Howard v. Thompson

• Decision Date: 01 August 1947
• Docket Number: No. 4452.,4452.
• Citation: 72 F. Supp. 695
• Parties: HOWARD v. THOMPSON et al.
• Court: U.S. District Court — Eastern District of Missouri

72 F. Supp. 695

HOWARD v. THOMPSON et al.

No. 4452.

District Court, E. D. Missouri, E. D.

August 1, 1947.

Henry D. Espy and Victor Packman, both of St. Louis, Mo. (Charles H. Houston, of Washington D. C., of counsel), for plaintiff.

M. G. Roberts, A. P. Stewart, S. G. Ray, and A. J. Baumann, all of St. Louis, Mo., for carriers.

W. Donald Dubail and Charles R. Judge, both of St. Louis, Mo., for defendants Carnahan and Brotherhood of Railroad Trainmen.

DUNCAN, District Judge.

Plaintiff is a resident and citizen of the State of Tennessee. The defendant St. Louis-San Francisco Railway Company is a corporation organized under the laws of the State of Missouri, with its principal place of business in the City of St. Louis. The defendant St. Louis-San Francisco & Texas Railway Company is a corporation organized under the laws of the State of Texas. Defendant Frank A. Thompson, trustee of the corporate defendants, is a resident and citizen of the City of St. Louis, Missouri. The defendant Brotherhood of Railroad Trainmen is a voluntary organization, and C. O. Carnahan is General Chairman of the Brotherhood of Railroad Trainmen, with headquarters in Springfield, Missouri.

The defendants will be hereafter referred to as the "Carriers" and as the "Brotherhood."

Plaintiff, a train porter, an employee of the trustee of the St. Louis-San Francisco Railway Company, seeks to enjoin the defendant trustee from discharging him and approximately 125 other train porters in the employ of the defendant Carriers, and to enjoin the defendant Brotherhood of Railroad Trainmen from coercing the defendant trustee to abolish the position of train porter on trains of the Carriers, and to void a contract entered into between the trustee and the Brotherhood of Railroad Trainmen on March 7, 1946, under the terms of which it was agreed that the trustee would in the future prohibit train porters from performing any of the duties or functions of brakemen on passenger trains.

Plaintiff and those in whose behalf he brings this suit, are members of the Brotherhood of Trainmen, Brakemen, Porters, Switchmen, Firemen and Railway Employees, Incorporated, an organization composed entirely of negroes employed in various capacities by carriers. The membership of the Brotherhood of Railroad Trainmen is composed of brakemen, yardmen, etc.

Plaintiff has been in the employ of the St. Louis-San Francisco Railway Company and Frank A. Thompson, its trustee, about 33 years. During part of that time he was employed as a freight brakeman, but because of an injury rendering him physically incapable of carrying on the duties of brakeman, he was employed as a porter.

For approximately 40 years, plaintiff and those in whose behalf he brings this suit, in the performance of the duties and functions assigned to them, have been known and designated by the Carriers as "train porters," and during all of that time, either in accordance with custom or orders of their employers, they have performed some or all of the functions ordinarily classified as duties of brakemen on passenger trains, i. e., to assist in the operation of the train, receive and transmit orders to the conductor, engineer and the firemen, throw switches, flag trains and such other and further duties as might be required of them by the conductor in charge of the train.

Train porters have for many years been composed entirely of negroes, and according to the testimony, although they have performed all of the functions and duties of a head-end passenger brakeman in addition to their general duties of assisting passengers to board and alight from trains, keep the cars, steps and other facilities clean and free from accumulation of dirt and debris, their salaries, with the exception of a short period of time during World War I, have been materially less than those received by white brakemen who were not required to clean cars and to generally assist passengers off and on trains.

For a long period of time there has been a controversy between the Brotherhood of Railroad Trainmen and the Carriers concerning the performance of so-called brakemen duties by train porters. In fact, there has been a controversy of long standing between the white employees of the Carriers and the Carriers respecting employment of negroes. In 1928 this culminated in a contract entered into between the Carriers and the Brotherhood that in the future negroes would not be employed as brakemen or firemen. Since that time no negroes have been employed for service in either of those capacities. However, those negroes who were already in the employ of the Carriers, as firemen and brakemen continued in their employment, and under the terms of the contract, their rights of seniority were to be preserved.

The controversy between the Brotherhood and the Carriers with respect to the performance of brakemen's duties by the porters, finally resulted in a contract entered into between the Brotherhood and the Carriers on March 7, 1946, as the result of the threatened strike in 1945. Case No. 3 was among the cases submitted to the members for a vote. Mr. King, Assistant to the Chief Operating Officer of the St. Louis-San Francisco Railway Company testified that the Carriers reluctantly entered into the contract to prevent a strike, the Brotherhood insisting that its demands must be agreed to or the members would strike. There was no demand on the part of the Brotherhood to discharge the train porters.

Subsequent to entering into said contract, the Carriers determined that if train porters were not permitted to perform the functions of brakemen as in the past, their services were no longer economically desirable, and they notified this plaintiff and all other train porters, that the position of train porter, except chair car porters, would be abolished, and required all persons holding such positions to turn in their equipment on April 1, or as soon thereafter as their duties and responsibilities would permit.

Upon receipt of said notice, the plaintiff instituted this suit, alleging that he, and those in whose behalf this suit is brought, are in fact brakemen by virtue of the particular functions they perform, and that as such, it was the duty of the Brotherhood of Railroad Trainmen under the Railway Labor Act, 45 U.S.C.A. § 151 et seq., to represent their interests and not to discriminate against them; that the contract so entered into was discriminatory, void and in violation of the constitutional rights of such persons; that the porters are entitled to the benefits of any contractual relation resulting from negotiations between the Brotherhood and the Carrier.

Plaintiff also alleges that he, and those in whose behalf he brings this suit, "have no administrative or statutory remedies to maintain the status quo of their jobs or their seniority, disability and retirement rights or to prevent their economic displacement, and no adequate remedies at law." He seeks to enjoin the defendant Carriers from discharging such persons, and to void the contract between the Carriers and the Brotherhood, and to enjoin the Brotherhood from obtaining the benefits of the agreement negotiated with the railroads on March 7, 1946, and from taking over the jobs of the plaintiff and other train porters under said agreement, or any similar agreement or conspiracy to deprive citizens of the United States of a livelihood because of their race or color. A temporary restraining order was granted to restrain the Carriers from discharging plaintiff and those in whose behalf this suit was brought.

The by-laws of the Brotherhood of Railroad Trainmen excludes negroes from membership, except in states in which such exclusion is prohibited by law, and in those states the exclusion is successfully effected by means of the "blackball." The Brotherhood of Railroad Trainmen is a fraternal organization composed of white persons belonging to a certain craft in their employment by the Carriers, and admission to membership is gained after a certain period of employment by the Carrier, by application submitted to the proper officers of the Brotherhood, and by ballot. Applicants may be rejected by means of the "blackball." There are no negro members of the Brotherhood of Railroad Trainmen. The evidence tends to show that in the past there have been a few attempts on the part of negroes to join that Brotherhood, but they have not been permitted to do so.

Apparently the train porters were unorganized and without representation as a group prior to about February 1921. For many years prior to World War I persons performing the duties of the plaintiff and his group had been designated by the railroads as "train porters" and had come to be recognized throughout the railroad industry as a class, and their pay, as heretofore stated, was considerably less than the pay of brakemen, who were white men, performing only the duties of brakemen.

On December 2, 1918, William G. McAdoo, Director General of Railroads, issued an order equalizing the pay of those persons performing the duties that train porters were then performing, and have since performed. Which order is as follows:

"1. Employees in a passenger train crew, except conductor, collector and baggagemaster, qualified and regularly required to perform the following essential duties, will be designated as passenger brakemen or flagmen and paid accordingly:

"(a) Inspect cars and test signal and brake apparatus for the safety of train movement.

"(b) Use hand and lamp signals for the protection and movement of trains.

"(c) Open and close switches.

"(d) Couple and uncouple cars and engines and the hose and chain attachments thereof.

"(e) Compare watches when required by rule.

"2. Where white brakemen are not employed, the compensation and overtime rule for colored brakemen shall be the same, for both passenger and freight service, as for the same positions on the minimum paid contiguous road.

"3. This order shall not curtail...