Texas & NOR Co. v. Brotherhood of Ry. and Steamship Clerks

• Decision Date: 10 June 1929
• Docket Number: No. 5406.,5406.
• Parties: TEXAS & N. O. R. CO. et al. v. BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, etc., et al.
• Court: U.S. Court of Appeals — Fifth Circuit

33 F.2d 13 (1929)

TEXAS & N. O. R. CO. et al. v. BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, etc., et al.^*

No. 5406.

Circuit Court of Appeals, Fifth Circuit.

June 10, 1929.

J. H. Tallichet, C. R. Wharton, and C. L. Carter, all of Houston, Tex., and W. B. Spencer and Victor Leovy, both of New Orleans, La. (C. L. Carter, Calvin B. Garwood, and John P. Bullington, all of Houston, Tex., on the brief), for appellants.

Carl G. Stearns and John H. Crooker, both of Houston, Tex., and Donald R. Richberg, of Chicago, Ill. (Fulbright, Crooker & Freeman, and T. H. Cody, all of Houston, Tex., on the brief), for appellees.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

The original bill in equity in this case was filed on July 25, 1927, by the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, Southern Pacific Lines in Texas and Louisiana (herein referred to as the brotherhood), a voluntary association consisting solely of railway clerks in the employ in the states of Texas and Louisiana of the Texas & New Orleans Railroad Company (herein called the railroad company), and H. W. Harper, in behalf of themselves and others of the class composed of railway clerks in the employ of the railroad company in the states of Texas and Louisiana, against the railroad company and named officers and agents of it. By an amendment of the bill, the railroad company became the sole party defendant. The bill contained allegations to the following effect: Since its organization in September, 1918, the brotherhood has been authorized by a majority of the railway clerks in the employ of the railroad company to represent them in all matters relating to their employment, and that representation was recognized by the railroad company in dealings between it and such railway clerks before and after the beginning of a controversy as to wages between the railroad company and such clerks, following the application of such clerks, made in November, 1925, by the brotherhood as their representative, for an increase of wages, and after the denial of that application by the railroad company and the reference of that controversy by the brotherhood to the United States Board of Mediation. While that controversy was pending before that board, the railroad company undertook, instigated, and encouraged the formation of a so-called "Company Union" of railway clerks in the employ of the railroad company, to be known as "the Association of Clerical Employees — Southern Pacific Lines" (herein called the association), and, through the railroad company's named general officers and agents having and exercising supervisory and directory powers over members of the brotherhood, endeavored in ways stated to influence, intimidate, and coerce members of the brotherhood to withdraw from it, and to make the association their representative in dealings with the railroad company in all matters relating to their employment, and by such means to prevent the railway clerks in the employ of the railroad company in Louisiana and Texas from freely, and without interference, influence, or coercion, designating, by collective action, their representative in dealings with the railroad company in reference to their employment. Pursuant to the prayer of the bill, and after a hearing following the issuance and service of a notice to show cause, the court, on August 3, 1927, issued a temporary injunction, which ordered:

"That the defendant Texas and New Orleans Railroad Company (a corporation and common carrier owning, leasing, and operating certain railroads throughout the States of Texas and Louisiana), its officers, servants, and agents are hereby enjoined and restrained from in any way or manner interfering with, influencing, intimidating, or coercing plaintiffs or any of the approximately seventeen hundred clerical employees (and being the clerical employees described and referred to in plaintiffs' petition, which includes approximately seventeen hundred railroad clerks in the employ of the defendant Railroad Company on its lines throughout the States of Texas and Louisiana, except such clerical employees as are employed and engaged in its general office in the City of Houston, Texas, and in its general office in the City of New Orleans, Louisiana), with respect to their free and untrammeled right of selecting or designating their representatives for the purpose of considering and deciding any and all disputes between said clerical employees and the defendant Railroad Company; and further enjoining and restraining said defendant Railroad Company, its officers, servants, and agents from in any way or manner interfering with, influencing, intimidating, or coercing plaintiffs or any of said clerical employees herein referred to of their free and untrammeled right of self-organization.

"Nothing in this injunction shall be considered or construed as authority to prevent any employee of said defendant Railroad Company, in the class referred to, from organizing, joining, promoting, or fostering as many unions as he or they (meaning such employees in the class referred to) may desire, and in any way which he or they may desire, and with the assistance and aid of any of his fellow employees in any way and to any extent that said fellow employees (in the class referred to) may desire; nor shall anything in this injunction be considered or construed as authority or permission for any officer or agent of said company, or any employee, acting for or on behalf of the defendant Railroad Company, attempting to influence or to interfere with said selection or designation of their said representatives, or their right to self-organization as herein referred to, upon any pretext that they are acting individually and not as representatives of said defendant corporation."

In October, 1927, contempt proceedings were instituted by an information which charged sundry violations of the injunction by the railroad company acting through its authorized officials and agents. Evidence in support of the allegations of the information included evidence to the effect that, after the injunction was issued, the railroad company, acting through agents authorized by it, brought to bear upon clerks in its employ who were members of the brotherhood, or eligible to membership therein, influence and pressure, including promises and threats, to induce such employees to renounce the brotherhood as the representative of such clerks in dealings with their employer as to rates of pay, rules, and working conditions, and to consent to the association being the representative of such clerks in such dealings; permitted employees to devote their time and services to activities for the association without deduction from their pay while they were so engaged, but docked the pay of employees who were members of the brotherhood for time used in the service of the brotherhood, deprived of passes employees who, while on leave of absence without pay, acted as officers of the brotherhood, and dismissed from the service employees who acted for the brotherhood, because they so acted; and formally recognized and dealt with the association as the sole authorized representative of such clerks in dealings with the railroad company as to wages and working...