Aulich v. Craigmyle

• Decision Date: 31 January 1933
• Citation: 59 S.W.2d 560,248 Ky. 676
• Parties: AULICH et al. v. CRAIGMYLE et al.
• Court: Kentucky Court of Appeals

59 S.W.2d 560

248 Ky. 676

AULICH et al. v. CRAIGMYLE et al.

Court of Appeals of Kentucky

January 31, 1933

As Modified on Denial of Rehearing May 16, 1933.

Appeal from Circuit Court, Kenton County, Criminal, Common Law and Equity Division.

Action by Hugh V. Craigmyle against A. H. Aulich and others. Judgment for plaintiff, and defendant named and others appeal.

Reversed.

White &amp Clark, of Hopkinsville, for appellants.

Rouse &amp Price and G. W. Hughes, all of Covington, and J. A Culbertson, of Cincinnati, Ohio, for appellees.

RICHARDSON J.

This appeal presents for determination the right of seniority of Hugh V. Craigmyle, an employee of the Louisville & Nashville RailroAD Company, over the other members of the Order of RailroAD Telegraphers.

In May, 1905, he entered the services of the railroAD company as a telegrapher on the Kentucky Division, and continued until January, 1913, when he was promoted to train dispatcher on the Eastern Kentucky Division, with heADquarters at Jackson, Ky. In April, 1916, he experienced a nervous breakdown, when he surrendered his position as train dispatcher and returned to his home division, known as the Kentucky Division, where he worked as telegrapher until April, 1917, when that part of the Kentucky Division known as the Cincinnati Terminal was separated from the Kentucky Division into a different seniority division. He was employed on the Cincinnati Terminal Division as a telegrapher from May 1, 1917, until May, 1918, when he was called to Louisville, Ky. as a relief dispatcher, serving in that capacity until September 4, 1918, when a special position of copyist was created for him by the chief dispatcher. He occupied this position until May, 1919, working 112 days as a dispatcher and 104 days as a copyist-telegrapher. From May 1, 1919, until May 27, 1921, he served as a dispatcher in the office of the chief dispatcher of the Louisville, Cincinnati & Lexington Division, until this position was abolished, when he returned to the Cincinnati Terminal Division and asked to be reinstated at his service age. At that time, the railroAD company ADvised him that unless the Order of RailroAD Telegraphers would agree to have his service age recognized he would have to enter as a new employee, to which he strenuously objected. He returned to Louisville and worked five days as a telegrapher. In July, 1921, he returned again to the Cincinnati Terminal Division and re-entered the service as a telegrapher and continued in service on this division until November, 1930, when he was retired because his seniority hAD not been recognized by the Order of RailroAD Telegraphers prior to his re-entry of the service on the Cincinnati Terminal Division in July, 1921. Between May, 1918, and July, 1921, while Craigmyle was serving as special dispatcher on the Louisville, Cincinnati & Lexington Division, the Order of RailroAD Telegraphers was organized and recognized by the railroAD company. The Order of RailroAD Telegraphers is a voluntary association, composed of wire chiefs, telegraphers, telephone operators (except switchboard operators), agent telegraphers, tower men, lever men, tower and train directors, block operators, operators of mechanical telegraph machines, and telephone men, employed by, and working on, the various railroAD systems, operating railroADs throughout the United States of America, for the purpose of collective bargaining with their employers, through arrangements mADe by its regular elected officers for and in behalf of such employees. The order is divided into certain branches so that the named employees working together for any railroAD system are associated together in one division. The employees of the Louisville & Nashville RailroAD Company, throughout its entire system of railroADs, are grouped together under the name of RailroAD Telegraphers' System Division No. 56. The order was formed under the laws of the United States of America, and it acts through its authorized and elected officers. It does not enter into any contract for, or on, its own behalf with the railroAD companies. It merely persuADes and induces the railroAD companies to consent to its certain prescribed rules and regulations and conditions of employment, which become a part of the terms of employment of all persons working for the railroAD company in the capacity of the employments named, who are members of the association. Prior to the organization of the Order of RailroAD Telegraphers in the year 1919, there was no binding agreement as to seniority of employees in the telegraph department, but the employees and the Louisville & Nashville RailroAD Company recognized service age, or seniority, everything being equal, the railroAD company reserving for itself the final discretion as to whether it would or would not apply the rule of seniority. Prior to that year the railroAD company refused its men the right to organize and engage in collective bargaining. An agreement in 1919 was the first contract ever mADe between the Louisville & Nashville RailroAD Company and its employees in the telegraph department. When the railroAD was under federal control, the right of collective bargaining was recognized, when an agreement was mADe by Starks in behalf of the employees and Mapother in behalf of the railroAD company. After federal control terminated, the railroAD company agreed and continued to recognize the Order of RailroAD Telegraphers. In its by-laws of 1919, article 8, section M, was written in this language: "Service age will be dated from the last time of entering the service on the division." On the authority of this section, the Order of RailroAD Telegraphers denied his right to seniority, dating from 1905, and the railroAD company because of its consent for its employees to organize under their own rules and regulations, refused to recognize Craigmyle's claim to seniority by virtue of his service as its employee, beginning in the year 1905. In March, 1924, Craigmyle became a member of the Order of RailroAD Telegraphers and continued a member thereof, up to, and including, 1929, insisting all the time that he was entitled to his seniority dating from the beginning of his service with the railroAD company in 1905. He continued to be employed on the Cincinnati Terminal Division until November, 1930, at which time the railroAD company not needing his services placed him on the extra list and retired him from regular duty. In the meantime Craigmyle applied to the Order of RailroAD Telegraphers for a hearing on his right to seniority, because of his service with the railroAD company from 1905. It decided ADversely to him. He protested in writing to the Order of RailroAD Telegraphers against its disregard of his claim to the right of seniority, still claiming that his right of seniority dated from his first entry into the service of the railroAD company in May, 1905. A roster carrying his name was published every six months from July, 1921, until he was retired, showing the date of his seniority to begin July, 1921, the date of his return to the Cincinnati Terminal.

He filed this action, asserting his right to seniority, dating from his first entry into the service of the railroAD company in 1905, and challenged the right of the Order of RailroAD Telegraphers to deny to him his seniority, arising by virtue of his employment from 1905. The railroAD company recognizes the by-laws of the Order of RailroAD Telegraphers and presents itself reADy and willing to comply with whatever disposition of the question presented that may be mADe by the Order of RailroAD Telegraphers or the court. The Order of RailroAD Telegraphers insists that the seniority, or service age, of its members--the employees on the Cincinnati Terminal Division--must date from the last time of their entering the service on the Cincinnati Terminal Division. Craigmyle insists that it was the custom of the Louisville...