Howard v. St. Louis-San Francisco Railway Company

• Decision Date: 17 June 1966
• Docket Number: No. 18146.,18146.
• Citation: 361 F.2d 905
• Parties: Simon L. HOWARD, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, and Brotherhood of Railway Trainmen, an Unincorporated Association, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

361 F.2d 905 (1966)

Simon L. HOWARD, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, and Brotherhood of Railway Trainmen, an Unincorporated Association, Appellees.

No. 18146.

United States Court of Appeals Eighth Circuit.

June 17, 1966.

Barbara A. Morris, New York City, for appellant. Robert L. Carter, New York City, Clyde Cahill, Jr., St. Louis, Mo., and Frank D. Reeves, Washington, D. C., with her on the brief.

Charles R. Judge, of Dubail, Judge & Kilker, St. Louis, Mo., for appellee Brotherhood of Railroad Trainmen. McGlynn & McGlynn, E. St. Louis, Ill., with him on the brief.

Paul R. Moody, St. Louis, Mo., for appellee St. Louis-San Francisco Railway Co. Ernest D. Grinnell, Jr., St. Louis, Mo., with him on the brief.

Before MATTHES, MEHAFFY and GIBSON, Circuit Judges.

MATTHES, Circuit Judge.

Simon L. Howard, a Negro, brought this class action on behalf of all individuals comprising the craft or class of train porters, (approximately 35, all Negroes), against their employer, St. Louis-San Francisco Railway Company, and the Brotherhood of Railway Trainmen. The latter has been certified, pursuant to election, by the National Mediation Board as the statutory bargaining representative for the craft or class of brakemen, among others.

The complaint alleged a cause of action under the Railway Labor Act, 45 U.S.C.A. § 151 et seq.; jurisdiction pursuant to Title 28 U.S.C.A. §§ 1331, 1337; and seeks a declaratory judgment pursuant to Title 28 U.S.C.A. §§ 2201 and 2202.

Hereafter we shall refer to Howard and the class he represents, collectively, as appellant; St. Louis-San Francisco Railway Co. and the Brotherhood of Railway Trainmen, severally as Frisco and Brotherhood, and collectively as appellees; National Mediation Board as Mediation Board.

The sum and substance of appellant's amended complaint is that although he has traditionally performed the duties of a brakeman, appellees have refused to classify him as such and to readjust his status along functional and operational lines, and have refused to establish and preserve his job assignment and seniority "as brakeman"; that he has been relegated to the class of "train porter" solely because of his race; and that through conspiratorial action, appellees have discriminated against appellant to his damage. In addition, Paragraph 14 of the amended complaint alleged that in violation of the Railway Labor Act appellees had agreed to replace full passenger crews with freight crews on troop trains, and thereby terminate the services of Negro train porters. Paragraph 15 alleged other unlawful practices by appellees throughout the past 10 years. Appellant sought: (1) declaration of rights, (2) injunctive relief, and (3) damages.

Appellees filed motions for summary judgment. In its first memorandum opinion, unreported, the District Court held it had no jurisdiction to reclassify the craft of train porters. Being of the opinion, however, that Paragraphs 14 and 15 of the amended complaint stated grounds upon which relief could be granted, the court denied the motions for summary judgment. Extensive discovery proceedings followed which included interrogatories, requests for admissions, the depositions of 38 train porters by appellees and of three Frisco and two Brotherhood officials by appellant. A stipulation of facts was also filed.

Appellees again filed motions for summary judgment. The District Court, after due consideration, failed to find hostile racial discrimination, granted the motions and entered judgment, dismissing the complaint. The court's supporting memorandum opinion is reported at 244 F.Supp. 1008.

The principal question for our determination is whether, on this record, the District Court had jurisdiction and power, to require by appropriate order, that all Negro employees of Frisco, now in the craft or class of train porter, be placed in the craft or class of brakemen. We hold that the District Court's conclusion on this issue was correct.

The case comes to us on a voluminous record. We also take judicial notice of extensive prior litigation between these same parties, initiated by appellant in the United States District Court for the Eastern District of Missouri in 1946, which progressed by appeal to this court, by certiorari to Supreme Court, by remand to District Court, and by appeal again to this court, see Howard v. Thompson, 72 F.Supp. 695 (1947); Howard v. St. Louis-San Francisco Ry. Co., 191 F.2d 442 (8 Cir. 1951); Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952); Howard v. St. Louis-San Francisco Railway Co., 215 F.2d 690 (8 Cir. 1954). The foregoing opinions present the factual history of train porters and the essence of the duties performed by them.

The craft or class of train porters has been recognized historically since December, 1918. Train porters have been organized and represented for collective bargaining purposes since 1921. They are now represented by the Association of Railway Trainmen and Locomotive Firemen by reason of election and certification by the Mediation Board. The contract between that association and Frisco was entered into on October 7, 1955 and apparently is still in effect.¹ Train porters and brakemen have never been represented by the same labor organization.

The job of train porter has been available only to Negroes. Although a substantial majority of brakemen are white, it is a fact that Negroes have been employed as brakemen.² Indeed, Simon L. Howard was employed as a brakeman by Frisco in 1914. He was transferred to the job of train porter, at his request, because of an injury.

The gist of appellant's argument is that the denomination and classification "train porter" is applied only to Negroes; that it is therefore a racial classification, and the federal courts have jurisdiction to grant a remedy. It is further argued that racial discrimination may not be practiced under the aegis of the Railway Labor Act. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Graham v. Brotherhood of Locomotive Firemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22 (1949); Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Tunstall v. Brotherhood of Locomotive Firemen, etc., 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944); Dillard v. Chesapeake & O. Ry. Co., 199 F.2d 948 (4 Cir. 1952); Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473 (4 Cir. 1951) are cited and relied upon.

Steele, supra, the principal case relied upon by appellant, involved racial discrimination. Steele, a Negro, was a locomotive fireman but not a member of the Brotherhoood of Locomotive Firemen and Enginemen, the exclusive bargaining representative of the entire craft of firemen. The Supreme Court held that the language of the Railway Labor Act imposed a duty on the bargaining representative of the craft to exercise, without hostile discrimination, the power conferred upon it by the Act on behalf of all firemen irrespective of whether they were union members or not. Failure to exercise this duty, was held to give rise to a cause of action under the Act. In our case, the Brotherhood has never represented the train porters. This craft has selected its own bargaining representative and such representative has been certified by the Mediation Board, in accordance with the provisions of the Act.

We deem it unnecessary to discuss the other cases relied upon by appellant. They are clearly distinguishable and are not dispositive of the jurisdictional question.

The courts have, without exception, held that under the Railway Labor Act only the Mediation Board has the power to make craft or class determinations. Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952); Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943); Brotherhood of Railway & S. S. Clerks, etc. v. United Air Lines, 325 F.2d 576 (6 Cir. 1963); UNA Chapter, Flight Eng. I. Ass'n, etc. v. National Mediation Bd., 111 U.S.App. D.C. 121, 294 F.2d 905 (1961), cert. den. 368 U.S. 956, 82 S.Ct. 394, 7 L.Ed. 2d 388; Order of Railway Cond. & Brake. v. Switchmen's Union, 269 F.2d 726 (5 Cir. 1959), cert. den. 361 U.S. 899, 80 S.Ct. 206, 4 L.Ed.2d 155; Hester v. Brotherhood of Railroad Trainmen, 206 F.2d 279 (8 Cir. 1953).

In Howard, supra, the Brotherhood sought to invade the positional field of train porters, and take over their jobs. Racial discrimination was an important factor in the case. In refusing to sanction the agreement between Frisco and Brotherhood, we stated, in part, 191 F.2d at p. 445: "The agreement reached out to take over, by forced action, * * * the entire positional field of another craft, with the * * * inevitable, and so legally intended, result that that 40-year established and recognized separate craft would be pushed off the Railway and cease to have existence".

On certiorari the Supreme Court stated "the basic pattern of racial discrimination in this case is much the same as that we had to consider in Steele v. Louisville & N. R. Co., 323 U.S. 192 65 S.Ct. 226, 89 L.Ed. 173 * * *.

As previously noted, these train porters are threatened with loss of their jobs because they are not white and for no other reason. The job they did hold under its old name would be abolished by the agreement; their color alone would disqualify them for the old job under its new name", 343 U.S. at pp. 772, 773, 72 S.Ct. at pp. 1024, 1025. In remanding the case to the District Court, the Supreme Court was careful to point out:

"Bargaining agents who enjoy the advantages of the Railway Labor Act\'s provisions must execute their trust without lawless invasions of the rights of other workers. We agree with the Court of Appeals that the District Court had jurisdiction to protect these workers from the racial discrimination practiced against them. On remand, the District Court should permanently

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