Roberson L. King, Houston, Tex., William E. Rentfro, Denver, Colo., Dent, Ford, King & Wickliff, Houston, Tex., Lindsay P. Walden, General Counsel, Denver, Colo., for appellants.

Quentin Keith, Beaumont, Tex., Joseph H. Sperry, Chris Dixie, John E. Bailey, William F. Erwin, Jr., Houston, Tex., Eldon Young, Houston, Tex., Russell G. Connolly, Pittsburgh, Pa., David Proctor, Archie D. Gray, Houston, Tex., of counsel, for appellees.

Before RIVES, Circuit Judge, and DAWKINS and DE VANE, District Judges.

DAWKINS, District Judge.

Syres and Warrick, as representatives of all individuals similarly situated, and Local No. 254 of the Oil Workers International Union brought this action in the district court for an injunction to prevent the enforcement of a bargaining agreement with the employer, for declaratory judgment that the agreement is void and for damages. The defendants were Local No. 23 of the Oil Workers Union, Gulf Oil Corporation (called Gulf) and certain individuals as class representatives. The trial court dismissed for lack of jurisdiction.

Appellants alleged that Local No. 254 is composed of Negro employees of Gulf and Local No. 23 of white employees. Pursuant to an agreement between the two locals, and after an election, they were both certified as the joint bargaining representatives of Gulf's employees and entered into contracts with Gulf. Subsequently the two locals decided to "amalgamate" and be represented by one bargaining committee, as to which complainants allege it was agreed there should be only "one line" for seniority. The committee was chosen by majority vote, and was composed entirely of white members of Local No. 23. Negotiations with Gulf resulted in a contract providing for two lines of seniority, and the effect, according to complainants, was to freeze the Negro employees in their jobs and prevent their bidding on higher classifications. They further alleged that this discrimination was based solely on race, and invoked jurisdiction under 28 U.S.C. § 1331, contending that it was a suit in equity involving an interpretation of the Constitution and laws of the United States, namely, the Fifth Amendment and the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. They of course alleged the jurisdictional amount of more than $3,000.

The union defendants moved to dismiss for lack of jurisdiction and for failure to state a claim. Gulf moved to dismiss for the reason that the amount did not exceed $3,000, the controversy did not arise under the Constitution or laws of the United States, the matter was one exclusively for the National Labor Relations Board, and the complainants had not exhausted the remedies provided by the constitution and by-laws of the union. Judge Sheehy dismissed for the reason that the "cause of action, if any, * * * does not arise under the Constitution, laws or treaties of the United States, within the purview or meaning of" 28 U.S.C. § 1331.

Appellants cite Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S. Ct. 226, 89 L. Ed. 173; Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U.S. 210, 65 S. Ct. 235, 89 L. Ed. 187, and Brotherhood of R. R. Trainmen v. Howard, 343 U.S. 768, 72 S. Ct. 1022, 96 L. Ed. 1283, which arose under the National Railway Labor Act, 45 U.S.C.A. § 151 et seq. There it was held that said Act, having created a statutory bargaining agent for all railroad workers, imposed an implied duty to represent all workers fairly and without discriminations based upon race. Appellants cite Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S. Ct. 681, 97 L. Ed. 1048, in support of their contention that the Taft-Hartley Act, 29 U.S.C.A. § 151 et seq., also makes the chosen union the exclusive statutory bargaining agent. Based upon these authorities, they argue that the union (amalgamated) must represent all members of the craft without discrimination as to color, and having failed to do so, the result is the same as was held under the Railway Labor Act. They further argue that the right claimed is a private one over which the N.L.R.B. has no jurisdiction, since that agency deals only with public rights, for which reason they contend they have no administrative remedy.

Gulf argues that even if the claimed right does arise under the Taft-Hartley Act, it imposes no duty upon the employer to bargain for one group of employees in an agreement solely between two groups of the union. Further, it contends that the Fifth and Fourteenth Amendments apply only to official acts of the State and Federal Governments and the Taft-Hartley Act does not accord the right here claimed. It relies strongly upon Williams v. Yellow Cab Co., 3 Cir., 200 F.2d 302, which distinguished the "railroad brotherhood" cases from those arising under the Taft-Hartley Act and refused to apply them. It further argues that at best the facts alleged amount to nothing more than an unfair labor practice of which the N.L.R.B. has exclusive jurisdiction, citing Carter Manufacturing Co., 59 N.L.R.B. 804, General Motors Corp., 62 N.L.R.B. 427, and Hughes Tool Co., 104 N.L.R.B. 318. It finally contends that there is no allegation that appellants have exhausted remedies under the union's constitution and by-laws, or that none exists.

The union appellees (No. 23) refrain from contending that the Taft-Hartley Act does not confer rights of this character under any circumstances but content themselves with saying, in this particular case, the issue is between one element of the amalgamated union against the joint bargaining agent duly certified and that the dispute concerns merely the private matter of seniority, not covered by the Taft-Hartley Act, and hence does not arise under Federal laws.

The International Union seeks to appear as amicus curiae, and its brief sides with the appellants. It joins appellants in arguing that a bargaining agent derives its authority from the statute, rather than from the consent of its members and has the same legal duty to refrain from racial discrimination as was held under the Railway Labor Act. In any event, it contends that whether or not the appellants were all members of the union was a fact issue which could not be decided without a hearing on the merits.

In Williams v. Yellow Cab Co., supra [200 F.2d 304], the Third Circuit Court of Appeals, one of whose members was Judge Hastie, had occasion to consider substantially the same questions as presented in the present case, and unanimously sustained a ruling that there was no jurisdiction. The Supreme Court denied certiorari. Dargan v. Yellow Cab Co., 346 U.S. 840, 74 S. Ct. 52, 98 L. Ed. 361. Judge Maris reviewed and distinguished the cases relied upon here. We feel little need be added to what was said:

"The appellant relies primarily upon the cases of Steele v. Louisville & N. R. Co., 1944, 323 U.S. 192, 65 S. Ct. 226, 89 L. Ed. 173, and Tunstall v. Brotherhood [of Locomotive Firemen and Enginemen], 1944, 323 U.S. 210, 65 S. Ct. 235, 89 L. Ed. 187, to sustain his proposition. In these cases the Supreme Court held that the Brotherhood of Locomotive Firemen and Enginemen, when exercising the power granted by the Railway Labor Act to act as the statutory representative of the craft of firemen, composed of white members of the Brotherhood and Negro nonmembers, was under a duty imposed by the act to protect equally the interests of all the members of the craft in behalf of whom it acted. The court said that the power conferred on the Brotherhood by the act must be exercised fairly and without discrimination between its own member employees and those employees who were not its members. This rule does not preclude the statutory representative of a craft from making contracts the terms of which vary in their application to individual employees by reason of differences in seniority, competence, type of work done, or other relevant factors, but the court pointed out that discrimination based on race alone is irrelevant, invidious and unauthorized.

* * * * * *

"It does not follow, however, that the National Labor Relations Act imposed such a duty upon the Union in this case. For even if we assume that the Cab Company was engaged in interstate commerce, the act contains no general prohibition of discriminatory practices by unions engaged in collective bargaining with employers. * * *

"In considering this question we must bear in mind that the plaintiffs were all members of the Union. This is the distinguishing factor which makes the rule of the Steele case inapplicable to the facts of this case.

* * * * * *

"The right of a labor union to engage in collective bargaining on behalf of its members is a right which was not conferred by the National Labor Relations Act but was recognized long prior thereto. In exercising its powers to bargain collectively for its members as in all its other activities on their behalf a labor union acts, through its authorized officers, as agent of the entire membership within the authority conferred by its constitution and bylaws. In exercising these bargaining powers the labor union has the corresponding duty of an agent to represent all its members fairly, in good faith and without discrimination. This duty, however, being one imposed by the law of the state in which the Union operates, cannot be made the basis for invoking federal jurisdiction under Section 1331, even though it might well form the basis for action in the state courts. As we have said, the plaintiffs here were all members of the Union. We are compelled to conclude that the authority of the Union to act for them in collective bargaining was derived from their consent as evidenced by their membership and not from Section 9(a) of the National Labor Relations Act.

* * * * * *

"When we turn to the National Labor Relations Act we find no such detailed regulation of collective bargaining. For the act was directed primarily to the prevention of unfair labor practices in order to open the way for free collective bargaining rather than to the regulation of the course of such bargaining and the settlement of disputes." (Emphasis supplied.)

In the Steele case, supra, the Supreme Court emphasized that the Railway Labor Act required the union to represent all employees in the craft, whether members or not, which gave non-members (in that instance Negroes) the right to invoke its provisions.1

In the Howard case, supra [343 U.S. 768, 72 S. Ct. 1025], petitioner was a member of a colored union but the contract was made between the railroad company and the white union in which the colored union and its members had no part. It was found that the provisions of the contract amounted to a patent effort to eliminate the colored porters who over the years had also performed the services of brakemen along with white employees of the craft who were represented by the Brotherhood. Here again, and for the same reason, the bargaining agent was bound to represent all who worked in the craft, and could not discriminate, thus giving the jurisdiction to enforce the Railway Labor Act, including the issuance of an injunction under 29 U.S.C.A. § 101 et seq. It was specifically held that what the white union had done was a "breach of statutory duty."

In the present case all employees were members of the "amalgamated" union by their own voluntary consent, and their complaint is not that they were not represented, but that the committee selected for the purpose of making the contract had violated the provisions of an agreement that there should be but one line for promotion, and instead contracted with Gulf for two lines, composed of the white and colored members respectively. In this situation, the alleged wrongdoing arose from a breach of that contract, which, if proven, would require a reformation or cancellation to comply with the understanding alleged through establishment of a single line of seniority for promotion. It does not require an interpretation of the National Labor Relations Act or any other federal law, and hence all parties on either side must be citizens of different states. There is no allegation of such diverse citizenship. In so far as this record shows, they are all citizens of Texas and their cause of action, if any, can be brought in the state court.

It may be noted, however, that seniority depends upon many things other than membership in a union or the race of the employee, in which the employer necessarily has a voice, and in a trial in the proper court all factors pertinent thereto can be fully developed and considered.

Ford Motor Co. v. Huffman, supra, involved the construction of federal statutes other than the National Labor Relations Act, including the Selective Training and Service Act of 1940, and amendments thereto. That case disposed of two suits brought in the trial court by employees against Ford and the Union as class suits, in which it was alleged that the complainants' position and that of each member of their class were lowered on the seniority roster because of certain provisions in collective bargaining agreements between Ford and the Union and that those provisions violated their rights and those of each member of their class under the Selective Training and Service Act of 1940. They contended also that the union's acceptance of these provisions exceeded its authority under the National Labor Relations Act. They asked that the provisions be declared invalid insofar as they prejudiced the seniority rights of members of their class and that appropriate injunctive relief be granted, just as here, against the defendants. Among other things the Supreme Court, with respect to seniority, said:

"Any authority to negotiate derives its principal strength from a delegation to the negotiators of a discretion to make such concessions and accept such advantages as, in the light of all relevant considerations, they believe will best serve the interests of the parties represented. A major responsibility of negotiators is to weigh the relative advantages and disadvantages of differing proposals. A bargaining representative, under the National Labor Relations Act, as amended, often is a labor organization but it is not essential that it be such. The employees represented often are members of the labor organization which represents them at the bargaining table, but it is not essential that they be such. The bargaining representative, whoever it may be, is responsible to, and owes complete loyalty to, the interests of all whom it represents. In the instant controversy, International represented, with certain exceptions not material here, all employees at the Louisville works, including both the veterans with, and those without, prior employment by Ford, as well as the employees having no military service. Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.

"Compromises on a temporary basis, with a view to long range advantages, are natural incidents of negotiation. Differences in wages, hours and conditions of employment reflect countless variables. Seniority rules governing promotions, transfers, layoffs and similar matters may, in the first instance, revolve around length of competent service. Variations acceptable in the discretion of bargaining representatives, however, may well include differences based upon such matters as the unit within which seniority is to be computed, the privileges to which it shall relate, the nature of the work, the time at which it is done, the fitness, ability or age of the employees, their family responsibilities, injuries received in course of service, and time or labor devoted to related public service, whether civil or military, voluntary or involuntary. See, e. g., Hartley v. Brotherhood of [Ry. & S. S.] Clerks, etc., 283 Mich. 201, 277 N.W. 885; and see also, Williamson & Harris, Trends in Collective Bargaining (1945), 100-103." 345 U.S. 337, 73 S. Ct. 686. (Emphasis supplied.)

In that case no question of jurisdiction arose for the simple reason it required an interpretation of the Selective Service Act and its amendments. The District Court had found the bargaining agreement fair and denied the injunction. This was reversed by the Court of Appeals for the Sixth Circuit, 195 F.2d 170, and in turn, the latter decision was reversed by the Supreme Court, 345 U.S. 330, 73 S. Ct. 681, 97 L. Ed. 1048 and the judgment of the District Court affirmed.

The present case does not require construction of a federal statute, but involves simply an issue of whether the defendants have violated a private contract voluntarily made between the two groups of employees. Even if the provision appellants deem objectionable be eliminated, there would still remain the issues of seniority and qualifications for promotion, the latter one as to which the employer must be heard.

Affirmed.