586 F.2d 750 (9th Cir. 1978), 77-1322, Price v. Southern Pacific Transp. Co.

Docket Nº:77-1322, 77-2433.
Citation:586 F.2d 750
Party Name:L. D. PRICE, Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY; System Federation No. 114 Railway Employees; Department, AFL-CIO; International Brotherhood of Firemen, Oilers, Helpers, Roundhouse and Railway Shop Laborers; and Willie T. Thomas, Defendants-Appellees.
Case Date:November 24, 1978
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 750

586 F.2d 750 (9th Cir. 1978)

L. D. PRICE, Plaintiff-Appellant,

v.

SOUTHERN PACIFIC TRANSPORTATION COMPANY; System Federation

No. 114 Railway Employees; Department, AFL-CIO;

International Brotherhood of Firemen, Oilers, Helpers,

Roundhouse and Railway Shop Laborers; and Willie T. Thomas,

Defendants-Appellees.

Nos. 77-1322, 77-2433.

United States Court of Appeals, Ninth Circuit

November 24, 1978

Page 751

Jack Siedman (argued), San Francisco, Cal., for plaintiff-appellant.

William F. Adams (argued), San Francisco, Cal., William J. Hickey (argued), Washington, D. C., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before SNEED and KENNEDY, Circuit Judges, and DUMBAULD, [*] District Judge.

SNEED, Circuit Judge:

This suit has its origin in an event which occurred on May 25, 1972. The plaintiff, Price, then employed by defendant, Southern Pacific Transportation Co. (SP), left without authority the area within which he worked to get "a bite to eat" and while away was involved in an automobile accident that resulted in his hospitalization for a period of time and prevented an immediate return to work.

As it turned out Price never returned to work. In condensed form the subsequent events are as follows. After several postponements in keeping with Price's wishes, and several failures on the part of Price to keep appointments to discuss his case with union officials, a hearing pursuant to the collective bargaining agreement between SP and International Brotherhood of Firemen, Oilers, Helpers, Roundhouse and Railway Shop Laborers (Union) was held on October 24, 1972. Thomas, Price's brother-in-law and Local Chairman of the Union, attended the hearing and at Price's request represented him in the proceedings. At the hearing Price admitted that his absence from the work area violated Rule 810 of SP's General Rules and Regulations and a foreman at the SP yard testified that Price had no authority to leave the yard on that day. Although the record of this case reflects that absences from the work area to get "a bite to eat" without specific authority were not rare events, neither Thomas nor Price developed this point at the October 24, 1972 hearing. After the hearing was closed SP notified Price on October 27, 1972 that he was discharged for violating Rule 810.

No grievance in behalf of Price was filed by Thomas or Price. However, Thomas, by reason of a specific request by Price, wrote a letter to SP requesting reinstatement of Price on a leniency basis. The request was denied on March 8, 1973. Well over a year later, in July 1974, Price filed suit in state court against SP for wrongful discharge. In due course, this suit was removed on motion of SP to the federal district court where on May 7, 1975 an amended complaint was filed. On April 29, 1976, Price's second amended complaint was filed in which he sought recovery against SP and the Union on the authority of Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). The second amended complaint set forth five causes of action, two against each defendant and one against both defendants. The first against SP asserted, as did the original complaint, a wrongful discharge in violation of the Railway Labor Act, 45 U.S.C. § 152, in which Price's unauthorized absence was used as a "pretext" to deprive him of a "coordination allowance" provided to certain employees by reason of a mediation agreement following a reduction in force by SP. The second cause of action against SP

Page 752

merely alleged a wrongful discharge by reason of the collective bargaining agreement and "federal law" and sought reinstatement with full seniority and fringe benefits. The third cause of action was asserted against both the SP and the Union and charges they "conspired and colluded . . . to unfairly...

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