The opinion of the court was delivered by: LETTS
Plaintiffs are Negro employees of the defendant Baltimore & Ohio Railroad and members of the so-called craft or class of clerks, freight handlers, express and station employees. Defendant Brotherhood of Railway and Steamship Clerks is the collective bargaining representative under the Railway Labor Act, 45 U.S.C.A. § 151 et seq., of the members of this craft.
The facts alleged by the complaint may be summarized as follows: on January 10, 1951 Congress amended the Railway Labor Act so as to permit railroads and labor organizations representing employees under said Act to enter into union shop agreements requiring, as a condition of their continued employment with the railroad, that all employees shall become members of the labor organization representing their particular craft or class. Section 2 Eleventh, 45 U.S.C.A. § 152 Eleventh (Supp. 1951). The complaint recites that the Brotherhood and the defendant B. & O. entered into such a union shop agreement effective September 1, 1951, a copy of which is attached to the complaint.
It is alleged that by virtue of this agreement plaintiffs were required, as a condition of their continued employment with the B. & o. to become members of the Brotherhood by certain specified dates; that plaintiffs made application for membership in a local lodge of the Brotherhood, known as Local 511 alleged to be restricted to white members of the clerks craft; and that Brotherhood officials refused to furnish plaintiffs with application blanks for said Local 511.
The complaint further alleges that the defendant Brotherhood, through its agents, has asserted that the union shop amendment to the Railway Labor Act permits the Brotherhood to require plaintiffs, as a condition of their continued employment, to join and maintain membership in a local lodge known as Local 6067, alleged to be a segregated lodge maintained solely for Negro members of the Brotherhood on the B. & O. It is also alleged that agents of both defendants have informed plaintiffs that unless they joined the said segregated local action would be taken under the union shop agreement to cause their dismissal from service, and that they would lose their jobs.
The foregoing is asserted by plaintiffs to result in a violation of the union shop amendment to the Railway Labor Act, and the court is asked to issue a declaratory judgment construing the provisions of Section 2 Eleventh as forbidding defendants from requiring plaintiffs, as a condition of their continued employment with the B. & O., to join or maintain membership in the segregated lodge. Plaintiffs also seek injunctions, pendente lite and permanent, enjoining defendants from requiring plaintiffs, as a condition of their continued employment, to join and maintain membership in the segregated lodge, enjoining defendant B. & O. from discharging plaintiffs, and enjoining both defendants from taking any action pursuant to the union shop agreement to terminate plaintiffs' employment.
The specific statutory provision upon which plaintiffs rely is the proviso to Section 2 Eleventh (a) of the Railway Labor Act, 45 U.S.C.A. § 152 Eleventh (a) (Supp. 1951), by which Congress, in permitting railroads and labor organizations to make union shop agreements requiring union membership as a condition of continued employment, conditioned the right as follows:
'Provided, That no such agreement shall require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member or with respect to employees to whom membership was denied or terminated for any reason other than the failure of the employee to tender the periodic dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership.'
It is this particular provision which plaintiffs claim defendants have violated and which they seek to have the court declare precludes the Brotherhood from requiring plaintiffs to join a local lodge alleged to be restricted to Negro employees.
On the other hand, defendants maintain that the only question properly involved under the statute is whether any action has been taken or is imminently threatened to terminate plaintiffs' employment. They argue that questions concerning admission to union membership, or restrictions concerning such membership, in and of themselves constitute no violation of the union shop amendment to the Railway Labor Act unless and until they are made the basis of employment termination.
In support of this contention, defendants say that the statutory prohibition that 'no such agreement shall require such condition of employment'- that is, union membership as a condition of continued employment- for any reason other than those specifically allowed by Congress, plainly seeks to safeguard employment rights only and does not purport to regulate admission to union membership.
In opposition to this contention plaintiffs rely primarily upon Steele v. Louisville & Nashville R.R. co., 323 U.S. 192, 65 S. Ct. 226, 89 L. Ed. 173, which they maintain secures to them the benefits of the union shop agreement entered into by defendants on a non-discriminatory basis. But the complaint contains no allegation that discrimination was practiced by defendants in their negotiation of the union shop agreement nor that any exists in its provisions. The union shop agreement does not seek to insure admission to all employees who apply for membership in the Brotherhood, nor does the Supreme Court's holding in the Steele case make unlawful a failure to do so. In holding that the Railway Labor Act requires a union organization in its negotiations of collective bargaining agreements to represent nonunion or minority union members of the craft without hostile discrimination, the Court also stated that 'the statute does not deny to such a bargaining labor organization the right to determine eligibility to its membership, * * *.' 323 U.S. 192, 65 S. Ct. 233, 89 L. Ed. 173.
The union shop amendment to the Railway Labor Act does not seek to legislatively restrict such rights of the union. Congress was asked to provide that a union which segregates members into separate locals, or excludes any member of the craft from membership on the grounds of race, creed or color, is not entitled to act as representative of the craft under the Railway Labor Act and is not entitled to any of the provisions of said Act.
Congress was also asked to provide that any union shop agreement entered into by a labor organization which denied membership on the basis of race, color or creed would be unlawful.
Congress saw fit not to do so. Instead, it restricted the protection afforded under the amendment for denial of membership or for discrimination to protection of the employee's job.
Under the circumstances, the decision of the Supreme Court in the Steele case is inapplicable to the problem here presented, and the alleged refusal of the Brotherhood to admit plaintiffs to membership in an unsegregated local does not constitute a violation of the union shop amendment to the Railway Labor Act if plaintiffs are not deprived of their employment for failure to obtain union membership. The proper function of the court is to abide by the terms used by Congress in the statute. It cannot decide what ought to be done with respect to the alleged restriction of membership to plaintiffs on a segregated basis only; its function is merely to ascertain what Congress has provided. Cf. Di Giorgio Fruit Corp. v. National Labor Relations Board, D.C.Cir., 1951, 191 F.2d 642, certiorari denied 342 U.S. 869, 72 S. Ct. 110.
Thus, the question of whether the statute precludes defendants from requiring plaintiffs to join a racially segregated lodge is not properly before the court as a justiciable issue unless the terms of the union shop agreement here involved provide for termination of plaintiffs' employment for reasons other than those expressly allowed by ...