at the bottom of seniority lists and provided that such employees would, in the future be dovetailed in accordance with Article 5 Section 3(a) of the National Master Freight Agreement. Section (3) of the Memorandum Agreement provides that "It is expressly understood that the abolition of the practice [of placing merged employees at the bottom of the seniority list] shall be prospective only and shall in no way affect seniority applications made prior to April 1, 1969, and such applications shall be considered for all purposes final and binding." Plaintiffs argue that this provision means that their seniority is not supposed to be affected by the new practice but that it has been because new employees have been dovetailed with them. They interpret the phrase to mean that employees assimilated by future mergers will have their seniority dovetailed with each other but not with employees already employed by Eastern at the time the Memorandum Agreement was signed. The Committee, however, interpreted Section (3) to mean that future merged employees would have their seniority merged with all existing Eastern employees. Such an interpretation is not arbitrary or capricious; in fact the Memorandum of Agreement hardly admits of another interpretation. It is worth noting that Section (3) of the Memorandum Agreement appears to mean merely that while future seniority will be dovetailed, those employees already with Eastern, who were placed at the bottom of the seniority list when their companies merged with Eastern, will not now have their seniority redetermined by dovetailing all existing employees. Thus plaintiffs fall short of indicating to us that the Committee decision was even unreasonable, much less of making the required showing of arbitrariness or capriciousness.
In essence, plaintiffs' claim is that the Committee's decision has placed them in an unfair position. They argue that they received no seniority for layoff purposes when they joined Eastern because they were placed at the bottom of the seniority list. Now, having built up some seniority after eight or more years of employment, they are having their seniority diluted through dovetailing with new employees. However, even were we to conclude that the circumstances are unfair, this would not justify us in overturning the decision of the Joint Committee; fairness is not the standard to be applied.
Moreover we observe that under the circumstances some group of employees must be placed in the position in which plaintiffs now find themselves. The March, 1969 Memorandum of Agreement, not here challenged,
provided that dovetailing would not be retroactive. This being the case, there is of necessity some group which is not dovetailed with a group which it succeeded but is dovetailed with a group which it preceded. Plaintiffs contend that this unfortunate group should be the former National employees rather than themselves. However the Joint Committee determined that National's employees should be dovetailed, and that decision, fairly supported by the language of the March, 1969 agreement, was not arbitrary or capricious.
Plaintiffs' contention that Local 107 breached its duty of fair representation by acquiescing in and implementing the decision of the Joint Committee is patently without merit. A Union breaches this duty when its action toward a member or members of its bargaining unit is arbitrary, discriminating or in bad faith. Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967). However a union does not become neutralized whenever a dispute is between two different groups of its employees, and a breach of its duty of fair representation must consist of more than merely taking a position in favor of one group and against the other. Humphrey v. Moore, 375 U.S. 335, 11 L. Ed. 2d 370, 84 S. Ct. 363 (1964). There is no evidence in this case that Local 107 took the position which it did other than "honestly, in good faith and without hostility or arbitrary discrimination." Id. at p. 350.
For these reasons we also conclude that there has been no actionable wrong which could give rise to plaintiffs' claim for money damages. In any event, plaintiffs have not stressed their claim for money damages; there is no evidence that any of them have been laid off from work as a result of being dovetailed with National's employees and, as determination of layoffs is the only area in which plaintiffs received no seniority when they joined Eastern, it does not appear that they could otherwise have been injured.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over the parties and subject matter of this action.
2. The collective bargaining agreement in effect between Eastern and Local 107 provided for submission of the grievance in question to the Joint Area Committee.
3. The decision of the Joint Area Committee was not fraudulent or in bad faith, nor was it arbitrary or capricious.
4. Plaintiffs are not entitled to an injunction enjoining implementation of the decision of the Joint Area Committee.
5. Plaintiffs are not entitled to money damages.
And now, this 14th day of August, 1972, It Is Ordered that plaintiffs' application for a permanent injunction is denied;
It is further ordered that judgment be hereby entered in favor of defendants and against plaintiffs in the action for money damages.