MEDINA, Circuit Judge.
In this action by certain employees of New York Central Railroad, located at Grand Central Terminal, against the Railroad and their Brotherhood collective bargaining agent and their local Lodge 1085, it was charged that a certain agreement of August 18, 1965, between the Railroad and the Brotherhood amounted to a discrimination against the employees at Grand Central Terminal. The first count of the complaint asserted that the terms of transfer of certain work from Mott Haven Yard to Grand Central Terminal granted "super-seniority" to the transferred Mott Haven Yard men to the detriment of plaintiffs, in violation of the duty of the Brotherhood fairly to bargain on behalf of all the employees it represents, and that in accomplishing this end the officers of the Brotherhood "agreed, colluded and conspired" with the Railroad. The second count alleged the same "super-seniority" as the imposition of "discipline," in violation of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. §§ 412, 529, for failure to afford plaintiffs the procedural safeguards prescribed by the terms of the statute. The action was designed to prevent the names of the men to be transferred from the Mott Haven Yard from being added to the Grand Central Terminal seniority roster except at the bottom. So, before the date of transfer, plaintiffs moved for a preliminary injunction restraining the Railroad from putting the dove-tailing seniority plan into effect, and the Railroad made a cross-motion to dismiss the complaint under F.R.Civ.P. 12(b) (6) and 12(b) (1). The Brotherhood was not made a party to these proceedings, as neither the motion papers on the application for the temporary injunction nor those supporting the cross-motion to dismiss were served on the Brotherhood or its counsel. The result was an order: (1) denying the motion for a preliminary injunction; (2) dismissing the first count of the complaint "with prejudice" for failure to state a claim for relief; and (3) dismissing the second count for lack of subject matter jurisdiction. Judge Levet's memorandum opinions are not reported. Plaintiffs appeal, and a certificate under F.R.Civ.P. 54(b) makes it proper for us to consider the order appealed from in its entirety.
As every phase of the controversy was thoroughly explored in the affidavits in support of and in opposition to the motion for a temporary injunction, and all the relevant documents were before the Court below, we think the motion to dismiss under Rule 12(b) (6) should have been treated as a motion for summary
Prior to 1962, except where a shop or repair facility was wholly discontinued, the various successive collective bargaining agreements did not permit the Railroad to accredit transferred employees, whether following their work or not, with seniority accumulated at their last locality of employment. The requirement was that such transferees be treated as junior employees in respect of length of service at the point to which they were transferred.
In 1962 a new agreement was negotiated by the nonoperating unions with the Railroad. It required 60 days' notice to union officials when work was proposed to be transferred, with a provision for discussion of the matter before the change was made. If any new jobs were to be created at the location to which work was transferred, the employees at the original location had first rights to these jobs, according to seniority; and transferred employees were to be "included on the appropriate seniority roster at the new location with full seniority effective with the date of assignment." This procedure of dove-tailing seniority was apparently adopted without protest. The 1962 contract also prescribed certain pay guarantees for transferred employees and unemployment insurance benefits for men whose low seniority prevented them from obtaining new jobs at the transferee location. This agreement, dated April 3, 1962, was to "become
In 1964, a mediation agreement was negotiated at Washington, D. C., between the shop crafts unions, including the carmen's union, and the major United States rail carriers, including New York Central.
Provision is made in the 1964 agreement for notice by a carrier of its intention to transfer work between locations and for discussions with the employees' representative concerning such proposed transfer. Any employee continued in service after a particular "coordination" is assured that he will not be placed in a worse position with respect to compensation and rules governing working conditions than he occupied at the time of the "coordination," this guarantee to continue for up to 5 years. On the other hand, an employee who is "deprived of employment" as a result of a "coordination" is provided with a "dismissal allowance" equal to 60% of his average monthly compensation over the previous twelve months, and the duration of these monthly payments, up to a maximum of 60 months, is keyed to length of service. An employee is considered "deprived of employment" and entitled to this "coordination" allowance:
Section 11 of Article I, which deals with transfer of work procedures, is most significant, in the context of the facts of this case:
What this means is that, in specific instances of "coordinations" under the 1964 national agreement, separate implementing agreements are to be negotiated by and between the General Chairman of the craft involved and the carrier regarding the details of each "coordination," subject to the over-all policies described in the master agreement.
This brings us to the agreement of August 18, 1965, which appellants assert is invalid by reason of discrimination. In compliance with the provisions of the 1964 agreement, and on July 16, 1965, the Railroad gave notice to five affected unions of a plan to transfer the terminal servicing of five trains from its Mott Haven Yard in the Bronx to Grand Central Terminal. The Railroad proposed to reduce the work force at Mott Haven by 107 men, including 69 carmen, helpers and cleaners, and to establish 81 new positions at Grand Central Terminal, 52 of which were carmen, helpers and cleaners. Similar notices were posted on bulletin
After stipulating the number of jobs to be transferred,
And most of the provisions of the 1964 national agreement were expressly made applicable to the transfer.
The dove-tailing of seniorities is what appellants characterize as "super-seniority." This is alleged to constitute discrimination because some of the 173 car cleaners, repairmen and helpers employed at Grand Central Terminal, the appellants, had been transferred to Grand Central Terminal from other facilities prior to 1962, in accordance with the practices outlined in Rule 29 of the pre-1962 agreements.
As the August 18, 1965 agreement was to take effect on September 18, 1965, this action was commenced on September 17, 1965, and Judge Herlands, having denied an ex parte application for a temporary restraining order, signed an order to show cause which brought on for hearing before Judge Levet the motion for a preliminary injunction to which reference has been made. By cross-motion for dismissal of the complaint, also above referred to, the entire controversy, except insofar as it affected the brotherhood which was not a party to these proceedings because not served with any of the motion papers, came before Judge Levet for determination.
Whether the District Court had jurisdiction of the first alleged claim for relief depends upon whether disposition of that claim turns on questions of interpretation or application of the terms of the various agreements or solely upon the validity or invalidity of the agreement of August 18, 1965. See Cunningham v. Erie R. R. Co., 2 Cir., 1959, 266 F.2d 411; Westchester Lodge 2186, Bhd. of Ry. S. S. Clerks, etc. v. Railway Express Agency, Inc., 2 Cir., 1964, 329 F.2d 748; Roberts v. Lehigh & N. E. Ry., 3 Cir., 1963, 323 F.2d 219, 222-223; Colbert v. Brotherhood of R. R. Trainmen, 9 Cir., 1953, 206 F.2d 9, cert. denied, 1954, 346 U.S. 931, 74 S.Ct. 320, 98 L.Ed. 422. Compare Brotherhood of R. R. Trainmen v. Howard, 1952, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283.
In limine it is to be noted, as it was by Judge Levet, that the complaint, in the first claim, does not allege "any act or
Of the questions that are decisive of appellants' claim of so-called "discrimination," and that are for the Adjustment Board
However, we do not think the 1964 agreement is as clear on this point
Despite what the Railroad says, we are unable to find any part of the 1964 agreement expressly carrying forward the dove-tailing provisions of the 1962 agreement. But, in the light of the various implementing agreements on the same subject affecting other crafts, we think it not improbable that the Adjustment Board will arrive at the same result by an interpretation of the following portion of Article I, Section 1 of the 1964 agreement:
Other contentions of appellants would seem to do no more than raise questions of interpretation of a similar character. For example, much is said by appellants on the subject of the vast sums the Railroad may save as a result of the alleged discriminatory dove-tailing. It is at least arguable, however, that coordination allowances pursuant to the terms of the 1964 agreement, quoted in Part I of this opinion, would be available not only to those Mott Haven Yard men who do not secure employment at Grand Central Terminal (Article I, Section 6(c), paragraph 1) but also to Grand Central Terminal men who may ultimately be out of employment by reason of the "super-seniority" of the Mott Haven Yard transferees, as this might well be considered "a proximate consequence of the coordination" (Article I, Section 6(c), paragraph 2). But these questions we think are reserved for determination by the Adjustment Board and not by the courts. It is also claimed that more men were transferred from the Mott Haven Yard to Grand Central Terminal than were necessary to service the five trains, and that this was done for the purpose of accommodating a union official who would not have been included if less men had been transferred. Here again we have a question of the interpretation or application of a provision or provisions of the agreement.
Thus, while Judge Levet's analysis, based on the face of claim one of the complaint alone, is sound, the views thus expressed seem to us to be considerably clarified and substantiated in the light of the proofs submitted in connection with the motion for a preliminary injunction. In the light of these proofs it is perfectly clear that the question of discrimination vel non depends upon the interpretation to be given to the 1964 agreement, as implemented by the August 18, 1965 agreement, and that this question of interpretation must be made by the Adjustment Board and not by the courts. Except for a possible, and we
But Judge Levet did not treat the motion to dismiss as a motion for summary judgment. Does this prevent this Court on appeal from doing what should have been done in the Court below? We think not. Indeed, this very procedure has already been followed in this Circuit in Compania De Remorque Y Salvamento, S. A. v. Esperance, Inc., 1951, 187 F.2d 114, 117 n. 1. See also Larsen v. American Airlines, Inc., 2 Cir., 1963, 313 F.2d 599; Nozet v. District of Columbia, 1962, 112 U.S.App.D.C. 143, 300 F.2d 735; 2 Moore's Federal Practice, page 2256 (2nd ed. 1965).
The principle is the same as the one we stated in 1961 in connection with the granting of summary judgment even though no cross-motion for summary judgment had been made or considered by the District Court. This principal is (291 F.2d at page 505) that when "the evidence of the facts bearing on the issues arising out of the complaint is all before the court in affidavit form, it is most desirable that the court cut through mere out-worn procedural niceties" and make the same decision as would have been made if the Court hearing the motion to dismiss had treated the motion as one for summary judgment as directed in F.R.Civ.P. 12(b). In other words, instead of speculating on the subject of the meaning of allegations on their face vague, ambiguous and for various reasons unsatisfactory, the District Court, having all the evidence before it on the motion for a preliminary injunction, will look at these proofs to determine whether there is any "genuine issue as to any material fact" and whether a party is "entitled to a judgment as a matter of law." F.R.Civ.P. 56(c). If, as here, it is found that the District Court lacks jurisdiction because the power to decide this particular dispute is reserved by an Act of the Congress for disposition by the appropriate Adjustment Board, then it does appear that a party is entitled to judgment as a matter of law and that judgment is one dismissing the particular claim for lack of jurisdiction. Viewing the matter backwards, as it were, this is doing no more than the District Court or this Court is
Appellants' second claim for relief was properly dismissed for lack of subject matter jurisdiction in the District Court. The theory of this second claim is that the granting of the so-called "super-seniority" to the Mott Haven Yard men was a species of "discipline" imposed on the Grand Central Terminal employees by way of revenge or "reprisal" for acts of the Grand Central Terminal employees who are alleged to have been critical of the officers of the Brotherhood and of the local Lodge 1085 because of certain increases in dues and "financial malpractices." As in the first claim for relief, the Railroad is alleged to have "agreed, colluded and conspired" to effect this discipline. As there were no "written specific charges," no "reasonable time to prepare his defense," and no "fair hearing" prior to the negotiation of the agreement of August 18, 1965, there is supposed to be a violation of the Union Bill of Rights provisions of the Labor-Management Reporting and Disclosure Act, specifically 29 U.S.C. §§ 411 (a) (5) and 529.
While jurisdiction of actions by persons whose rights under the Act have been infringed is given to the proper District Courts "for such relief (including injunctions) as may be appropriate," as provided in 29 U.S.C. § 412, the following sentence of Section 412 would seem to make it clear that the actions referred to are against "a labor organization" and not against an employer. The word "appropriate" is to be read in this context. Section 529 also refers to "any labor organization, or any officer, agent, shop steward, or other representative of a labor organization, or any employee thereof." Thus actions against persons in their representative capacity as officers of unions have been sustained. Johnson v. Nelson, 8 Cir., 1963, 325 F.2d 646; Cole v. Hall, E.D.N.Y.1964, 35 F.R.D. 4. See also Cox v. Hutcheson, S.D.Ind.1962, 204 F.Supp. 442.
The uniform current of authority in this Circuit has been to limit the jurisdiction of the District Courts under the Labor-Management Reporting and Disclosure Act to suits based upon allegations that a labor organization or officer or agent thereof acting in his official capacity violated the terms of the Act. Thus it has been consistently held that the Labor-Management Reporting and Disclosure Act regulates only the relationship between the union and its members and not that between an employer and his employees. See Cafero v. New York Typographical Union, S.D.N.Y. 1963, 47 C.C.H.Lab.Cas. 18,267; Fogg v. Randolph, S.D.N.Y.1962, 244 F.Supp. 885, 888; Gross v. Kennedy, S.D.N.Y. 1960, 183 F.Supp. 750. The legislative history of the statute confirms the correctness of these decisions. See Tomko v. Hilbert, 3 Cir., 1961, 288 F.2d 625. Rulings elsewhere are to the same effect. See Rinker v. Local No. 24, Amalgamated Lithographers, W.D.Pa.1962, 201 F.Supp. 204, appeal dismissed, 3 Cir., 1963, 313 F.2d 956; Bennett v. Hoisting & Portable Engineers, D.Or.1960, 207 F.Supp. 361; Strauss v. International Bhd. of Teamsters, E.D.Pa.1959, 179 F.Supp. 297.
Accordingly, we affirm the dismissal of the second count of the complaint for lack of jurisdiction over subject matter.
The motion for a preliminary injunction was properly denied by the District Court for failure to show that
In view of the conclusions at which we have arrived, we find it unnecessary to discuss various other miscellaneous contentions of the parties, including the argument made by the Railroad that indispensable parties, namely the Brotherhood and the 52 Mott Haven Yard transferees, were not before the Court.
Affirmed, except that the case is remanded to the District Court for the Southern District of New York with a direction that summary judgment be entered in favor of the Railroad dismissing the first count of the complaint for lack of subject matter jurisdiction.
LUMBARD, Chief Judge (concurring in part and dissenting in part).
I agree with that part of the majority's opinion which affirms the denial of a preliminary injunction. I concur with the majority's dismissal of the Labor Management Reporting and Disclosure Act count on a different ground, but I would go further and dismiss that portion of the complaint as to all defendants. And I dissent from that portion of the opinion which remands the Railway Labor Act count to the National Railroad Adjustment Board (NRAB).
I. The Railway Labor Act Count
In my opinion, the majority's disposition of this count is a serious departure from the trend of decisions in most circuits with respect to hostile discrimination suits against railroad unions. To unravel matters, it seems necessary to begin, not with the threshold question of the primary jurisdiction of the NRAB, but with the issues as they logically unfold by a reading of the pleadings and affidavits below.
The complaint alleged that the Brotherhood and the Lodge
The complaint charged further that all the defendants had "conspired as aforesaid arbitrarily, capriciously and in bad faith and for the wrongful purpose of arbitrarily conferring certain special, unfair and undeserved advantages in seniority rights upon certain of the said officers [of the Lodge and the Brotherhood]."
In a long line of decisions, the Supreme Court has imposed a duty upon unions that derive their representational status from the Railway Labor Act to represent all employees fairly and without "hostile discrimination" based upon racial prejudice. E. g., Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957); Steele v. Louisville & Nashville R. R., 323 U.S. 192, 65 S.Ct. 226 (1944). This court, along with a large majority of the other circuits,
Prior to answer by the defendants, plaintiffs moved by order to show cause for a preliminary injunction. In their supporting affidavits, plaintiffs further explained the basis of their suit by alleging: (1) that the dovetailed seniority rights were conferred upon a small group of employees unnecessarily because existing contracts guaranteed that no transferees could lose their jobs for a period of five years after the transfer; (2) that many of the plaintiffs had previously worked at Mott Haven with greater seniority at Mott Haven than the employees to be transferred under the 1965 agreement, and therefore that it was discriminatory to give the 1965 transferees greater seniority at Grand Central; (3) that several of the 1965 transferees were union officers who negotiated the 1965 agreement with the Railroad to punish, through lessened seniority rights and a possible loss of jobs, a group of union insurgents among the Grand Central plaintiffs; and (4) that the Railroad had agreed to transfer, at "super seniority" status, more Mott Haven men than was necessary in order to insure that union officers did not lose their jobs because of the Mott Haven coordination. All these allegations, if proven, might support an inference of hostile discrimination with respect to the seniority rights conferred upon the men transferred under the 1965 agreement. Moreover, the allegations of knowledge and participation by the Railroad, see especially (4) above, reinforce the propriety of making the employer a party to the suit.
The Railroad opposed the motion for a preliminary injunction, and it also moved to dismiss the complaint for lack of subject matter jurisdiction, for failure to state a claim upon which relief could be granted, and for failure to join an indispensable party (the Mott Haven transferees).
I agree that Central's motions should be treated as seeking summary judgment. To decide these motions, it is necessary to note the precise contentions of the parties. Plaintiffs were not claiming a "grievance" with their employer's interpretation of the seniority clause in the 1965 agreement; rather, they alleged, in substance, that the 1965 agreement was unlawful, at least as to its seniority provisions, because it was motivated by the hostile discrimination of the unions and the Railroad. Central, on the other hand, urged that hostile discrimination could not be established as a matter of law because the parties were required by the 1964 National Agreement to provide for dovetailed seniority in the 1965 agreement.
In my opinion, we need no help from the NRAB to decide that the 1964 agreement does not require any specific seniority provision in the 1965 implementing agreement.
Why, then, did the majority not grant summary judgment for the Railroad? Because, in my opinion, they could not. As stated above, I disagree with any assertions that the complaint was somehow inadequate to state a claim against the employer. And summary judgment would have been inappropriate on the basis of these moving papers because, even if dovetailed seniority is, in the abstract, an acceptable collective bargaining provision, plaintiffs might yet establish hostile discrimination in this case by proving, for example, the allegation that too many men were intentionally transferred in the 1965 agreement to benefit union officers at plaintiffs' expense.
Therefore, I disagree with the majority's hesitancy to interpret the 1964 agreement, and with their opinion that all issues will be resolved if Central establishes that its strained interpretation of that agreement is correct. Moreover, even accepting the majority's assumptions as to the above issues, I disagree
In the first place, if the case should proceed immediately to trial against all defendants, the proper interpretation of the 1964 agreement would not be a central issue. Rather, plaintiffs would be forced to carry the difficult burden of proving that the 1965 agreement was motivated by and was an unlawful manifestation of hostile discrimination on the part of the unions. And, even if plaintiffs put in a prima facie case on that issue, it is not clear that the meaning of the 1964 agreement would ever become an issue: Central and the unions might defend merely by showing that dovetailed seniority provisions have been adopted throughout the industry in recent years and are a perfectly fair and appropriate way of settling the difficult seniority problems created by the consolidation of railroad facilities. Thus, the majority have reached the peculiar result of conferring primary jurisdiction over the entire case
In the second place, I do not see what meaningful action the NRAB can take with respect to this case. The Board is limited in its functions to interpreting existing contracts. There is no dispute at this time as to the meaning of the 1965 agreement; plaintiffs agree that it does confer dovetailed seniority benefits on the Mott Haven transferees. The 1964 National Agreement, on the other hand, was a mediation contract which conferred no benefits upon any specific group of employees. Therefore, even if the Board finds that the 1964 agreement did not compel the dovetailed seniority provision in the 1965 agreement, it will be powerless to give plaintiffs relief for it has no power to rule the 1965 agreement between Central and the unions invalid. Thus, the majority's result forces the plaintiffs to the time and expense of seeking an administrative arbitration remedy when it is obvious beforehand that the Board can at best give an "advisory" opinion, and no relief, with respect to the issues underlying this lawsuit.
Finally, the structure and membership of the NRAB make it an inherently undesirable forum for the resolution of hostile discrimination disputes. The 36-member Board is composed of representatives of the railroads and the major unions representing railroad employees. 45 U.S.C. § 153 First (a). The Board's jurisdiction is over grievances between railroads and their employees arising out of collective bargaining agreements in the industry. See 45 U.S.C. § 153 First (i). Under the normal grievance procedure, the union acts as representative of the complaining employee before the Board. When the basis of dispute arises out of alleged mistreatment of employees by a union, the union cannot be expected to press the employees' claim vigorously and the Board is not likely to be a sympathetic forum for relief, even when, as alleged here by Central, the actual members of the present Board are not employed by either Central or the unions involved in the instant dispute.
It is true that the Board has altered its procedures to allow individual employees to press grievance claims that the unions refuse to take to the Board. See Conley v. Gibson, 355 U.S. at 47, 78 S.Ct. 99; Elgin, Joliet & Eastern Ry. v. Burley, 325 U.S. 711, 733-736, 65 S.Ct. 1282 (1945). Nevertheless, numerous commentators remain convinced that the
None of the cases cited by the majority persuasively supports the finding here of primary jurisdiction in the NRAB. In suits by employees or by a collective bargaining representative against an employer, a distinction has arisen between "major disputes," which involve differences over the formation of bargaining agreements and are within the jurisdiction of the courts and the National Mediation Board, and "minor disputes," which merely involve the interpretation of existing agreements and thus are within the jurisdiction of the NRAB. See, e. g., Elgin, Joliet & Eastern Ry. v. Burley, 325 U.S. at 722-728, 65 S.Ct. 1282. But the major dispute-minor dispute distinction has never been applied to divest the courts of jurisdiction over a cognizable claim of hostile discrimination against a union. See Roberts v. Lehigh & New Eng. Ry., 323 F.2d 219, 223 (2 Cir. 1963); Thompson v. Brotherhood of Sleeping Car Porters, 316 F.2d 191 (4 Cir. 1963); Haley v. Childers, 314 F.2d 610 (8 Cir. 1963); Cunningham v. Erie R. R., 266 F.2d 411 (2 Cir. 1959). Compare Westchester Lodge 2186, etc., v. Railway Exp. Agency, Inc., 329 F.2d 748 (2 Cir. 1964); Starke v. New York, Chicago & St. L. R. R., 180 F.2d 569 (7 Cir. 1950), in which there were no allegations of hostile discrimination.
It is true that the extension of hostile discrimination jurisdiction beyond matters of racial prejudice does involve the courts in disputes which, but for the union's allegedly discriminatory conduct, might be within the NRAB's jurisdiction. But this judicial encroachment seems desirable, given the NRAB's structure and inability to police union activity.
For the majority merely to have granted summary judgment in favor of Central would have been less inappropriate than the result they have reached here. However, as I think that the plaintiffs' complaint and affidavits here do not raise "illusory" issues of hostile discrimination, compare Gainey v. Brotherhood of Ry. & S. S. Clerks, etc., 313 F.2d 318 (3 Cir. 1963) (2-1), I would hold them sufficient to require a trial against the unions and the Railroad. I therefore conclude that the trial court erred in dismissing count one of the complaint as to The New York Central.
II. The L. M. R. D. A. Count
I concur in the majority's disposition of the second count, with respect to New York Central, although I would disagree with this result if I thought the complaint stated a good cause of action and if it might be necessary to retain the employer in order to fashion appropriate relief.
Section 101(a) (5),
This concern for the procedural aspects of union discipline has a long parallel at common law. On the other hand, courts have always been hesitant to regulate the substantive basis for union discipline, although, as Congress recognized, see 105 Cong.Rec. 5817 (daily ed. April 22, 1959), some control over internal union disciplining has been exercised by the judiciary. See generally Summers, Legal Limitations on Union Discipline, 64 Harv.L.Rev. 1049 (1951). By requiring procedural fairness as a matter of federal law, therefore, Congress improved the status of individual members while leaving unions free to regulate their own membership subject only to the minimal substantive controls of the common law and other labor legislation, such as § 101 of the Taft-Hartley Act, 29 U.S.C. § 158(b) (1).
Although a union's punitive action against a specific member is subject to some judicial scrutiny, the common law has never attempted to police a union's decision with respect to what provisions it will seek in a collective bargaining agreement with an employer. Although early drafts of the LMRDA made some attempt to regulate this decision-making process, see § 101(a) (5) in S. 505, 86th Cong., 1st Sess. (1959), it seems obvious that the law as enacted made no attempt to enter into this vital area of union autonomy.
Given the above, I do not think that judicial review of a union's negotiating decisions should be indirectly accomplished by permitting an action under Section 101(a) (5) alleging that the results of negotiation constitute procedurally improper "discipline." In the first place, there could not be a satisfactory judicial inquiry into whether a union adopted a particular bargaining stand solely for the purpose of punishing employees; nor could the courts adequately determine whether the collective bargaining agreement contained the challenged provision as a result of such punitive union intent. In the second place, the procedural relief required under Section 101(a) (5) — a hearing to determine whether a particular union member has been guilty of punishable misconduct — is hardly relevant or suitable to the union's decision as to what bargaining positions it should adopt. Thus, relief granted in such case would either be an illusory benefit to the individual member or an unwise restriction on the union's freedom to negotiate.
For the above reasons, I do not think the plaintiffs' second count is actionable against any defendant. In so deciding, I do not mean to intimate that alteration of seniority rights could never constitute "discipline" within the meaning of Section 101(a) (5). This court has twice held that union interference with employment rights under some circumstances may constitute "discipline," see Figueroa v. National Maritime Union, 342 F.2d 400, 406 (1965); Detroy v. American Guild of Variety Artists, 286 F.2d 75, 81 (1961). I would merely hold here that Congress did not intend to include as "discipline" a union's securing of provisions in a collective bargaining agreement that may work some disadvantage to specific union members, regardless of the intent of the union's officers in negotiating with the employer. With respect to these situations, the individuals should be relegated to their rights under the National Labor Relations Act or the Railway Labor Act, whichever may be applicable, and under the common law.
It should also be noted that, despite the implication in the dissent, Cunningham v. Erie R.R., 2 Cir., 1959, 266 F.2d 411 is not inconsistent with our decision here. Cunningham's claim against his employer was based on the breach of an explicit duty under the Railway Labor Act not to discharge a man under a union shop provision for a "reason other than the failure * * * to tender the periodic dues * * * uniformly required as a condition of * * * retaining membership." 45 U.S.C. § 152, Eleventh. See also Cunningham v. Erie R. R., 2 Cir., 1966, 358 F.2d 640; Ferro v. Railway Exp. Agency, Inc., 2 Cir., 1961, 296 F.2d 847, 851-852. Moreover, as a general proposition, we would be inclined to agree that, in more or less integrated transactions, it is better to retain the Railroad as a party. To prolong this controversy, however, would, we think, be a waste of time for all concerned.
This passage was quoted with approval in Rumbaugh v. Winifrede R.R., 331 F.2d 530, 537 (4 Cir.), cert. denied, 379 U.S. 929, 85 S.Ct. 322, 13 L.Ed.2d 341 (1964).
Two other procedural issues deserve comment. First, I do not think it relevant to this appeal that the Brotherhood was not served at the time of the District Court's decision, despite the majority's possible suggestion to the contrary in footnote 8 of their opinion. It may well be that a trial could not be held were the Brotherhood not served, or that plaintiffs' motion for a preliminary injunction could properly be denied on this ground. But these are procedural matters which the trial court chose to ignore; our review should be directed solely to the lower court's decision to dismiss the complaint on the merits.
Second, while I agree that as a procedural matter the motion to dismiss must be treated as a motion for summary judgment, see Rule 12(b), I am unwilling to place great significance on any factual insufficiencies in the plaintiffs' supporting affidavits because the trial judge did not treat the motion as one for summary judgment. In cases such as this, the trial judge should give all parties "reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Rule 12(b). Instead, plaintiffs here only presented such affidavits as they thought necessary to warrant a preliminary injunction. Since there are both substantive and procedural differences in the content of affidavits for summary judgment and for a preliminary injunction, see Rule 56(e); 7 Moore, Federal Practice ¶ 65.04, at pp. 1640-41 (2 ed. 1955), I do not think this court can presume that plaintiffs would have been unable to present additional affidavits proving the presence of a triable issue of fact had they been given that opportunity by the trial court. At any rate, I think they have said enough in the papers before this court to warrant a trial.