.93 (Stipulation)


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