Yazoo & MVR Co. v. Webb

• Decision Date: 22 April 1933
• Docket Number: No. 6604.,6604.
• Citation: 64 F.2d 902
• Parties: YAZOO & M. V. R. CO. v. WEBB.
• Court: U.S. Court of Appeals — Fifth Circuit

64 F.2d 902 (1933)

YAZOO & M. V. R. CO. v. WEBB.

No. 6604.

Circuit Court of Appeals, Fifth Circuit.

April 22, 1933.

R. L. Dent, of Vicksburg, Miss., and Charles N. Burch, of Memphis, Tenn., for appellant.

John B. Brunini, T. G. Ewing, and James D. Thames, all of Vicksburg, Miss., for appellee.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

Upon a bill for discovery and accounting Epsie Webb obtained a decree against Yazoo & Mississippi Valley Railroad Company for a balance claimed to be due him as wages under a written contract between that company and the Brotherhood of Railway Trainmen, of which organization he was not a member. The railroad company appeals, insisting mainly that Webb was no party to and not a beneficiary of the contract; that his employment was as a train porter and not covered by the contract, and that by the acceptance and collection each fortnight during the six years in dispute of a pay check expressed to be "in full for services rendered" there had been a full settlement and payment.

Webb, a colored man, had worked for the railroad company for many years, first as a freight train brakeman and afterwards on the passenger train as a porter, but also assisting in duties which were usually performed on passenger trains by the flagman and baggageman, such as giving signals, changing switches, assisting in testing airbrakes, and helping with baggage and express. He wore a uniform bought by himself, his cap displaying the word porter. During federal control of the railroad and afterwards until March, 1925, he was paid the same wages as a flagman. The evidence shows that a train porter is not required to stand examination on the transportation rules, but only a physical one; that he has no authority or responsibility, but acts under and on orders of the train conductor, but may by him be required to do any of the things which a flagman under the transportation rules does on his own judgment and initiative. The contract involved is headed: "The Yazoo & Mississippi Valley Railroad Company. Schedule of Wages and Rules for Trainmen. Effective April 28, 1924," and concludes: "This agreement shall remain in effect until Dec. 31, 1925, and thereafter until revised or abrogated, of which intention thirty days written notice shall be given. J. J. Pelley, General Manager. Accepted for Brotherhood of Railway Trainmen. R. T. McNulty, General Chairman. H. T. Stafford, General Secretary." It was still in force in 1931. Engineers, firemen, and conductors no doubt had their separate agreements. Porters are shown to have an organization, but no agreement or contract with this railroad. In March, 1925, the trainmaster notified Webb in person that beginning April 1st his pay would be $90 per month, which was about one-half that fixed by the contract for flagmen and which he had been receiving, and instructed him to see the conductor, who would tell him what his duties were. The conductor told him to do as he had been doing. This he did, not only cleaning the cars and assisting colored passengers as a porter usually does, but also helping with train signals, brake tests, changing switches, and coupling cars as previously. There were in his train crew a regular flagman and baggageman. His pay checks came each two weeks on a basis of $90 per month, reading: "In full for services rendered." He protested to the paymaster on receipt of the first two, but indorsed and collected them. He and other porters sought redress from the superintendent, from the general manager, and from the president of the railroad. Each of these by letter or verbally told them that they were classed as porters and nothing would be done further. No one at any time led Webb to think otherwise. Efforts to get more pay ceased in 1928. There is little conflict in the evidence as to what Webb actually did, but he claims he did it on his own initiative and judgment, while the conductor testifies it was under his instructions. Webb produces a certificate dated April 21, 1923, that he had been examined on the rules and regulations of the transportation department, and was qualified to fill the position of train porter. On May 21, 1923, he signed an application for physical examination, stating his present occupation to be train porter, and was passed. He had a watch inspection certificate dated April 9, 1923, which named him a porter. He presented no later certificates. His train passes for the years 1925, 1926, 1927, and 1928 were issued to him as porter, but those for 1929, 1930, and 1931 named him brakeman. All were issued on his applications. His time reports made by the conductor and the company's timesheets all showed him as a porter. Webb was laid off in February, 1931, and brought this bill on August 19, 1931. A fellow employee sued on similar facts in the state court. It was held that he might sue under the trainmen's contract though not a member of the brotherhood, but that for such periods of service as he accepted his pay checks he could recover nothing additional. Yazoo & Mississippi Valley R. R. Company v. Sideboard, 161 Miss. 4, 133 So. 669.

We reject the contention that if Webb be under the wage agreement with the Brotherhood of Trainmen that it was abrogated as to him by its own terms thirty days after notice that his wages were changed. The provision for abrogation involves the agreement as a whole and not its application to the wages of some one employee. The agreement aims at uniformity of treatment and cannot be dissipated by piecemeal. The notice contemplated by it is one in writing and posted in the bulletin board for the information of all, or at least one given to the brotherhood which signed the agreement. Webb's rights are not to be disposed of on the basis of an abrogation of the wage agreement.

An agreement upon wages and working conditions between the managers of an industry and its employees, whether made in an atmosphere of peace or under the stress of strike or lockout resembles in many ways a treaty. As a safeguard of social peace it ought to be construed not narrowly and technically but broadly and so as to accomplish its evident aims and ought on both sides to be kept faithfully and without subterfuge. In no other way can confidence and industrial harmony be sustained. But in itself it can rarely be a subject of court action because it is incomplete. It establishes no concrete contract between the employer and any employee. No one is bound thereby to serve, and the employer is not bound to hire any particular person. It is only an agreement as to the terms on which contracts of employment may be satisfactorily made and carried out. It is a mutual general offer to be closed by specific acceptances. When negotiated by representatives of an organization it is called collective bargaining, but ordinarily the laws of the organization, which constitute the authority of the representatives to act, do not require the individual members to serve under it, but only that if they serve they will do so under its terms and will join in maintaining them as applied to others. When the agreement is published by the managers, it becomes until abrogated the rule of that industry and any individual who thereafter continues in its employment or takes new employment takes it on the terms thereby fixed. Ordinarily, as in this case, there is no period fixed for the hirings and they are at the will of the parties, the employer having the right to discharge at any time and the employee having the right to quit. But the employment though indefinite as to time is a relationship while it lasts, and is subject to the conditions fixed in the working agreement for the industry. Thus a worker cannot be discharged for causes prohibited by the agreement or without a hearing if that is provided,...