This appeal is from the judgment of the district court dismissing the complaint of appellant, the exclusive bargaining agent for certain of appellee’s employees. The complaint is in three counts invoking jurisdiction on the basis of diversity of citizenship and an amount in controversy in excess of $10,000.00, under the Railway Labor Act, 45 U.S.C.A. § 151 et seq., made applicable to common carriers by air by 45 U.S.C.A. § 181, and also under the National Labor Relations Act, § 301(a), 29 U.S.C.A. § 185. For convenience, appellant will be called plaintiff, and appellee, defendant. Count 1 charged that defendant was in violation of its existing bargaining agreement with plaintiff and in violation of the Railway Labor Act, 45 U.S.C.A. §§ 152 and 156, by attempting unilaterally to cancel earned vacations of its employees covered by said agreement. Count 2 charged that defendant had further acted in violation of the Act and of said agreement by virtue of defendant’s unilateral extension of work week coverage of certain of its employees in its Engine Overhaul Division to a seven day work week. 1 Count 3 charged that “the aforesaid complained of violation [s] of its agreement with Defendant are but a part of a deliberate scheme of Defendant, designed to eliminate Plaintiff as sole bargaining agent for its employees”; that defendant chose its manner of behavior to preclude the possibilities on the part of plaintiff to process complaints through the ordinary grievance procedures provided for in the agreement; that defendant’s behavior has destroyed confidence in plaintiff as an efficient bargaining agent and has encouraged rival organizations to compete with plaintiff for the support of defendant’s employees; that, “in addition, as part of Defendant’s scheme to replace Plaintiff as sole bargaining agent for its employees, Defendant, in violation of * * * its agreement with Plaintiff had laid off and severed divers numbers of its employees without the notice and severance payments due said employees under the terms of said agreement”, and that “all of the unlawful conduct of Defendant in violation of its Agreement with Plaintiff and in violation of the Railway Labor Act as aforesaid” has caused plaintiff to expend huge sums in a vain attempt to have defendant abide by said agreement and in resisting activities of rival labor organizations. In Counts 1 and 2 plaintiff asked for temporary and permanent injunctions, and in Count 3 for temporary restraints and damages.
Defendant filed its motion to dismiss upon the grounds that (1) the complaint failed to state a claim upon which relief could be granted; (2) the court lacked jurisdiction because the matters set forth in the complaint were within the exclu *453 sive jurisdiction of the Eastern Air Lines Mechanical Department System Board of Adjustment under the Railway Labor Act, 45 U.S.C.A. § 153 First (i), Second; and (3) the court lacked jurisdiction because of the provisions of the Norris-La-Guardia Act, 29 U.S.C.A. §§ 101-115.
The trial court, after considering the verified complaint and arguments and memoranda of counsel, entered an order dismissing the complaint, expressing the view that the complaint had as its purpose injunctive relief against alleged violations of the collective bargaining agreement and damages for the alleged injuries caused plaintiff by an alleged scheme to eliminate plaintiff as the sole bargaining agent for defendant’s employees. The trial court significantly observed that the allegations of a scheme were predicated entirely upon the alleged violations of said agreement. The trial court further concluded that the alleged violations of the agreement were “minor disputes” or grievances and were subject to the exclusive jurisdiction of the System Board of Adjustment, citing Slocum v. Delaware, Lackawanna & W. R. R. Co.,
Plaintiff concedes that mere interpretations of bargaining agreements are understood to be “minor disputes” and are under the exclusive jurisdiction of the local system boards of adjustment. This concession is entirely in order. Slocum v. Delaware, Lackawanna & W. R. R. Co., supra; Order of Ry. Conductors of America v. Southern Ry. Co., supra. These two cases extended the doctrine announced in Order of Ry. Conductors v. Pitney,
Plaintiff contends, however, that these matters, unilateral cancellation of earned vacations and extension of work week in alleged violation of the agreement, constitute “major disputes”. We cannot agree. The distinction between major and minor disputes has been repeatedly stated by the courts, nowhere more clearly, perhaps, than in Elgin, Joliet & Eastern Ry. Co. v. Burley,
Nor are the allegations of Count 3 sufficient to save the suit from dismissal. The gravamen of these allegations is summarized above. They do not bring this case within the scope of the holding of Brotherhood of R. R. Trainmen v. Central of Georgia Ry. Co.,
We see substantial difference between the Central case and the case at bar. Here no bargaining representative is sought to be disciplined or fired. In the present case there is no threatened or pending disciplinary investigation, real or ostensible. Plaintiff has made no “direct positive charge” of any independent underlying purpose on the part of the employer to thwart the effectiveness of collective bargaining agents. There are only allegations of violations of the collective bargaining agreement alleged further to be “but part of a deliberate scheme of defendant, designed to eliminate plaintiff as sole bargaining agent for its employees.” No other “parts” of the suggested scheme are alleged except the complained of violations of the collective bargaining agreement. As the trial court correctly said the allegations of a scheme are predicated entirely upon the alleged violations of the collective bargaining agreement. The Adjustment Board cannot be by-passed; its jurisdiction cannot be thwarted in minor disputes in grievance cases by the bald allegation that the violations of the agreement are “but a part of a deliberate scheme” designed to eliminate the union as sole bargaining agent. A contrary holding would go far toward eliminating the usefulness of the Adjustment Board.
We have not overlooked the fact that Count 3 seeks not only temporary restraints but damages also, nor plaintiff’s contention that the Adjustment Board cannot award damages to a
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i union as distinguished from its mem- '■ bers. Of course, the main purpose of the • litigation was to obtain injunctive relief restoring the parties to the status quo. One district court in a somewhat similar case entirely disregarded such an inci- ’ dental claim for damages. Pilot Freight Carriers, Inc. v. Bayne,
While the complaint invokes jurisdiction also under the “National Labor Relations Act, 29 U.S.C.A. § 185” this is of no avail because, while we have found no cases on the question, our comparison of the Railway Labor Act with the National Labor Relations Act, particularly 29 U.S.C.A. § 185 and the definition sections 29 U.S.C.A. §§ 142 and 152, convinces us that 29 U.S.C.A. § 185 has no applicability to this case.
We find it unnecessary to pass upon defendant’s contention that the case is now moot by reason of the resolution and adjustment of grievances as to vacations by the Adjustment Board during the pendency of this litigation. The fact of said adjustment however emphasizes the availability of the administrative remedy, the failure to exhaust the same prior to suit, and the absence of necessity for equitable relief. Brotherhood of Locomotive Firemen & Enginemen v. Central of Ga. Ry. Co., supra. The judgment appealed from is
Affirmed.
Notes
. This extension does not mean that the employees were required to work seven days a week, but that occasionally some of them would be required to work on Saturdays and Sundays.
. The court’s order took the form of findings of fact and conclusions of law. This form was irregular in that the case was not heard upon the facts but only upon the motion to dismiss. There was filed with the motion to dismiss, and printed in the record here, an affidavit by defendant’s Director of Labor Relations. It was not referred to in the “findings of fact”. Presumably, the trial court gave no consideration to it. We give it none. We test the correctness of the court’s order on the basis of what it is, namely, an order sustaining the motion to dismiss.