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December 20, 1976

J. G. GOGLOWSKI et al., Plaintiffs,

The opinion of the court was delivered by: WEBER

 The Complaint in this case is made by several employees of Defendant Railroad who are members of Defendant Unions. It recites that a Seniority Agreement made in 1972 between the Railroad and officers of the Union (the named individual defendants) violated their rights under the Basic Collective Bargaining Agreement of 1970, the Merger Protective Agreement of 1964 and the Implementing Agreement of 1970.

 Plaintiffs claim that these violations affected certain seniority rights to their detriment and damage. They sue the employer Railroad, and the International and Local Unions together with certain officers, which we will designate under the collective term "Unions" herein.

 As to the Railroad, the Plaintiffs' Complaint alleges that its application of the 1972 Agreement was a breach of contract as to their rights under the prior collective bargaining agreements.

 As to the Unions, the Plaintiffs' Complaint alleges lack of authority of the Unions to make the 1972 agreement, or that the Unions failed in its duty of fair representation in negotiating the agreements or failing to satisfy their complaints thereafter.


 The authority of the Unions to make the agreement of 1972 exists under the terms of the Railway Labor Act. The Union was the designated bargaining agent of the plaintiff employees. The authority of the Union representatives to make the 1972 agreement relative to transfer of employees to another seniority district was contained in Rule 3-B-2 of the general collective bargaining agreement of 1970. The Railroad is required by the Act to deal and contract with the duly designated representatives of its employees. Virginian Rwy. Co. v. System Federation No. 40, 300 U.S. 515, 57 S. Ct. 592, 81 L. Ed. 789 [1937].

 The duly designated representative of the employees has statutory authority to make agreements binding upon the classes of employees represented with regard to pay rates, rules and working conditions. Elgin, Joliet & Eastern Rwy. Co. v. Burley, 325 U.S. 711, 65 S. Ct. 1282, 89 L. Ed. 1886 [1945], aff'd. on rehearing 327 U.S. 661, 66 S. Ct. 721, 90 L. Ed. 928 [1946].

 In Kline v. Florida Airlines, 496 F.2d 919 [5th Cir. 1974] the court sustained an agreement between a union and a carrier which adjusted certain seniority claims of employees and pointed out that the Railway Labor Act imposes a duty on carrier and unions to settle such matter by direct negotiations. The agreement is therefore valid and binding between the Defendant Railroad and the individual plaintiffs as members of the Union. The Complaint fails to state any cause of action against the Defendant Penn Central Transportation System. Any allegations of the complaint as to the failure of the Union to represent plaintiffs fairly are immaterial as to the position of the Railroad.

 To the extent that the complaint against the Railroad avers a breach of any of the provisions of the collective bargaining agreements in effect between the parties, this court is without jurisdiction over such claims. All such claims by the terms of the Railway Labor Act, 45 U.S.C. § 153(1)(a) fall within the exclusive primary jurisdiction of the National Railroad Adjustment Board. Slocum v. Delaware, L. & W.R.R. Co., 339 U.S. 239, 70 S. Ct. 577, 94 L. Ed. 795 [1950]; Order of Railway Conductors v. Southern Railway Co., 339 U.S. 255, 70 S. Ct. 585, 94 L. Ed. 811 [1950]; Andrews v. Louisville & N.R.R. Co., 406 U.S. 320, 92 S. Ct. 1562, 32 L. Ed. 2d 95 [1972].

 The Plaintiffs suggest that their suit is against both the Railroad and the Unions, suggesting that somehow this takes it out of the jurisdiction of the Railroad Adjustment Board, which is to settle "disputes between an employee or a group of employees and a carrier or carriers." 45 U.S.C. § 153, First. (i). But this factor does not oust the primary jurisdiction of the Adjustment Board. ". . . if the resolution of the differences between railroad employees, on one side, and the railroad and the unions, on the other, depends on the interpretation of disputed terms of the collective bargaining agreement, then the dispute must be sent to the National Railroad Retirement Board." Roberts v. Lehigh and New England Railway Co., 323 F.2d 219, 222 [3rd Cir. 1963]. See also Thompson v. New York Central Railroad Co., 361 F.2d 137 [2nd Cir. 1966].

 As for the claims of breach of the duty of fair representation made against the Union, these claims cannot involve the Defendant Railroad. "We cannot see how the Railroad's rights or interests will be affected by this action to enforce the duty of the bargaining representative to represent petitioners fairly." Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 [1957]. See also Czosek v. O'Mara, 397 U.S. 25, 90 S. Ct. 770, 25 L. Ed. 2d 21 [1970], and Frederickson v. Railway Employees Department, 436 F.2d 764 [9th Cir. 1970].

 We are convinced that Summary Judgment must be entered for Defendant Railroad both on the grounds that there is no genuine issue of fact as to the validity of the 1972 Agreement, and on the grounds that this court has no ...

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