Burke v. Union Pac. R. Co., No. 2495.
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Writing for the Court | PHILLIPS, MURRAH, and WILLIAMS, Circuit |
| Citation | 129 F.2d 844 |
| Parties | BURKE v. UNION PAC. R. CO. |
| Docket Number | No. 2495. |
| Decision Date | 30 June 1942 |
129 F.2d 844 (1942)
BURKE
v.
UNION PAC. R. CO.
No. 2495.
Circuit Court of Appeals, Tenth Circuit.
June 30, 1942.
O. H. Matthews and Paul G. Ellis, both of Salt Lake City, Utah, for appellant.
W. Hal Farr, of Salt Lake City, Utah (Geo. H. Smith and Robt. B. Porter, both of Salt Lake City, Utah, on the brief), for appellee.
Before PHILLIPS, MURRAH, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge.
Appellant, herein referred to as plaintiff, alleged that under rules and regulations between the Brotherhood of Railway Trainmen, a labor organization, and defendant, an interstate carrier, he was entitled to work, at his agreed wage of $7.06 per day as a yard switchman; that he had been paid such wage for such work-time performed by him; that he went to work on July 19, 1937, and on September 9, 1937,
129 F.2d 845
was laid off on account of reduction of force; that on September 26, 1937, was notified of his recall for active service but he was then working for another railroad company; that he gave company ten days' notice as required by the rules and regulations and reported back to defendant for work on October 6, 1937, within thirty days allowed by the rules but defendant refused to put him back to work on the asserted ground that he had not reported soon enough after notice of recall; that he took work elsewhere whenever work was available but complained to defendant's officials and asked for reinstatement under his seniority right under the said rules and regulations in force and on September 25, 1939, defendant's division superintendent took favorable action upon his complaint and he was put back to work and reinstated in his seniority right to work as of July 19, 1937; that after said restoration to work he continued as yard switchman until October 30, 1939, when he was again laid off by a crew despatcher and temporarily given other work and was then notified that his seniority date was changed to October 6, 1937, and a junior yardman was given work in his place; that on March 30, 1940, another crew despatcher again changed his seniority date from October 6, 1937 to October 19, 1939, and at the same time removed his name from the Extra Board and informed him he was ineligible to recall as yard switchman; that such action was contrary to the rules and regulations and that he objected and complained until defendant's general yard manager reinstated him and fixed his seniority date as of October 6, 1937, and put him back to work; that from September 9, 1937, when plaintiff was laid off on the reduction of force until the beginning of this action he has been continuously discriminated against by defendant in favor of other men with junior seniority dates who were members of the Brotherhood of Railway Trainmen; that he was not a member of said Brotherhood but under the said rules, regulations and agreement was entitled to the same rights as to seniority and to work as members of the said Brotherhood, and that he has been and is greatly damaged and injured in respect to his right to work and his means of livelihood, the precise amount of his loss being unknown to plaintiff but being well-known to defendant by reason of its books, records, and accounts, and is in excess of $3,000.00, to-wit: $10,000.00; that he has exhausted all of his remedies by negotiation with defendant and its higher officials empowered to act, with the Mediation Board at Washington, D. C., and the First Division of the Adjustment Board at Chicago under the provisions of the Federal Railway Labor Act, 45 U.S.C.A. § 151 et seq. without effect; that he petitioned and complained to the said National Mediation Board concerning the said matters complained of and was advised by letter from the Secretary of said Board dated July 3, 1940, that the said Board declined to take action thereon on the ground that plaintiff's complaint was not one coming within the jurisdiction of the said Board; and that when he complained to the First Division of the National Adjustment Board at Chicago, Ill., having jurisdiction of plaintiff's said grievances, complaining of said several matters and wrongful acts of the defendant, the said Division of said Adjustment Board caused its secretary to advise plaintiff's attorney by letter as follows
"Sept. 4, 1940. Referring to your notice of July 30, 1940, of intention to file an ex parte submission on the 1st day of Sept. 1940, involving the seniority status of James M. Burke as switchman in the employ of the Oregon Short Line Railroad (which was a part of the defendant line), this petition was given consideration by the Division but a motion to accept it and to request the carrier to file its submission failed to receive the affirmative vote to permit this to be done."
Plaintiff further alleged that for that reason further proceedings could not be had or taken under said Railway Labor Act and that he had exhausted all his means for securing aid from the...
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Delaware, L. & WR Co. v. Slocum, Civil Action No. 1731.
...7 Cir., 132 F.2d 265, reversed on other grounds 321 U.S. 50, 64 S.Ct. 413; Phillips v. Pucci, supra; Burke v. Union Pac. R. Co., 10 Cir., 129 F.2d 844. The only issue is the interpretation of the The District Court has jurisdiction where the suit arises under the Constitution or laws of the......
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Miller v. BROWN SHIPBUILDING CO., Civil Action No. 2553.
...Service Co. et al. v. City of Redding et al., 304 U. S. 252, 58 S.Ct. 865, 82 L.Ed. 1323; Burke v. Union Pacific Railroad Co., 10 Cir., 129 F.2d 844; Zalkind v. Scheinman, 2 Cir., 139 F.2d 895, 903; City of Indianapolis v. Chase National Bank, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47; Hendron ......
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Strawser v. Reading Co., Civ. A. No. 8206.
...in the instant case has been raised not infrequently in the lower federal courts. Thus, Burke v. Union Pacific Railroad Co., 10 Cir., 129 F.2d 844, involved an action by a yard switchman against the railroad employer for breach of contract as evidenced in rules and regulations agreed to by ......
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Starke v. New York, Chicago & St. Louis R. Co., No. 10023.
...implication, if not directly, by a number of Supreme Court decisions. In the former category are Burke v. Union Pac. R. Co., 10 Cir., 129 F.2d 844; Barnhart et al. v. Western Maryland R. Co., 4 Cir., 128 F.2d 709, certiorari denied 317 U.S. 671, 63 S.Ct. 75, 87 L.Ed. 538; Shipley et al. v. ......
Request a trial to view additional results
12 cases
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Delaware, L. & WR Co. v. Slocum, Civil Action No. 1731.
...7 Cir., 132 F.2d 265, reversed on other grounds 321 U.S. 50, 64 S.Ct. 413; Phillips v. Pucci, supra; Burke v. Union Pac. R. Co., 10 Cir., 129 F.2d 844. The only issue is the interpretation of the The District Court has jurisdiction where the suit arises under the Constitution or laws of the......
-
Miller v. BROWN SHIPBUILDING CO., Civil Action No. 2553.
...Service Co. et al. v. City of Redding et al., 304 U. S. 252, 58 S.Ct. 865, 82 L.Ed. 1323; Burke v. Union Pacific Railroad Co., 10 Cir., 129 F.2d 844; Zalkind v. Scheinman, 2 Cir., 139 F.2d 895, 903; City of Indianapolis v. Chase National Bank, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47; Hendron ......
-
Strawser v. Reading Co., Civ. A. No. 8206.
...in the instant case has been raised not infrequently in the lower federal courts. Thus, Burke v. Union Pacific Railroad Co., 10 Cir., 129 F.2d 844, involved an action by a yard switchman against the railroad employer for breach of contract as evidenced in rules and regulations agreed to by ......
-
Starke v. New York, Chicago & St. Louis R. Co., No. 10023.
...implication, if not directly, by a number of Supreme Court decisions. In the former category are Burke v. Union Pac. R. Co., 10 Cir., 129 F.2d 844; Barnhart et al. v. Western Maryland R. Co., 4 Cir., 128 F.2d 709, certiorari denied 317 U.S. 671, 63 S.Ct. 75, 87 L.Ed. 538; Shipley et al. v. ......
Request a trial to view additional results