BROTHERHOOD OF LOCOMOTIVE FIREMEN, ETC. v. Tunstall

• Decision Date: 15 December 1947
• Docket Number: No. 5609.,5609.
• Citation: 163 F.2d 289
• Parties: BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al. v. TUNSTALL.
• Court: U.S. Court of Appeals — Fourth Circuit

163 F.2d 289 (1947)

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

No. 5609.

Circuit Court of Appeals, Fourth Circuit.

August 20, 1947.

Writ of Certiorari Denied December 15, 1947.

Ralph M. Hoyt, of Milwaukee, Wis., and William G. Maupin, of Norfolk, Va. (Harold C. Heiss and Russell B. Day, both of Cleveland, Ohio, and Jas. G. Martin, of Norfolk, Va., on the brief), for appellants.

Charles H. Houston, of Washington, D. C. (Joseph C. Waddy, of Washington, D. C., and Oliver W. Hill, of Richmond, Va., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

Writ of Certiorari Denied December 15, 1947. See 68 S.Ct. 262.

PARKER, Circuit Judge.

This is an appeal from the final judgment and decree in a suit by a Negro locomotive fireman employed by the Norfolk Southern Railway Company against that company and the Brotherhood of Locomotive Firemen & Enginemen to obtain a declaratory judgment, injunctive relief and damages. When the case was first before us we were of opinion that, under recent decisions of the Supreme Court, there was a lack of jurisdiction in the federal courts to entertain it; and we accordingly affirmed a decision dismissing the case for lack of jurisdiction. 4 Cir., 140 F.2d 35. Our decision was reversed by the Supreme Court, and the case was remanded to us to consider jurisdictional questions arising out of service of process. 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187. We thereupon held that there had been sufficient service of process to bring the defendants before the court and remanded the case to the District Court for further proceedings. 4 Cir., 148 F.2d 403.

When the case came before the District Court on the remand, both parties moved for summary judgment on the pleadings and affidavits filed. On the admitted facts, the Court entered judgment for plaintiff declaring that the defendant Brotherhood was the exclusive representative of the firemen employed by the defendant railway company for the purposes of collective bargaining under the Railway Labor Act, 45 U.S.C.A. § 151 et seq.; that it was the duty of the brotherhood to represent impartially and without hostile discrimination the plaintiff and the other Negro firemen, constituting a minority group denied membership in the Brotherhood; that the Brotherhood had violated this duty by negotiating with the railway company agreements of February 18, 1941 and May 23, 1941, which discriminated against Negro firemen and resulted in plaintiff's being removed from a run to which he was entitled by seniority; that the agreements were null and void in so far as they deprived plaintiff and other Negro firemen of seniority and employment rights; and that plaintiff had been illegally removed from his run and was entitled to be restored thereto. The defendants were enjoined from giving force or effect to the agreements in so far as they interfered with the occupation of plaintiff or of the class represented by him, and the defendant railway company was directed to restore to plaintiff his seniority rights in the run from which he had been removed as a result of the agreements. The case was reserved for hearing before a jury on the issue of damages, which were duly assessed at the sum of $1,000.00, representing approximately the difference between wages received by plaintiff and wages to which he would have been entitled at the rate prevailing on the run which had been improperly taken from him. The facts are fully stated in the opinion of the District Judge. See D.C., 69 F.Supp. 826. Those which are pertinent may be briefly summarized as follows:

The Brotherhood represents all locomotive firemen employed by the defendant railway company for purposes of collective bargaining under the Railway Labor Act, having been selected as bargaining agent by a majority of the craft. Negro firemen, who constitute a minority of the craft, are not admitted to membership in the Brotherhood, but, nevertheless they must accept it as their bargaining representative, since it is the choice of the majority. Matters of great importance to locomotive firemen in the realm of collective bargaining are seniority rights and the right to promotion to the more highly paid position of locomotive engineer. Upon seniority depends the right to the more desirable runs and upon the right to promotion depends the possibility of advancing to the position of engineer. No railway company of the United States has ever employed a Negro as a locomotive engineer and the Negro firemen are recognized as non-promotable to that position. Other firemen, if they possess the requisite mental and physical qualifications, are given opportunity to stand examinations for promotion to engineer, but not Negro firemen; and, because they are not promoted, Negroes serve for long periods as firemen and the seniority thus acquired enables them to obtain some of the best paid and most desirable runs in the company's service.

The Brotherhood, as bargaining agent for all locomotive firemen in the Southeast, obtained from defendant railway and other Southeastern carriers, over their protest, contracts which had the effect of denying to a large number of Negro firemen desirable runs to which they were entitled by seniority and of giving these runs to white firemen. The Brotherhood accomplished this by contracts distinguishing between promotable and non-promotable firemen. On March 28, 1940, it made a demand on the defendant railway company and other Southeastern carriers to modify existing working agreements so that only "promotable" men would be employed as firemen. The carriers refused to agree to this, saying:

"As we understand this proposal, it is that the carriers parties to the conference obligate themselves that they will in future hire no non-promotable men. The effect of this would be to exclude from employment in our service perhaps a small number of white persons who, because of educational qualifications or physical handicaps, might not be promotable, and, in addition, would exclude from employment all colored persons, because, upon the properties represented by this committee, colored employees are not promotable to position of engineer. In our conference we endeavored to point out to you that we doubted the wisdom and fairness of making any such agreement as this, first because it would restrict the field from which we might draw employees in the event of a labor shortage, and, second, because we did not feel that such a large proportion of the population of the territory which we serve should be completely banned from employment as firemen upon our properties. As we said to you, these people are citizens of the country; it is necessary that they make a living; colored people are patrons of the railroads, and, in our opinion, we should not by agreement entirely exclude them from employment in positions which they have occupied and filled over the years."

Notwithstanding this protest of the railroads, the Brotherhood insisted upon its position, contending that it was in the interest of efficiency in the operation of the railroads that experience as firemen be acquired by men who could be advanced to the more...