(concurring in part and dissenting in part).
The livelihood of the appellant trainmen is, by the opinion of the Court, left subject in a serious degree to the pique of the appellee union. The union shop agreement and the 1951 amendment of the Railway Labor Act are allowed to be the instruments of the subjugation. Solely because the appellants left the union and joined another, the former as their collective bargaining representative has, in retaliation, stripped them of their seniority earned over many years with the Baltimore & Ohio Railroad. This is the gravest of the grievances pleaded by the trainmen. The Court gives them no relief. To this I cannot assent.
I dissent, too, from the affirmance of the denial of a trial to the trainmen in their attack on the validity of the union shop agreement, based on the alleged use of union dues for political purposes. But I concur with the Court in holding that the trainmen made no case for damages for discrimination, initially, in their expulsion from the union and in their original citation to the Railroad as no longer maintaining union membership within the meaning of the agreement. Clarity and the chronology of the pleadings require these three aspects of the suit to be discussed in inverse order to this enumeration of them.
I. The District Court found in the record an unusual haste and promptness by the Brotherhood of Railroad Trainmen in expelling and citing the appellants, but it was of the opinion that this differentiation did not amount to actionable discrimination. I hold this view, too, because the plaintiffs purposefully left BRT and intended to end their membership. The union merely took them at their word, which was hardly a discrimination. For the same reason the Brotherhood was warranted in swiftly citing them to the Railroad and questioning their eligibility for continued employment.
II. The cause of action pitched on the statutory and Constitutional invalidity of the union shop agreement was thought by the District Judge to be beyond his jurisdiction. He noticed the want of diversity of citizenship between the parties; he also concluded it was not a controversy arising under the laws of the United States. But, even if these holdings are sound, there is another basis for jurisdiction. It is that the asserted claim is so intimately related to the other issues, concededly within the competence of the Court, that it should be adjudicated in this cause despite any deficiency in explicit Federal jurisdictional attributes.
The union shop agreement was the very foundation and justification of the citation by BRT. Consequently, the trainmen’s claim assailing that contract-was a related and inseparable controversy. Siler v. Louisville & Nashville R. R. Co., 1900, 213 U.S. 175, 191, 29 S.Ct. 451, 53 L.Ed. 753; Hurn v. Oursler, 1933, 289 U.S. 238, 242 ff., 53 S.Ct. 586, 77 L.Ed. 1148; Strachman v. Palmer, 1 Cir., 1949, 177 F.2d 427, 12 A.L.R.2d 687, with note at page 695.
On the worth of the claim, the trial court scrupulously recounted the assertions of the trainmen that BRT from 1928 to 1937 was, and again since January 1, 1956 has continuously been, affiliated with the Railway Labor Executives Association; and that during 1956 and 1957 some of the general funds, including dues received, of BRT were funneled through the Association to the Railway Labor Political League for application to political purposes. The District Judge noted that no dues, therefore, were so applied in the years 1951-1955, when the union was not associated with RLEA or RLPL. As the expulsion of the plaintiffs occurred in the last period for a default of dues in 1952 and 1953, he felt that the invalidation of the agreement for a misuse of dues occurring subsequent to the expulsion of the *462plaintiffs would be of no pertinency in this case.
In this I think he erred. The agreement was the constant weapon of the union, throughout, in pressing for the discharge of the plaintiffs, and indeed as late as the spring and early summer of 1957. Not until then were they ousted from their employment. Thus BRT was invoking the agreement against the trainmen both in 1956 and in 1957. If the agreement was avoided, as in contravention of the trainmen’s Constitutional rights or of the Corrupt Practices Act, by the union’s expenditures in 1956 and 1957, and the union used the agreement in that period to the plaintiffs’ hurt, the appellants should be able to recover compensation for the resulting injuries.
I think the plaintiffs were, at least, entitled to a plenary trial on this claim. The District Court has not held that the agreement was or was not vitiated. Finally, that the plaintiffs may have, as the majority opinion intimates, some other remedy than damages on this ground of action is not, in my opinion, an acceptable reason for dismissing the claim.
III. I would allow the proposed amendment which seeks to preserve the trainmen’s seniority and return them to the Railroad. Obviously, seniority is the marrow of the union’s refusal to consent to the Railroad’s restoration of the men in its employment.
The appellants in brief and at the bar asserted that BRT had arbitrarily and vindictively barred their reinstatement to its membership with seniority. It was thus employing the union agreement, they charged, to squeeze them out of their jobs, inasmuch as only one or two unions other than BRT were available to their craft. The argument quite readily showed that their entitlement to BRT membership without loss of seniority was the issue underlying the prayer of the proposed amendment: that the union be compelled to consent to their reemployment by the Railroad without prejudice.
If, as the opinion of the Court suggests, the trainmen now have the necessary union membership, though in another union, and BRT agrees they may return to B&O’s employment as new men, their cause is simplified. The point is that BRT is still using the trainmen’s relinquishment of BRT membership, and their entry into UROC, to deprive them of seniority. I think the Act should not be subject to the whim of the union; I think the Act assures them the right of membership in BRT and their former employment undiminished. Otherwise, the statute is utilized to further a selfish aim of the union. Cf. Railway Employes’ Dept. v. Hanson, 1956, 351 U.S. 225, 238, 76 S.Ct. 714, 100 L.Ed. 1112.
In declining to consent to B&O’s acceptance of the plaintiffs with seniority the union violates its obligations as the collective bargaining representative of the trainmen. Its opposition has no base save a determination to punish them for leaving BRT. That the men left in the bona fide belief that they could lawfully change unions is not questioned. That they proved to be mistaken in their understanding of the law — a mistake shared for years by the lower Federal courts — should not bring down upon them crushing penalties — the irretrievable impairment of their livelihood. Notwithstanding, the union has seized upon the error as warrant to use its powers under the union shop agreement and the Railway Labor Act to oppress the trainmen in this very way.
The plaintiffs were never defiant of unionism, the union shop or maintenance of continuous membership. They were never “free riders”. They have always been quite willing to pay all back dues. They did prefer another union, and so in good faith they joined the Union of Railroad Operating Crafts. But this was in no wise reprehensible behavior. Indeed, the proviso of the 1951 amendment to the Act explicitly stipulates “that nothing herein or in any such agreement or agreements shall- prevent an employee from changing membership from one organization to another or*463ganization admitting to membership employees of a craft or class in any of said services.” This provision, of course, contemplates that the change should cause no disturbance of seniority. UROC was not an outlaw or “splinter” union. The reason it did not qualify under the Act was not that it was not “national in scope, organized in accordance with this Act”; the reason was only that UROC had not qualified as an elector of the union representatives on the National Railroad Adjustment Board. Pennsylvania R. R. Co. v. Rychlik, 1957, 352 U.S. 480, 485, 77 S.Ct. 421, 1 L.Ed.2d 480. Yet the statutory right to change unions is by the Brotherhood subordinated to its own policy.
The bitterly vengeful attitude of the Brotherhood is manifested by its conduct towards the trainmen. On September 3, 1953, within three months after the last withdrawals by the plaintiffs from BRT, the General Chairman of its Grievance Committee rejected an application for reinstatement to the union of a former member becausé the applicant had joined UROC. This rejection was publicized to all of the plaintiffs as notice of the union’s intentions towards them. Not only did the Chairman declare that B&O trainmen having membership solely in UROC were not maintaining requisite union membership, and were not entitled to employment by B&O, but he denounced their separation from BRT .as desertion and going “over the hill”. He stated that he was “not too much concerned about what” the applicant had to say and depicted him as a supplicant “on bended knees asking for forgiveness”.
The plaintiffs had not abused the privilege of transfer from one union to another through undue repetitions. They have done nothing to forfeit their right to rejoin the Railroad unpenalized, if that right is measured upon their good faith, the statute and the agreement, rather than upon the preference of the union. The 1951 amendment discloses a constant solicitude for the employees against an arbitrary exercise by the union of the power vested in it by the amendment as instrumented by the shop agreement. A strict, constant and delicate sensibility of the bargaining representative to its trust has repeatedly been enjoined upon the union by the Supreme Court. Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80. That the factual basis of these cases was race or color does not in the slightest dilute the unequivocal command of fairness they give the bargaining agent.
Equity will relieve the plaintiffs from the injustice and intransigence of the union. It will in the circumstances forbid the union to pursue its objection to the Railroad’s unqualified reemployment of the plaintiffs and will award appropriate damages for the union’s persistence. In this the court is but enforcing the privileges of the employee under the statute and insisting that the union respect its trust. A bona fide mistake will not be allowed to stand to the prejudice of an honest suitor. A sharper hurt is scarcely imaginable than the destruction, for no wrongdoing whatsoever, of the benefits of a long career of honorar ble service. Clifton Mfg. Co. v. United States, 4 Cir., 1935, 76 F.2d 577, 579-581, certiorari denied 296 U.S. 622, 56 S.Ct. 143, 80 L.Ed. 442; Winget v. Rockwood, 8 Cir., 1934, 69 F.2d 326, 332.
Of this dispute the District Court plainly had jurisdiction. It was a fight between employees and union. Again, the union was sued in its detached capacity as their bargaining representative by trainmen not of its body. The Railroad had no place in the action, for it had no quarrel with either party. Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, supra. For these reasons the controversy was not within the province of the National Railroad Adjustment Board.
Nor can I agree with the trial court that those of the appellants known as the Decker suit plaintiffs are precluded in this suit by the National Railroad Adjustment Board’s decision on the submission by B&O to NRAB of their discharge. The Board had no power to *464adjudicate as between those plaintiffs and their bargaining agent. Likewise, Sampsell v. Baltimore & O. R. Co., 4 Cir., 235 F.2d 569, is mistakenly cited as a sustaining precedent, for it merely held the court to be without original jurisdiction when the contest, as there, was between the railroad and its employees.
The proposed amendment to the complaint was procedurally acceptable; it was in keeping with the original object of the suit. The “presentation of the merits of the action will be subserved thereby”. F.R.Civ.P. rule 15(b), 28 U.S.C.A. The amendment was simply an expansion of the complaint's first cause of action, and for that reason was not subject to the condemnation of laches. Again, the claim outlined in the amendment is not premised on discrimination in reinstatement into the union — a point expressly waived by the plaintiffs — but on denial of reinstatement with the Railroad with seniority.
Of course, the good faith of the plaintiffs was not significant in their citation initially for discharge by the Railroad, for between the Railroad and its employees the bald status of their union-ship was conclusive. Pennsylvania R. R. Co. v. Rychlik, 352 U.S. 480, 77 S.Ct. 421, supra; Latham v. Baltimore & O. R. Co., 2 Cir., 1960, 274 F.2d 507. But neither of these cases goes beyond that point; they do not consider the issue of restoration with seniority. In Rychlik the Court held UROC an ineligible union, and held nothing more, for nothing else was required for decision. In Latham, no claim was asserted against the union and reemployment and seniority were not in the case. Pages 509, 510.
The trial on the proposed amendment would not, I think, as the District Court feared, entail complications in the matter of ’seniority with the other trainmen. As a party to the case a decree for or against the union would bind the other trainmen.
In my opinion the judgment of the District Court should be reversed insofar as it denies the appellants a trial on the claim relating to the validity of the union shop agreement and on the case made by the proposed amendment, but in all other parts it ought to be affirmed.