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Kirby v. Pennsylvania R. Co.

filed.: April 23, 1951.

KIRBY ET AL.
v.
PENNSYLVANIA R. CO.



Author: Goodrich

Before BIGGS, Chief Judge and GOODRICH and KALODNER, Circuit Judges.

GOODRICH, Circuit Judge.

This case involves the validity of an award and order of the Third Division of the National Railroad Adjustment Board. It comes to us on appeal from an order of the court below dismissing the plaintiff's complaint, which sought enforcement of an order of that Board, because it failed to state a claim upon which relief could be granted under the provisions of the Railway Labor Act, 45 U.S.C.A. ยง 151 et seq.

The plaintiff's complaint, the allegations of which must be taken as true for purposes of this appeal, tells the following story:

Plaintiffs, 39 women residents of Pennsylvania, were employed by defendant, an interstate carrier, as truckers at its Philadelphia freight transfers. On or about March 15, 1945, and continuing to October 23, 1946, plaintiffs' positions were abolished by defendant in violation of a contract between defendant and the Brotherhood of Railway Clerks.*fn1 As a result of defendant's action the Brotherhood submitted a claim to the Railroad Adjustment Board for reinstatement and back pay for four named employees (not the present plaintiffs) and others adversely affected by the carrier's actions. A hearing was had as a result of which the Board issued an award sustaining the claim and an order requiring defendant to comply with the award on or before April 1, 1949. The defendant has refused to comply with the order and plaintiffs seek court enforcement. Plaintiffs were not parties before the Board but seek relief as "others adversely affected."

There are three main divisions to what must be considered on the appeal. The first has to do with the sufficiency of the findings and award of the Board. The second concerns the right of plaintiffs to be in court. The third involves the requirements of notice.

A. The Form of The Award.

The appellee enthusiastically concurs with the District Court's conclusion*fn2 that the form of the award by which the Railroad Adjustment Board disposed of the claim is not sufficient to make it the basis of a court action. We disagree, although admittedly the point is not one free from difficulty.

Let us show first the material with which we have to work.The order of the Third Division of the Railroad Adjustment Board which plaintiffs seek to have enforced calls upon defendant "to make effective Award No. 4291" on or before April 1, 1949. A copy of the award accompanies the order and is made a part thereof.*fn3 The "Award" consists of the following: Statement of Claim, Employes' Statement of Facts, Position of Employes, Carrier's Statement of Facts, Position of Carrier, Opinion of Board, Findings, and Award.

The Statement of Claim reads as follows:

"(a) Rule 3-C-2 was violated by the Carrier when positions of Truckers, Philadelphia Transfer, held by Pattie S. Hayes, Mary Gambrell, Eula O. Smith, Ora Dorsey and others, were abolished effective May 13, 1946 and the work assigned to Contract Employes not covered by the Rules Agreement.

"(b) These positions be re-established and the incumbents, as well as any others adversely affected, be compensated for any monetary losses sustained. (E-355, E-357 & E-358)."

Under the heading of "Award" appears ...


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