Louisville & Nashville Railroad Company v. Brown, 16632.

• Decision Date: 24 January 1958
• Docket Number: No. 16632.,16632.
• Citation: 252 F.2d 149
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. J. M. BROWN, Jr., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

252 F.2d 149 (1958)

LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. J. M. BROWN, Jr., et al., Appellees.

No. 16632.

United States Court of Appeals Fifth Circuit.

January 24, 1958.

White E. Gibson, Jr., James A. Simpson, Robert McD. Smith, Birmingham, Ala., Lange, Simpson, Robinson & Somerville, Gibson & Gibson, Birmingham, Ala., H. G. Breetz, Louisville, Ky., Reid B. Barnes, Birmingham, Ala., of counsel, for appellant.

R. Macey Taylor, Erle Pettus, Jr., Frank O. Burge, Jr., Birmingham, Ala., for appellees, Jackson, Rives, Pettus & Peterson, Birmingham, Ala., of counsel.

Before BORAH, TUTTLE and CAMERON, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal by the Louisville and Nashville Railroad Company from a judgment for the fourteen defendants, its employees, in a suit it had filed for damages resulting from their alleged fomenting of a strike that shut down for three days the plaintiff's railroad operations in Jefferson County, Alabama, (including the Birmingham yards.) Appellant railroad did not seek an injunction against the defendants. No labor organization is a party to the litigation. The alleged strike, if such it was, was charged in the complaint to be the result of the actions of the individual defendants acting alternatively singly or in concert, not authorized by any railroad brotherhood.

The complaint was in three counts. Each of them was short and to the point.¹ Count One asserts that defendants were employes and that as such they were charged by the provisions of the National Railway Labor Act, 45 U.S.C.A. §§ 151, 152 et seq. with the duty of exerting all reasonable effort to settle all disputes between themselves and their carrier employer in order to avoid interruptions of interstate commerce; that they breached this "statutory duty" in that they "wilfully and maliciously" caused a shutdown or work stoppage on appellant's lines in stated areas of Alabama to appellant's damage, amounting to $250,000.

Count Two alleged that defendants were parties to an agreement between their brotherhood and appellant covering their employment and that of all the members of the brotherhood, and that under its terms all grievances or disputes were to be settled through grievance procedures; that defendants conspired to, and in combination did, wilfully and maliciously cause a breach of the agreement by refusing to follow the specified procedure on the occasion of a dispute or grievance, but rendered the agreed procedure impossible by undertaking to force appellant to yield to their demands and interfered with the contractual relations between appellant and its 2,500 employes by wilfully and maliciously causing a shutdown or work stoppage on appellant's railroad in Jefferson County, Alabama, to the same damage of appellant.

The Third Count, as finally construed by the Court, without relying on either the Federal Act or the employment agreement, simply alleged that defendant employes entered into a conspiracy in Jefferson County, Alabama, for the purpose of hindering and preventing plaintiff's interstate commerce carrier from carrying on its lawful business, and that they did so by wilfully, maliciously and without cause, forcing a shutdown of plaintiff's operations, damaging plaintiff in the sum of $250,000.

Defendants filed motions to dismiss each count for failure to state a claim on which relief could be granted, and on the ground that the District Court had no jurisdiction, by reason of the availability of an administrative remedy under the Railway Labor Act, supra. The court sustained these motions to the first two counts on the latter ground. It held Count Three "defective" and sustained the motion, allowing plaintiff the right to file an amendment to this count.

The amended Count Three,² on which trial to a jury was subsequently had, differed from the original only in that it charged that in causing the other employes not to perform their duties with plaintiff, defendants did so "by means of intimidation or threat of force or violence." As thus amended the count was permitted to stand.

On its appeal here the railroad company assigns as error the ruling of the trial court in dismissing the three original counts and thus "requiring" it to allege and prove threats, intimidation or violence to stay in court. It also assigned numerous other grounds relating to matters that arose on the trial.

There is one basic question underlying the entire case which must be resolved initially, and when it is disposed of some of the other troublesome questions are eliminated. The question, as we view it, is this:

Has the federal trial court, in a diversity case, jurisdiction of a suit for damages by a railroad company against its employes who foment and participate in a strike over individual grievances which are in process of adjustment under the statutory and contractual grievance procedures, but which grievances have not yet been submitted to the National Railway Adjustment Board, because the pre-submission procedure, as called for in the Act and also by the employment contract, has not been completed?

The appellees concede that when a dispute between individual employes and a railroad of the nature here involved — frequently known as "minor dispute" — has actually been submitted to the Adjustment Board, the railroad may enjoin a strike conducted by the brotherhood to vindicate such rights. This was the express holding by the Supreme Court in Brotherhood of Railroad Trainmen, etc. v. Chicago River & Indiana R. R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622.

Appellees contend that a strike to vindicate such rights may not be enjoined unless the jurisdiction of the Adjustment Board has already attached. In support of this limitation on the applicability of the principle of the Chicago River case they cite Manion v. Kansas City Terminal Transportation Co., 353 U.S. 927, 77 S.Ct. 706, 1 L.Ed.2d 722.

The case we have to decide does not fall squarely into the pattern of either of these cases. We conclude that in all essential characteristics, and in logic it much more nearly resembles Chicago River than Manion. The court in the former case called attention to the purpose of the National Railway Labor Act, using the following language:

"This record referring to the legislative history of the Act is convincing that there was general understanding between both the supporters and the opponents of the 1934 amendment that the provisions dealing with the Adjustment Board were to be considered as compulsory arbitration in this limited field. Our reading of the Act is therefore confirmed, not rebutted, by the legislative history." Brotherhood of Railroad Trainmen etc. v. Chicago River & Indiana Ry. Co., 353 U.S. 30, 77 S.Ct. 635, 640.

The court found that it would completely frustrate the jurisdiction and authority of the board, to which either party is entitled to take a dispute, if the economic pressure of a strike could be brought to bear to compel a favorable decision while the matter was pending for decision before the board. Here there was no issue pending before the board, because the issue was not ripe for presentation to it. The statute requires that disputes be processed by normal grievance procedures,³ but if no agreement is reached, then either party may refer the dispute to the Adjustment Board.

Obviously the statutory right of either party to refer the dispute to the board would be as effectively frustrated by self-help by one of the parties in the pre-submission stage of the negotiations as it would by strike action after a submission of the issues to the board as in the Chicago River case. The harmful effects would be even more pronounced, for if a strike were permitted before or during negotiations of the grievance which are required by the Act, there need be no waiting period at all. It is not believed that the Supreme Court would make illegal a strike commenced after grievance procedure had been completed and appealed to the board in accordance with the statutory provisions, in order to preserve the jurisdiction of the board, but would hold that a strike would be legal if it occurred before the first step had been taken, or, as here, before the first step had been completed. A strike at either stage would effectively nullify the provisions of the Act that guarantee to either party an assurance of a board hearing.

What we have said here does not run counter to the Court's per curiam disposition of the Manion case 353 U.S. 927, 77 S.Ct. 706. There the state court had granted an injunction to prevent a strike after the grievance procedures had been completed and after more than six months had elapsed, during which time either party to the dispute could have referred the matter to the Board. The court reversed the judgment of the state court of appeals affirming the grant of the injunction, "because the dispute here is not pending before the National Railroad Adjustment Board," but in remanding the cause the court did so "without prejudice to the power of the Court of Appeals to reinstate its judgment if the dispute is submitted to the Adjustment Board by either party within a reasonable time." (Emphasis added.)

In the case before us neither party could submit the dispute to the Adjustment Board at the time of the alleged strike; thus there was no way in which the appellant here could protect its right to a board Adjudication. In Manion all the railroad company had to do on remand, in order to be entitled to a renewal of the injunction, was to submit the dispute to the Board, because all pre-submission proceedings had been completed. Here the dispute was only a few days old when the work stoppage occurred and neither party could go to the board. We think that in that posture of affairs the principle of Chicago River would apply, and that had an injunction been sought because the strike was illegal, it would lie to prevent the frustration of the statutory grievance-adjustment...