Carothers v. Western Transp. Co.

• Decision Date: 19 May 1976
• Docket Number: No. RI-CIV-75-0015.,RI-CIV-75-0015.
• Citation: 412 F. Supp. 1158
• Parties: Virgil CAROTHERS, Member and Representative of a Class of Certain Employees of the Western Transportation Co., Plaintiff, v. WESTERN TRANSPORTATION COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Illinois

412 F. Supp. 1158

Virgil CAROTHERS, Member and Representative of a Class of Certain Employees of the Western Transportation Co., Plaintiff, v. WESTERN TRANSPORTATION COMPANY, Defendant.

No. RI-CIV-75-0015.

United States District Court, S. D. Illinois, N. D.

May 19, 1976.

Walter D. Braud, Rock Island, Ill., for plaintiff.

Virgil Bozeman, Moline, Ill., Charles R. Sprowl, Chicago, Ill., for defendant.

DECISION AND ORDER

ROBERT D. MORGAN, Chief Judge.

Plaintiff, Virgil Carothers, filed this complaint on behalf of himself and on behalf of all members of a class therein described. The court's jurisdiction is invoked under the provisions of 28 U.S.C. § 1336(a), involving Interstate Commerce Commission orders.

The litigation proceeds from the following operative facts. Defendant, a Delaware corporation, with its principal office in the State of Illinois, is an interstate carrier of commodities by motor vehicle. The plaintiff class, as defined in this court's prior order, is composed of all owner-operators who were employed by the defendant during the critical period from about February 7, 1974, to August 26, 1974. As the term "owner-operator" implies, each of such persons owned his own truck-tractor which he operated in the defendant's service as an employee-lessor.

Because of substantial increases in fuel costs affecting the trucking industry, the Interstate Commerce Commission entered an order, effective February 7, 1974, which authorized motor carriers to impose a surcharge, not in excess of 6%, upon all charges to shippers which involved the use of fuel.¹ Pursuant to that authority, the defendant did impose a surcharge at the rate of 6%.

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Plaintiffs allege in their complaint that they were the persons who were actually responsible for the payment of the costs of fuel used in their equipment, that they "were to receive the full increase in revenue derived from the surcharge," and that defendant has refused to pay such sums to them, but that it has converted such revenues to its own use. They pray a judgment against defendant in an amount equal to the revenue which was derived from the surcharge during the period of time alleged.

Defendant moves to dismiss the complaint upon two grounds. First, it asserts that the theory of complaint is that ICC Special Permission No. 75-2525 is an order for the payment of money, and that the claimed right is governed by the one-year statute of limitation established by 49 U.S.C. 16(3)(f).² It argues that February 7, 1974, the effective date of the order, delimits the start of the limitation period, and that the complaint which was filed June 20, 1975, is barred by the statute.

Second, and as an alternative ground for dismissal, defendant asserts that the cause relates to a condition of employment and the same cannot be maintained because the dispute was not submitted to the grievance procedures provided by a collective bargaining agreement between defendant and Local 710, International Brotherhood of Teamsters. All of the plaintiffs are members of Local 710, which is their bargaining representative.

If there was any doubt that the plaintiffs are impaled upon the horns of a dilemma, a perusal of their brief must remove such doubt. They first assert that, despite the allegations of their complaint that defendant was required by the ICC action to pay the surcharge revenue to them, the ICC action is not an order for the payment of money and thus not governed by Section 16(3)(f). Secondly, they assert that the surcharge revenue question is not governed by the collective bargaining agreement, and therefore the grievance provisions of that agreement do not apply. Thus, in response to this motion, plaintiffs disavow both alternative theories which might sustain their complaint. One is left with the question, "What is their complaint?"

The specific allegations of complaint are meaningless, unless the complaint be interpreted as treating the ICC ruling as an order for the payment of money to the plaintiffs. That conclusion is inherent in plaintiffs' reference to the ICC ruling, in conjunction with their allegations that they were responsible for the payment of fuel costs and that they are, therefore, entitled to the added revenue produced by the surcharge.

The fact that the order neither fixes any specific amount nor contains a date for payment does not preclude the conclusion that this special permission might be construed as an order for the payment of money. A somewhat parallel situation was before several courts in a recent series of cases which arose out of a single ICC order. As the result of a tariff investigation order by the Commission, the ICC determined that a portion of a tariff published by the motor freight industry was illegal. The same order required motor carriers to refund to shippers the amount of improper charges which had been imposed under the illegal tariff. The order made no determination as to amounts payable and fixed no time when such payments were to be made. It was held that that order could be enforced as an order for the payment of money, despite those omissions. Container Corporation of America v. Admiral Merchants Motor Freight, Inc., 489 F.2d 825 (7th Cir. 1973); Aluminum Company of America v. Admiral Merchants Motor Freight, Inc., 486 F.2d 717 (7th Cir. 1973); Western Electric Company, Inc. v. Burlington Truck Lines, Inc., 501 F.2d 928 (8th Cir. 1974); S. S. Kresge Company v. A & B Transfer, Inc., 488 F.2d 894 (6th Cir. 1973).

In the Container Corporation case the court held that the cause of action was governed by Section 16(3)(f) and that the statute of limitations began to run when the order became final and effective. Since, in the context of that case, enforcement of the order had been enjoined by a three-judge district court, the order did not become final and effective until that injunction was dissolved. 489 F.2d at 827-829. In the Western Electric case the court said that the statute of limitations was tolled by the injunction, and that discounting the period of time during which enforcement was enjoined, the complaint under consideration was timely. 501 F.2d at 935-936. In either event, the statutory limitation period does commence to run upon the effective date of the order in question.

Plaintiff cites several cases which are deemed to be wholly inapposite. The courts have logically held that if a reparation order fixes a date on or before which payment must be made, a cause of action to enforce the order first accrues and the limitation statute attaches as of the date fixed for payment, not the date of entry of the order. Missouri Pacific Railway Co. v. Austin, 292 F.2d 415, 418-419 (5th Cir. 1961); Chesapeake & O. Ry. Co. v. Walton, 99 F.2d 270, 272 (4th Cir. 1938).

Wisconsin Bridge & Iron Co. v. Illinois Terminal Co., 88 F.2d 459 (7th Cir. 1937), was a suit by a carrier against a shipper to recover a balance of freight charges claimed to be due. The court held that the claim was barred by the three-years' limitation period provided by Section 16(3)(a), and that 16(3)(f) could not be applied to measure elapsed time with reference to the date of a related ICC order. Ibid at 461-462.

Midstate Horticultural Co., Inc. v. Pennsylvania Railroad Co., 320 U.S. 356, 64 S.Ct. 128, 88 L.Ed. 96 (1943), was a suit by a carrier to recover transportation charges. Chicago & Northwestern Transportation Company v. Soo Line Railroad Company, 384 F.Supp. 226 (N.D.Ill.1974), was a suit by one carrier against another upon a contract. Neither case involved the provisions of 16(3)(f).

Plaintiffs also argue that if the statute does apply, it would only bar that part of their claim which would have accrued prior to June 20, 1974. That argument wholly misconstrues the nature of the limitations' provisions of Section 16.

The limitations' provisions of the Act are jurisdictional. The lapse of time not only bars the remedy, but also destroys the cause of action. In Midstate Horticultural Co., Inc. v. Pennsylvania Railroad Co., supra, the Court held that an express written waiver of the limitations' provisions could not extend the limitations' period beyond the term provided by that Act. In Wisconsin Bridge & Iron Co. v. Illinois Terminal Co., supra at 461, the court said that an estoppel could not apply to create a jurisdiction which had ceased to exist under the statute.

If the plaintiffs ever had a cause of action based upon this order, that cause of action ceased to exist one year after the effective date of the order.

This complaint stands in no better stead, if it be construed to be grounded upon a theory other than that of enforcing an ICC order. Plaintiffs' argument that this surcharge dispute is not a matter contemplated by the collective bargaining agreement with the union is refuted by undisputed facts before the court.

The union agreement did govern wages and rental compensation to be paid to owner-operators employed by the defendant. It contemplated that such owner-operators would supply their own fuel. With marked increases in fuel costs a reality, the defendant proposed to the union in November, 1973, that, effective November 1, 1973, the collective bargaining agreement be supplemented to provide that defendant would bear the burden of such price increments over the cost of fuel as of July 1, 1973. That proposal was accepted. Thereafter, in February, 1974, defendant proposed to the union that the agreement be further supplemented to provide that defendant would, effective from February 1, 1974, bear the entire increment in fuel costs of the owner-operators over and above the price of fuel as of May 15, 1973.³ That proposal was also accepted.

The ICC authority to impose a surcharge related specifically to the reality of increasing fuel costs. Though the collective bargaining agreement contains no specific reference to "surcharges," it does specifically relate to the burden of fuel costs upon the...