BROTHERHOOD OF RY. AND SS CLERKS, ETC. v. Texas & NOR Co.

• Decision Date: 19 April 1928
• Docket Number: No. 314.,314.
• Citation: 25 F.2d 876
• Parties: BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES, SOUTHERN PAC. LINES IN TEXAS AND LOUISIANA et al. v. TEXAS & N. O. R. CO. et al.
• Court: U.S. District Court — Southern District of Texas

25 F.2d 876 (1928)

BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES, SOUTHERN PAC. LINES IN TEXAS AND LOUISIANA et al. v. TEXAS & N. O. R. CO. et al.

No. 314.

District Court, S. D. Texas, at Houston.

April 19, 1928.

Fulbright, Crooker & Freeman, of Houston, Tex. (C. G. Stearns and J. H. Crooker, both of Houston, Tex., of counsel), for plaintiffs.

Baker, Botts, Parker & Garwood, of Houston, Tex. (J. H. Tallichet, Clarence Carter, and C. R. Wharton, all of Houston, Tex., of counsel), for defendants.

HUTCHESON, District Judge.

This is a motion to vacate or modify a contempt order entered in this court on February 11, 1928, upon the grounds and for the reasons set out in the report of this cause in 24 F.(2d) 426.

Defendants contend: (1) That the injunction was improvidently granted. (2) That the defendants did not violate the injunction. (3) That the contempt order exceeded the power and jurisdiction of this court.

The first point, in connection with the trial on the merits, I have considered and disposed of adversely to defendants by making a temporary injunction heretofore issued permanent. See opinion, Brotherhood of Railway and Steamship Clerks, etc., et al. v. Texas & N. O. R. R. Co. et al. (D. C.) 25 F. (2d) 873.

The second point, that the injunction was not violated, I think wholly untenable. It seems to be rested by counsel upon an entire misapprehension of the terms of the statute, and a failure to appreciate its effect and scope as a continuing obligation. Its corrective force may not be defeated by an act or series of acts. If it has any virtue, it protects an employee in his right to self-organization, and the selection of his representatives always. There never comes a time under that statute when the defendant perfects the right to force upon employees any representative of their choosing, whereas here the record teems with evidences not only of contracts between the railroad company and the association for sole representation, but of continuing acts on the part of the company designed and tending to disrupt, disintegrate, and destroy the brotherhood, while establishing in the seats of the mighty the association.

One of the association's chairmen, all of whom are chief clerks to the management, testified that the growth of the association had been due to its recognition by the railroad and the refusal to recognize the brotherhood, and he naively remarked that if this suit went in favor of the company, the association would be able to take complete control, whereas, if it went the other way, the association would fall; while others testified that, if left to a vote uninfluenced by the company the employees would not select the association as representative, while all the other testimony established the continuing character of the interference by the defendant company, in the support and maintenance of the company union for its benefit and advantage and the barring out of any and all other representation.

While I think the continuing character of the obligation not to interfere which the statute imposes on the company completely refutes defendants' position, and that this is so plain as not to admit of argument, upon the further ground that the matter was not a fait accompli when the injunction was issued, but had only begun, and that the effective interference with self-organization and the designation of representatives which really made itself felt occurred after the injunction was issued, this contention must be denied. See Texas & New Orleans R. R. v. North Side Railway, 48 S. Ct. 361, 72 L. Ed. ___ (April 9, 1928).

As to the defendants' complaint that the contempt order has gone further than the injunction, and that the court has thereby assumed a jurisdiction beyond the terms of the statute, I think it sufficient to say that the contempt order has done nothing more than in the recognized jurisdiction of the court, to restore the status quo ante, except in one particular which will be later noted. So clear is this power to restore the status that it has even been held that where a defendant with...