Opinion
No. 35790.
April 23, 1945.
1. MASTER AND SERVANT.
The phrase "local working rules" as used in railroad labor contract means rules confined in their operation to a particular locality or a limited district.
2. MASTER AND SERVANT.
Railroad's 1926 agreement with Brotherhood of Railroad Engineers as to seniority rights as firemen of demoted engineers which applied to entire railroad and to all of its engineers and firemen was not a "local working rule" within meaning of 1941 contract providing for commencement of seniority rights with first trip made or day's work performed, and providing that such contract should supersede prior contracts, rules and interpretations except local working rules.
3. INJUNCTION. Master and servant.
Where Brotherhood of Railroad Engineers, under its agreement with colored firemen and under Railway Labor Act, owed colored firemen same duty to protect their seniority rights as Brotherhood owed its own members, and Brotherhood presented to National Railroad Adjustment Board dispute with railroad as to seniority rights as firemen of demoted white engineers as a dispute solely between demoted engineers and railroad, wholly ignoring seniority rights of colored firemen, and railroad knew of contract establishing seniority rights for colored firemen and withheld such information from Board, award of Board giving demoted engineers seniority was not res judicata as to rights of colored firemen and colored firemen were entitled to maintain suit to enjoin railroad from putting award into effect (Railway Labor Act, sec. 1 et seq., 45 U.S.C.A., sec. 151 et seq.).
ROBERDS, J., dissenting.
APPEAL from chancery court of Harrison county, HON. D.M. RUSSELL, Chancellor.
Culkin, Laughlin Thames, of Vicksburg, for appellants.
Seniority rights are property, and will be protected by a court of equity.
Stephenson et al. v. New Orleans N.E.R. Co. et al., 180 Miss. 147, 177 So. 509; Nord et al. v. Griffin, 86 F.2d 481, cert. den. 300 U.S. 673; Griffin v. Chicago Union Station Co. et al., 13 F. Supp. 722.
The primary purpose in the organization of labor unions and kindred organizations is to protect their individual members and to secure for them a fair and just remuneration for their labor and favorable conditions under which to perform it. Their agreement with employers took always to the securing of some right or privilege for their individual members, and the right or privilege so secured by agreement is the individual right of the individual member, and such organization can no more by its arbitrary act deprive that individual member of his right so secured than can any other person. The organization is not the agent of the member for the purpose of waiving any personal right he may have, but is only his representative for the limited purpose of securing for him, together with all other members, fair and just wages and good working conditions. If the right of seniority may be changed or waived or otherwise dispensed with by the act of a bare majority of an organization, to which the one entitled thereto is a member, it would be builded upon a flimsy foundation of sand, which might slip from under him at any time by the arbitrary action of the members, possibly to serve their own selfish ends in displacing him.
Railroad Telegraphers v. Railway Express Agency, 321 U.S. 341, 64 S.Ct. 582, 88 L.Ed. 495; Piercy et al. v. Louisville N.R. Co. et al., 198 Ky. 477, 248 S.W. 1042; Hudson v. C.N.O. T.P.R. Co., 152 Ky. 711, 154 S.W. 47, 45 L.R.A. (N.S.) 184; Cameron et al. v. International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada, Local Union No. 384 of Hudson County, New Jersey, et al., 118 N.J. Eq. 11, 176 A. 692, 97 A.L.R. 594; Railway Labor Act of 1934, Title 45, U.S.C.A., Secs. 151 et seq.
The alleged dispute, in the case at bar, arose if at all in 1926. However, on June 21, 1934, it was not pending before the administrative board, created by the act of 1926, nor was it pending before any other board or agency. The award showed on its face that the alleged dispute was not, on June 21, 1934, a pending and unadjusted case, within the meaning of sub-section (i), Section 153, of the Railway Labor Act. The Railroad Adjustment Board had no jurisdiction to hear and consider the alleged dispute and its determination and award were null and void.
The jurisdiction of the National Railroad Adjustment Board is prescribed and limited by the Railway Labor Act, which created it. The jurisdiction thus conferred presupposed the existence of a valid and enforceable agreement or contract, and specifically limited the right and power of the said board to determine those disputes which should arise between the carrier and its employees "growing out of grievances or out of interpretations or applications of agreements concerning rates of pay, rules, or working conditions"; it did not give the said Board the right or power to decide questions of the existence or non-existence of a legal and binding agreement. The said Act does not give the said Board the right or power to make labor agreements or contracts, nor to change, alter, amend or modify existing ones. The said Act does specifically provide the manner and means by and through which labor agreements and contracts can be negotiated and consummated between the carrier and its employees, and how they could be changed, amended and modified. The alleged dispute which was certified to the National Railroad Adjustment Board by the Brotherhood of Locomotive Engineers, as reflected by the award itself, was whether or not there was in existence, in 1926, an expressed and binding agreement, between the carrier on the one hand and the firemen of the Gulf and Ship Island Railroad on the other. The Brotherhood of Locomotive Engineers asserted the existence of a binding and enforceable agreement, and the Gulf and Ship Island Railroad denied the existence of same. This was the real question decided by the said Board, and the basis for its award. This award undertakes to, and does, deprive these complainants of their property and constitutional rights, without due process of law. The said Board had no jurisdiction and no right to make the award. The National Railroad Adjustment Board did not have jurisdiction of the alleged dispute, and its award is null and void.
The contract effective June 1, 1941, governs and controls the rights of these complainants. In attempting to circumvent and escape the conclusive effects of the contract of June 1, 1941, upon the rights of the parties, appellees assert that the alleged agreement was not a "negotiated agreement," but was a "local working rule," which was not superseded and annulled by any new contract. That this alleged agreement was not a "local working rule" within the meaning of the existing labor contract, and the statutes applicable thereto, or, for that matter, within the meaning of any contract or statute, is perfectly obvious and needs no citation of authority. We content ourselves by simply saying that no agreement, which applies to every fireman on a railroad, which includes every place where it has a terminal or yard, which extends to every inch of track of the whole railroad line, which arbitrarily takes away the seniority rights of all of the firemen and gives them to ten junior transferred engineers, is not a "local working rule," in any sense of the expression. Certainly, such an alleged "local working rule" does not constitute "due process of law" as is contemplated by the Fifth Amendment to the Constitution of the United States, which protects the seniority rights of all men, regardless of race or color.
System Federation No. 59, etc., v. Louisiana A. Ry. Co., 119 F.2d 509, affirming 30 F. Supp. 909, rehearing denied 32 F. Supp. 89, certiorari denied 62 S.Ct. 108, 314 U.S. 658; Steele v. Louisville Nashville R. Co. et al., 245 Ala. 113, 16 So.2d 416, 65 S.Ct. 226, 89 L.Ed. 172.
May Byrd, of Jackson, Gardner, Backstrom Gardner, of Gulfport, and Chas. A. Helsell and Jos. H. Wright, both of Chicago, Ill., for appellee, Gulf and Ship Island Railroad Company.
No employee is entitled to seniority or preference to work except by virtue of a contract.
Otis v. Gulf Ship Island R. Co., 197 Miss. 56, 19 So.2d 241.
Seniority rights when reasonably required and for proper reasons may be disturbed or modified. The courts will not interfere with collective bargaining agreements affecting seniority unless found arbitrary or where fraud is shown.
Hartley v. Brotherhood of R. S.S. Clerks (Mich.), 277 N.W. 885; O'Keefe v. Local 463, United Asso. P.G. (N.Y.), 14 N.E.2d 77; Coley v. Atlantic Coast Line R.R., 19 S.E.2d 124; Smith v. Texas N.O.R. Co., 32 F. Supp. 1013, 1014; Aden v. Louisville N.R. Co. (Ky.), 276 S.W. 511; Gulf, M. N.R. Co. v. Illinois Cent. R. Co., 21 F. Supp. 282, 294.
The record shows beyond doubt that there was a disagreement as to the interpretation of a contract governing working conditions between the employees of the Gulf and Ship Island Railroad and the company, and as such it was a matter jurisdiction of which had been conferred upon the National Railroad Adjustment Board, First Division.
Railway Labor Act, Sec. 151 (a), title 45, U.S.C.A.
The Board had jurisdiction of the subject matter and of the parties and its judgment or award is not subject to collateral attack.
Martin v. Miller, 103 Miss. 754, 60 So. 772; Scott County v. Dubois, 158 Miss. 245, 130 So. 106; Neely v. Craig, 162 Miss. 712, 139 So. 835; Berryman v. Pullman Co., 48 F. Supp. 543.
When a matter has been submitted to a board or court having jurisdiction of the subject matter and of the parties its judgment is res adjudicata of the questions presented by the pleadings and neither party to the proceedings can again litigate the questions there decided.
Bates v. Strickland, 139 Miss. 636, 103 So. 432; Dean et al. v. Board of Supervisors of DeSoto County, 135 Miss. 268, 280, 99 So. 563; Harvison v. Turner, 116 Miss. 550, 77 So. 528.
The appellants say their representative, the Brotherhood of Locomotive Engineers, in invoking the action of the Board, did not act for the best interest of the complainants and did not secure for them what the complainants say they should have, and therefore the award is void. The complaint then is that their own representative improperly represented them. We do not conceive that we are called upon to defend the Brotherhood of Locomotive Engineers on account of anything they may have done in this proceeding, as we do not doubt that they are fully capable of justifying their actions in the premises. The appellants say that the railroad company has deprived these negro firemen of certain rights which they possessed. We deny this. The record shows that long prior to the time when the contracts affecting firemen on the Gulf and Ship Island Railroad were applied to the negro firemen, the Gulf and Ship Island Railroad Company, as it had a right to do, contracted with the Brotherhood of Locomotive Engineers, the bargaining agent for the white engineers and firemen, for certain rights to be given the white fireman, particularly the transferred men. This agreement was perfectly legal and did not do violence to any property rights of the appellants because the appellants had been given no right of seniority by any contract with the Gulf and Ship Island Railroad Company.
In this case, the railroad company finds itself in the position where it is required to bargain with the elected representative of the men. It is required by law to submit to the jurisdiction of the National Railroad Adjustment Board and it is required by law to obey a valid award made by the National Railroad Adjustment Board, unless it elects to subject itself to long and expensive litigation. It stated to the Board, on the hearing in this cause when the award was made, its position with reference to the contract entered into in 1926 affecting the transferred engineers and the board, like any other court, considered the evidence, and at the conclusion thereof found that the railroad company had not maintained its position, but that the position of the Brotherhood had been maintained, and consequently the award was in favor of the contentions of the Brotherhood. The dispute was resolved in favor of the Brotherhood, the agent of all of the firemen on the Gulf and Ship Island Railroad. No duty rested upon the railroad company to deny the validity of the award or to litigate the same. In fact, it could not litigate the correctness of the award except by refusing to obey it and subject itself to a suit at the instance of the Brotherhood of Locomotive Engineers, who had a right, and the only party who did have the right, to institute a suit in the United States District Court to enforce the award.
The main authority which the appellants stress for reversal of this case is the decision of the Supreme Court of the United States in the case of Steele et al. v. Louisville Nashville R. Co. et al., 65 S.Ct. 226, 89 U.S. 172. The clear distinction between the Steele case as finally decided by the Federal Supreme Court and the instant case lies in the fact that in this case there is an award by the National Railroad Adjustment Board. There was none in the Steele case. That Board was created to decide exactly such an issue as is here involved. The Supreme Court of the United States has not hesitated to hold in a number of cases that where the parties have been afforded a hearing before the National Mediation Board, or before the National Railroad Adjustment Board, review is not possible except in the manner provided for in the Act, i.e., the successful party before the Board can institute court action only to enforce the award. The issue decided by the Board ceases to be justiciable.
See Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297; General Committee of Adjustment v. M.K. T.R. Co., 320 U.S. 323; General Committee of Adjustment v. Southern Pacific R. Co., 320 U.S. 338.
We respectfully submit that the decision of the lower court should be affirmed because the record shows that there has been an award by the National Railroad Adjustment Board, First Division, which is legal, lawful and binding on all parties, both the railroad company, the Brotherhood and the firemen on the Gulf and Ship Island Railroad. At the hearing all of the firemen on the Gulf and Ship Island Railroad were present and participated therein through their duly authorized officers. The matter before the Board was one of which the Board had jurisdiction and it had jurisdiction of the parties. The decision should be affirmed for the further reason that, notwithstanding the allegations of the bill, the record shows that the appellants have not been deprived of any right which was theirs, because prior to 1937 the negro firemen on the Gulf and Ship Island Railroad had no seniority rights and no contract of any kind governing working conditions of seniority. The record further shows that in 1926 the railroad company, by and through its duly constituted representative, contracted with the duly selected representatives of the white engineers and firemen on the Gulf and Ship Island Railroad whereby certain transferred men were accorded rights as firemen and the record shows that said agreement was never abrogated but was deliberately continued in force through the years. Whenever a new labor contract was entered into, by stipulation of both parties, it was provided that the new contracts or new agreements should not supersede local working agreements, one of which was considered by all parties to concern the transferred engineers and firemen. Reduced to its basic elements, this suit does not involve a contest between members of the white and colored race, nor is it an attempt on the part of anyone to deprive the negro employees of the Gulf and Ship Island Railroad of any rights to which they may lawfully be entitled. It is simply a question of whether or not the valid contract made and entered into in 1926 establishing the seniority rights of the transferred engineers and found by the National Railroad Adjustment Board to be in existence in 1941 and ordered to be carried out, will be recognized by the Mississippi courts and enforced.
Hannah, Simrall Foote, of Hattiesburg, for appellees, Brotherhood of Locomotive Engineers.
We submit that this case should be affirmed because:
1. The very questions that are here presented by the appellants have heretofore been submitted to, and decided by, the tribunal which the Congress of the United States set up and provided for the consideration and disposition of all such controversies.
2. The appellants, by their bill of complaint and exhibits, show that they do not, in fact, have any rights whatever that are being violated.
3. The contract effective July 1, 1941, under which appellants claim and assert their rights, expressly excepts from its provisions "local working rules not covered by this agreement."
4. But even if the appellants have been discriminated against, under the authority of Steele et al. v. Louisville Nashville R. Co. et al., 65 S.Ct. 226, 89 L.Ed. 172, they still have no standing in this Court for the reason that there is neither allegation nor proof that such discrimination was "hostile." The United States Supreme Court in the Steele case expressly recognizes the right of a bargaining agent to discriminate in favor of some and against others, provided only that such discrimination is not hostile. Under no stretch of the imagination can the appellants in this case have judgment against these appellees.
Argued orally by J.T. Thames, for appellants, and by T.C. Hannah, for appellees.
This is an appeal from a decree sustaining a demurrer to and dismissing a bill of complaint.
It appears from the bill and exhibits thereto that the appellants are negro locomotive firemen on the Gulf and Ship Island Railroad without the right to join any of the railroad labor unions. In 1937 pursuant to a provision of the Railway Labor Act, Title 45 U.S.C.A., Sec. 152, they appointed the Brotherhood of Railroad Engineers as their collective bargaining agent and that Brotherhood shortly thereafter obtained an agreement from the Railroad Company that its negro firemen should become parties to a contract entered into in 1923 by the Railroad and the Brotherhood for the benefit of the Railroad Company's "Locomotive Engineers, white Firemen and Hostlers." Section 26 of this contract provides that "seniority rights of Engineers and Firemen will commence with first trip made or day's work performed." In 1926, after the Gulf and Ship Island Railroad had been incorporated into the Illinois Central System, a number of engineers were transferred from the Illinois Central and Yazoo Mississippi Valley Railroads to the Gulf and Ship Island Railroad, and the Brotherhood of Locomotive Engineers obtained an agreement, without the appellees' knowledge, that ten of these transferred engineers, if demoted to firemen, could displace a similar number of junior colored firemen.
In 1941 a disagreement arose between the Gulf and Ship Island Railroad officials and the Brotherhood of Locomotive Engineers as to whether this agreement as to demoted engineers was temporary or permanent, the Railroad officials claiming that it was temporary and could be terminated by them. This dispute was presented to the Railroad Adjustment Board in accordance with a provision therefor in the "Railway Labor Act." Both sides presented their contentions and the reasons therefor in writing, but neither of them disclosed to the Board the Railroad's agreement as to the seniority rights of its negro firemen made in 1937. These firemen, the appellants here, did not know of this proceeding and were also without the right to appear therein, except by their bargaining agent, the Brotherhood of Locomotive Engineers. On June 1, 1941, the Brotherhood of Locomotive Engineers entered into another written contract with the Gulf and Ship Island Railroad Company, styled "Schedule of Rules and Rates of Pay for Locomotive Engineers, Firemen and Hostlers." Article 15 of this contract provides that "seniority rights of Engineers and Firemen will commence with first trip made or day's work performed." Article 35 thereof provides that "the rules, rates and conditions herein set forth constitute an agreement effective June 1, 1941, and will supersede any former agreements, rules and interpretations thereon (except local working rules not covered by this agreement) and will not be revised or abrogated until after thirty (30) days' notice in writing by either party to the other."
This agreement, as the appellees admit, is not limited to white firemen but includes all firemen, both white and colored. The Railroad Adjustment Board rendered its decision on December 17, 1941, without this contract of June 1, 1941, being called to its attention; sustained the claim of the Brotherhood of Locomotive Engineers and held "that the rights thus acquired by the said ten transferred men may not now be denied them unless by negotiation and agreement between the accredited representatives of parties involved."
The Railroad Company being about to put this award into effect thereby displacing the claimed seniority rights of the appellants under the June 1, 1941 contract, they instituted this suit to restrain the Railroad from so doing.
The seniority provision of the June 1, 1941 contract made with the Railroad Company by the Brotherhood of Locomotive Engineers on behalf of its members and these appellants governs here and grants the appellants the seniority rights claimed by them, unless, as the appellees say, the agreement made by the Brotherhood with the Railroad Company in 1926 as to the seniority rights as firemen of engineers demoted to the position of firemen, is a local working rule, and, therefore, within the exception in the contract set forth in Article 35 thereof. The phrase "local working rules" ex vi termini means rules confined in their operation to a particular locality or a limited district. The Railroad Company's agreement with engineers as to seniority rights of its demoted engineers made in 1926 was not so confined, but applied to the entire railroad and to all of its engineers and firemen. Consequently, that agreement is not within this exception in the 1941 contract.
But the appellees say the order of the National Railroad Adjustment Board is res judicata of the claim here made by the appellants. This for several reasons we can not admit. One sufficient reason therefor is that under its agreement with these appellants, and the provisions of the Railway Labor Act, the Brotherhood of Locomotive Engineers owed these appellants the same duty to protect their seniority rights that it owed to its own members. This duty it failed to discharge when it presented to the National Railroad Adjustment Board the dispute between this Railroad and its engineers as to the seniority rights of its engineers demoted to firemen. In the presentation of this dispute to the Railroad Adjustment Board by the Brotherhood of Locomotive Engineers these appellants and their seniority rights were wholly ignored and the dispute was presented to and tried by the Board as one between the railroad and its complaining engineers only. In pleading this order of the Railroad Adjustment Board as res judicata the Brotherhood of Locomotive Engineers is pleading its own wrong, which the law of res judicata does not require us to permit. This Railroad Company was a party to this wrong done the appellants for it knew of the contract it had made in June, 1941 for their benefit and did not call the Railroad Adjustment Board's attention thereto. These views seem to be sanctioned by Steele v. Louisville Nashville R. Co., 65 S.Ct. 226, 89 L.Ed. 172, recently decided by the Supreme Court of the United States.
The demurrer to the appellee's bill of complaint should have been overruled.
Reversed and remanded.
DISSENTING OPINION.
I think the action of the Railroad Adjustment Board was res adjudicata. The very question presented to it, as I understand, was whether the replacement arrangement was temporary or permanent.