Before McLAUGHLIN and HASTIE, Circuit Judges and DUMBAULD, District Judge.
McLAUGHLIN, C. J.: This is an appeal from the granting of motions to dismiss the complaint in favor of the defendants Pennsylvania Railroad Company (Railroad) and Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees (Brotherhood). Plaintiffs bring this action on behalf of themselves and some six hundred other railroad employees against the Railroad and the Brotherhood, their statutory representative, charging both with violations of the Railway Labor Act, 45 U.S.C. § 151 et seq.
The same parties were before this court recently on appeal from a similar order dismissing plaintiffs' complaint. Gainey v. Brotherhood of Railway and Steamship Clerks, 275 F.2d 342 (3 Cir.), cert. denied, 363 U.S. 811 (1960). In that case we affirmed the judgment of the district court, 177 F. Supp. 421 (E.D. Pa. 1959), and held regarding plaintiffs' cause against the Railroad that (1) primary jurisdiction of the dispute was in the National Railroad Adjustment Board, not in the courts, and (2) basically the claim was founded on an alleged "equalization of pay agreement" which, contrary to their contention, had never been consummated.Plaintiffs' complaint against the Brotherhood was dismissed for a failure to allege the exhaustion of their internal union remedies or an adequate reason for failure to do so. Subsequently, plaintiffs filed another complaint in the district court. That was also dismissed as to both defendants on the ground that the facts alleged were identical to those in the prior action and for similar reasons the complaint should be dismissed. This appeal is from that order.
A comparison of the two complaints is necessary to an understanding of the issues now raised. In their first complaint plaintiffs stated that they were "tallymen" employed by the Railroad in its Eastern Region. Under a collective bargaining agreement entered into between the Railroad and the Brotherhood on May 1, 1942 plaintiffs were paid an hourly wage plus a bonus based on freight moved over a certain minimum tonnage. The rate of pay under this "tonnage agreement" was about $25 less than that of their counterparts in the Central Region, who were paid by salary and enjoyed paid vacations and sick leave. The geographical pay differential was the subject of a dispute between plaintiffs and the Railroad. Subsequently, an alleged "equalization of pay agreement" was entered into in 1950 eliminating the differential. However, it was asserted that in May 1950 the Railroad terminated the "tonnage agreement" eliminating the bonus payments and failed to put into effect the new "equalization of pay agreement." The complaint then charged the Brotherhood with failing to take any steps to compel the Railroad to abide by the new agreement. The failure to act was allegedly because the Railroad "could control union officers at will."
Plaintiffs sought (1) a mandatory injunction to compel the Railroad to equalize wages paid to "tallymen" in its eastern and central regions; (2) damages against the Railroad for loss of earnings; (3) punitive damages against the Brotherhood for breach of a duty owed the plaintiffs; and (4) a return of dues collected by the Brotherhood during the critical period.
In their new complaint plaintiffs persist in pleading the existence of a so-called "equalization of pay agreement", while at the same time they deny its existence. Their claim against the Railroad is put forth in Paragraph XVII of the complaint:
"The defendant carrier violated the Railway Labor Act when it terminated the 'tonnage agreement' unilaterally without first replacing it with 'the equalization of pay agreement' it had informally entered into with the defendant union. It also violated the Act when it refused to place in effect any equalization of pay agreement, thus maintaining two pay scales for the same work on its several regions."
By way of relief plaintiffs ask for (1) damages against the Railroad for losses in salaries, lost vacations and sick leave ; (2) a mandatory injunction compelling the Railroad and Brotherhood to "execute" an "equalization of pay agreement", or in the alternative, an order directing the defendants to invoke the service of the National Mediation Board; and (3) punitive damages against the Brotherhood and a return of dues.
Initially it appears that plaintiffs are founding their cause of action against the Railroad on the same so-called contract that we previously held had never been consummated. In such a situation elementary principles of res judicata would bar this suit. However, on even more fundamental principle it is clear that plaintiffs' claim is barred by our prior judgment. This court stated in the earlier action that "if plaintiffs have any claim at all against the Railroad it must be because of existing 'agreements' between the Brotherhood and the Railroad * * *." We then held, 275 F.2d at 343-44, that the exclusive tribunal for such cases as these is the Railroad Adjustment Board. Slocum v. Delaware, L. & W.R.R ., 339 U.S. 239, 240 (1950). As we there said, "if the plaintiffs claim that the provisions of the earlier "tonnage" agreement have not been lived up to, they may make their claims to the Railroad Adjustment Board, assuming that the claims would still be timely." 275 F.2d at 345; 45 U.S.C.§ 153, First (i) and (j).
Plaintiffs attempt to circumvent the above language by pressing the contention at oral argument that their claim against the Railroad is that the carrier violated the Act when it failed to give notice that it wished to and did terminate the "tonnage" wage agreement. Assuming arguendo that this is the gravamen of their complaint it is of no help to them. Section 6 of the Act imposes the duty of giving notice of an intended change in agreements on carriers and "representatives of the employees." An alleged failure on the part of a carrier to give that kind of notice might allow the union the right to invoke a corresponding sanction, see, e.g., Railroad Yardmasters of America v. Pennsylvania R. Co ., 224 F.2d 226 (3 Cir. 1955), but it creates no right in the individual employee to seek relief against the carrier for an alleged lack of notice.
Our earlier opinion is clearly dispositive and res judicata of plaintiffs' claim against the Railroad in this litigation.
In plaintiffs' claim against the Brotherhood we are faced with our prior holding that they had failed to allege the exhaustion of their internal union remedies and therefore could not seek relief in the courts. It remains to be seen whether they have corrected that defect with their current pleading.
Under the governing laws of the Brotherhood the structure of appeal available to plaintiffs is from the local to the Division Chairman, to the General Chairman, then to the Grand President; from his decision to the Grand Executive Council and finally to the quadrennial convention. The statements in the complaint indicate that they took their protest through the local to their Division Chairman. Upon failing to secure an acceptable adjustment, the Division Chairman presented the dispute to the General Chairman. The General Chairman's handling of the matter was unsatisfactory so the plaintiffs, individually and through the Division Chairman, appealed from him to the Grand President. It is alleged that the Grand President sent two vice presidents to Philadelphia in 1950 who took testimony of the quarrel between the plaintiffs, the Railroad and the General Chairman. The report of these emissaries was submitted to their superior, but it is said he never did anything except that for four years he refused the requests of plaintiffs and the Division Chairman to resolve the problem; to this date he "refuses to even listen to any of the plaintiffs in their complaint against the carrier and the General Chairman * * *."
The next immediate step for the processing of plaintiffs' contention was to the Grand Executive Council and lastly to the convention of the Grand Lodge. From the complaint and affidavit it appears that plaintiffs made no attempt to appeal from the conduct of the Grand President, nor is any reason furnished for not utilizing that procedure. The factual situation is not unlike that in Fagan v. Pennsylvania R.R ., 173 F. Supp. 465 (M.D. Pa. 1959), in volving the same Brotherhood. In Fagan plaintiffs also sought assistance in the courts against their union, alleging that they had taken their complaint up through the Brotherhood's chain of command to the Grand President but that he had refused to render a decision. They urged the inaction of the Grand President as a sufficient excuse for not appealing to the Grand Executive Council. The district court found that there was nothing in the Brotherhood's governing laws "which prevents their recourse to the Grand Executive Council for such help as they feel they need regardless of the action ...