Gunther v. San Diego & Arizona Eastern Railway Co.

Decision Date27 September 1961
Docket NumberNo. 2459-SD.,2459-SD.
PartiesF. J. GUNTHER, Petitioner, v. SAN DIEGO & ARIZONA EASTERN RAILWAY COMPANY, a corporation, Defendant.
CourtU.S. District Court — Southern District of California

Charles W. Decker, San Francisco, Cal., Clifton Hildebrand, Hildebrand, Bills & McLeod, Oakland, Cal., Gostin & Katz, San Diego, Cal., for petitioner.

Gray, Cary, Ames & Frye, James W. Archer, Eugene L. Freeland, San Diego, Cal., W. A. Gregory, William R. Denton, San Francisco, Cal., for defendant.

WEINBERGER, District Judge.

Petitioner is before the Court in this action with the second of two petitions seeking to enforce an award and order of the National Railroad Adjustment Board, hereinafter called the "Board". The first petition was filed in case No. 2080-SD-W, transferred to this Division from the Northern District. A motion for summary judgment was made by the defendant railroad, and we ruled that the record before us did not reveal an award and order with which the railroad had refused to comply. Gunther v. San Diego, D.C., 161 F.Supp. 295. On July 15, 1958 further proceedings were stayed because petitioner stated he had filed a petition before the Board for an interpretation of its award and order, or for the issuance of a supplemental award determinative of his right to reinstatement in active service with the defendant railroad. The Board did render an award and order on October 8, 1958, but this second award was not presented to this Court in the case then before it, case No. 2080. In March, 1959, petitioner moved to dismiss the said case without prejudice; the Court denied the motion to dismiss and granted defendant's motion for summary judgment on the basis of the ruling mentioned above. In the findings and conclusions on motion for summary judgment, the Court found it was not necessary at the time to decide whether the Board had jurisdiction to order the appointment of a board of physicians to examine petitioner, and that it was not necessary at the time to consider the terms of the agreement between the defendant and petitioner's Union. The findings and conclusions in case No. 2080 are set forth in the Court's opinion reported at D.C., 192 F.Supp. 882.

Nearly two years after the rendition of the award of October 8, 1958, petitioner brought the same to the attention of this Court by a petition to enforce said award filed September 26, 1960. A motion for summary judgment filed by the railroad was denied without prejudice to the making of a similar motion on limited grounds. (Gunther v. San Diego, D.C., 192 F.Supp. 882.) The railroad filed an answer, then a second motion for summary judgment which was noticed for hearing on May 29, 1961; after statements, affidavits and briefs were filed and oral and written argument had, the motion was submitted on July 21, 1961.

The defendant is a Nevada Corporation, a railroad carrier subject to the Interstate Commerce Act, with its principal operating office located in the Southern District of California. Petitioner was employed by defendant on December 18, 1916, as a fireman and thereafter was continuously in the active service of defendant until December 30, 1954. On said latter date, which was shortly after petitioner's 71st birthday, petitioner was disqualified from service after a physical examination. At his request, he was sent to the Southern Pacific General Hospital and there examined by carrier's medical superintendent, following which the chief surgeon determined that petitioner should not be returned to service. Petitioner's own physician disagreed with the company doctors as to petitioner's disqualification, and petitioner presented a claim to defendant for reinstatement to active service with back pay, and when defendant denied the claim, submitted the same to the National Railroad Adjustment Board, First Division. The findings and award of the Board, dated October 2, 1956 are included in the Appendix to this memorandum, as "Exhibit A". Following issuance of the award, a board of three physicians as therein provided was selected, and the Board, on October 8, 1959 made findings and award, which are included in the Appendix as "Exhibit B". Thereafter, defendant again refused to reinstate petitioner to active service. (Petitioner alleges the majority of the physicians found that he had no defect which in their opinion would prevent him from performing his duties as a locomotive engineer; defendant alleges the decision of the majority supported that of the Company doctors.)

The Board, in its award of October 8, 1959 ruled that the majority of the three physicians had decided petitioner had no physical defects which would prevent him from carrying on his usual occupation as engineer, and ordered that petitioner be reinstated with pay for all time lost.

It is our view that the two awards and the two orders must be construed together as one award and one order, taking effect with the issuance of the second.

A collective bargaining contract was entered into between the Brotherhood of Locomotive Firemen and Enginemen, petitioner's Union, and the defendant on March 1, 1935. The Agreement is on file, and portions of the same referred to by petitioner in his affidavit and in the brief of his counsel and relied upon in support of his position herein, are found in the Appendix to this memorandum under headings: "Article 35, Seniority", "Article 38, Reduction of Force" and "Article 47, Investigations".

The defendant's motion for summary judgment asks this Court to rule:

"There is no genuine issue as to any material facts, and the undeniable facts show that there is no agreement provision to support the award and order in favor of petitioner and against defendant". and,

"The First Division, National Railroad Adjustment Board, issued its Award No. 17646, Docket 33531, and its order under said docket number, under date of October 8, 1958, in excess of its jurisdiction under the Railway Labor Act. Therefore, said Award and Order are unenforceable". (Defendant's proposed findings and conclusions filed May 16, 1961, p. 3.)

Petitioner's position is that the motion for summary judgment should not be granted because, in order to interpret the contract, it will be necessary to consider evidence of custom and usage * * this for the purpose of arriving at the intent of the parties; he maintains that those portions relating to his right of continued employment, to-wit, seniority and limited right of discharge, are ambiguous and require extrinsic evidence as an aid to their interpretation, and argues, at page 2 of his brief that "the unqualified right of defendant to determine the physical fitness of its employees is nowhere to be found in said Agreement, whereas petitioner's right to continued employment is set forth in Articles 35 and 47 thereof" and at page 3, "The Agreement sued upon herein by providing for seniority rights and discharge only for good cause, limits the power of the employer to suspend or discharge employees from active employment."

The affidavit of petitioner in opposition to the motion for summary judgment offers testimony with reference to custom and practice. Mr. Gunther avers that for many years he was General Chairman of the Brotherhood of Locomotive Firemen and Enginemen and as such actively engaged in enforcing the provisions of the Agreement referred to in his petition. The affidavit then sets forth portions of Article 35 (Seniority), Article 47 (Investigations), and Article 38 (Reduction of Force) of the agreement and states that such provisions are vague, ambiguous and are not sufficient to specify the precise rights of the employees covered thereby with respect to duration of employment and the rights if any, of the employer to restrict same.

Petitioner continues: "That at all times pertinent herein the interpretation of said provisions, and their application to defendant's operations were done by reference to a long history of custom and practice in the railroad industry; that, for example, because the `* * * (R)ights of engineers * * * governed by seniority in the service of the Company * * * were not specified in detail in said Agreement, their substance could only be, and was, determined by resort to custom and practice in the industry'." The affidavit details the custom with reference to seniority, stating that the most senior engineer was entitled to the assignment of his preference and, in the event of elimination of such assignment by reduction of work force or otherwise, such senior engineer had the right to displace a junior, etc., and further argues "that defendant's removal of petitioner from the assignment of his choice on December 30, 1954 was in violation of petitioner's seniority rights as conferred by said Agreement, because, at said time, petitioner was senior to the engineer who replaced him on said assignment and, for that matter, to all other engineers in the employ of defendant."

Petitioner's affidavit further avers "that at all times it was never the custom and practice for the active employment of an engineer covered by said Agreement to be terminated by retirement against the will of such engineer."

The brief of petitioner also urges that custom and usage may be looked to to explain the meaning of language and to imply terms where no contrary intent appears from the terms of the contract.

The defendant has filed an affidavit which alleges that locomotive engineers employed by the railroad are and have always been required by Company policy to take and pass periodic physical examinations and re-examinations to determine their fitness to remain in service; that in the year 1954 these requirements provided and still provide that employees of age seventy and over must take and pass such a physical examination every three months; that in accordance with such rule Mr. Gunther reported for physical examination on November 24, 1953 and for additional examinations or re-examinations in each successive...

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