Cook v. Brotherhood of Sleeping Car Porters

• Court: Missouri Supreme Court
• Writing for the Court: EAGER
• Citation: Cook v. Brotherhood of Sleeping Car Porters, 309 S.W.2d 579 (Mo. 1958)
• Decision Date: 13 January 1958
• Docket Number: No. 45783,No. 2,45783,2
• Parties: Leland R. COOK, James Richie, John F. Price, Lonnie Gigers, Kelly May, A. L. McDonald, I. R. A. Saville, Isom McMoore, J. O. McDonald, Rufus Pettis, Hopson Wilson, Theodore Wright, I. B. Woods, Curtis G. Neal, Appellants, v. BROTHERHOOD OF SLEEPING CAR PORTERS, an unincorporated association, T. D. McNeal, Vice-President, Brotherhood of Sleeping Car Porters, Guy A. Thompson, Trustee, Missouri Pacific Railroad Company, Debtor, and Missouri Pacific Railroad Company, a Missouri corporation, Respondents

Page 579

309 S.W.2d 579

Leland R. COOK, James Richie, John F. Price, Lonnie Gigers Kelly May, A. L. McDonald, I. R. A. Saville, Isom McMoore J. O. McDonald, Rufus Pettis, Hopson Wilson, Theodore Wright, I. B. Woods, Curtis G. Neal, Appellants, v. BROTHERHOOD OF SLEEPING CAR PORTERS, an unincorporated association, T. D. McNeal, Vice-President, Brotherhood of Sleeping Car Porters, Guy A. Thompson, Trustee, Missouri Pacific Railroad Company, Debtor, and Missouri Pacific Railroad Company, a Missouri corporation, Respondents.

No. 45783.

Supreme Court of Missouri, Division No. 2.

Jan. 13, 1958.

Motion for Rehearing or to Transfer to Court en Banc Denied

Feb. 10, 1958.

Victor Packman, Irl B. Baris, Henry D. Espy, St. Louis, Joseph C. Waddy, Washington, D. C., of counsel, for appellants.

Clif. Langsdale, Kansas City, for Brotherhood of Sleeping Car Porters, and T. D. McNeal, respondents.

Harold L. Harvey, St. Louis, for respondent, Missouri Pac. Ry. Co.

EAGER, Judge.

This is a suit in equity filed by fourteen employees of the Missouri Pacific Railroad Company who are designated for collective bargaining purposes as 'Train Porters'; defendants are the Brotherhood of Sleeping Car Porters, T. D. McNeal, a Vice-President thereof, the Missouri Pacific Railroad Company, and Guy A. Thompson, its Trustee (who needs no longer be considered). Plaintiffs have been so employed for relatively long periods, and as such they have acquired considerable seniority. They allege that, although they are classed as 'Train Porters,' the majority of their duties 'consists of head-end braking.' That contention is a matter which has long given rise to controversy and litigation, both in court and before administrative tribunals (State ex rel. S. L. & S. F. Ry. v. Russell, 358 Mo. 1136, 219 S.W.2d 340), but we are concerned with it here, if at all, only as background material. More specifically, that concerns the proper craft classification of this group of employees. Concededly, as shown here, the defendant Brotherhood had long been certified by the National Mediation Board (Title 45 U.S.C.A. Secs. 154, 155) as the bargaining representative of the craft of 'Train Porters'; and the present transcript also shows that the Board had declined to recognize 'Porter-Brakemen,' as a separate craft or class. Consequently the plaintiffs, and perhaps others in like situation, were somewhat dissident members of the craft of 'Train Porters'; they did not, at the times here in question, belong to the defendant Brotherhood, although concededly represented by it for bargaining purposes. While perhaps it is immaterial, the record shows that plaintiffs belonged to the International Association of Railway Employees (which will be referred to as the Association), sometimes described as a 'rival union,' and at least one of them was an officer of its local. That evidence was objected to by the plaintiffs; they do not rely here upon such membership as an exemption from membership in the Brotherhood under Sec. 152, Eleventh (c) of the Act, as membership in a labor organization 'national in scope.' The status of such an organization must be previously determined and certified by the recognized tribunals. (Pennsylvania R. Co. v. Rychlik, 352 U.S. 480, 77 S.Ct. 421, 1 L.Ed.2d 480.)

Pursuant to Title 45 U.S.C.A. Sec. 152, Eleventh (being the amendment of 1951 to the Railway Labor Act), and on January 31, 1951, the Brotherhood duly requested of the Missouri Pacific conferences for the purpose of negotiating a union shop agreement. Under date of March 9, 1953, a memorandum agreement was executed by these parties adopting the form of union shop agreement here involved; this, in fact, was a form of agreement similarly entered into by Missouri Pacific with certain other crafts. The agreement, which we shall usually refer to as 'the contract,' was to be effective from April 1, 1953, and it covered 'the employees * * * represented by the Brotherhood * * *.' In strict conformity to the statute, supra, the contract (Sec. 1) required that 'all employes * * * subject to the rules and working conditions agreements between the parties hereto * * * shall, as a condition of their continued employment * * * become members of the organization party to this agreement representing their craft or class within sixty calendar days of the date they first perform compensated service as such employes after the effective date of this agreement, and thereafter shall maintain membership in such organization; * * *.' Section 4, also in conformity to the statute, provided that: 'Nothing in this agreement shall require an employe to become or to remain a member of the organization if such membership is not available to such employe upon the same terms and conditions as are generally applicable to any other member, or if the membership of such employe is denied or terminated for any reason other than the failure of the employe to tender the periodic dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership. * * *' Section 5 provided the procedure for notice to the carrier of noncompliance, and for hearings, appeals, etc., by an employee who disputed his liability to discharge. The substance of these provisions will appear in the body of this opinion.

Plaintiffs (some or all) testified that they were not notified or consulted concerning the request for or negotiation of, the contract, and we may assume that none of them were; the testimony of defendant McNeal indicated that business meetings of the Brotherhood members were held (to which nonmembers were not invited), before or after the union shop agreement was requested, at which meetings the matter was discussed, but no vote was taken because the 1950 National Convention of the Brotherhood had instructed its proper officers to negotiate for such a contract with the Missouri Pacific. The local was represented by a delegate at that convention. It seems clear that none of the plaintiffs gave the Brotherhood any specific authority to execute the contract.

On or about March 13, 1953, the Brotherhood (and in the use of this term, where appropriate, we include also the local) sent to each of the plaintiffs a letter stating that a union shop agreement had been signed, effective April 1, 1953, and that all employees classed as Train Porters were required 'to become and remain financial members' of the Brotherhood within the specified sixty-day period after its effective date or become subject to dismissal; much more detail was stated concerning initiation fees, dues, mode of payment, etc., and a copy of the contract was enclosed with each letter. On May 21, 1953, the Brotherhood again wrote (by registered mail) to each of the plaintiffs, calling his attention to the fact that he had failed to comply with the union shop agreement, and expressing the hope that he would become a member before June 1, 1953; in part these letters stated: '* * * You can become a member by carrying or mailing the $25 joining fee to Secretary-Treasurer Will Newton, 1021 W. 29th Street, Little Rock, Arkansas, or to the Brotherhood of Sleeping Car Porters, 11 N. Jefferson Avenue, St. Louis 3, Missouri, in time to reach either place before June 1, 1953.

'In the event you have not become a member before June 1, 1953, under the terms of the Union Shop agreement, we will have no choice but to serve notice on the Missouri Pacific to terminate your employment and seniority under our working agreement. * * *'

On or about June 3, 1953, none of the plaintiffs having joined the Brotherhood, it notified the Missouri Pacific in writing, and separately as to each one, of the noncompliance of each such employee with the contract, and requested that he be duly notified by the carrier. Thereupon the carrier promptly notified each plaintiff of the receipt of that request, and of the fact that he was thereby subject to dismissal. Thereupon each plaintiff, by letter to the carrier, requested a hearing before its proper official, in conformity with the contract procedure; all such hearings were held during the summer of 1953, the respective plaintiffs appearing personally, transcripts of the testimony or statements were made, and the result in each case was that the employee was thereafter notified in writing that he had been found to be in noncompliance with the contract and thus subject to discharge. At these hearings, so requested by the plaintiffs and held during the summer of 1953, each and every plaintiff was offered an opportunity to join the Brotherhood then, upon its agreement to drop the dismissal proceedings (although the sixty-day period had expired), but each of them declined. Each of the plaintiffs thereafter notified the carrier, in due course, that he appealed from this decision to the carrier's chief personnel officer; such appeals were considered on the records and in accordance with the stated procedure of the contract, and the respective plaintiffs were all notified that after a review of the records the conclusion had been reached that they had failed to comply with the contract and that the decision appealed from was sustained. Various plaintiffs testified that they had sought permission at the respective hearings to be represented by an attorney who was then present with them, but that the attorney was either excluded from the room or was not allowed to participate. Following the notifications of affirmance, each plaintiff requested of the carrier (August-September, 1953) the appointment of a 'neutral' to decide the dispute, under the terms of Sec. 5 of the contract. The parties being unable to agree on a neutral, the National Mediation Board appointed Judge John W. Yeager of the Supreme Court of Nebraska to act as such. Hearings were held by him on November 9, 10 and 11, 1953, and under date of November 17, 1953, Judge Yeager notified each plaintiff of his finding that such p...