Missouri-Kansas-Tex. R. Co. v. BROTHERHOOD OF R. & SSC

• Decision Date: 01 May 1951
• Docket Number: No. 10219,10220.,10219
• Parties: MISSOURI-KANSAS-TEXAS R. CO. et al. v. BROTHERHOOD OF RY. & S. S. CLERKS et al.
• Court: U.S. Court of Appeals — Seventh Circuit

188 F.2d 302 (1951)

MISSOURI-KANSAS-TEXAS R. CO. et al. v. BROTHERHOOD OF RY. & S. S. CLERKS et al.

Nos. 10219, 10220.

United States Court of Appeals Seventh Circuit.

March 26, 1951.

Rehearing Denied May 1, 1951.

Carroll J. Donohue, St. Louis, Mo., Herbert L. Stern, Jr., Chicago, Ill., James L. Crawford, Cincinnati, Ohio, Leo J. Hassenauer Chicago, Ill., Hassenauer, McKeon & Trussell, Chicago, Ill., Edward J. Hickey, Jr., Washington, D. C., Salkey & Jones, St. Louis, Mo., Gottlieb & Schwartz, Chicago, Ill., Mulholland, Robie & Hickey, Toledo, Ohio, of counsel, for appellants.

W. R. Howell, St. Louis, Mo., G. H. Penland, M. E. Clinton, Dallas, Tex., William J. Milroy, Chicago, Ill., for appellees.

Before KERNER, DUFFY, and FINNEGAN, Circuit Judges.

KERNER, Circuit Judge.

These appeals are from an order temporarily enjoining the Brotherhood of Railway and Steamship Clerks from prosecuting any suit to enforce three awards theretofore entered in its favor by the National Railway Adjustment Board. The order was entered in a civil action brought by the Missouri-Kansas-Texas Railroad Company and an affiliated carrier against the Board, the Third Division thereof and its individual members; the Order of Railway Telegraphers and the Vice-President thereof; and the Clerks and their Vice-President. We shall refer to the parties as the carriers, the Board, the Clerks, and the Telegraphers.

The subject matter of the suit was a series of awards which had been rendered by the Board pursuant to proceedings before it with two different referees sitting with it on petitions filed by the Clerks and the Telegraphers involving the same jobs — in other words, the original controversy was the familiar inter-union dispute in which the carriers had only a passive interest. However, they became actively interested when the dispute between the rival claimants was resolved in favor of both of them, with a series of awards directing the carriers to employ a member of each group for each of the jobs in dispute. The carriers thereupon filed this suit praying a temporary injunction restraining all parties from attempting in any manner to enforce the awards pending final determination of the controversy, and, upon final hearing, a permanent injunction restraining enforcement of the awards, a declaration that the awards are null and void, and an order on the Board to reopen the proceedings in each controversy and consolidate all so that the various issues would be settled in a single hearing with all parties having any interest therein given notice and opportunity to participate.

The evidence adduced at the hearing on the motion for preliminary injunction was largely documentary, consisting of a series of exhibits pertaining to proceedings before the Board on similar earlier claims as well as those here involved. From this evidence the court rendered findings of fact to the effect that in eight dockets including No. 2544 which involved the same subject matter as one of the awards here involved, the Board had deadlocked on the issue of giving notice to persons or organizations other than the parties to the disputes whose interests might be affected by awards on the merits. The carrier members took the position that binding and conclusive awards could only be rendered after notice given to all whose rights might be involved. However, the Board, with Referee Bruce Blake sitting as a member, set the dockets down for hearing with notice only to the Clerks and the carriers, and they were the only parties who participated in the hearings. Because of the absence of the Telegraphers who, Referee Blake held, had a vital interest in the outcome of the dispute, No. 2544 was dismissed without prejudice. Similar claims were withdrawn by the Clerks. Three years later, in 1947, these same claims, involving the same positions, were again filed, and, after deadlock, with James Douglas sitting as referee, again without notice to the Telegraphers or opportunity to be heard, the Board entered its awards that the carriers had violated their agreement with the Clerks in permitting employees working under the Telegraphers' agreement to do the work in dispute, and ordered the carriers to assign the positions to the Clerks.

Upon receipt of the awards the Clerks made demand upon the carriers to comply therewith, and the carriers, solely because of the awards and the demands based thereon, put them partially into effect, abolishing certain positions theretofore assigned pursuant to the agreement with the Telegraphers. The Telegraphers immediately protested this action and, in 1949, filed their claim with the Board for alleged violation by the carriers of the agreement with their organization in their action in implementing the awards in favor of the Clerks. The carriers again asked the Board to make the other group a party to the proceedings, contending that no legal and binding order could be made unless the other parties in interest were permitted to appear and be heard. The District Court found that in answering this contention the Telegraphers stated that if they had been permitted to intervene in the Clerks' dockets and awards they could have shown that the positions in dispute had been duly negotiated between the carriers and the Telegraphers in 1916 and had been continuously in effect since that time. Again the Board deadlocked on the issue of notice to the other group, and a different referee, Mortimer Stone, was appointed to sit with the Board for hearing on the merits with only the carriers and representatives of the petitioning employees present and participating. This hearing resulted in an award sustaining all the claims of the Telegraphers and an order on the carriers to make the award effective and pay all sums of money due thereunder.

The District Court further found that to comply with the Telegraphers' award the carriers would be compelled to restore the positions transferred in compliance with the Clerks' awards, and that application of the principles established by the Clerks' awards in accordance with their contentions would require an annual...