Steele v. Louisville & N. R. Co.

• Decision Date: 13 January 1944
• Docket Number: 6 Div. 153.
• Citation: 16 So.2d 416,245 Ala. 113
• Court: Alabama Supreme Court
• Parties: STEELE v. LOUISVILLE & N. R. CO. et al.

16 So.2d 416

245 Ala. 113

STEELE v. LOUISVILLE & N. R. CO. et al.

6 Div. 153.

Supreme Court of Alabama

January 13, 1944

Arthur D. Shores, of Birmingham, and Charles H. Houston and Jos. C Waddy, of Washington, D. C., for appellant.

Chas. H. Eyster, of Decatur, and White E. Gibson of Birmingham, for appellee Louisville & N. R. Co.

Lange Simpson, Brantiry & Robinson and John W. Lapsley, all of Birmingham, for appellee Brotherhood.

GARDNER, Chief Justice.

Complainant Steele filed this bill against the Louisville & Nashville Railroad Company, a corporation, the Brotherhood of Locomotive Firemen and Enginemen, an unincorporated association, and named individuals connected with the latter association. To the bill as last amended, which in fact is a substitute for the original bill, demurrers of the several defendants were sustained and the bill dismissed. From this decree the complainant prosecutes this appeal.

The argument of counsel for the respective parties has assumed a rather wide range, but we think the discussion here may be brought within a narrow compass. Omitting any detailed recital of the bill's averments, the salient facts are as follows:

Complainant is a Negro fireman, in the employ of the Louisville &amp Nashville Railroad since 1910, competent and rendering satisfactory service. Prior to the passage of the Railway Labor Act, and down to April 8, 1941, he had been serving as a fireman on a passenger train, assigned to what is known as the "South End Passenger Pool." This was a highly preferable job for a fireman. On April 1, 1941, the jobs of this particular pool were bulletined for "bidding in" because the number of firemen in the pool had to be reduced due to reduction in mileage, but by virtue of a contract entered into between the defendant Railroad and the Brotherhood of Locomotive Firemen and Enginemen in February 1941, subsequently modified in May, 1941, complainant was thrown out of work for a period of sixteen days (April 8 to April 24, 1941), and firemen who were members of the Brotherhood given the preference. On April 25, 1941, he was given a job on a local freight run, less desirable as to the character of work and less remunerative. In December following, he was placed as fireman on a switch engine, and worked in that capacity until January 3, 1942, when he was re-assigned to his original place in the South End Passenger Pool.

Negro firemen are ineligible to membership in the defendant Brotherhood. Negroes are not employed on railroads as locomotive firemen except in the South. On the defendant Railroad there are four seniority districts, known as the South and North Alabama Division, the Montgomery and Mobile Division, the Mobile and New Orleans Division, and the Pensacola Division. On these four divisions Negro firemen are in the majority, but constitute a minority of the total number of firemen employed by the defendant Road. The Negro firemen and the Brotherhood firemen together comprise the entire craft or class of firemen employed by the Railroad. The defendant Brotherhood is the representative of the entire craft or class of firemen with the defendant Road, and is so accepted by complainant and the other Negro firemen. Complainant's employment is individual, and he asserts no seniority rights by virtue of any individual contract with the defendant Road.

As we understand the bill, with its exhibits, complainant's claim for seniority rights arose out of the agreement entered into between the defendant Road and the Locomotive Firemen and Hostlers on March 1, 1929. This agreement contains express stipulation that "the rates, rules, and working conditions as provided herein, shall be continued in effect, subject to 30 days' written notice by either party." Subsequently, as above noted, the defendant Brotherhood, under the Railway Labor Act, 45 U.S.C.A. §§ 151-188, became the representative for the entire craft of firemen, and entered into an agreement with the defendant Road which considerably curtailed seniority rights of complainant, and which gave ground for the selection of others, members of the Brotherhood, in his stead.

It further appears from the bill that locomotive engineers are obtained by promotion of selected white locomotive firemen. This is the existing railroad practice in the United States. To quote from the bill: "By traditional and universal railroad practice in the United States Negro firemen arbitrarily are never promoted to engineers regardless of knowledge, experience, competency, and worth." The bill further shows, to distinguish between white firemen as a class and Negro firemen as a class, the white firemen are known under standard railroad practice as "promotable men" while the Negro firemen are known as "non-promotable men."

On March 28, 1940, the defendant Brotherhood gave due notice to the various railroads involved, including this defendant Road, of a request for the establishment of rules governing the employment and assignment of locomotive firemen and helpers. This change in the previous agreement brought about the restrictions to non-promotable firemen and privileges to promotable firemen which worked to complainant's disadvantage as indicated. This was in March, 1940, and the formal agreement was entered into nearly a year thereafter in February, 1941.

The bill seeks injunctive relief against the enforcement of this agreement, which, as we view it, is in effect a bill for the specific performance of the agreement of March, 1929. Hewitt v. Magic City Furniture & Mfg. Co., 214 Ala. 265, 107 So. 745, 44 A.L.R. 1441; Donovan v. Travers, 285 Mass. 167, 188 N.E. 705.

In substance and effect the present bill appears to be the same as that presented by counsel for complainant here to the District Court of the United States for the Western District of Tennessee, which was disposed of upon the theory that no Federal question was properly presented. Teague v. Brotherhood of Locomotive Firemen and Enginemen, 6 Cir., 127 F.2d 53.

The recent cases of Switchmen's Union v. National Mediation Board, 64 S.Ct. 95, 88 L.Ed. ----; General Committee, Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas Railroad Co., 64 S.Ct. 146, 88 L.Ed. ----; and General Committee, Brotherhood of Locomotive Engineers v. Southern Pacific Co., 64 S.Ct. 142, 88 L.Ed. ---, have been called to our attention, but we are persuaded that the court was dealing only with the matter of the question of representation, and these authorities are here considered of no controlling importance.

Reverting to Teague v. Brotherhood of Locomotive Firemen and Enginemen, supra, we may add that the court in its opinion refers to the fact that in the last analysis complainant's seniority rights must rest upon contract, and that so far as the Fifth Amendment is concerned, it relates only to governmental action and not to action by private persons. This observation should suffice, without further elaboration, as an answer to the constitutional question argued in brief.

So far as concerns the defendant Railroad, it has been definitely determined that the Railway Labor Act, 45 U.S.C.A. §§ 151-188, placed a mandatory duty upon the Railroad to treat with the representative of the employees and with that representative only. Virginian R. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 601, 81 L.Ed. 789. And for a willful failure, a rather heavy penalty is imposed. And under Sec. 152, 45 U.S.C.A., it is provided that the majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes therein named. In Virginian R. Co. v. System Federation, supra, it was pointed out in the opinion that the act did not purport to preclude individual contracts which the Railroad may elect to make directly with individual employees. "It imposes the affirmative duty to treat only with the true representative, and hence the negative duty to treat with no other." See also 31 Am. Jur. page 899. Speaking as to the purpose of the Act in the Virginian Railway case, the court further observed: "More is involved than the settlement of a private controversy without appreciable consequences to the public. The peaceable settlement of labor controversies, especially where they may seriously impair the ability of an interstate rail carrier to perform its service to the public, is a matter of public concern." In the instant case the Brotherhood was the true representative, with which the Railroad was under duty to confer and negotiate.

In Shaup v. Grand International Brotherhood of Locomotive Engineers, 223 Ala. 202, 135 So. 327, we made reference to the seniority rights which arose by virtue of the agreement between the Brotherhood and the Railroad, subject to be vacated just as were complainant's seniority rights under the 1929 agreement, where we observed that such a right was somewhat intangible and could not be denominated a vested property right. We indicated, however, that an unlawful invasion or interference therewith by a third person would constitute a wrong of which the courts would take cognizance; citing United States Fidelity & Guaranty Co. v. Millonas, 206 Ala. 147, 89 So. 732, 29 A.L.R. 520. They cannot be vested property rights in the true sense, for the simple reason that they are subject to be modified or taken away entirely upon due notice, in accordance with the very terms of the contract.

As we have observed, the bill admits that complainant recognizes the defendant Brotherhood as its representative for collective hargaining with the Railroad. The Brotherhood therefore, had a right to enter into the agreement of February, 1941, which modified to complainant's detriment the agreement of 1929. In Hartley v. Brotherhood...