Burton v. Oregon-Washington R. & Nav. Co.

• Decision Date: 27 November 1934
• Citation: 148 Or. 648,38 P.2d 72
• Parties: BURTON v. OREGON-WASHINGTON R. & NAV. CO. et al.
• Court: Oregon Supreme Court

38 P.2d 72

148 Or. 648

BURTON v. OREGON-WASHINGTON R. & NAV. CO. et al.

Supreme Court of Oregon

November 27, 1934

In Banc.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Suit by Tom B. Burton against the Oregon-Washington Railroad &amp Navigation Company and others. From a decree for plaintiff named defendant appeals, and other defendants cross-appeal.

Reversed and rendered.

Roy F Shields, of Portland (A. C. Spencer, of Portland, and Cochran & Eberhard, of La Grande, on the brief), for appellant.

B. A. Green, of Portland, for cross-appellants.

Charles Z. Randall, of Pendleton (Fee & Randall, of Pendleton, on the brief), for respondent.

BELT Justice.

This suit was commenced on April 23, 1932, under the Declaratory Judgment Act (Code 1930, § 2-1401 et seq.), to obtain a declaration of the seniority rights of the plaintiff, a second clerk telegrapher employed by the defendant railroad company. Plaintiff was employed on July 22, 1926, and was stationed at Kamela, Union county, Or., on the then second operating division of the railroad, which extended from Umatilla to Huntington. Excluding branch lines, the first operating division extended from Portland to Umatilla, and the third operating division included that part of the line between Umatilla and Spokane, Wash.

On June 1, 1931, the railroad company, for the purpose of convenience and economy, consolidated operating divisions 1 and 2, and thereafter designated the same as the Oregon division. The other division was known and designated as the Washington division. Soon after this consolidation of divisions, which it is conceded was within the exclusive province of the railroad company to make, a question arose as to the effect of such consolidation on the seniority rights of the telegraph employees located in the former first and second divisions.

At the time plaintiff was employed, and about two years prior thereto, the railroad company had, pursuant to an agreement with the Order of Railroad Telegraphers, adopted and published a "Telegraphers' Schedule," which provided the terms and conditions of employment. Relative to the matter of seniority rights, which is the vital issue in this case, article 7, subdivision (b), of the schedule, provided: "Rights to date from last time of entering service on positions covered by this agreement and extend over division where employed." Plaintiff was not at this time a member of the Order of Railroad Telegraphers, but it is admitted that, when he accepted employment, he became bound by the terms and conditions of the schedule. One of the principal questions in the case, however, centers around the interpretation of the above section of the schedule relative to seniority rights. Did the plaintiff have the same seniority rights after consolidation as he had prior thereto? Did the consolidation of the divisions effect a consolidation of the seniority rosters, or were the seniority rights of the employees not affected thereby?

The railroad company was not particularly concerned with this controversy existing between employees of the former first and second divisions, and was willing to abide by the interpretation placed upon the schedule by the telegraphers' union which included in its membership between 80 per cent. and 90 per cent. of the employees of such class. Continued negotiations between the telegraphers' union and the railroad company finally resulted in a consolidated seniority roster effective October 13, 1931. At the time of these negotiations, plaintiff was a member of the Order of Railroad Telegraphers, which, for brevity, will hereafter be designated the O. R. T. On the seniority list as adopted and published for the former second division, the plaintiff was listed as No. 61. In other words 60 of the employees on the second division had seniority rights superior to those of the plaintiff. Under the consolidated seniority roster, plaintiff was listed as No. 177; there being 199 employees on such division.

On October 28, 1931, the plaintiff was replaced by the defendant Schatz, an employee from the former first division. It may well be noted at this juncture that Schatz entered the company's service in 1908 and, by reason thereof, had 23 years' seniority as against the plaintiff's (Burton's) 5 years' seniority. Thereupon Burton was assigned to a place on the "extra board," and he worked as extra man from time to time for a period of 19 days. On July 13, 1932, the plaintiff was taken from the "extra board" and completely relieved from service.

It is the contention of the plaintiff that the O. R. T. had no express or implied authority to bind him in any agreement with the railroad company relative to a consolidation of seniority rosters, and that his rights are governed by the schedule in existence at the time of his employment. In plaintiff's prayer of the amended complaint it is asked that the consolidation of the seniority rosters be declared void and of no effect, that the schedule adopted and published by the company on September 20, 1924, be declared in full force and effect, and that plaintiff be reinstated in his position as second telegraph clerk at Kamela, Or.

From a decree in favor of plaintiff in accordance with the prayer of his complaint, the defendant railroad company and the defendant employees affected by such adjudication of seniority rights appeal.

Since the plaintiff relies on the schedule adopted and published when he entered the employment of the railroad company, it is well first to determine his rights thereunder before proceeding with the inquiry as to whether he was bound by the interpretation of the schedule relative to seniority rights as made by the O. R. T. after consolidation of the divisions.

It is clear that plaintiff's contract of employment was terminable at the will of either party. When he entered the employment of the railroad, there was no agreement, express or implied, that he would be assigned to any particular division, and we think it fair to assume that the plaintiff was cognizant of the fact that, in the years to come, there would be various changes in the manner and method of carrying on operations. It is not reasonable to assume that the operating divisions would remain the same regardless of changed economic conditions. We take it then that the consolidation of the operating divisions for the purpose of convenience and economy was not beyond the realm of reasonable anticipation by the plaintiff. Nevertheless we are met with the contention that, when plaintiff was employed and had established certain seniority rights on the former second division, he could not be divested thereof even though he was no longer employed in such division. The railroad company and the defendant members of the O. R. T. contend, however, that, when the consolidation was effected, the seniority rights of the telegraphers formerly employed on such divisions extended over the consolidated division.

The schedule under consideration is couched in the language of railroad men. Some of its terms are meaningless to persons not engaged in, or familiar with, railroad operations.

Hence, when courts are called upon to construe such agreements or schedules, they are often compelled to resort to parol evidence in order to ascertain what the contracting parties had in mind. How did the parties themselves construe the schedule? How was it applied in the actual operation of the railroad? Did the terms used have a meaning peculiar to such business? These are questions with which this court is concerned.

What was the meaning of that part of the schedule which provided that seniority rights should "extend over division where employed"? It is conceded that, at the time of the adoption of the schedule and when plaintiff was employed, the railroad had three operating divisions, each of which was under the jurisdiction and supervision of a superintendent. After the consolidation of the first and second divisions, that part of the line was under the supervision of one superintendent, whose office was in the city of Portland. How can the court pass intelligently on such question unless it hears and weighs the evidence of experienced railroad operators and representatives of employees familiar with railroad parlance? It is admitted in the reply of the plaintiff that a division of a railroad is defined by the rules of the defendant railroad company as "that portion of a railroad assigned to the supervision of a superintendent." We think evidence was therefore admissible that the word "division" had a use and meaning peculiar to those engaged in the railroad business. Coast Fir Lumber Co. v. Parker et al., 106 Or. 641, 213 P. 617, and numerous authorities therein cited.

We think it is established by the overwhelming weight of the evidence that the seniority rights of the employees under the schedule extend to the operating divisions where employed. Such, in effect, was the testimony of Mr. Finch, general manager of the defendant railroad company, who negotiated the schedule in question, of Mr. Vermillion, formerly general chairman of the O. R. T., and of numerous other witnesses. Considering the schedule in its entirety, we are convinced that, when an operating division is enlarged or contracted, the seniority district also enlarges or contracts. The seniority district, in the efficient and practical administration of the road, must conform to, and be coextensive with, the boundaries of the operating division. When the consolidation was effected, plaintiff was no longer employed on the second division, but he was employed on the new or Oregon division, and his seniority rights automatically extended over the whole thereof.

Any other construction would lead to interminable confusion in...