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SCHLENK v. LEHIGH VALLEY R. CO.

December 3, 1947

SCHLENK
v.
LEHIGH VALLEY R. CO.



The opinion of the court was delivered by: MEANEY

The complainant, a married woman, seeks by this action to compel the defendant, Lehigh Valley Railroad Company, to reinstate her to her former position as chief telephone operator at the Johnston Avenue office of said defendant company or to such other position as she may be entitled to. She seeks also the restoration of her seniority rights and her pension rights under the Railroad Retirement Act of 1937, 45 U.S.C.A. § 228a et seq., as of February 15, 1939, as well as to such other relief as the court may find her entitled to.

Mrs. Schlenk, the complainant herein, entered upon her employment with the defendant in August of 1919 as a telephone operator, she being at that time a widow. In 1926 she became chief telephone operator at the Johnston Avenue office and in 1928 she married her present husband. The fact of the marriage was never concealed and there is no dispute concerning the defendant's knowledge of her marital status. In November of 1936, complainant's husband began work for the defendant company and continued so employed until June, 1944.

 In January 1939 the complainant learned that the defendant contemplated placing her on the furlough list because of the so-called married women's rule, and on February 15, 1939, complainant received notice that she was relieved from service 'account of rule governing employment of married women.' Over her protests she was then placed on the furloughed employees list. She made continued efforts thereafter to be reinstated actively in her former employment.

 On July 10, 1944, Mrs. Schlenk was notified to return to work, but at the conclusion of the second day's work she was advised that her work was concluded and that she was, as she terms it, 'let out'. Shortly thereafter, she alleges that she was advised that her original release in 1939 was a discharge from employment. Complainant thereafter instituted suit.

 Complainant's original release from her service with the defendant railroad and her relegation to the furlough lists were based upon written agreements containing the so-called married women's rules, entered into on February 16, 1933, between the defendant company and the Association of Lehigh Valley Railroad Clerks. The rules related to clerical positions held by married women whose husbands are employed. The agreement, which was a supplement to an earlier written agreement between the railroad and the clerks and other office and station employees of the railroad represented by the Association, in part provided:

 'It is agreed that all married women holding clerical positions whose husbands are employed, will be furloughed. The names of these employees will continue on the roster. If and when their status changes, their re-entry into service may be permitted.

 'It is agreed that employees filling the positions in connection with the above temporary arrangement will establish no seniority at any point other than their original seniority district and that the operation of this arrangement will give no right of displacement to employees affected thereby.

 'It is understood and agreed that this is a temporary arrangement to the existing schedule and all rules, clauses, amendments and established practices are to continue in effect.'

 Subsequently, on January 14, 1936, the above rules pertaining to the furloughing of married women were amended insofar as they were related to the method of filling positions vacated under the said rules. Notices of the amendments were sent to department heads (upon whom lay the duty of enforcing the terms of the agreement, with instructions to carry out the rules as amended.

 Thereafter, in April 1937, a representation dispute erupted between the Brotherhood of railway and Steamship Clerks, Freight Handlers, Express and Station Employees (hereinafter called the Association), at which time the matter was carried to the National Mediation Board to determine who was the bargaining agent for the clerical employees. The Board issued a 'Findings to Determine Eligible List', and prepared to proceed to a determination by secret ballot, when the mediator was advised by the parties that the question had been disposed of. The Board thereupon dismissed the proceedings without determination.

 Nonetheless, on June 23, 1937, the defendant railroad recognized and designated the Brotherhood as the bargaining agent and representative of the clerical employees of the railroad in place of the Association, despite the fact that there had been no election under the auspices of the National Mediation Board.

 In 1939, a new agreement was entered into between the Defendant Railroad and the Brotherhood, the effective date of which was March 1, 1939. Pending the effective date of the new agreement, it had been agreed that the Association rules would prevail.

 After the Agreement of 1939 had been concluded, the application of rule 47B thereof was discussed between the Brotherhood and the railroad and it was then orally agreed that this rule should apply to furloughed married women, and in March of 1940 a letter so stating was signed by a representative of the Brotherhood. Thus, while the Agreement of 1939 said nothing about furloughing married women, there was in effect a tacit recognition by the Brotherhood that the rules relative to the furloughing of married women were to be continued in effect. Subsequently, in the early or middle part of 1943, the rules applying to the employment of married women were suspended as a result of war time conditions. During the period of suspension, married women were no longer furloughed and the defendant company hired new women employees without restriction insofar as their marital status was concerned. Finally, on March 8, 1945, the defendant railroad in a letter to the Brotherhood agreed to the complete abrogation of the supplementary agreements of 1933 and 1936, thereby making the temporary suspension of the married women's rules a permanent abolishment thereof. Meanwhile, in 1941, in the case of Dooley et al. v. Lehigh Valley Railroad Company of Pennsylvania, 130 N.J.Eq. 75, 21 A.2d 334, 341, the Court of Chancery of New Jersey specifically found that the recognition of the Brotherhood as the bargaining agent by the Railroad was 'obviously unjustified, an arbitrary assumption of authority and a direct violation' of the Railway Labor Act, 45 U.S.C.A. § 151 et seq.

 Thereafter, on March 24, 1943, the National Mediation Board in Case No. R-1022, after investigation, certified the Brotherhood of Railway and Steamship Clerks as the duly designated and authorized agency ...


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