The opinion of the court was delivered by: HIGGINBOTHAM
On May 18, 1967, plaintiff filed a class action on behalf of some six hundred tallymen (freight handlers and checkers), seeking a mandatory injunction to compel the defendant union to create a Special Adjustment Board pursuant to the Railway Labor Act 45 U.S.C.A. § 153 Second (Supp. 1969). It was plaintiffs' intention to present to the Board wage claims arising from a contract allegedly entered into by the then Pennsylvania Railroad and the defendant union in April of 1950.
The defendant moved to dismiss plaintiffs' suit or in the alternative to stay the action pending disposition of a related action, Gainey v. Brotherhood of Railway and Steamship Clerks, etc., and the Pennsylvania Railroad 275 F. Supp. 292 (E.D. Pa.). Briefs were filed and argument was held on May 29, 1967. Thereafter, on June 19, 1967, I issued an Order staying the disposition of the issues raised in the instant case pending the resolution of the so-called third Gainey case.
Chief Judge Sheridan issued his opinion in Gainey on September 5, 1967. See 275 F. Supp. 292. On February 6, 1969, the defendant Brotherhood filed an amended motion to dismiss, but argument was only held on April 28th of this year. The delay was in part occasioned by an application for Writ of Certiorari to the United States Supreme Court in Gainey which was denied. See 394 U.S. 998, 89 S. Ct. 1590, 22 L. Ed. 2d 775 (1969). Then I was urged by plaintiffs to await decision of Antonioli v. Lehigh Coal and Navigation Company, 47 F.R.D. 198 (E.D. Pa., 1969), a case having "the same issue which is before you in the subject action." (See docket entries 16-25.)
Why Plaintiffs' Action Must Be Dismissed
By their Complaint, plaintiffs could hope to survive a motion to dismiss by prevailing at any one of several stops along the road to a plaintiffs' verdict. But all such stops have long been foreclosed.
A. The Alleged Contract of April 18, 1950
At the very heart of plaintiffs' complaint, paragraph 6 alleges:
"On April 18, 1950, the Pennsylvania Railroad offered and the defendant union accepted a new contract as to wages for tallymen. The terms of the agreement were that tallymen in the Eastern Region of the Pennsylvania Railroad would receive the same wages as tallymen were then earning in the Central Region of the carrier."
Subsequent paragraphs of the complaint spell out the alleged consideration for the new wage agreement, the alleged refusal by the carrier to put the new contract into effect, and the alleged refusal of the union to do its duty under the Railway Labor Act, i.e., to take action to enforce the contract. Thereafter, the Complaint continues, the aggrieved tallymen made several attempts to secure the rewards of the alleged contract. Plaintiffs first instituted the three Gainey law suits. And now by the instant suit they seek to compel the defendant union to establish a Special Adjustment Board under 45 U.S.C.A., § 153 Second, there to resolve "what plaintiff believes to be a wage claim on his behalf and all of some 600 tallymen in the class for which he now sues . . . The carrier owes to each and every tallymen on the Eastern Region the difference in the wages he has received since April 18, 1950 and the wages he would have earned had the carrier lived up to the negotiated agreement with the union." (Paragraph 20 of Complaint.)
In 1959, in the first Gainey case, Gainey v. Brotherhood of Railway and Steamship Clerks, etc., 177 F. Supp. 421 (E.D. Pa. 1959), District Judge, now Chief Judge Lord ruled that the letter said to establish the contract
"reveals itself as a mere offer or, possibly, a counter offer." (at p. 428), Chief Judge Lord further stated:
"The final sentence of the letter, which clearly asks whether the offer is acceptable, is deemed controlling as to the absence of prior agreement, i.e., 'Will you please advise if you concur.'"
"It seems patent that the requirements for the formation of an informal bilateral contract were not met by the showing made on the complaint and exhibit, and it is so ruled.
" . . . The letter is found to fit the definition of an offer -- a manifestation of intent." (at p. 429.)
Looking at the contract claim on appeal, Circuit Court Judge Goodrich, in affirming the District Court's ...