Allain v. Tummon

• Decision Date: 13 April 1954
• Docket Number: No. 10922.,10922.
• Citation: 212 F.2d 32
• Parties: ALLAIN v. TUMMON et al.
• Court: U.S. Court of Appeals — Seventh Circuit

212 F.2d 32 (1954)

ALLAIN v. TUMMON et al.

No. 10922.

United States Court of Appeals, Seventh Circuit.

April 13, 1954.

Burke Williamson, Jack A. Williamson, Chicago, Ill., Adams, Williamson & Turney, Chicago, Ill., Wayland K. Sullivan, Cleveland, Ohio, of counsel, for appellant.

Jacob N. Gross, Andrew C. Scott, Chicago, Ill., Eldon Martin, J. L. Rice, Chicago, Ill., for defendant-appellee.

Before DUFFY, LINDLEY and SCHNACKENBERG, Circuit Judges.

DUFFY, Circuit Judge.

This action was brought to enjoin the enforcement of an award and order of the National Railroad Adjustment Board, Third Division. The Brotherhood of Railroad Trainmen filed a cross-complaint for enforcement. The plaintiffs herein include four employees of the defendant railroad, who brought this suit individually and as representatives of a class of employees called "lounge or tavern car attendants." The defendants include the members of the National Railroad Adjustment Board, Third Division, the Western Pacific Railroad, and the Brotherhood of Railroad Trainmen which is the collective bargaining representative of the dining car stewards of the railroad. These defendants are hereinafter referred to as Board, carrier, and Brotherhood, respectively. The district court permanently enjoined the carrier from removing the four employees above-mentioned from their jobs as lounge or tavern car attendants on Trains No. 17 and No. 18. The court also dismissed the cross-complaint.

For some 25 years previous to the commencement of this suit, the class represented by the plaintiffs has handled lounge or tavern car work on the carrier's trains. During this period such employees have been represented by a union and have had a collective bargaining agreement with the carrier. For a shorter period the dining car stewards have also had a collective bargaining agreement with the carrier. The complaint alleged, and the evidence showed, that at no time previous to February 1, 1951, had dining car stewards (represented by the Brotherhood) been employed by the carrier in a lounge or tavern car.

On March 10, 1949, the carrier commenced operation of a new train known as the California Zephyr, also designated as Trains No. 17 and No. 18. Included in the equipment of each train was a car known as a lounge-buffet or buffet-dormitory car. Although regular meals or hot food were not served in such car, some food, such as salads and sandwiches, was served. The railroad placed a tavern car attendant in charge of said car.

Claiming that a dining car steward should be in charge of the lounge-buffet car, the Brotherhood submitted to the carrier a claim covering the loss of time for five dining car stewards. The railroad denied the claim. On December 27, 1949, the Brotherhood submitted to the Third Division of the Board a claim for pay for the hours of work lost by the dining car stewards. The Board gave no notice to the plaintiffs or their union of the pendency of the claim by the Brotherhood. The members of the Board could not agree on a decision, and a referee sat in the case. On November 30, 1950, the Third Division issued Award No. 5123, finding that "the agreement was violated," and declaring, "Claim sustained." Accompanying the award was an order directing the carrier "to make effective Award No. 5123, * * * as therein set forth; and if the award includes a requirement for the payment of money, to pay to the employee (or employees) the sum of money to which he is (or they are) entitled under the award on or before February 1, 1951."

As a result of Award No. 5123 and the accompanying order, plaintiffs lost their jobs as tavern car attendants in the lounge-buffet cars on Trains No. 17 and No. 18 (California Zephyr). The procedure was as follows: On January 5, 1951, the carrier posted a notice that on January 10, 11, and 12 it would discontinue serving food in the lounge-buffet cars of the California Zephyr. Thereupon plaintiffs were demoted to waiters and pantrymen in the dining car service, the pay scale for such jobs being lower than the pay scale for tavern car attendants. Thereafter the carrier posted a notice that on February 2, 1951, the job of tavern car attendant would be abolished on the California Zephyr. Effective on that date dining car stewards were placed in charge of serving food in the lounge-buffet cars. The instant suit was started on February 13, 1951, and on February 20, 1951, plaintiffs resumed their jobs as tavern car attendants, pursuant to the terms of a temporary injunction issued by the district court.

The district court held that the claim filed by the Brotherhood with the Board wherein it was sought to obtain for the dining car stewards the compensation then being paid by the carrier to the plaintiffs, had the necessary and practical effect of obtaining the lounge and tavern car attendants' jobs for said stewards. The court found that no notice of the claim of the Brotherhood was given to the plaintiffs or their union, nor did they have any knowledge thereof prior to the award. The court further found that the Board has followed a custom and practice of limiting notice of claims to the railroad brotherhood that files a claim and to the railroad against which the claim is filed, and that notice is never given to the individuals whose employment rights may be adversely affected if the claim is granted; that if plaintiffs or the minority union representing them had otherwise obtained knowledge of the pendency of said claim before said Board, and, as a result thereof, had appeared before said Board and endeavored to participate in said hearing, they would not have been permitted to file a written submission, offer testimony, cross-examine witnesses, make an argument in their behalf, or otherwise participate in said hearing.

The evidence clearly supports the foregoing findings of the trial court. In fact the Board makes no denial of the practice. Nevertheless the statute places upon the Board the duty of giving due notice of all hearings "to the employee or employees and the carrier or carriers involved in any disputes submitted to them." 45 U.S.C.A. § 153, first (j). It is well established that an award made by the Board in the absence of due notice to the involved parties is void and that its enforcement may be enjoined for that reason. Nord v. Griffin, 7 Cir., 86 F.2d 481, certiorari denied 300 U.S. 673, 57 S.Ct. 612, 81 L.Ed. 879; Hunter v. Atchison, T. & S. F. Railway Co., 7 Cir., 171 F.2d 594, certiorari denied, Shepherd v. Hunter, 337 U.S. 916, 69 S.Ct. 1157, 93 L.Ed. 1726; Hunter v. Atchison, T. & S. F. Railway Co., 7 Cir., 188 F.2d 294, certiorari denied Hunter v. Shepherd, 342 U.S. 819, 72 S.Ct. 36, 96 L.Ed. 619, rehearing denied, 342 U.S. 889, 72 S.Ct. 172, 96 L.Ed. 667; Missouri-Kansas-Texas R. Co. v. Brotherhood of R. & S. S. C., 7 Cir., 188 F.2d 302; Illinois Central Railroad Co. v. Whitehouse, 7 Cir., 212 F.2d 22. All of these decisions were by this court.

In previous opinions we have commented on the reluctance, or indeed the unwillingness, of the Board to give notice to all "employees involved" in disputes submitted to it. In the second Hunter case we said, 188 F.2d 294, 300: "In spite of adverse court rulings the Adjustment Board apparently persists in the practice of giving notice only to the named parties to a proceeding. In many cases such a notice is insufficient." In the Illinois Central case we said, ...