Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
This is an appeal from the granting of motions to dismiss the complaint, 177 F. Supp. 421 (E. D. Pa. 1959). The plaintiffs, purporting to represent themselves and a minimum of six hundred other employees similarly situated, sued Pennsylvania Railroad Company (Railroad) and the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees (Brotherhood) declaring that the action was brought under the Railway Labor Act, 45 U.S.C.A. § 151 and following. The plaintiffs seek a mandatory injunction to compel the Railroad to equalize wages paid to "tallymen" in its eastern and central regions, damages for loss of earnings, punitive damages against the Brotherhood and a return of dues collected by the Brotherhood from the plaintiffs during the period in question.
The material allegations of the complaint may be summarized as follows: Plaintiffs are "tallymen" employed by the Railroad in its eastern region and are members of the Brotherhood; as such, they are covered by a collective bargaining agreement entered into between the Railroad and the Brotherhood on May 1, 1942. At all relevant times, they say, eastern region "tallymen" were paid approximately $25 per month less than their central region counterparts. This geographic differential in pay was the subject of a dispute. It is claimed that an "agreement" (reduced to writing in a letter attached to the complaint) was entered into in 1950 removing the differential. The letter also provided for the elimination of certain tonnage rates (the exact nature of which is not made clear by the complaint) in the eastern region. Despite this "agreement," it is alleged, the pay rates were never equalized, although tonnage payments to the eastern region "tallymen" were eliminated. The Brotherhood, it is charged, has never taken any steps to compel the Railroad to abide by its new "agreement" because "the Pennsylvania Railroad Company could control union officers at will." Accordingly, plaintiffs bring this action.
A seemingly insurmountable defense of the Railroad to this suit is Section 3, First (i) of the Railway Labor Act, 45 U.S.C.A. § 153, First (i). This section provides for the referring of unresolved disputes "between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions," to the appropriate division of the National Railroad Adjustment Board. Beginning with Slocum v. Delaware L. & W.R.R ., 339 U.S. 239, 244 (1950) and Order of Ry. Conductors v. Southern Ry ., 339 U.S. 255 (1950), the Supreme Court has held that primary jurisdiction in such cases as these lies in the Board and not in the courts, state or federal. See Pennsylvania R.R. v. Day, 360 U.S. 548 (1959), and Union Pac. R.R. v. Price, 360 U.S. 601 (1959), for the most recent reiterations and applications of this rule. The plaintiffs, themselves, acknowledge that "disputes between carriers and their employees as to interpretation of existing agreements must be referred to the National Railroad Adjustment Board." Plaintiffs argue that this litigation does not involve an interpretation of an existing agreement. In spite of the many words used in arguing this point, we think it has no merit. If plaintiffs have any claim at all against the Railroad it must be because of existing "agreements" between the Brotherhood and the Railroad; the allegation that the Brotherhood has permitted the Railroad to ignore the "agreements" does not remove this case from the Board's jurisdiction. This point alone would be sufficient to require dismissal of the complaint against the Railroad.
There is an additional reason why plaintiffs' basic claim against the Railroad must fall. That cause of action is based solely on a contract. According to the complaint,*fn1 that contract is embodied in a letter written by the General Chairman of the B W. L. Nancarrow, General Manager of the Railroad's eastern region, under date of April 21, 1950. This letter is attached to the complaint and its authenticity is not denied by the defendants. The letter must be quoted in full because this is the peg upon which the plaintiffs hang their case. It says:
"This refers to your letter of April 7, 1950 which is in connection with our letter of January 21, 1949 filing formal notice in accordance with the procedures of the Railway Labor Act and our initial meeting held on February 15, 1949 with respect to our desire to abrogate the agreement of July 29, 1941 with respect to tonnage rates of pay applicable to certain positions at Philadelphia Transfer, Philadelphia Terminal Division, and to substitute in lieu thereof a new agreement to be effective as of March 1, 1949.
"We quote from your letter:
"'We have given very careful consideration to your proposal in this matter; and, in view of the pronounced decrease in the total amount of tonnage handled, and because of the changed present day conditions, at the Philadelphia Transfer, we are of the opinion that it would be of mutual benefit to both Management and the Employees if the tonnage rates were eliminated entirely at this location.'
"In accordance with our discussion at our meeting in Philadelphia, Pennsylvania on April 18, 1950 we are agreeable to your suggestion. This is based on our understanding that the rate of pay for tallymen in the Eastern Region will be changed to the same rate of pay that is in effect in the Central Region, that is $269.17 a month, and further, that the same considerations attendant to such monthly rated employees in the Central Region will be granted these employees. We suggest that this entire arrangement be made effective as of May 1, 1950.
"Will you please advise if you concur.