Hooser v. Baltimore & Ohio Railroad Co.
| Decision Date | 24 September 1959 |
| Docket Number | No. IP 58-C-29,58-C-49.,IP 58-C-29 |
| Citation | 177 F. Supp. 186 |
| Parties | Lafayette A. HOOSER and Ben Chace, Plaintiffs v. BALTIMORE & OHIO RAILROAD CO., a corporation, Defendant and Brotherhood of Locomotive Firemen and Enginemen, Intervening Defendant. Fred H. SHIELS, R. D. Vernon, and Keith U. Clark, Plaintiffs v. L. Roy SMITH, individually and as representative of members of the Brotherhood of Locomotive Firemen and Enginemen, and its Local 762 and BALTIMORE & OHIO RAILROAD CO., Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
George Rose, Indianapolis, Ind., for plaintiffs.
Martz, Beattey & Wallace, Indianapolis, Ind., for defendants.
Harold C. Heiss and Russell B. Day, Cleveland, Ohio, and Grabill & Baker, Indianapolis, Ind., for intervening defendant.
The complaint in Cause No. IP 58-C-29 was filed February 10, 1958, and that in cause No. IP 58-C-49 was filed March 21, 1958. Since both complaints assert rights dependent upon the same agreements and present common questions of law, the court under Rule 42(a), Federal Rules of Civil Procedure, 28 U.S.C., consolidates the two cases for the purpose of judgment.
The plaintiffs claim rights under the Railway Labor Act (45 U.S.C.A. § 151 et seq.), and, hence, the court has jurisdiction of both controversies as civil actions arising under a federal statute regulating and protecting commerce (28 U.S.C. § 1337). General Committee of Adjustment of Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas Railroad Co., 5 Cir., 132 F.2d 91, reversed on other grounds, 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76.
Prior to their dismissal by The Baltimore and Ohio Railroad Company (hereinafter referred to as "defendant Railroad"), the plaintiffs were employed by it as enginemen,1 and they show that each held seniority as locomotive fireman and as locomotive engineer in that employment. The operating function of fireman is distinct from the operating function of engineer; and, therefore, each plaintiff contends that he possessed two separate employments with the defendant Railroad. Upon that supposition the plaintiffs contend that the Railroad had no right to terminate their total employment with it as enginemen, simply because it found them to be in violation of the union shop agreement with the Brotherhood of Locomotive Firemen and Enginemen (hereinafter referred to as "BLF&E"). Affirmatively they contend they had a contractual right to continue in the employment of the Railroad as engineers despite their violation of the BLF&E's union shop agreement and subsequent discharge because of this violation. Because the defendant Railroad, on the insistence of the BLF&E, has determined the existence of the aforesaid violations and has dismissed them from its service, plaintiffs sue the defendants jointly and severally to recover damages of $150,000 each for wrongful discharge.2
The defendants contend that the plaintiffs were in a fundamentally different legal situation, and that they each possessed only a single employment with defendant Railroad. Defendants concede that by virtue of promotion of plaintiffs into the craft of engineer, defendant Railroad had a right to assign them to duty as engineer in line with their seniority in that craft; and that when their seniority rank did not warrant engineer's duty the defendant Railroad could assign them to work in the firemen's craft.3
Defendants have shown that the Railroad has no custom or practice to employ any individual solely as an engineer.4 Their argument is that all individuals are employed simply as an "engineman," namely, as a fireman who must also qualify (within a stipulated time) as an engineer. They point to rules of the applicable collective agreements which require a fireman to so qualify on penalty of losing his seniority as fireman and his employment with the Railroad, but they have not pointed to any rule which specifically provides that an individual must maintain his right to work as a fireman in order to retain his right to work as an engineer. On the other hand, the plaintiffs have not identified any rule in either of the collective agreements which states that any individual (particularly a fireman, after forfeiting that employment) has any distinct, separate right to continue in defendant Railroad's employment as an engineer. Rather, plaintiffs rely on Smith v. Baltimore & Ohio Railroad Co., D.C.S.D.Ohio, 1956, 144 F.Supp. 869, affirmed sub nom. Brotherhood of Railroad Trainmen v. Smith, 6 Cir.1958, 251 F.2d 282, for the proposition that any attempt by the BLF&E to affect their employment as engineers is contrary to the Railway Labor Act, and void.
Averring that all of the material facts are established beyond the possibility of genuine dispute, the defendants have moved for judgment under Rule 12(c), (d) and Rule 56, Federal Rules of Civil Procedure. Inasmuch as the court does find it necessary to refer to matters established by the depositions, exhibits, and stipulations, the court elects to proceed to summary judgment under Rule 56. Since this memorandum is designed to comprise the court's findings of fact and conclusions of law, proper but not required by Rule 52 of the Federal Rules of Civil Procedure (Griffith v. Baltimore & Ohio R. Co., D.C., 162 F.Supp. 809), a degree of particularity is desirable.
On5 August 26, 1946, plaintiff Shiels in Cause No. IP 58-C-49 was employed by defendant Railroad as a fireman, and he was promoted to engineer on February 11, 1956. Thereafter he performed service as one or the other until March 24, 1956, when he was dismissed. As to plaintiff Vernon, the respective dates are November 17, 1944, February 9, 1951, and March 23, 1956; and as to plaintiff Clark they are August 2, 1947, March 1, 1956, and March 28, 1956. In Cause No. IP 58-C-29 these dates in respect to plaintiff Hooser are October 21, 1939, November 8, 1942, and March 24, 1956; as to plaintiff Chace they are February 3, 1942, February 14, 1946, and March 24, 1956.
The membership records of the five plaintiffs in the Brotherhood of Locomotive Engineers (hereinafter referred to as "BLE") and in the BLF&E were duly stipulated. Those facts are tabulated as follows:
BLF&E BLE
Plaintiff Joined Expelled Joined Expelled
Hooser 3/5/40 8/2/49 8/11/49 6/30/52
11/10/54 12/31/54
Chace 3/21/42 4/2/42 8/12/53 6/30/55
6/16/42 10/2/42
2/9/46 9/2/52
Clark 12/15/47 12/2/48 Never a member
12/27/51 8/2/53
Vernon 11/19/44 5/2/49 Never a member
4/19/50 1/2/51
12/27/51 8/2/52
Shiels 9/29/46 10/2/48 11/10/54 5/31/56
12/16/48 9/2/52 1/1/58 Still a
member
On October 15, 1951, the BLF&E and the BLE, the respective bargaining representatives uunder the Railway Labor Act of the crafts of firemen and engineers on the defendant Railroad, entered into union shop agreements with defendant Railroad (Exhibit No. 1, pages 123-128, Luttman dep., p. 6; and Exhibit No. 1, pages 134-140, Scheid dep., p. 62). Although executed as separate agreements, the two were negotiated jointly, and are identical.6 Both agreements require that the employees become members within sixty calendar days after the effective date "and thereafter shall maintain membership in the Brotherhood." (Section 1) Membership in both the BLF&E and the BLE would thus appear to be required if employees were working part of the time as locomotive firemen and part of the time as locomotive engineers, but Section 2 of each agreement provides as follows:
"The requirements of membership provided for in Section 1 of this agreement shall be satisfied if any employee shall hold or acquire membership in any one of the labor organizations, other than the Brotherhood, national in scope, organized in accordance with the Railway Labor Act * * *"
There appears to have been no difficulty between the Brotherhoods about the joint application of the two agreements. If an engineman was a member of either the BLF&E or the BLE, neither of them legally could or would cite him; he would be considered as in compliance because of the provision in Section 2. But if he was not maintaining his membership in either organization,7 then he would be cited by the BLE if he was currently working as an engineer, or by the BLF&E if he happened to be working as a fireman. (McManus, p. 18). During the extended period of negotiations leading to these two agreements it was the understanding of the two organizations that a violation of either union shop agreement would have the consequence of dismissal and loss of seniority in both crafts. (McManus, p. 20.)
That is what happened to each of the plaintiffs, namely, while working as firemen, and then being non-members in any qualified labor organization "national in scope,"8 they were cited by the BLF&E for violation of the union shop agreement. Although the complaint in each case alleges that the plaintiffs were dismissed "solely because of an alleged failure" to comply with the union shop agreement of the BLF&E, the court finds that there is no genuine issue concerning the existence of a real violation by the plaintiffs of the BLF&E union shop agreement. It is known that the three plaintiffs in Cause No. IP 58-C-49 (Shiels, Clark and Vernon) intend no such issue because this court decided that exact issue against them in Cause No. IP 56-C-231 reported in Shiels v. Baltimore & O. R. Co., D.C.S.D.Ind.1957, 154 F.Supp. 917, affirmed 7 Cir., 254 F.2d 863; certiorari denied, 358 U.S. 846, 79 S.Ct. 71, 3 L.Ed.2d 80; rehearing denied 358 U.S. 896, 79 S.Ct. 155, 3 L.Ed. 123.9 The...
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