Before MEDINA, HINCKS and WATERMAN, Circuit Judges.
MEDINA, C. J.: Appellant Samuel Cunningham was for many years a ferryboat porter employed by appellee Erie Railroad Company and a member of appellee The United Railroad Workers of America, Inc., C.I.O., Local 1463. In the latter part of December, 1954 and in January and February, 1955 certain events occurred and thereafter Cunningham found himself no longer a member of the union and out of employment by the railroad.Acting pro se he brought this action against the union and the railroad in the District Court for the Southern District of New York, and, while his complaint speaks in general terms of his "constitutional rights," including the right to "life, liberty and the pursuit of happiness," it clearly appears that he claims: (1) that he was improperly deprived of his seniority rights; (2) that at first and for a time he refused to pay his union dues "until some action was taken regarding my seniority rights"; (3) that he later tendered payment of the arrears but the union refused to accept the tender; (4) that at the time of his exclusion from the union and his dismissal from employment by the railroad there were other employees of the railroad "who have been as much as 4 months in arrears of their union dues without being dismissed from their employment"; and (5) that the action taken by the union and by the railroad was "because I demanded action concerning my seniority." We interpret this somewhat discursive document, drawn by a person of obviously limited education, as charging in substance that he was wrongfully deprived of his seniority rights and that because he had the temerity to stand up for his rights and refused for a time to pay his union dues he was deprived of his union membership and discharged from the employment of the railroad for a reason other than the non-payment of union dues. The gist of his claim is that he was discriminated against by the union, and that this discrimination was based: (1) upon intemperate remarks, intransigence or generally allegedly wrongful conduct connected with his assertion that he had been deprived of his seniority rights; and (2) the permitting of other members of the union to remain in arrears of dues for longer periods without attempting to exclude them from membership in the union for non-payment of dues.
Such discrimination is asserted to be in violation of the provisions of the Railway Labor Act*fn1 in that the discharge was for reasons "other than the failure of the employee to tender the periodic dues * * * uniformly required as a condition of acquiring or retaining membership." Cunningham contends that his discharge was in violation of the union's duty as the statutorily authorized bargaining representative to act fairly in his behalf, that it was not for the reasons specified in the Act, and that the payment of dues was not uniformly required.
The collective bargaining agreement itself is clearly in harmony with the Railway Labor Act.*fn2 Cunningham contends, however, that the union and the railroad have applied the agreement in his case in such fashion as to violate the intent of the statute.
Cunningham's complaint was dismissed after a non-jury trial and he appealed to this Court. On the first argument, at which appellant continued to represent himself, it was clear to us that the case involved serious questions of jurisdiction, about which appellant knew nothing, and we assigned counsel and set the case down for reargument.
It is not surprising that the trial judge failed to perceive the legal thrust of Cunningham's claim. In any event, the opinion reviews part of the evidence: finds that Cunningham's seniority rights were not infringed; that he did not pay his dues for October, November and December, 1954; that he was advised by the railroad of the union's complaint for non-payment of dues and admitted such non-payment; that a notice of December 24, 1954, pursuant to the terms of Section 1 of the union shop agreement between the railroad and the union, was served on Cunningham, who failed to request a hearing within ten days as required by the terms of the notice and that he was accordingly dismissed from his employment on February 16, 1955, effective as of January 6, 1955. Nothing is said in the opinion on the subject of whether there can be a lawful termination of membership in the union for non-payment of dues after a tender of the arrears. There is no finding of fact that the union did or did not terminate Cunningham's union membership because of his failure to pay dues, or because he raised what the union considered to be an offensive rumpus over his seniority rights; nor is there any finding of fact that the union did or did not discriminate against Cunningham by permitting other union members with greater arrearages to remain on the rolls, or that it did or did not entertain any hostility to him. Nor does the opinion below contain any conclusions of law to resolve the series of legal issues above outlined. The reason for all this apparently is that Cunningham's references in his complaint and in his testimony gave the trial court the impression that, as Cunningham asserted jurisdiction in the District Court under 28 U.S.C. Section 1331, the basis of jurisdiction, in the conceded absence of any diversity of citizenship, was an alleged violation of some right arising out of the Constitution, which the trial judge construed as a claim that Section 2 Eleventh of the Railway Labor Act, as amended, 64 Stat. 1238, 45 U.S.C. Section 152, was unconstitutional. Accordingly, as the Supreme Court decision, sustaining the validity of that legislation, in Railway Employes' Dept. v. Hanson, 1956, 351 U.S. 225, was handed down just two days prior to the filing of the opinion of the trial judge herein, it was held that Cunningham's case, which was described as based upon "a wrongful discharge by the defendant railroad," should be dismissed.
In limine we face the question of jurisdiction. It is a fair inference that Cunningham bases his claim upon an alleged discriminatory discharge in violation of a right arising out of the Railway Labor Act, 45 U.S.C. Section 151. See Steele v. Louisville & Nashville R.R ., 1944, 323 U.S. 192; Brotherhood of Railroad Trainmen v. Howard, 1952, 343 U.S. 768; Conley v. Gibson, 1957, 355 U.S. 41. He asserts this claim against both the railroad and the union. Whether he is right or wrong, there is jurisdiction, 28 U.S.C. Sections 1331, 1337, even without diversity. Cunningham is not asserting a state cause of action for wrongful discharge. See Buster v. Chicago, M., St. P. & P.R.R., 7 Cir., 1952, 195 F.2d 73; Stack v. New York Central R.R ., 2 Cir., 1958, 258 F.2d 739; McDermott v. New York Central R.R ., S.D.N.Y., 1940, 32 F. Supp. 873.
The next question, sometimes also loosely referred to as one of jurisdiction, is whether the District Court is competent to adjudicate the matter in view of the statutory prohibition contained in 45 U.S.C. Section 153, creating the National Railroad Adjustment Board. Subsection (i) provides:
"The 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 * * * shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes, but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes."
The argument of the railroad is that the Adjustment Board alone is competent to decide questions such as the dispute between the parties here, citing Slocum v. Delaware L. & W.R.R ., 1950, 339 U.S. 239; Order of Railway Conductors v. Pitney, 1946, 326 U.S. 561; Johns v. Baltimore & O.R.R ., N.D. Ill., 1954, 118 F. Supp. 317, affirmed per curiam, 347 U.S. 964; and Hayes v. Union Pacific R.R ., 9 Cir., 1950, 184 F.2d 337 cert. denied, 340 U.S. 942, which incidentally was stated by the Supreme Court in Conley v. Gibson, 1957, 355 U.S. 41, 44, N. 4 to have been "decided incorrectly."
This is a question of statutory interpretation. It may well be that the Adjustment Board is especially fitted to handle such disputes, but the opening sentence of Subsection (i) limits the competence of the Adjustment Board to the determination of:
"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."
This dispute based on alleged discrimination is between the employee and the union not between either an employee or a union and the railroad; the railroad is brought in only because it claimed it was required by law to discharge persons who had been removed as members of the union for non-payment of dues.
But there is much more to this point and it all works against the Adjustment Board and in favor of the District Court. Despite admittedly strong policy considerations supporting the administrative channeling of railway labor disputes, it is well settled that there are certain exceptions or limitations which have evolved in the course of the development of decisional law in this very interesting phase of labor law. The state cause of action for wrongful discharge, as contrasted to other disputes arising out of collective bargaining agreements, is not precluded and may be brought either in a state court, or in a federal court if there is diversity Moore v. Illinois Central R.R ., 1941, 312 U.S. 630, Buster v. Chicago, M., St. P. & P.R.R., supra, 7 Cir., 1952, 195 F.2d 73; Donahoo v. Thompson, Mo. 1956, 291 S.W. 2d 70, cert. denied, 352 U.S. 941; Sjaastad v. ...