Evans v. Louisville & N. R. Co.

• Decision Date: 05 December 1940
• Docket Number: 13279.
• Citation: 12 S.E.2d 611,191 Ga. 395
• Court: Georgia Supreme Court
• Parties: EVANS et al. v. LOUISVILLE & N. R. CO. et al.

12 S.E.2d 611

191 Ga. 395

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

No. 13279.

Supreme Court of Georgia

December 5, 1940

Syllabus by the Court.

1. The Federal Railway-Labor Act, 45 U.S. C.A. § 151 et seq. does not vest in the National Railroad Adjustment Board exclusive jurisdiction to determine seniority rights of employees of a railroad under a collective bargaining contract, or provide such administrative remedies as must be exhausted by the complaining employees before bringing action in the courts to enforce their rights thereunder.

2. Seniority rights provided for under a collective bargaining agreement between a railroad and its employees will in proper case be protected by injunction in a court of equity.

3. A suit by engineers of a railroad against railroad and another engineer, to enjoin the railroad from according to a defendant engineer seniority rights prior to those of plaintiff's, stated no cause of action, and was properly dismissed on demurrer.

Four employees of the Georgia Railroad brought an equitable petition against the lessee railroads operating it, their agents in charge, and West, an engineer employee. One of the plaintiffs has, on his own motion made since the case appeared here and by consent of all parties, been stricken as a party to the case. The plaintiffs prayed for an injunction against carrying the name of West on the engineers' working board ahead of the names of plaintiffs, from publishing his name on the seniority roster ahead of their names, and against the operation of an engine by West, as an engineer, ahead of such right of operation by the plaintiffs. The court dismissed their action on general and special demurrers, and the plaintiffs excepted.

The plaintiffs made substantially the following allegations: On August 15, 1920, West was hired as a locomotive engineer, and served until December of that year, when he was laid off or furloughed in a reduction of the number of engineers because of a decrease in railroad traffic. The employment of West was under a collective bargaining agreement between the railroad and by or for its engineers and firemen, known as a schedule and controlling the employment, classification, seniority furlough, promotion, and working conditions of these employees. The rights of the parties depend upon a construction of certain provisions of this contract. The railroad published, by posting, lists or rosters of its engineers and firemen, on which the positions of these employees determined their priority as to certain privileges of employment and operation of runs or engines. The name of West, as a hired locomotive engineer, thus appeared on a posted engineers' roster with his seniority fixed as of August 15, 1920, the date of his employment; his name was carried on this roster until some time in 1923, when it was omitted; and West was not again employed until May, 1937. The traffic of the railroad increased to such an extent that in 1924 the services of additional locomotive engineers and firemen were required; that when West did not 'return to work during or about May, 1924, and on several occasions thereafter when his services were required, and his services were so required in May, June, and July, 1924, and in the same months of each year thereafter through 1936, the defendant company proceeded to promote your petitioners and others as * * * senior qualified firemen to the status of engineers * * * in accordance with the aforesaid agreement;' such promotions of two of the plaintiffs being in 1936 and of the other plaintiff in 1938 and being posted; their respective seniorities being fixed according to those dates. West did not protest the omission of his name from the engineers' rosters since 1923, or challenge the promotions of the plaintiffs or the positions of seniority to which they were assigned on the engineers' roster, and by reason of such omission and failures by West to present himself for re-employment when 'required' as stated, and to protest or challenge the actions and rosters of the railroad company with respect to the plaintiffs, he lost his seniority rights so far as their rights were concerned, and therefore, when he was again employed in May, 1937, his rights were subordinate to theirs, and the company violated the rights of plaintiffs under the collective bargaining contract in placing him again on the engineers' seniority list or roster as of the date of his 1920 employment, ahead of their names and with priority privileges ahead of their own.

Pertinent portions of the contract or schedule are as follows: 'Article XXII * * * (j) * * *.

'When, from any cause, it becomes necessary to reduce the number of engineers on the engineers' working lists on any seniority district, those taken off, if they so elect, displace any fireman their junior on that seniority district under the following conditions:

'1st. That no reductions will be made so long as those in assigned or extra passenger service are earning the equivalent of 4,000 miles per month; in assigned pool or chaingang freight or other service paying freight rates, are averaging the equivalent of 3,200 miles per month; on the road extra list are averaging the equivalent of 2,600 miles per month, or those on the extra list in switching service are averaging 26 days per month.

'2nd. That when reductions are made, they shall be in reverse order of seniority.

'When hired engineers are laid off on account of reduction in service, they will retain seniority rights; provided they return to actual service within 30 days from the date their services are required. This rule also applies to firemen.

'Engineers taken off under this rule shall be returned to service as engineers in the order of their seniority as engineers, and as soon as it can be shown that engineers in assigned or extra passenger service can earn equivalent to 4,800 miles per month; in assigned, pooled, chaingang or other regular service paying freight rates, the equivalent of 3,800 miles per month, or in extra service the equivalent of 3,800 miles per month.

'In the regulation of passenger or other assigned service, sufficient men will be assigned to keep the mileage, or equivalent thereof, within the limitation of 4,000 and 4,800 miles for passenger service, and 3,200 and 3,800 miles for other regular service as provided herein. If, in any service, additional assignments would reduce earnings below these limits, regulations will be effected by requiring the regular assigned man, or men, to pay off when the equivalent of 4,800 miles in passenger, or 3,800 miles in other regular service has been reached.

'Under this rule, it is understood that after all engineers who have been taken off have been returned to service as engineers, this rule shall not apply with respect to further additions. * * *

'(k) When vacancies occur, or new runs are inaugurated, they shall be bulletined on all boards for a period of 6 days. The oldest engineer and fireman in point of service will be entitled to go on such runs.

'(1) An engineer or fireman deprived of his regular run, for any cause, shall take a run within 15 days, if entitled to one, or remain on the extra board until another run of his choice is open. * * *

'Article XXIII. * * * (a) Preference in assignment shall be given to engineers, firemen and hostlers who have been longest in service, provided they are, in the judgment of the proper officers of the railroad, equal in merit, capacity and qualification to other men in the service. * * *

'(e) 1. Firemen shall rank on the firemen's roster from the date of their first service as firemen when called for such service except as provided in section 11, and, when qualified, shall be promoted to positions as engineers, in accordance with the following rules:

'2. Firemen shall be examined for promotion according to seniority on the firemen's roster, and those passing the required examination shall be given certificates of qualification, and, when promoted, shall hold their same relative standing in the service to which assigned. * * *

'4. As soon as a fireman is promoted, he will be notified in writing by the proper official of the company of the date of his promotion, and unless he files a written protest within 60 days against such date, he cannot thereafter have it changed. When a date of promotion has been established in accordance with regulations, such date shall be posted, and if not challenged in writing within 60 days after such posting, no protest against such date shall afterwards be heard. * * *

'6. The posting of notice of seniority rank, as per section 4, shall be done within 10 days after following date of promotion, and such notice shall be posted on every bulletin board of the seniority district on which the man holds rank.

'7. Firemen having successfully passed qualifying examinations shall be eligible as engineers. Promotion and the establishment of a date of seniority as engineer, as provided herein, shall date from the first service as engineer when called for such service, provided there are no demoted engineers back firing. No demoted engineer will be permitted to hold a run as fireman on any seniority district while a junior engineer is working on the engineers' extra list, or holding a regular assignment as engineer on such seniority district. * * *

'9. If the engineer to be hired is not available when needed, and the senior qualified fireman is promoted, the date of seniority thus...