Cleapor v. Atlanta, B. & CR Co.

• Citation: 123 F.2d 374
• Decision Date: 10 November 1941
• Docket Number: No. 10064.,10064.
• Parties: CLEAPOR v. ATLANTA, B. & C. R. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

123 F.2d 374 (1941)

CLEAPOR v. ATLANTA, B. & C. R. CO.

No. 10064.

Circuit Court of Appeals, Fifth Circuit.

November 10, 1941.

Thomas B. Branch, Jr., of Atlanta, Ga., for appellant.

Furman Smith, of Atlanta, Ga., for appellee.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

Claiming a wrongful discharge, plaintiff sued under Title 45 U.S.C.A. § 151 et seq., to enforce an award of the Railroad Adjustment Board, Fourth Division, ordering his restoration to service with seniority rights unimpaired but without pay for time lost. More particularly stated, his claim was that, though he was acting in a supervisory capacity, and was excluded by Subdivision (c) Rule 12¹ of the collective agreement of November 20, 1935, between defendant and its car department employees, under which he claims, he was within its protection under a verbal agreement. This agreement was that "all the terms and conditions of the contract were applicable to him, that all of the rights granted to any of the employees of the car department were also granted to him, that the terms of such contract insofar as they were applicable, were likewise terms of plaintiff's contract of employment with the defendant."

From his petition it appears: That he was employed originally as a car inspector, promoted in 1922 to Chief Car Inspector and in 1923, to Master Car Builder Inspector, and that at the time he accepted the last position it was agreed between him and the defendant that he would remain an employee of the car department, would retain his seniority as such, and would have all the privileges and rights that other employees of the car department then had or might thereafter acquire. It further appears therefrom, that prior to November 20, 1935, when a bargaining contract, for a year fixed and thereafter until abrogated by notice, was entered into, but after its terms had been tentatively agreed upon, plaintiff, to protect himself against its exclusionary and superseding² provisions, made the verbal agreement he claims.

There were the further allegations; that notwithstanding said verbal agreement, plaintiff was summarily dismissed from the service of defendant and defendant never at any time preferred any charges against him and refused so to do; that plaintiff as a member of the car department first submitted his complaint to the Atlanta, Birmingham and Coast Railroad Car Department Employees Adjustment Board and that Board found that plaintiff was in a supervisory position and the Board was without jurisdiction of his cause; that he then applied to the Second Division of the Railroad Adjustment Board having jurisdiction over car men, and that division declining jurisdiction, he then applied to the Fourth Division which has jurisdiction over all employees not under the jurisdiction of the first, second and third divisions. That Division found; that it had jurisdiction; that the work performed by the petitioner was that of a subordinate official; and "that both employees in the incident were at fault, that petitioner by being deprived of his employment since the date of the occurrence, had been sufficiently disciplined and that he shall be restored to service with seniority rights unimpaired but without pay for lost time." Finally plaintiff alleged that defendant has refused to obey the award and prayed for its enforcement and for general relief.

The defendant moved to dismiss on the ground that the award was unenforceable and void because, from the allegations of the petition that plaintiff claims to be a car man, it is plain that the Fourth Division was without jurisdiction of the dispute; and because if with jurisdiction, the award was invalid for want of definite findings of fact. A further ground of its motion to dismiss, was that the claim of plaintiff, that he had a binding contract which had been breached was contradicted by the facts alleged in his petition, showing that his contract was indefinite, and if indefinite, was in parol and void under the Georgia Statute of Frauds. Code of 1933, Section 20-401(5).

The district judge, of the opinion that the motion to dismiss was good, sustained it and dismissed the action.

In System Federation No. 59 v. Louisiana & A. Ry. Co., 5 Cir., 119 F.2d 509, we have had recent occasion to consider the rights of persons under collective bargaining agreements. We there held, under a contract providing that no employee will be dismissed or suspended without just or sufficient cause, and only after complaint and hearing, that persons coming or accepting under such contract, have their tenure and rights governed by its terms, and may sue to redress their grievances for action taken contrary thereto.

If therefore, plaintiff, in addition to alleging that he had been discharged without just or sufficient cause and without the hearing provided for in Rule 12, of the invoked written contract, had alleged facts showing that he was a party to it and entitled to its benefits, we should be bound to hold that he had stated a cause of action and that the judgment of dismissal was wrong. But the petition does not claim that plaintiff was a party to the written contract and his case must be tested by whether the verbal contract he alleges is a valid one under the laws of Georgia, where it was made, and was to be performed, and whether there has been a breach of it. As his petition states it, this is plaintiff's case as to his contract. Holding a supervisory position, which, by the terms of a written collective bargaining agreement about to be made, was excluded from its provisions, plain...