Howard v. St. Louis-San Francisco Ry. Co.

• Citation: 191 F.2d 442
• Decision Date: 11 September 1951
• Docket Number: 13900.,No. 13899,13899
• Parties: HOWARD v. ST. LOUIS-SAN FRANCISCO RY. CO. et al. ST. LOUIS-SAN FRANCISCO RY. CO. v. HOWARD et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

191 F.2d 442 (1951)

HOWARD v. ST. LOUIS-SAN FRANCISCO RY. CO. et al. ST. LOUIS-SAN FRANCISCO RY. CO. v. HOWARD et al.

Nos. 13899, 13900.

United States Court of Appeals Eighth Circuit.

September 11, 1951.

Victor Packman, St. Louis, Mo. and Joseph C. Waddy, Washington, D. C. (Henry D. Espy, St. Louis, Mo. and Charles H. Houston, Washington, D. C., on the brief), for Simon L. Howard, Sr.

A. J. Baumann, St. Louis, Mo. (E. G. Nahler and M. G. Roberts, St. Louis, Mo., on the brief), for St. Louis-San Francisco Ry. Co.,

Charles R. Judge, St. Louis, Mo. (W. Donald Dubail, St. Louis, Mo., on the brief), for Brotherhood of Railroad Trainmen and C. O. Carnahan, General Chairman, etc.

Before SANBORN, JOHNSEN and RIDDICK, Circuit Judges.

JOHNSEN, Circuit Judge.

For more than 40 years, there has existed historically on the "Frisco" Railway a class of positions and employees known as "train porter."¹ The essence of the duties of this class or craft has always been the performance of the necessary braking work on the head end of Frisco's passenger trains. The holders of the position have been required to undergo the same training and to possess the same qualification as those occupying the similar general position of brakeman.

The job of train porter has been open only to negroes and, because the group has lacked the organizational strength and hold of the brakemen, the wage scale of the position (except during part of the period that the railroads were operated by the Government in and immediately following World War I) has always been less than that of the position of brakeman. There have existed the further differences between the two separately established classes or crafts of employees, that the position of train porter is confined to passenger trains alone and its braking work limited solely to the head end thereof, and that its duties have also included the tasks of keeping the coaches clean and assisting passengers in getting on and off the train.

These aisle-sweeping and passenger-assisting tasks, however, are simply minor and incidental, occupying only, as the record shows, approximately five per cent of a train porter's time. In terms of railroad fact and job reality, inherent and incapable of misunderstanding, it is plain that the position of train porter has had existence only because of the braking duties attached to it and that only because it has made unnecessary the establishing of a head-end brakeman's position on such trains has it had a 40-year survival. Economically and functionally, in free railroad operation, the establishment of the one of such positions on a passenger train necessarily will exclude the existence of the other on it.

These facts are background in the controversy that is before us. The suit involved is one brought individually and representatively, by a train porter on the Frisco, holding that position since 1917, against the Railway, the Brotherhood of Railroad Trainmen and the General Chairman of the Brotherhood, to prevent an agreement made between the Brotherhood² and the Railway from being used to oust him and the other Frisco train porters individually and as a class from their jobs and from the Railway — the agreement in its practical and understood effect being alleged to have required the Railway to convert the position of train porter into the position of brakeman, with the Brotherhood refusing to permit the Railway to treat the conversion as constituting merely a change in job nomenclature and as effecting simply a consolidation of the two similar crafts and, as such, imposing upon the Brotherhood, under its statutory obligation as bargaining agent of the assimilating craft, the duty of protecting equally with its own members, those comprising the merged craft, in their inherent work right, attained employment status and resulting seniority incidents.

More specifically stated, the complaint in effect sought (1) to have declared illegal, in its attempted use to strip the train porters of their jobs by abolishing their class or craft and establishing the position of brakeman for the work, with no change in essential duty or required skill for the job, an agreement made between the Railway and the Brotherhood that "Effective April 1, 1946, the practice of train porters performing work generally recognized as Brakeman's duties will be discontinued;" (2) to prevent the members of the Brotherhood from claiming and taking over the positions of the train-porter group, to the latter's exclusion, as a right created by the agreement; (3) to enjoin the Railway from ousting the train porters from their jobs and employment on the basis of the agreement; and (4) to have it declared that in any event a notice given by the Railway to the train porters on March 9, 1946, immediately following and in consequence of the making of the agreement, that the position of train porter was being abolished as of April 1, 1946, and that their employment would accordingly be terminated on that date, was of no effect, as being violative of the requirement of the Railway Labor Act, 45 U.S.C.A. § 156, that at least 30 days notice must be given of any intended change in agreements affecting working conditions.

The agreement had been exacted from the Railway, as the only means open to it to avert a strike which the Brotherhood had called of its members. The Railway's action in abolishing the position of train porter and terminating the employment of the group holding that position was admitted by it to have been taken solely because of and to enable it to carry out the exacted agreement. And in entering into the exacted agreement and undertaking to carry it out, the Railway did not recognize any right or basis in the brakemen to take over and hold the jobs involved, as against the train porters, except such as the agreement itself had created.

The controlling question here is whether the agreement and its use, on the basis of its terms and making, present merely a situation of jurisdictional dispute, such as in the first instance would require an invocation by the train porters of the National Railroad Adjustment Board's interpretative functions, for resolution of the existing rights, before any element of justiciability could properly be said to be involved. See Order of Railway Conductors v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318; Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795. The trial court viewed the situation as being simply of that nature.³ Howard v. Thompson, D.C., 72 F.Supp. 695.

From the recitation preceding, it will be noted that the agreement does not involve, as in the ordinary situation of jurisdictional dispute, an attempted shift in some mere incident of work as between two continued classes of positions or in some mere segment of individual jobs as between two preserved crafts of employees. The agreement reached out to take over, by forced action, without regard to basis, the entire positional field of another craft, with the industrially inevitable, and so legally intended, result that that 40-year established and recognized separate craft⁴ would be pushed off the Railway and cease to have existence. Only abolition of the historical position and craft of train porter could provide room for the position and craft of brakeman to move into the 40-year separately existing field. What the agreement therefore was meant to do was to compel the Railway to get rid of the position of train porter on its passenger trains and to establish the position of head-end brakeman in its stead. This implicit contractual reality the artful language used by the Brotherhood in the exacted agreement is not capable of concealing. Cf. Hunter v. Atchison, T. & S. F. Ry. Co., 7 Cir., 171 F.2d 594, 597, 598.

And this total appropriation of previously separate-class positional field and abolition of established-craft historical existence was, as has been stated, proximately being made to occur on the basis of bare exaction alone. In neither terms nor circumstances of the contracting involved did the Railway deal with the Brotherhood on the basis of the brakemen having any right to the train porters' positional field, except as a forced confiscation and turning over by the Railway of the train porters' rights as the cost to it of having a Brotherhood strike called off.

Further repeating, the only right which the Railway recognized in the brakemen to occupy the train porters' field, in both its dealings and contractual consummation, was whatever the agreement itself had created. And the Railway's action in abolishing the position of train porter and terminating the employment of those holding that position was taken solely to make possible the creation and effectuation in the brakemen of such a right of occupancy as an obligation imposed upon it by the exacted agreement. No dispute has ever existed or now exists between the Railway and the train porters as to the latter's right to continue to occupy their positional field, if the agreement in its making or its consequence, is invalid, so that the Brotherhood and its members would not be entitled to claim any exclusionary right on the basis of it. Again then, only the exacted agreement and the Brotherhood's claim of right under it are therefore proximately responsible for what is being made to happen to the train porters.

Thus, on the basis of the terms and circumstances of the parties' dealings and in the carrying out of what they mutually arrived at, the situation stands contractually as one of attempted predatory seizure and appropriation, by one railroad craft, of another's entire and 40-year established positional...