Anderson v. Twin City Rapid Transit Co., 37045

• Decision Date: 05 July 1957
• Docket Number: No. 37045,37045
• Citation: 250 Minn. 167,84 N.W.2d 593
• Parties: John ANDERSON et al., Respondents, v. TWIN CITY RAPID TRANSIT CO. et al., Appellants.
• Court: Minnesota Supreme Court

Page 593

84 N.W.2d 593

250 Minn. 167

John ANDERSON et al., Respondents, v. TWIN CITY RAPID TRANSIT CO. et al., Appellants.

No. 37045.

Supreme Court of Minnesota.

July 5, 1957.

Syllabus by the Court.

1. The words 'layoff' and 'discharge' in common parlance and in industrial parlance have a normal meaning and therefore the use of one and not the other in a contract is sufficiently clear in purpose to escape the charge of ambiguity.

2. A 'layoff' is a termination of employment at the will of the employer without prejudice to the worker. A 'layoff' may be due to lack of orders, materials, or to changeovers or transfers and promotions of employees.

3. A 'discharge' is the termination of employment at the will of the employer with prejudice because of some fault on the part of the worker or on some other ground upon which the employer chooses to base his right of action in effecting the discharge. It presumptively means that the employer no longer needs or desires the employee's services; that he is done with him; and that all contract relations between them are at an end.

4. In the instant case where only the word 'layoffs' was used with the words 'transfers' and 'promotions,' leaving out the word 'discharge,' we apply the rule that the expression of one thing is the exclusion of another; that the express enumeration of one or more instances of many belonging to the same class impliedly excludes the other; and that the expression in the contract here under consideration of one or more things of a class implies the exclusion of all not expressed.

5. Any attempt to construe the word 'layoffs' as also applying to and including 'discharge' of employees as used in the contract between the parties herein would result in the creation of an exception which would modify the contract. Courts are required to apply the clear provisions of an agreement or contract as they find it.

6. Where the contractual language is clear and unambiguous there is no room for construction. It is only where ambiguity exists that courts are required to resort to construction, and where language is plain and unambiguous the contract must be enforced as written since courts are not permitted to write contracts for parties.

7. It is not ordinarily the function of courts to rewrite, modify, or set aside contract provisions fully considered and agreed upon between the contracting parties.

8. We conclude from the record submitted that, whether plaintiffs were bound by the conversion-board clause of the contract or not, they have repudiated it by commencing their lawsuit and that defendants have waived and repudiated it by answering to the merits, and by delay, without a demand for arbitration or a motion to stay the suit until arbitration could be had. The conduct throughout of both plaintiffs and defendants constituted an effective rejection of the right to arbitrate, and a waiver thereof, if any such right theretofore existed with regard to the discharge of employees.

9. Waiver is a doctrine which applies to all rights and privileges to which a person is legally entitled and is either the result of an intentional relinquishment of a known right or an estoppel from enforcing it. It is essentially unilateral and results as a legal consequence from some act or conduct of the party against whom it operates, without any act of the party in whose favor it is made being necessary to complete it. A waiver, once established, is irrevocable even in the absence of any consideration therefor since no consideration is required to support a waiver.

10. In passing upon a motion for summary judgment, it is no part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried; all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment, and when that situation arises all reasonable intendments and inferences from the pleadings are, as a matter of law, to be taken against the movant and in favor of the opponent. Amotion for summary judgment should be denied if under the evidence reasonable men might reach different conclusions.

11. The conclusions of the trial court that a genuine dispute exists as to certain fact issues between plaintiffs and defendants approved.

Clarence O. Holten, James E. Dorsey, Minneapolis, Dorsey, Owen, Barker, Scott & Barber, Minneapolis, of counsel, for appellants.

Harry H. Peterson, Minneapolis, F. L. Palarine, St. Paul, for respondents.

NELSON, Justice.

This action by 33 former employees of defendants for breach of their employment contract was brought against the Twin City Rapid Transit Company, Minneapolis Street Railway Company, The St. Paul City Railway Company, The Minneapolis & St. Paul Suburban Railroad Company, Twin City Motor Bus Company, and The Transit Supply Company.

The defendant companies are engaged in the general public transportation business as carriers of passengers for hire over the streets and highways of St. Paul and Minneapolis and contiguous suburban areas. The defendants other than the defendant Twin City Rapid Transit Company are wholly owned, controlled, and operated subsidiaries of the Twin City Rapid Transit Company. The plaintiffs are all members of the Twin Cities Division 1005, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, which had been duly selected by the members thereof to be their bargaining representative in all matters between them and the defendants pertaining to their employment.

Early in 1953, amendments to the existing employment contract between the parties were agreed upon and adopted to cover the conversion from streetcars to busses. The contract as then amended provided for the use of a 'conversion board' as follows:

'A board, consisting of one member chosen by the Company and one by the Union, Shall determine all questions with respect to the transfer of any employe from the Snelling Shops, Car Houses, Power Department and Track Department into the Bus Garage Mechanical Department, and lay-offs and promotions within such departments that may arise, pertaining to seniority, qualifications or other disputes in connection with the conversion affecting the employes in the above mentioned mechanical departments * * *. If the two members so chosen are unable to agree, a third member agreed upon by the two members shall be appointed, or if they are unable to agree on the third member, the third member shall be chosen from a panel of 5 submitted by the Minnesota State Labor Conciliator, * * *.' (Italics supplied.)

The contract further provided:

'An employe in any department that may be consolidated or abolished because of the conversion from street car to bus operation, * * * shall be allowed to exercise his seniority, if qualified, to transfer to any other job doing work of a similar nature in another department. The period of employment for determining the seniority of such employe shall commence with the date of his hire for continuous service with the Company in the department from which he is to be transferred.'

Apparently, because of these amendments being made and because of the setting up of a conversion board, it was agreed that:

'There is to be no arbitration clause such as contained in Article 15 of the old contract, or as referred to in any other Article of the contract heretofore existing between the parties.'

Another provision which was a part of the contract and which preceded in order of recital the provisions for the establishment of a conversion board, reads as follows:

'The employes required to operate Snelling Shops, Car Houses, Power Department and Track Department, until the discontinuance of street car operations, will be protected and provided with jobs where they can be fitted into the operations. They must bid on the jobs as they are posted to preserve any right to transfer to the Bus Garage. When an employe bids for a vacancy the Company may request that he stay on the job at which he is working. In the event the employe does so, then upon termination of street car operations, such employe shall be entitled to a position for which he is qualified, according to seniority based on date of hire, and shall have a right to replace a man with lower seniority if there is no vacancy.

'The Company shall not be required to create jobs for employes for whom they have no need.' (Italics supplied.)

Other contract changes deal with wage increases, pension benefits, permanent disability, and vacations.

It would appear that the purpose and function of the conversion board was the determination of all questions with respect to transfer of employees from the Snelling Shops, etc. into the Bus Garage Mechanic Department and layoffs and promotions within such departments that might arise pertaining to seniority, qualifications, or other disputes in connection with the conversion affecting the employees in the mechanic departments, and thus limited to the employees the purposes and the area of operations therein specifically designated. In other words, the establishment of this conversion board would provide a means of effecting transfers, layoffs, and promotions in the mechanic department designated therein including also other disputes that might arise in connection with the conversion affecting the said employees in the mechanic department.

The plaintiffs allege in their complaint that they are the beneficiaries of the contract as amended; that the defendants 'wrongfully, fraudulently, wilfully, wantonly, maliciously and unlawfully, agreed, conspired and joined together to break the said contract by discharging plaintiffs from their said employment and thereby to deprive them and to deny them their rights and privileges under the terms of said contract of employment with respect to all the rights, privileges and benefits above enumerated; and that pursuant to said agreement and...