Beeler v. Chicago, RI & P. Ry. Co.

• Citation: 169 F.2d 557
• Decision Date: 17 August 1948
• Docket Number: 3586.,No. 3585,3585
• Parties: BEELER v. CHICAGO, R. I. & P. RY. CO. (two cases).
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

169 F.2d 557 (1948)

BEELER v. CHICAGO, R. I. & P. RY. CO. (two cases).

Nos. 3585, 3586.

Circuit Court of Appeals Tenth Circuit.

July 21, 1948.

Rehearing Denied August 17, 1948.

Claude Sowers, of Wichita, Kan., for appellant.

J. E. DuMars, of Topeka, Kan. (Clayton M. Davis, of Topeka, Kan., and George Stallwitz, of Wichita, Kan., on the brief), for appellee.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

The appellant J. P. Beeler, brought these two actions against the appellee Railroad Company, based upon a collective bargaining agreement between the Railroad Company and the Yardmasters Union, of which he is a member. The agreement, dated May 20, 1944, pertinently provided that yardmasters should not be disciplined or dismissed without a hearing before the superintendent, and that such employees should be apprized of the precise charge against them and have a reasonable opportunity to secure the presence of necessary witnesses and the right to be represented by an accredited representative. It also provided that eight hours work should constitute a day, and the time worked in excess of the eight hours would be considered overtime and paid for at the rate of time and one-half "on positions covered by the agreement."

One action is for reinstatement of appellant's position as yardmaster with the Railroad Company at Wichita, Kansas, with full restitution of salary and seniority rating at that point, or in lieu thereof damages for his wrongful discharge from that position, based upon his salary as yardmaster for his life expectancy. The other action seeks judgment for alleged overtime compensation for hours worked in excess of the eight hour day provisions of the bargaining agreement, and for expense of the use of his automobile in connection with the performance of his duties.

The cases were consolidated for trial, and the trial court found that at all times complained of, appellant's position with the Railroad Company was not covered by any collective bargaining agreement, and that he had no right of action thereunder. The court also found in effect that his employment with the Railroad Company contemplated a twelve hour day, without expense for the use of his automobile. Beeler has appealed from the judgment in favor of the Company in each case.

The evidence shows that Beeler became a switchman for the Company at Caldwell, Kansas, in 1904, and in 1907 he was promoted to the position of yardmaster at that point. In 1917, he was transferred to the terminal at Wichita, Kansas, as yardmaster. On January 1, 1938, the station agent at Wichita retired, and Beeler assumed his duties, with the official designation of "agent-yardmaster". As such agent-yardmaster, he had charge of the freight agency, freight warehouse, the yards (including switching operations), and all employees in such branches of the service. He was paid $20 per month in addition to his regular yardmaster's salary of $280, for a twelve hour day. No one was appointed to take his place as yardmaster, and the position was officially abolished at that terminal on February 3, 1939. While he was yardmaster at Wichita, several engines were used in the yards for making and breaking up trains, but at the time he was appointed agent-yardmaster, Wichita was not a division point where trains were made or broken up, and only one engine with a crew of five men was used in the yard to remove or add cars billed to or from Wichita. Beeler spent most of his time in the freight office, but was often called out on the road in case of wrecks, floods, or other emergencies.

When, soon after his designation as agent-yardmaster, Beeler learned that his seniority as a yardmaster was carried on the roster at Caldwell, he filed a protest, contending that he should be "bulletined" as a yardmaster with seniority at Wichita. The matter was referred to the General Chairman of the Yardmasters Union, who took it up with the appropriate personnel official of the Company. As a result, Company official, F. H. Frey, on February 3, 1939, wrote to W. F. Mielke, General Chairman of the Yardmasters Union, stating that it was agreeable with the Company to carry Beeler on the Wichita yardmasters' seniority list, and "as per our agreement the position of agent-yardmaster at Wichita will be considered an official position, not covered by any working agreement, but should a yardmaster position be re-created at Wichita Mr. Beeler would be entitled to consideration for same on basis of his seniority as a yardmaster at that point." A copy of this letter was "accepted" by Mr. Mielke and returned to the Company. There is no affirmative showing that Beeler was advised of the letter, however on March 2, 1939, he was notified that he was being carried on the seniority roster as a yardmaster at Wichita.

Appellant continued in the position of agent-yardmaster at Wichita until June 17, 1946, when he received the following notice from the Company: "You are relieved as Agent at Wichita. You can exercise your seniority where you so desire." He then sought to exercise his seniority rights as a yardmaster at Wichita, but was informed that since the position of yardmaster at Wichita had been abolished and his present position of agent-yardmaster was an official position not covered by any bargaining agreement, he could assert no seniority rights there. He was told that he could exercise his seniority rights as a switchman at Caldwell, Kansas.¹

As we understand appellant's position, it is to the effect that at all times complained of, he was essentially a yardmaster, performing the additional duties of a station agent for an additional salary of $20.00 per month; that as agent-yardmaster, he was an "employee" or "subordinate official" within the applicable definitive orders of the Interstate Commerce Commission then in effect, and as such, was a party to the collective bargaining agreement which forbade his discharge without cause and a hearing; that the collective bargaining representative had no authority to agree that he was an official, and thus exclude him from the protection of the collective agreement; and that the agreement between the Union official and the Company, and the attempted abolishment of the yardmaster position at Wichita without notice to him, was ineffectual to deprive him of his rights and benefits under the collective bargaining agreement.

If appellant's employment comes within the bargaining contract invoked, no one questions his right to maintain an action for damages for the breach thereof. See Moore v. Illinois Cent. R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089; Union Pac. R. Co. v. Olive, 9 Cir., 156 F.2d 737. Conversely, apart from his automobile expense, he has no right of action outside the contract. His employment is terminable at will, and his discharge without a hearing was not an actionable wrong. Littell v. Evening Star Newspaper Co., 73 App. D.C. 409, 120 F.2d 36; Annotation 161 A. L.R. 709; Restatement on Agency, Sec. 442; 35 Amer.Juris., p. 456-8.

The Railway Labor Act of 1926, as amended, 45 U.S.C.A. § 151 et seq., 44 Stat. 577, vouchsafes and encourages collective bargaining between the railroads and their employees through designated bargaining representatives. Order of Railroad Telegraphers v. Railway Exp. Agency, 321 U.S. 342, 64 S.Ct. 582, 88 L.Ed. 788; Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173. It, however, specifically recognizes the right of an individual employee to confer with management concerning matters of individual interest, and the bargaining representative is not authorized to bind the individual employees on matters outside the...