(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
“agreed, conspired and colluded with The Railroad for the purposes of discriminatorily conferring upon certain employees of The Railroad newly transferred or to be transferred to employment at Grand Central Terminal * * * preferred terminal seniority status in such employment * * * to the detriment of the job rights and seniority status of employees of The Railroad previously employed at the Grand Central Terminal.”
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,1 has held that this duty of fair representation also prohibits hostile discriminatory practices by unions not based upon race. See Cunningham v. Erie R. R., 266 F.2d 411, 415 (1959). Although recovery will not be allowed merely because a union in good faith confers disproportionate benefits on different employees, it seems clear that the complaint here states a good cause of action against the Brotherhood and the Lodge; to hold the complaint insufficient because the above-quoted passages omit the magic word “hostile” would be a regression to the days of formalistic pleading requirements.
*147The above being true, it also seems clear that the Railroad was properly-named a defendant, both from the prior cases which have included the employer as defendant in a hostile discrimination suit, see, e. g., Brotherhood of R. R. Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022 (1952); Steele v. Louisville & Nashville R. R., supra,2 and from the allegations in the complaint that the Railroad participated in the discriminatory conspiracy. Compare Haley v. Childers, 314 F.2d 610, 617-618 (8 Cir. 1963).
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).3 Federal Rules of Civil Proce*148dure 12(b) (1), (6), and (7). In its supporting papers, the Railroad set forth the contractual history between itself and the unions and concluded both that the NRAB had primary jurisdiction of the dispute because Central was required by the 1964 National Agreement to provide dovetailed seniority in the 1965 agreement, and that the plaintiffs’ allegations were insufficient to state a cause of action for discrimination by the Railroad.
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.4 It is also clear that the 1964 agreement does not prohibit dovetailed seniority provisions and that the 1962 agreement, which had been signed by Central and the Brotherhood, among others, indicates a change in policy toward such seniority provisions. Thus, although Central’s absolute defense must fail, the plaintiffs will obviously have a difficult time establishing a case of hostile discrimination on the merits.
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 *149with their decision that primary jurisdiction lies with the NRAB.
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 case5 upon the NRAB because a potential defense to a valid complaint of hostile discrimination might involve questions of contract interpretation which, in their opinion, could be better resolved by that administrative agency.
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 *150Board is an unsatisfactory arbiter of alleged racial discrimination by the railroad unions,6 and it seems unlikely that the administrative remedy will prove more satisfactory when the alleged hostile discrimination is not racially motivated. Under all these circumstances, I think that the practical arguments which led the Supreme Court to hold that the NRAB does not provide a suitable administrative remedy for hostile discrimination suits in Steele v. Louisville & Nashville R. R., 323 U.S. at 205-206, 65 S.Ct. 226, are controlling here.
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.7 Only those few circuits which have restricted the hostile discrimination concept solely to matters of race have refused to take this step. E. g., Alabaugh v. Baltimore & Ohio R. R., 222 F.2d 861 (4 Cir.), cert. denied, 350 U.S. 839, 76 S.Ct. 77, 100 L.Ed. 748 (1955), overruled in Thompson v. Brotherhood of Sleeping Car Porters, supra; Colbert v. Brotherhood of R. R. Trainmen, 206 F.2d 9 (9 Cir. 1953), cert. denied, 346 U.S. 931, 74 S.Ct. 320 (1954); Spires v. Southern Ry., 204 F.2d 453 (4 Cir. 1953).
*151In my opinion, therefore, to dismiss this complaint as to New York Central because of possible jurisdiction in the NRAB is an unwarranted restriction of our hostile discrimination jurisdiction. In Ferro v. Railway Exp. Agency, Inc., 296 F.2d 847 (2 Cir. 1961), this court did dismiss that portion of a hostile discrimination complaint that sought relief from the employer; however, in Ferro we expressly noted that there was no allegation that the employer itself discriminated or even had knowledge of the union’s discrimination, 296 F.2d at 851,8 and our decision did not interfere with the suit against the union, as the majority’s suggestion of NRAB jurisdiction does here. See note 5 supra.
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.9 However, I do not think the second count states a claim for which relief may be granted under Section 101(a) (5) of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 411(a) (5). Consequently, I would dismiss this portion of the complaint as to all defendants.
Section 101(a) (5),10 one of the “Bill of Rights” provisions of the LMRDA, “deals only with the procedural aspects of union discipline.” Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv.L.Rev. 851, 873 *152(1960). On its face, this provision does not regulate the grounds upon which a union may discipline its members, nor does it specify what form the discipline must take; it only requires that before any employee is disciplined he must be given an opportunity to answer the charges of misconduct for which he is being punished.
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 proeedurally 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.
. See cases cited p. 150 infra.
. The majority’s intimation to the contrary is particularly puzzling in light of Judge Medina’s statement in Cunningham v. Erie R.R. Co., 266 F.2d at 416, that:
“If the District Court has jurisdiction to proceed against the union it is clear, we think, that it has also power to adjudicate the claim against the railroad. It would be absurd to require this closely integrated dispute to be cut up into segments.”
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).
. The indispensable party issue has not been briefed and argued before this court. Unlike a grant of summary judgment, dismissal on this ground would not be an adjudication on the merits. See Fed.R.Civ.Proc. 41(b). Moreover, under Rule 19(b), the trial court could order the Mott Haven employees summoned. Thus, I see no reason to pass upon this issue.
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 *14856.” 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[3], 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.
. Section 5 of the 1964 agreement provides, in part:
“No employee of any of the carriers involved in a particular coordination who is continued in service shall, for a period not exceeding five years following the effective date of such coordination, he placed, as a result of such coordination, in a worse position with respect to compensation and rules governing working conditions that he occupied at the time of such coordination so long as he is unable in the normal exercise of his seniority rights under existing agreements, rules and praetiees to obtain a position producing compensation equal to or exceeding the compensation of the position held by him at the time of the particular coordination * * * ” (Emphasis added.)
. It is not even made clear whether this is true. The unions did not join in Central’s motion to dismiss, and the action is still pending as to them. Presumably, the unions may also defend their conduct on the ground that it was compelled by the 1964 agreement. Therefore, does the majority’s result imply that the action against the unions, as to which the NRAB has no jurisdiction, see Conley v. Gibson, 355 U.S. at 44-45, 78 S.Ct. 99; Rumbaugh v. Winifrede R.R., 331 F.2d at 536, must be stayed or dismissed pending the plaintiffs’ recourse to that agency?
. See Aaron & Komaroff, Statutory Regulation of Internal Union Affairs, 44 Ill. L.Rev. (Nw. Univ.) 425, 433-34 (1949); Herring, The “Fair Representation” Doctrine : An (Effective Weapon Against Union Racial Discrimination?, 24 Md.L.Rev. 113, 125 (1964); Note, 36 N.Car.L.Rev. 529, 532 n. 16 (1958).
. As I have attempted to explain above, this case does not involve an encroachment upon the NRAB’s jurisdiction. Such encroachment would most often occur when plaintiffs allege hostile discrimination in a union’s refusal to press a grievance against the employer before the NRAB, as in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957). In Conley, where the employer was not joined as a defendant, the Supreme Court refused to remand to the NRAB, in part because “the contract between the Brotherhood and the Railroad will be, at most, only incidentally involved in resolving this controversy between petitioners and their bargaining agent.” 355 U.S. at 45, 78 S.Ct. at 101. Only where an admittedly valid contract is more than “incidentally involved” in the resolution of a hostile discrimination suit does it seem appropriate to remand the case to the NRAB before it is tried, since a court is always free after trial to remand to the NRAB for the fashioning of appropriate relief for unlawful discrimination by the railroad. Cf. Brotherhood of R.R. Trainmen v. Howard, 343 U.S. at 775, 72 S.Ct. 1022.
. Unfortunately, the majority stresses in footnote 8 of their opinion, the alternative position of the court in Ferro, namely, that Cunningham v. Erie R.R., supra, held that the employer was a proper defendant only because there was a possible violation of the Railroad’s statutory duty under 45 U.S.C. § 152 Eleventh (a). 296 F.2d at 852. Such a restriction seems clearly contrary to Supreme Court decisions; for example, the railroad was retained as a defendant in Brotherhood of R.R. Trainmen v. Howard, supra, even though there was no arguable statutory prohibition against its conduct. Moreover, whenever the railroad participates in the unlawful discrimination, and where the only effective relief requires affirmative conduct by the employer, I see no good reason for not retaining it as a defendant. There was no clear indication to the contrary in Cunningham, and I would-not so restrict that decision. Therefore, I would distinguish Ferro here on the ground that it involved no allegation of employer participation or knowledge.
. Compare Todd v. Joint Apprenticeship Committee, 223 F.Supp. 12 (N.D.Ill. 1963), an action against a union and others for racial discrimination in the construction of a federal government building in which the employer was retained as a defendant, despite its lack of participation in the discrimination, “for the purpose of and only for the purpose of rendering a complete and total decree.” The Todd decision is more consistent with traditional equity principles than the majority’s result here. See, e. g., Story’s Equity Pleadings § 72 (10th ed. 1892).
. “(5) Safeguards against improper disciplinary action. — No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (e) afforded a full and fair hearing.”