Broady v. Illinois Cent. R. Co.

• Decision Date: 11 December 1951
• Docket Number: No. 10338.,10338.
• Citation: 191 F.2d 73
• Parties: BROADY v. ILLINOIS CENT. R. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

191 F.2d 73 (1951)

BROADY v. ILLINOIS CENT. R. CO.

No. 10338.

United States Court of Appeals Seventh Circuit.

July 25, 1951.

Writ of Certiorari Denied December 11, 1951.

Edward J. Fruchtman, Chicago, Ill., Cotton, Fruchtman & Watt, Chicago, Ill., of counsel, for plaintiff.

Herbert J. Deany, Chicago, Ill., J. H. Wright, C. A. Helsell, and John W. Freels, all of Chicago, Ill., of counsel, for defendant.

Clarence M. Mulholland, Toledo, Ohio, Edward J. Hickey, Jr., Washington, D. C., Richard R. Lyman, Toledo, Ohio, Mulholland, Robie & Hickey, Toledo, Ohio, J. W. Brown, Ben Gettler, Cincinnati, Ohio, of counsel, for amici curiae.

Before KERNER, FINNEGAN and LINDLEY, Circuit Judges.

FINNEGAN, Circuit Judge.

By this appeal, the Illinois Central Railroad Company seeks to reverse a judgment entered by the United States District Court for the Northern District of Illinois, Eastern Division, against it, in favor of Royal M. Broady, appellee, one of its dining car employees, for the sum of $9,224.67.

In the complaint filed on January 8, 1948, the appellee, Royal M. Broady, states that his action arises under the Railway Labor Act, 45 U.S.C.A. § 151 et seq.; that he is a resident of the State of Illinois, and was at all relevant times employed by defendant who owned and operated a railroad in interstate commerce; that appellee was employed as a dining car waiter in interstate commerce; that on September 17, 1947, he was charged with violating the general rules 11, 13 and 36 for dining car service, because it was said that while on duty he refused to perform service for certain parties who were occupying his station in the diner, and made remarks which were embarrassing to both the patrons and his employer; that a hearing of the charges against him was held in the office of the Dining Car Service of the defendant carrier on September 23, 1947; that under the terms of said Act, an employee of a carrier has the right to be represented at such hearing by a representative of his own choosing; that at said hearing, on September 23, 1947, the appellee was not permitted to be heard by a representative of his own choosing and was thereby denied a hearing according to due process of law; that because of such denial plaintiff refused to participate in such hearing and was discharged, losing six years of seniority.

Appellee then prays that he be restored to his position with defendant as a dining car waiter with six years seniority, and that he may be awarded back wages lost to him because of his alleged illegal discharge.

In its answer the defendant-appellant denies that plaintiff has a cause of action against defendant arising under the Railway Labor Act. It is admitted that on September 17, 1947, plaintiff was charged with violating rules 11, 13 and 36 of general rules for dining car service, in that on September 14, 1947, while on duty, plaintiff refused to perform certain waiter service, and made remarks which were embarrassing to defendant's patrons and to the railroad, as alleged in the complaint. It is admitted that a hearing was held on such charges on September 23, 1947.

The answer then sets out verbatim the provisions of article 25(d) of the terms and provisions of the schedules with the Union which was appellee's bargaining representative. The answer admits that the representatives chosen by appellee were not permitted to be heard at the hearing of September 23, 1947, but it is denied that appellee complied with the Railway Labor Act or with the terms of the schedule under which he was employed.

The answer concludes by asserting that plaintiff is not entitled to judgment in this proceeding against the defendant either to the extent claimed or to any extent whatever by reason of the matters and things in said complaint alleged, in manner and form as they are therein set forth.

Thereafter, and before trial, plaintiff amended the prayer for relief so that it read as follows:

"Wherefore, plaintiff prays judgment against defendant as follows:

(1) That plaintiff be restored to his position with defendant carrier as a dining car waiter with such seniority standing as he would have enjoyed if the aforementioned illegal discharge had not taken place; and

(2) That plaintiff be made whole for the said illegal discharge by payment to him of all back wages lost to him as a result of said illegal discharge."

The case proceeded to hearing by the court without the intervention of a jury. There is little, if any, conflict on the facts disclosed by this record. Appellee, a citizen of Illinois, was employed by appellant as a waiter in its dining car service. The terms of his employment were governed by a collective bargaining agreement negotiated pursuant to the Railway Labor Act between the defendant carrier and the collective bargaining agent of his choice. This contract became effective in 1937.

Plaintiff was a member of the collective bargaining agent, Dining Car Employees Union, local 351, but had not paid dues for upwards of a year. The bargaining agreement provided in article 25 thereof in reference to discipline:

"(a) Employees charged with having violated the Company's rules, if proven guilty, may be subjected to proper discipline in accordance with the provisions of this article.

"(b) Employees will not be dismissed from the service until after a fair and impartial investigation has been held. Investigations will be held within 20 days from the date the Superintendent Dining Service has knowledge of the offense, and a decision shall be rendered within 3 days after investigation. Employees may not be suspended to exceed 10 days pending investigation, unless investigation is delayed by the employees.

"(c) Employees shall be notified in writing within 10 days after the Superintendent Dining Service has information of offense that a charge is pending, such charge to contain a clear and full statement of the cause of complaint. Within 10 days thereafter, investigation shall be held if desired by the Company, and a decision shall be rendered within 3 days after investigation. If investigation is not held within the time specified, no investigation or action will be taken on the charge, except when the investigation is delayed at the request of the employees.

"(d) Employees shall have the right to be present and may arrange, at their expense, to have an employee of their choice at hearings or investigations to hear the testimony, who may ask questions of the witnesses to bring out facts pertinent to the case. Employees shall also have the right to have present, at their expense such witnesses as they desire to give testimony.

"(e) In case of censure, discipline or dismissal, the employee or his representative may appeal to the Manager of Personnel or other officer designated by the Company, if he so desires, and if in case of dismissal it is found unjust, the employee shall be reinstated and paid for all time lost."

On September 17, 1947, plaintiff was given written notice that he was charged with the violation of General Rules 11, 13 and 36 while on duty in dining car 4106, train 2, on September 14, 1947, in that he refused to perform waiter's services to certain patrons occupying seats at his station, and with making remarks to such persons embarrassing to them and to the railroad. The notice informed him that an investigation would be held on September 23, 1947, at 1:30 P. M. He was directed to be present and was informed that he was entitled to employee representation of his own choice.

Rules 11, 13 and 36 are incorporated in the record, together with a receipt from plaintiff for a rule book containing them. Rule 11 provides that "civil, courteous deportment is required of all employees in their dealings with the public, their superiors and fellow workers. Courtesy and attention to patrons is demanded. Employees must not enter into any altercation or fight with any person, no matter what the provocation." Rule 13 states "The fact that patrons are at times impolite and unreasonable requires an exercise of patience on the part of employees and under no circumstances justifies similar conduct in return. Arguments with patrons will not be tolerated." Rule 36 states that "Employees who are insubordinate, dishonest, immoral, quarrelsome or otherwise vicious, or who conduct themselves in such a manner or handle their personal obligations in such a way that will subject the railroad to criticism and loss of good will, will not be retained."

On September 23, 1947, the date set for the investigation, appellee appeared with two officers of a rival union, whom he wished to have as his representatives. These men were not qualified representatives under the collective agreement because they were not employees of the defendant carrier. When the terms of the agreement were pointed out to appellee, and he was informed that he could be represented at such investigation only by an employee of the railroad, he and his assistants withdrew from participation in the investigation. Thereafter, on the next day, September 24, appellee was notified of his discharge effective on that date. He took no further action until the 8th day of January, 1948, when this suit was instituted.

The District Court in its findings of fact made no findings as to the alleged improper conduct in violation of rules 11, 13 and 36, which form the basis of the September 23rd investigation by officials of the Dining Car Service of the defendant company. The evidence in the record discloses that the steward of the diner on which plaintiff was employed September 14, 1947, had his attention directed to a quarrel taking place at the table at which appellee was a waiter. A guest at said table claimed he had ordered brisket of beef. Appellee, Broady, said, "No, you ordered a ham sandwich." The guest insisted he had ordered brisket of beef. Appellee then said in a loud voice: "I won't wait on these people. They are drunk. Get someone else to wait on them."...