Kordewick v. Brotherhood of Railroad Trainmen

• Decision Date: 03 May 1950
• Docket Number: No. 9964.,9964.
• Parties: KORDEWICK et al. v. BROTHERHOOD OF RAILROAD TRAINMEN et al.
• Court: U.S. Court of Appeals — Seventh Circuit

181 F.2d 963 (1950)

KORDEWICK et al. v. BROTHERHOOD OF RAILROAD TRAINMEN et al.

No. 9964.

United States Court of Appeals Seventh Circuit.

May 3, 1950.

C. Ballard Harrison, Hammond, Ind., John H. Gately, Joseph F. Burns, Chicago, Ill., for appellants.

Burke Williamson, Chicago, Ill., Forrest E. Gantenbein, Hammond, Ind., for appellees.

Before MAJOR, Chief Judge, and KERNER, and DUFFY, Circuit Judges.

DUFFY, Circuit Judge.

The twenty plaintiffs herein, all residents of Illinois, were employed by the Indiana Harbor Belt Railroad as yardmen in its Blue Island, Illinois, yards between August 13, 1926, and December 12, 1938. All the plaintiffs are members of Lodge 531 of the Brotherhood of Railroad Trainmen. In 1919 the Brotherhood of Railroad Trainmen (hereinafter referred to as the "brotherhood"), on behalf of its members, entered into a contract with the General Managers Committee representing the Indiana Harbor Belt Railroad and various other railroads in the Chicago area. Among the provisions in the contract was one calling for a full yard crew consisting of a foreman and two helpers. In 1926 the railroad constructed a "hump operation" in its Blue Island yards, by means of which the railroad sorted and distributed a large number of cars by the use of gravity and manipulation of switches, rather than by the use of switch engines. The plaintiffs claim that the railroad operated engines in connection with this operation with less than a foreman and two helpers on each engine. The basis of the claim which plaintiffs make as to the loss suffered by them can best be stated by quoting from their brief herein: "They (plaintiffs) assert that the railroad did not abide by its contractual agreement and thus deprived the plaintiffs and others in the class from earning the wages to which they were entitled during that period, either because they were not called to work when they should have been, or because when they were called, they were required to perform more and harder work for a longer period of time than would have been necessary under the contract."

Plaintiffs allege that their claimed grievances were presented through their local lodge of the brotherhood from 1926 to 1933, but that favorable action was not taken. In 1936 the railroad agreed with the brotherhood to place additional helpers and foremen on the engines, but as part of the terms of said agreement the claims for past violations were waived by the brotherhood. Plaintiffs allege they did not have any knowledge of such waiver until 1938. This waiver of plaintiffs' claims was the subject of several appeals within the brotherhood, which resulted in the waiver action being upheld. In June, 1940, the Board of Appeals of the brotherhood suggested that an appeal then pending there be withdrawn, and that the claims be submitted to the General Grievance Committee of the brotherhood for further handling,¹ and this was done. The claims were then filed by the brotherhood with the National Railroad Adjustment Board.² On April 3, 1943, the claims were withdrawn from said board by a joint letter of the railroad, the General Grievance Committee of the brotherhood, C. C. Kitts, and B. W. Fern, who had been appointed by President Whitney to act in his place. This action of withdrawal was appealed by members of Lodge 531 of the brotherhood to A. F. Whitney, the president of the brotherhood, who denied the appeal. An appeal was not taken from the action of the president of the brotherhood, although such remedy was available. On August 24, 1945, the plaintiffs herein, by an attorney, presented their claims to the National Railroad Adjustment Board, but the board refused to take jurisdiction because, as the board stated, the claims were not presented by the proper authority.

The plaintiffs herein brought suit against the railroad in the United States District Court for the Northern District of Illinois. The basis of their claims in that suit was that the defendant railroad did not give up to its contractual agreement as to a full yard crew in its Blue Island, Illinois, yards during the period from August 13, 1926, to December 12, 1938. Plaintiffs there, as here, claimed they were prevented from earning the wages to which they were entitled. The district court ruled that plaintiffs' claims were barred by the statute of limitations of the State of Illinois. This court affirmed in Kordewick et al. v. Indiana Harbor Belt R. Co., 7 Cir., 157 F.2d 753. Other claimants, who were residents of Illinois, brought a suit against the railroad in the Northern District of Indiana, based upon similar alleged losses under the same contract. That court dismissed the complaint, holding that recovery was barred by the applicable statute of limitations of Indiana. This court affirmed in Albrecht et al. v. Indiana Harbor Belt R. Co., 7 Cir., 178 F.2d 577.

In the case at bar plaintiffs allege that the defendant brotherhood is an unincorporated association, with principal place of business and main office at Cleveland, Ohio. One C. C. Kitts, general chairman of the brotherhood for the Indiana Harbor Belt Railroad Company, and Lodge 962 of the brotherhood are also named as defendants but no relief is asked as to them. Plaintiffs here seek to recover from the brotherhood the amounts of their previously asserted claims against the railroad. Plaintiffs assert this is a class suit, and allege that various officials of the brotherhood, including President A. F. Whitney, were and are guilty of malfeasance, nonfeasance, and misfeasance in their duties as agents of the plaintiffs, and that in withdrawing the cases from the National Railroad Adjustment Board without the knowledge or authority of the plaintiffs they acted in bad faith. Five of the plaintiffs herein demand judgment against the brotherhood for $25,000 each, five demand $20,000 each, and ten demand $15,000 each.

The defendant brotherhood made a motion to dismiss the complaint, asserting several grounds therefor. The district court granted said motion on the ground that plaintiffs' charges of bad faith and misconduct by said officials of the brotherhood in their duties as agents of the plaintiffs do not constitute grounds for relief against all the members of the brotherhood.

Plaintiffs argue that the district court was in error in characterizing the brotherhood officials as agents for the plaintiffs, and stoutly insist that such officials were agents only of the brotherhood. As to this issue, there is no dispute as to the facts involved. We think the trial court was correct in its conclusion that the officials were acting as plaintiffs' agents. In fact, the plaintiffs so classified them themselves. Paragraph 22 of the complaint states, "That...