Illinois Cent. R. Co. v. Nelson

• Decision Date: 03 March 1952
• Docket Number: No. 38109,38109
• Parties: ILLINOIS CENT. R. CO. v. NELSON.
• Court: Mississippi Supreme Court

Page 321

57 So.2d 321

218 Miss. 896

ILLINOIS CENT. R. CO. v. NELSON.

No. 38109.

Supreme Court of Mississippi.

March 3, 1952.

Jones & Stratton, Brookhaven, Jos. H. Wright, Chas. A. Helsell, Chicago, Ill., L. E. Burch, Jr., J. E. Johnson, Jr., Memphis, Tenn., for appellant.

Wall & Allen, Brookhaven, Barnett, Jones & Montgomery, Jackson, for appellee.

ROBERDS, Presiding Justice.

Nelson, in his declaration herein, alleged that in 1941 he was employed by appellant Railroad as a machinist, and that on May 13, 1946, the Railroad 'wrongfully withdrew' him from the services, and he was 'wrongfully deprived of the wages he would have earned from May 13, 1946, until he reentered the service on November 29, 1946 * * *', and he asked for a money judgment for the wages he would have earned between May 13 and November 29. He says his suspension during that time was wrongful because he was superior in seniority to other employees who were retained in the service.

The Railroad defended on the grounds: (1) that the circuit court had no jurisdiction; that jurisdiction of this dispute was vested in the National Railroad Adjustment Board; (2) that Nelson was especially employed; that he was not within the class of machinist, and his suspension was proper; (3) that some four years prior to the institution of this action the controversy had been compromised and adjusted and Nelson had accepted the benefits of that adjustment and had returned to work thereunder and was bound thereby, and (4) he had made no effort whatever to reduce his loss resulting from the suspension.

The trial judge peremptorily instructed the jury to return a verdict for Nelson, which was done, and judgment was entered for him in the sum of $1,774.80. The Railroad appeals. It urges here the same defenses made below, as above set out, and, in addition, says the jury should have been permitted to pass upon the question of fact as to whether Nelson was a machinist or was specially employed under a new classification as a specialist.

We will deal with and decide whether this was a dispute of which the National Railroad Adjustment Board had exclusive jurisdiction. This requires a somewhat detailed disclosure of the circumstances surrounding the employment, suspension and re-employment of Nelson.

In May 1941 this country was apprehensive of becoming engaged in the Second World War. There was a shortage of labor in the various departments of the Railroad. It conferred with officials of the local labor union at McComb, Mississippi. That union could not supply the labor deficiency, but it agreed that non-union labor might be employed under the emergency but such labor would be classed as specialists and not be in priority competition with the existing union employees. Word was broadcast that the Railroad needed laborers. Nelson was in the welding business at McComb. He had been doing welding for two local automobile dealers. He applied to Bell, master machanic and general foreman of the Railroad. Bell says he explained to Nelson his employment would be temporary and he would be classed as a specialist. Nelson's testimony may be construed as a denial of that. Nelson made application for employment as 'Machinist Welder * * * in Mechanical Department'. He was put to work. He says he was a machinist. Appellant's testimony is he was a welder in the machinist department--not a machinist.

Rule 32 of the Schedule of Rules of System Federation No. 99, Railway Employees' Department, A. F. of L., which embraces rules covering machinists, of which craft Nelson claims to have been a member, and on which rules and regulations he bases his suit, requires the employer to publicly post on January first of each year the seniority list of each craft, and 'Unless a written protest is made by men in active service within thirty (30) days from date of posting seniority list, dates shown thereon will not thereafter be changed'. Appellant posted such notice January 1, 1942, and Nelson was designated thereon as a 'welder'. He made no protest.

In November 1942 Nelson was drafted into the army. He was discharged October 11, 1945. Each year while in the army he was described on the posted roster as a specialist. In his discharge papers he described his occupation as that of 'welder combination'.

On November 28, 1945, he made application to appellant Railroad for active duty. He asked for work as 'Mach. Welder', and, in describing his former occupation with the Railroad, he said he had worked as 'Mch. Welder'. He was put back to work. He says he was a combination machinist and welder. Members of the local union and Railroad employees say he did welding in the machinist department, specifically in the Reclamation Plant. In his labor report slips Nelson described his work as that of 'Mchn. Welder'.

We should add here that some thirty laborers were given employment at McComb under conditions similar to those under which Nelson was originally employed.

Along about the time Nelson was put back to work the regular union machinists became apprehensive these specialists might undertake to supplant, or contest, their seniority rights. On February 26, 1945, Lorenzo Davis, J. T. Lyons, Jas. I. Givens, Local Shop Committee I. A. of M., at McComb, wrote A. D. Haley, Master Mechanic of the Railroad, the following letter:

'It was the understanding of shop committee of Local #1343 I. A. of M. when we were called upon and agreed to the employing of Automobile mechanics, and other so called mechanics, that they would be machinist specialist, it was also agreed to by these men they would not have any right to machinist craft, other than the job that they were hired to perform, and a waiver was signed by these men to this effect.

'Due to the fact that it never was agreed as to were (sic) these men would be placed on seniority roster, we the present committee of local #1343 are requesting you to have a separate seniority list for Machinist Specialist, placing these men on list in order that they were employed.

'The reason for this change is to avoid any argument when such time comes that we will have to start suspending these men, as the present seniority roster stands, we would be compelled to cut off machinist that have served a four year apprenticeship, where they come in between specialist, as they now are on our machinist roster, the only way to correct this is to have a separate roster for Mach. specialist.

'Hope this will meet with your approval and that you will give this request your immediate attention, we remain, * * *'.

Mr. H. L. Hunter, who resided at Paducah, Kentucky, and who was President and General Chairman of District #21, I. A. of M., which District included McComb, came to McComb, investigated the situation, and conferred with the officers of the local union and officials of the Railroad. On April 30, 1945, Mr. Hunter, as such General Chairman of District #21, and the above named Local Committee of the Union at McComb, again wrote Haley, Master Mechanic of the Railroad, suggesting that these specialists sign a waiver of any claims to seniority as machinist, enclosing a prepared form for that purpose, saying if any refused to sign the Union would take steps to remove them from employment. The letter further asserted that these specialists were not machinists and not entitled to seniority as such and that it was the understanding they would not be placed upon the seniority roster 'but were to work for the duration of our war emergency to relieve the man shortage'. The letter also stated 'Our International Officers are aware that this condition exists and have so advised that the whole matter be corrected as soon as possible to prevent any trouble when business should slacken and it will be necessary to furlough some men'.

On May 13, 1946, a coal strike existed; it was necessary that some laborers be relieved of work. Nelson was one of these. However, he says he was a machinist and that the Railroad wrongfully suspended him when he had a priority over certain machinists who were not suspended. He described that situation in these words in his declaration 'defendant withdrew him from service on May 13, 1946, and retained in the service machinists who were younger in service than the plaintiff as a machinist, all in violation of plaintiff's contract with the defendant'.

Nelson contacted an attorney at McComb in an effort to get reinstated in active duty. This attorney wrote the Railroad on behalf of Nelson and several others similarly situated. In November 1946 a meeting was had at McComb between this attorney, the Railroad attorneys and officials of the National and local Labor Unions. As a result of this meeting an agreement was reached, which was reduced to writing. It recites that the specialists were removed from the machinist roster on request of the International Association of Machinists because they, the specialists, did not possess the qualifications of machinist; that the attorney for the specialists would recommend to his clients that their names be placed upon the machinist roster as machinist, with seniority dates as shown on the roster posted January 1, 1946. The Railroad agreed to give the specialists notice that their names would be placed upon the roster as machinist and would be called for work as their seniority dates entitled them, and that upon their return to work the Railroad would give them instruction 'in the various phases of the recognized work of machinist and their employment will not be jeopardized by reason of the fact that they were not capable of performing all classes of machinists' work', and the Railroad would issue to them journeyman machinist cards. The specialists agreed to make no claim for compensation during the time they had been suspended, and the Railroad agreed to pay the fees of their attorney. Nelson did not sign that agreement. He admits he talked with the attorneys in an effort to get reinstated, but says he did not...