Couey v. Arrow Coach Lines

• Decision Date: 22 February 1956
• Docket Number: No. 10372,10372
• Citation: 288 S.W.2d 192
• Parties: Bryan H. COUEY, Appellant, v. ARROW COACH LINES, Inc., Appellee.
• Court: Texas Court of Appeals

Page 192

288 S.W.2d 192

Bryan H. COUEY, Appellant, v. ARROW COACH LINES, Inc., Appellee.

No. 10372.

Court of Civil Appeals of Texas, Austin.

Feb. 22, 1956.

Rehearing Denied March 14, 1956.

Bradbury, Tippen & Brown, Abilene, for appellant.

Truman Roberts, Hico, H. W. Allen, Hamilton, for appellee.

HUGHES, Justice.

This suit arises from a conventional arbitration under an agreement between Arrow Coach Lines, Inc., hereinafter called 'Arrow' and Local Division No. 1313, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, A.F.L., hereinafter referred to as the 'Association.'

The employee whose discharge by Arrow provoked this proceeding is appellant Bryan H. Couey of Abilene, Texas.

The award of the arbitration panel was in favor of appellant. ¹ Suit in the court below was instituted by Arrow for the purpose of vacating such award. Motions for summary judgment were made by both parties. The motion of Arrow was granted, the motion of appellant denied. Judgment was rendered accordingly.

Since under settled legal principles later stated, we believe that our decision herein must turn upon a proper answer to the question of whether or not the award of the arbitration panel is within the scope of the controversy submitted to it, we will fully treat the procedural aspects of the case and minimize factual matters pertaining to the merits.

On September 13, 1954, Arrow notified appellant, who had been in its employment about 11 years, of his dismissal and gave these reasons:

'Based on your record from June 1st, 1953, to date, you are hereby permanently suspended as an employee of this Company. Our records reflect three (3) instances of excessive speed, one instance of reckless driving, smoking while driving, and various acts of hostility toward this Company.'

On September 16, 1954, the Association, acting for appellant, requested that Arrow set a time and place for a hearing regarding appellant's discharge. This hearing resulted in a confirmation, by Arrow, of appellant's dismissal. We quote a portion of Arrow's letter, dated September 27, 1954, so advising appellant:

'With the understanding that the company reserves its right to object to any arbitration in the matter of any of the published rules of the company, as well as reserving all our rights under our contract and provisions as they relate to the matters presented in this hearing, I have again carefully considered the case of Mr. Couey, including a re-examination of each of the matters contained in his records. We are of the opinion that any of the matters contained in this man's records furnish sufficient cause for dismissal.'

We quote now the relevant provisions of the contract between Arrow and the Association:

'In accordance with the established Company policy, an Employee will not be disciplined or dismissed from service nor will entries be made against his record without cause.'

Provisions are then made for a hearing before and decision of the General Manager or some other official of Arrow following which it is provided:

'If the Employee so disciplined, discharged or agaisnt whose record entries have been made, is dissatisfied with such written decision, he shall be entitled to demand arbitration thereof, * * *.'

Then follows directions for selecting the arbitrators and for the hearing to be conducted by them from which we quote:

'All parties at interest may appear at such hearing in person or by representatives, and there present all matters pertinent to the controversy in person, by witnesses and in such order as may be designated by the arbitrators. * * *

'A written decision of the controversy shall be made and signed by a majority of the arbitrators, with copies thereof to Company and Association, within twenty (20) days after the hearing is concluded, and such written decision by the arbitrators shall be final and binding upon all parties, their successors and assigns.'

The contract further provides:

'If as a result of the arbitration, the discipline or dismissal of an Employee is found to have been without sufficient cause, the record of the Employee shall be made to conform to the final decision of the Board, and if time has been lost, the Employee shall be paid for any loss of earnings which he may have suffered by reason thereof, or some much of such loss as may be finally determined by the Board of Arbitration to be due to him.'

Other provisions which may have a bearing are:

'No arbitration hereunder and no arbitrator or arbitrators shall change or add to any term or provisions of this contract.'

'The Association agrees that it has full notice of the rules and regulations of the Company.'

'Failure on the part of the Company from time to time or at any time to enforce any rule or regulation shall not be deemed as a waiver thereof, nor bar the enforcement of such rule or regulation for any subsequent violation of the same.'

'It is understood and agreed that the provisions of this agreement shall be subordinate to any present or subsequent federal, state, or municipal law or regulation to the extent that any portion hereof is in conflict therewith, * * *.'

Upon the hearing before the arbitrators it was stipulated:

'This arbitration is held pursuant to the terms and provisions of the contract dated Paril 1, 1954, between Arrow Coach Lines and Local Division No. 1313, of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, A. F. of L. All prerequisites to this arbitration as to whether Bryan H. Couey was dismissed by Arrow Coach Lines for cause, have been fully complied with and this matter is now properly submitted to this board of arbitrators. Mr. Bryan Bradbury of Abilene, Texas, was selected by the said Bryan H. Couey and his representatives to serve on such board and J. V. Hammett of Lampasas, Texas, was selected by Arrow Coach Lines to serve on such board and the Hon. Frank Tirey was selected from a panel of three arbitrators named by Hon. Ben H. Rice, District Judge of the Western District of Texas, Austin Division, all in accordance with the terms of said contract and it is agreed that the validity of this board and arbitrators and selection of each member thereof is valid and binding all parties hereto for all purposes.'

As indicative of how the parties and the panel understood and construed the nature of the hearing we quote from the record:

'Mr. Lynch: (for Arrow) Mr. Tirey, I believe we might get the union representatives, who have had much more experience and are more familiar with arbitrations than we are, to state the facts that in these informal hearings of this type that the Rules of Evidence are not followed, and that hearsay or anything else is allowed in the record.

'Mr. Estes: (for the Association) That is correct. In our arbitration cases they do not follow the strict rules of evidence and a wide latitude is allowed, and then the impartial arbitrator then makes up his own mind relative to the case and the weight that it will bear.

'Mr. Tirey: I am going to hold it up for the time being and you might take ip up with the panel again and then we will work it out.

'Mr. Hammett: (for Arrow) Mr. Tirey, wouldn't it probably expedite our hearing to let that go in subject to your later ruling on it?

'Mr. Tirey: Well, there isn't much difference. I don't see that it would make any difference anyway because there is not any appeal from our decision, as I understand these rules.

'Mr. Tirey: Were you present when he had this conversation with this lady that you were talking about?' A. No, sir. Mrs. Cofer is President of the Company and she reported the conversation to me as her general manater.

'Mr. Tirey: Are there any objections?

'Mr. Bradbury: (for appellant) Well, the rules that we are operating under, it is just kind of wide open, Judge. We may have a little hearsay ourselves so I can't be too technical.

'Mr. Tirey: All right, we will let it go, but I can't be very scientific in my rulings that way.'

We pause to observe that if all hearsay evidence was eliminated from this record little else would remain.

The rules of Arrow the violation of which is charged to appellant are:

'5. Obedience to the Law.-Operators shall be familiar with, and must obey all laws and traffic regulations, including those of the Interstate Commerce Commission, the Railroad Commission of Texas, State Highway Laws of Texas, and the laws of the counties and towns through which they may operate. Such laws and traffic regulations must be obeyed and any violation thereof will be considered a violation of the Company rules.'

'14. Speed on the Open Highway.-Never, under any condition, operate a bus above the legal speed limit. Never, under any condition, operate a bus faster than can be operated safely, regardless of the speed limit.'

'34. Hostility to the Company.-Words or acts of hostility to the Company, its officers, or agents, or service, equipment, or its conditions, or willful disregard of its interests by employees of rules and regulations or criticism of the Company to other than supervisors or officers is positively forbidden, and will be followed by dismissal.'

'52. Use of Tobacco.-Operators are not permitted to use tobacco in any form while operating coaches, collecting tickets, accepting or discharging baggage to passengers, or while giving information to passengers. At other times, the use of tobacco is permitted.'

Rule 44 provides '44. Suspension and Dismissal.-Disobedience of orders, violation of rules, or neglect of duty, will always be considered sufficient cause for disciplining or dismissal. The rules herein contained in the Drivers' Manual must be followed and failure to do so shall be termed reason for dismissal.'

With respect to the evidence on the merits the record reflects that appellant admitted smoking on duty and speeding. He denied the reckless driving charge. As to the 'hostility' charge appellant admitted that he violated a company...