Brisbin v. E. L. Oliver Lodge No. 335

• Decision Date: 15 April 1938
• Docket Number: 30115
• Citation: 279 N.W. 277,134 Neb. 517
• Parties: AGNES G. ENGLE BRISBIN, APPELLANT, v. E. L. OLIVER LODGE NO. 335, BROTHERHOOD OF RAILWAY CLERKS, ET AL., APPELLEES
• Court: Nebraska Supreme Court

279 N.W. 277

134 Neb. 517

AGNES G. ENGLE BRISBIN, APPELLANT, v. E. L. OLIVER LODGE NO. 335, BROTHERHOOD OF RAILWAY CLERKS, ET AL., APPELLEES

No. 30115

Supreme Court of Nebraska

April 15, 1938

APPEAL from the district court for Douglas county: FRANCIS M DINEEN, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. Where the representatives of a labor union, cooperating with an industry, puts into effect an agreement that, in the event a female employee of a class or craft marries, such employment will then cease, and where the person affected thereby is a voluntary member of the union, subsequently marries and conceals the fact of her marriage, even though she is not a member of the union subsequently selected by members of the class or craft, but applies for membership therein, receives the protection of the union and the benefits of her seniority rights, and has knowledge of the continuation of the agreement between the industry and the representatives of the chosen union, she is, by her conduct in acquiescing in such agreement, estopped to claim such contract as being against public policy.

2. " A contract, to be void as against public policy, should be quite clearly repugnant to the public conscience." Kloberg v. Teller, 103 Misc. 641, 171 N.Y.S. 947.

3. The selection by the clerical employees of a railroad company, of which the plaintiff was a voluntary member of a union as the representative of a class or craft, such selection having been made by a majority vote of the clerical employees, pursuant to the rules promulgated by the railway labor board, created under title 3 of the Transportation Act of 1920, 41 Stat. 456, 469, § 300 et seq., 45 U.S. C.A. § 131 et seq., was proper, and a labor organization so selected was authorized to make contracts and agreements affecting the rules and conditions of employment which were binding upon all employees of such class or craft. Pennsylvania R. Co. v. United States Railroad Labor Board, 261 U.S. 72, 43 S.Ct. 278, 67 L.Ed. 536.

4. Under the Railway Labor Act of 1926, 44 Stat. 577, the employees of any class or craft were empowered to select representatives for the purpose of collective bargaining with their employer in a similar manner.

5. The 1934 amendment to the labor act, 45 U.S. C.A., c. 8, § 151 et seq., which superseded the 1926 act, 44 Stat. 577, continued and placed the duty on carriers and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules and working conditions and to settle disputes.

6. Subdivision 4, § 152, 45 U.S. C.A., provides that employees shall have the right to organize and bargain collectively through representatives of their own choosing. A majority of any class or craft of employees shall have the right to determine who shall be the representative of the craft or class.

7. Such provisions analyzed vested the defendant union with authority to invoke the enforcement of the contract against the plaintiff, as such union succeeded to all of the rights of the former union.

8. " The terms of the collective agreement, as included in an individual labor contract, ought not to be construed narrowly and technically, but broadly, so as to accomplish its evident aims and protect both the employer and the employee." Rentschler v. Missouri P. R. Co., 126 Neb. 493, 253 N.W. 694, 95 A.L.R. 1.

9. " Such a collective agreement, being a general offer, becomes a binding contract when it is adopted into, and made a part of, the individual contract of each employee. A breach of its terms will give rise to a cause of action by either party." Rentschler v. Missouri P. R. Co., 126 Neb. 493, 253 N.W. 694, 95 A.L.R. 1.

10. " Estoppel means the preclusion of a person from asserting a fact, by previous conduct inconsistent therewith, on his own part or the part of those under whom he claims, or by an adjudication upon his rights which he cannot be allowed to call in question." Graham Ice Cream Co. v. Petros, 127 Neb. 172, 254 N.W. 869.

11. An estoppel arises from a party's conduct and may be predicated upon silence or omission, as well as upon written words. 2 Pomeroy Equity Jurisprudence, 4th Ed., § 802.

12. " The doctrine of equitable estoppel is frequently applied to transactions in which it is found that it would be unconscionable to permit a person to maintain a position inconsistent with one in which he has acquiesced or of which he has accepted any benefit. * * * And so also the acceptance of any benefit from a transaction or contract, with knowledge or notice of the facts and rights, will create an estoppel." 10 R.C.L. 694, § 22.

13. When it appears that the facts on which it is sought to make the estoppel operate were known to the party against whom the estoppel is urged, and such party remains silent, receives the benefit of the contract, when he, in fact, has violated such contract, and has knowledge that such contract is in force and effect, he is estopped from asserting any rights which he may claim thereunder.

Appeal from District Court, Douglas County; Dineen, Judge.

Suit for an injunction against interference with plaintiff's employment, by Agnes G. Engle Brisbin against the E. L. Oliver Lodge No. 335 of the Brotherhood of Railway Clerks, and others. From an order denying an injunction, the plaintiff appeals.

Affirmed.

Fischer, Fischer, Fischer & Fischer, for appellant.

Rosewater, Mecham, Shackelford & Stoehr, contra.

Heard before GOSS, C. J., ROSE, EBERLY, DAY, PAINE, CARTER and MESSMORE, JJ.

OPINION

MESSMORE, J.

This is an appeal from the district court for Douglas county, wherein the court granted a temporary restraining order against the defendant brotherhood and its officers, restraining them from interfering with the employment of the plaintiff, who was working as a stenographer in the office of the auditor of miscellaneous accounts of the Union Pacific Railroad Company. The trial court dissolved the temporary restraining order and denied a temporary injunction. Plaintiff elected to stand upon the showing made, and an order was made denying a permanent injunction, from which order the plaintiff brings this appeal. The pleadings properly present the issues necessary for a determination of this case.

The evidence discloses that plaintiff, an unmarried woman, entered the employ of the Union Pacific Railroad Company at its headquarters in Omaha, Nebraska, July 5, 1923. She voluntarily became a member of the Clerical Employees' Association, a company union, in November, 1931. The union, acting as agent for the plaintiff and other member employees, entered into an agreement with the Union Pacific Railroad Company that no married woman thereafter would be employed, and that all married women then in the employ of the railroad company would be discharged. The plaintiff was secretly married at Papillion, Nebraska, on September 23, 1933. The union to which plaintiff belonged practically ceased to function, and on December 6, 1933, an election was held under the railway labor act, passed by the United States congress, to decide who should represent the clerical employees. The Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, a voluntary association of individuals, received the highest number of votes and became, by virtue thereof, the representatives of the clerical employees. The agreement relative to married women was still in full force and effect, and from the time of the selection of said brotherhood all agreements with the Clerical Employees' Association were terminated, and all employees were notified that a new agreement would be negotiated with the brotherhood. The plaintiff claims that she was not, and never had been, a member of the brotherhood and did not receive a notice of any kind that the agreement concerning the employment of married women was to be made a part of the new agreement. In this connection it might be well to state that the officers of the brotherhood, in cooperation with the railroad company, at all times previously and at this time, by oral agreement and by action of such officers, maintained and kept in force the so-called married women's agreement. This occurred just subsequent to the election at which the brotherhood was chosen to represent the clerical employees. There appear to have been in the neighborhood of 150 agreements of different kinds, some of which were lost, made by the Clerical Employees' Association during its existence, but the one of interest in the case at bar is the married women's agreement.

The record discloses that there were 1,954 votes cast on the question of who should represent the Clerical Employees' Association, of which the brotherhood received 1,001. As to this election in December, 1933, and the plaintiff's participation therein, we find the following testimony by plaintiff: "Q. Now, you knew that there was an election in December, 1933, did you not, as between the clerical union and the new union called the brotherhood, the election among employees as to which union they wanted to represent them? A. Yes, sir. Q. You voted in that election, did you not? A. Yes, sir. Q. As a matter of fact you knew all about the brotherhood and you made application for membership in the brotherhood? A. Yes; I did." Exhibit 4, offered and received in evidence, is an application for membership in the brotherhood signed by the plaintiff.

Plaintiff remained in her employment, using her maiden name and concealing her marriage, until October, 1936, when it was discovered that she was a married woman. The representatives of the union, upon such discovery, notified the immediate superior of plaintiff. The letters requesting that she be taken out of the employment of the railroad company are in...