BROTHERHOOD OF LOCOMOTIVE FIREMEN, ETC. v. Mitchell

• Decision Date: 11 July 1951
• Docket Number: No. 13318.,13318.
• Citation: 190 F.2d 308
• Parties: BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al. v. MITCHELL et al.
• Court: U.S. Court of Appeals — Fifth Circuit

190 F.2d 308 (1951)

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al. v. MITCHELL et al.

No. 13318.

United States Court of Appeals, Fifth Circuit.

July 11, 1951.

James A. Simpson, Birmingham, Ala., Harold C. Heiss, Russell B. Day, Cleveland, Ohio, Ralph M. Hoyt, Milwaukee, Wis., for appellants.

Jerome A. Cooper, William E. Mitch, Hugo L. Black, Jr., F. W. Davies, all of Birmingham, Ala., Charles F. Turner, Mobile, Ala., for appellees.

Before HUTCHESON, Chief Judge, and BORAH and STRUM, Circuit Judges.

JOSEPH C. HUTCHESON, Chief Judge.

Brought by the named plaintiffs, Negro firemen, employees of Gulf, Mobile & Ohio Railroad Company, for themselves and others similarly situated, against the Brotherhood of Locomotive Firemen and Engineers, their statutory bargaining agent, and their employer, the Gulf, Mobile & Ohio Railroad Company, the suit was for injunctive relief and for damages as to negotiations had, and to be had, and contracts made, and to be made, by and between these defendants.

It was broadly based, as other suits against the Brotherhood,¹ brought by other plaintiffs, the employees of other railroads, have been, upon the scriptural pronouncement, "No man can serve two masters, for either he will hate the one and love the other, or else he will hold to the one and despise the other". This is a favored principle at law and in equity.² Indeed, it has been stated that in the usual case it is the duty of the agent to further his principal's interests even at the expense of his own in matters connected with the agency.³ It is the complete disregard of this principle in providing for representation in enacting and administering the Railway Labor Act, 45 U.S.C.A. § 151 et seq., which has been responsible for great contention and difficulty in and out of court.⁴

The claim in general was that the Brotherhood, in its bargaining activities affecting these plaintiffs, had run true to form in serving its members, while disserving plaintiffs, non-members because of their color.

In more detail it was that, in violation of the seniority rights of plaintiffs, particularly by the agreement of July 19, 1947, attached as an exhibit, the defendants discriminating against them solely because of their color, had conspired to deprive plaintiffs of rights and of runs to which they were entitled.

The Brotherhood's defenses, in addition to a motion to dismiss, were a general denial, pleas of limitation and of laches, and pleas: that it had at all times fairly represented plaintiffs without discrimination in favor of its members; that, indeed, the very seniority rights asserted by plaintiffs are, and have been, enjoyed by them and exist only by virtue of contracts obtained for them by the Brotherhood as their agent; and that, by their suit, plaintiffs are in effect seeking to enjoy these seniority rights without assuming and discharging the burdens which accompany such rights.

The defendant railroad company plead limitation and laches, that it had, as it was required by law to do, dealt with the Brotherhood as the sole bargaining agent, and that, so far as it knew, the Brotherhood had endeavored to represent fairly all members of the craft similarly situated, without regard to color. In addition, it denied: (1) that it had entered into a conspiracy with the Brotherhood; (2) that it had ever made with the Brotherhood any agreement which was intended to, or did, deprive plaintiffs, on account of or by reason of their color, of any of their seniority rights. Finally, as to the part of the Brotherhood proposal of January 26, 1948, by which the distinction between promotable and non-promotable firemen was to be eliminated, and all firemen were to be required to qualify as engineers or be dismissed, the defendant alleged that, since no Negro firemen had ever been, or could be, promoted to engineers, it did not, and would not, agree to that proposal, because it would necessarily result in all the colored firemen losing their jobs.

Thereafter, the cause coming on for trial on the issues joined, the plaintiff did offer the testimony of three of its members as to their personal experience in respect to being prevented from taking runs which they claimed their seniority entitled them to. Their main reliance below and here, however, in effect seemed to be upon the axiom, "Give a dog an ill name and hang him", and their urgent insistence that the earlier cases referred to in note 1, supra, though involving different plaintiffs, different railroad companies, and different situations, involved the same brotherhood and had effectively determined and adjudicated all matters in controversy here.

The defendant railroad company, through its witness, V. J. Thompson, Assistant Vice-President in the Operating Department and the contracting officer for the company, whose testimony was not contradicted, or otherwise discredited from any source, gave full, complete and authoritative testimony as to the working conditions on the railroad and, as to negotiations for, and the making of, contracts by and between the railroad and the Brotherhood.

As to the 1940 agreement, under which the company agreed finally, after long resistance to the idea, to place a second man on its diesel passenger engines, provided he was a promotable fireman, he testified that this was not inspired by a desire to discriminate against Negro firemen as such but was a concession demanded by the railroad company in order to obtain something in exchange for putting on the second man at the urgent insistence of the Brotherhood over the company's vigorous objection thereto.⁵

Then, after explaining the existence in the service of promotable and non-promotable firemen, white and black, and pointing out that, with the coming of dieselization, it became greatly desirable to have the second man on the diesel locomotive one who was promotable to the position of engineer, he went on to say: that but for the fact that, under the uniform custom prevailing in railroad service, Negro firemen never had been, and never would be, promoted to engineers, he would have favored the complete elimination of non-promotable, and the setting up of one class, promotable, firemen; but that, because of that fact, as dieselization advanced and steam engines were superseded, it became necessary to keep this factor constantly in mind; and the company had, therefore, of its own initiative, endeavored to bring about a modification of the various agreements, with the ultimate result, the contract of July, 1947, the refusal of the company to accede to the Brotherhood's 1948 proposal, and the company's 1948 counter proposition which was in turn rejected by the Brotherhood.

The defendant Brotherhood put on its witnesses: to explain what it had tried to do under the compulsory representation imposed upon it by law; to explain the difficulties caused by the two classifications of promotable and non-promotable firemen, particularly how the non-promotable firemen, white and colored, had, by long seniority, acquired preferential positions without being obligated to advance to the position of engineer; and to particularly deny that, as statutory bargainer, in its representation, it had been unfaithful to its obligations to all, including the plaintiffs.

The evidence in, the district judge filed a lengthy unreported opinion in which, though none of them, except the 1947 agreement, was attacked in the pleadings, canvassing and denouncing as unfair to the plaintiff the various agreements, beginning with the 1924 agreement and including that of September 19, 1940, Nov. 15, 1946, July 10, 1947, and the Brotherhood's attempt in 1948 to negotiate a new contract abolishing the distinctions between promotable and non-promotable firemen, he found: that in all of the agreements from 1924 on, the defendant Brotherhood had, as in the earlier cases cited in note 1, supra, failed to properly represent the plaintiffs; that each and all of the agreements were the results of the unfaithful action of the Brotherhood; and that this discrimination was on account of race or color.

As to the defendant Railroad Company, acquitting it of all charges of conspiracy and of any purpose to discriminate, the district judge particularly approved the testimony as to the 1948 proposal of the Brotherhood, given by Mr. Thompson: "It is our judgment that practically all, if not all, of the non-promotable firemen now in our service would fail to qualify for promotion and consequently would be dismissed from the service. Most of these firemen have been in our service for twenty, thirty, forty years, and to dismiss them now, after this long service, solely because they are not qualified for promotion which they never anticipated, would be an inequity."

In addition, the counter proposal, submitted to the Brotherhood by Mr. Thompson and rejected by it, which would have permitted the Negroes to retain their jobs as firemen and unrestrictedly exercise their seniority with all other firemen and helpers until they reach the age of retirement, had his complete approval as a just settlement of the controversy. He said of it: "Such action by the Brotherhood would have only recognized seniority rights for all members of the craft and might have obviated this litigation".

On the basis of the opinion and of findings of fact substantially in accordance therewith, he entered a judgment restraining the defendant Brotherhood from directly or indirectly requiring or inducing the railroad company to recognize or comply with, and the railroad company from recognizing or complying with, the provisions...