Crockett v. Union Terminal Co.

• Decision Date: 16 December 1960
• Docket Number: No. 15689,15689
• Citation: 342 S.W.2d 129
• Parties: Lewis CROCKETT et al., Appellants, v. UNION TERMINAL COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 129

342 S.W.2d 129

Lewis CROCKETT et al., Appellants, v. UNION TERMINAL COMPANY, Appellee.

No. 15689.

Court of Civil Appeals of Texas, Dallas.

Dec. 16, 1960.

Witts, Geary, Hamilton, Brice & Lewis and Ray G. Besing, Dallas, for appellants.

Jackson, Walker, Winstead, Cantwell & Miller, and Donald C. Fitch, Jr., Dallas, for appellee.

DIXON, Chief Justice.

Appellants Lewis Crockett, Arba Johnson, Samuel Cole and Willie Hervey sued appellee The Union Terminal Company, a corporation (hereinafter referred to as Carrier) for damages resulting from alleged wrongful discharge from employment. The appeal is from a summary judgment in favor of Carrier.

The facts are developed by means of affidavits and depositions.

Appellants were formerly employed by Carrier as baggage and mail handlers or porters. They were on the 'Extra Board', a rotating pool of employees who perform extra work during peak periods of activity, or temporarily fill the positions of regularly assigned baggage and mail porters who are absent from work due to sickness or other causes.

The employment of appellants must be considered in connection with certain collective bargaining agreements between Carrier and the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees. The first agreement, known as the General Clerk's Agreement, which has been amended from time to time, was entered into March 1, 1922. This agreement includes Rule 27, entitled 'Discipline and Grievances', which provides for an investigation and hearing before any employee may be 'dismissed from service', and provides also that a decision shall be made within ten days, after which an appeal may be taken.

The second agreement, known as the Extra Board Agreement of 1950, entered into between Carrier and the Brotherhood, grew out of the need of Carrier for a pool of extra labor at the beginning of each of the three daily employment shifts. This agreement provided for the formation of the extra pool and laid down rules governing its operation. Paragraph 7 of this agreement is relied on by Carrier, so we quote from it:

'Employees working on the Board who refuse to report for extra work as herein provided will be considered out of the service of the Carrier; except when on authorized leaves of absences; by permission of the Carrier's representatives; or due to sickness of themselves or the immediate members of their families.'

Appellee Carrier alleges that by agreement between the designated representatives of Carrier and the Brotherhood, or in the alternative, by custom, practice and usage, the meaning, effect and application of the above quoted paragraph 7 of the Extra Board Agreement is this: If any extra board porter for any reason, other than the three reasons specifically excepted therein, fails to report in person ready for work at 6:00 o'clock a. m., 2:00 o'clock p. m., or, 5:00 o'clock p. m., the starting times of the shifts, or within 60 minutes thereafter, his employment is deemed automatically terminated, without such termination being considered a 'dismissal from service' for which a hearing is prerequisite under the General Clerks Agreement of 1922.

The third agreement, known as the National Agreement, was entered into August 21, 1954 between the railroads and carriers represented by the Carriers' Conference Committees, and employees of such carriers represented by railway labor organizations to which they belong through the Employees' National Conference Committee. This is a labor agreement between nearly all of the United States railway carriers, including appellee Carrier, and nearly all non-operating railway unions, including appellants' Brotherhood.

Article V of the National Agreement is entitled 'Time Limit on Claims Rule.' Paragraph 1(c) of Art. V contains this provision:

'All claims or grievances involved in a decision by the highest designated officer shall be barred unless within 9 months from the date of said officer's decision proceedings are instituted by the employee or his duly authorized representative before the appropriate division of the National Railroad Adjustment Board or a system, group or regional board of adjustment that has been agreed to by the parties hereto as provided in Section 3 of the Railway Labor Act.'

Paragraph 5 of Article V is as follows:

'This agreement is not intended to deny the right of the employees to use any other lawful action for the settlement of claims or grievances provided such action is instituted within 9 months of the date of the decision of the highest designated officer of the Carrier.'

In connection with its motion for summary judgment Carrier presents affidavits to the effect that appellants Crockett and Johnson, each of them on a certain occasion, failed to report for work without permission to be absent, and appellants Hervey and Cole, each of them, on a certain occasion, were more than 60 minutes late in reporting for work without permission to be late, and as a result thereof the employment of appellants as members of the Extra Board was automatically terminated.

Appellants filed controverting affidavits in which they assert that they did have permission to be absent and late respectively with respect to the shifts named in Carrier's affidavits.

It is undisputed that appellants did not file this suit within 9 months from the date of the adverse decision of the highest designated officer of Carrier.

Opinion.

Appellants correctly assert in their four points on appeal, that the opposing affidavits in this case raise fact issues as to whether appellants were absent from work. or more than 60 minutes late in reporting to work without permission to be absent or late. If our decision turned on that question we would have to reverse the trial's court summary judgment and remand the cause for trial on the merits. But it is on other grounds that Carrier undertakes to support the summary judgment--grounds which, if sustained, render immaterial the fact issues above mentioned.

Before discussing Carrier's counterpoints we pause to notice that appellants claim that the existence of the National Agreement of 1954 has been denied under oath, thus raising a fact issue. We are unable to agree with appellants. The only sworn reference to the National Agreement by any of appellants was by appellant Crockett. He merely stated that the existence of the agreement was unknown to him, and that none of appellants had any knowledge of its existence. This does not meet the affidavit of Carrier's agents of the existence and terms of the National Agreement of 1954.

We shall first discuss Carrier's third counterpoint because it raises a jurisdictional question. In it Carrier says that the trial court had no jurisdiction of this action because it involves and requires interpretation of provisions of labot agreements made pursuant to the Railway Labor Act, therefore exclusive jurisdiction of the controversy lies in the National Railroad Adjustment Board.

This point is raised for the first time in Carrier's supplemental brief, which was filed in answer to appellants' supplemental brief. Nevertheless, the jurisdictional question so raised is fundamental in nature, and the point must receive our consideration.

In support of this point Carrier cites us to Section 3, First (i) of the Railway Labor Act, 45 U.S.C.A. Sec. 153, First (i) and quotes from the opinion in Gainey v. Brotherhood of Railway and Steamship Clerks, 3 Cir., 275 F.2d 342, certiorari denied 363 U.S. 811, 80 S.Ct. 1248, 4 L.Ed.2d 1153.

Carrier concedes that the holding in Moore v. Illinois Central Ry. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 is contrary to Carrier's present contention. But it says that the holding in the Moore case is no longer the law, as is made clear in the later Gainey case. We are unable to agree with Carrier.

It is significant that appellants in this case are not suing for reinstatement and back pay, nor are they disputing the wage rate by which Carrier paid them. They have accepted their discharge as final, and their suit is only for damages for alleged wrongful discharge.

The nature of the suit in the Gainey case was quite different. The Gainey case was an attempt to sue in court for mandatory injunction to compel the railroad to equalize wages paid to employees in its eastern and central divisions, and also to penalize the complainants' union for consenting to the unequal wage rates. The complainants, some 600 in number, were still in the employ of the railroad. The trial court rendered judgment against the employees and the Third Circuit Court of Appeals affirmed the judgment on the ground that under the circumstances the National Railroad Adjustment Board had exclusive jurisdiction of the suit. In support of its holding the Court cited Pennsylvania R. Co. v. Day, 1959, 360 U.S. 548, 79 S.Ct. 1322, 3 L.Ed.2d 1422, and Union Pac. R. Co. v. Price, 1959, 360 U.S. 601, 79 S.Ct. 1351, 3 L.Ed.2d 1460. The opinion in the Gainey case does not mention the Moore case, which is relied on by appellants as authority that appellants had a right to sue in court instead of appealing to the National Railway Adjustment Board.

The holding in the Gainey case and the holding in the two recent Supreme Court cases cited in the Gainey case are not contrary to the holding in the Moore case. In the Day case, after holding that the National Railroad Adjustment Board had exclusive jurisdiction of the dispute there involved, the Supreme Court said [360 U.S. 548, 79 S.Ct. 1325]:

'Our decision in Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, does not stand in the way of this. The decision in that case had been given its proper, limited scope in Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795. Moore carved out from the controlling...