his intra-union remedies. He submitted a claim to his local union representative which was denied. He then followed the union appeal procedure, and his claim was finally denied after several hearings, by the BRAC International Executive Council in December of 1978.
Plaintiff Connor instituted his roster protest by bringing it to the Conrail representative as provided in the Interim Rules Agreement. This was denied.
Warner and Connor, on behalf of themselves and the over four hundred other Conrail employees that they claim are adversely affected by the allegedly improper roster, brought this action in the district court on December 10, 1979.
Plaintiffs seek to recover from both Conrail and the union. They claim that Conrail's action in adopting the current roster is a denial of their seniority rights under the Interim Agreements, and is therefore a breach of these agreements.
They seek to enjoin Conrail from continuing to list these employees on the seniority roster with their prior CNJ dates, and to require Conrail to list them with the April 1, 1972 date, and seek damages in the form of benefits lost by the other employees as a result of the prejudicial listing.
Their second claim, against the union, alleges that the union breached its duty of fair representation by refusing to aid Plaintiff Warner in his protest and thereby not representing all employees fairly and equally.
Defendant's motion to dismiss alleges that the Court does not have jurisdiction to entertain the present action in that the National Railroad Adjustment Board has exclusive jurisdiction to hear Plaintiffs' grievances. Plaintiffs argue that the Court has jurisdiction to hear their claims. The boundaries of jurisdictional power between the courts and the Board are clearly defined. The Board shall have jurisdiction over disputes which arise out of the "interpretation or application" of collective agreements. 45 U.S.C. § 153 First (i). As the Supreme Court has stated, "Congress considered it essential to keep these so-called "minor' disputes within the Adjustment Board and out of the courts." Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 94, 99 S. Ct. 399, 402, 58 L. Ed. 2d 354 (1978). In contrast, where a dispute does not involve the terms of an agreement, it is not a matter within the Board's jurisdiction. That is the case with regard to suits brought by employees against the union for breach of their duty of fair representation, and accordingly the District Court has jurisdiction to hear those claims. The question before the Court in the present action is whether the Court should retain jurisdiction over an action which involves one claim which concerns the interpretation of an agreement and another claim which concerns the union's duty of fair representation. It is the opinion of the Court today that the proper approach to this case is bifurcation of the two claims. Accordingly we will dismiss Plaintiffs' first count, which alleges that Defendants improperly interpreted and applied Section III of the January 26, 1976 agreement, and we will retain jurisdiction over Plaintiffs' second count, which charges that the union failed to fulfill its duty of fair representation.
Several cases in recent years have dealt with the jurisdictional power of the federal courts over disputes which allege improper action by both the union and employer. Plaintiffs urge the Court to adopt the reasoning of Richins v. Southern Pacific Co., 620 F.2d 761 (10th Cir. 1980), a case which arose out of a merger of the Southern Pacific Transportation Company and another railroad. In Richins the Tenth Circuit Court of Appeals entertained the claims against the railroad and the Union, even though the dispute against the railroad involved the interpretation of an agreement, a matter which normally would be within the jurisdiction of the N.R.A.B. Defendants ask the Court to follow Goclowski v. Penn Central Transportation Company, 571 F.2d 747 (3rd Cir. 1977), a case which also involved claims against both union and employer. In Goclowski the Third Circuit Court of Appeals dismissed the claim against the employer because it was based upon the terms of the collective bargaining agreement, and it entertained the claim against the union for breach of its duty of fair representation. Obviously because Goclowski represents the law in this Circuit, and because it is not distinguishable on its facts,
the Court is bound to follow its holding. But we are also convinced that Goclowski is more in keeping with the intent of the National Railway Labor Act and with the trend of recent decisions of the United States Supreme Court.
In Union Pacific Railroad Co. v. Sheehan, supra, the Supreme Court addressed the purpose and intent of the Railway Labor Act.
"In enacting this legislation, Congress endeavored to promote stability in labor-management relations in this important national industry by providing effective and efficient remedies for the resolution of railroad-employee disputes arising out of the interpretation of collective-bargaining agreements." 439 U.S. at 94, 99 S. Ct. at 402.