Leonard v. Eastern Massachusetts St. Ry. Co.

• Decision Date: 21 January 1957
• Citation: 140 N.E.2d 187,335 Mass. 308
• Parties: John H. LEONARD and others v. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 187

140 N.E.2d 187

335 Mass. 308

John H. LEONARD and others v. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 7, 1956.

Decided Jan. 21, 1957.

Francis J. Ulman, Boston, for plaintiffs.

J. Joseph Maloney, Jr., Boston, for defendant.

Before WILKINS, C. J. and RONAN, COUNIHAN, WHITTEMORE and CUTTER, JJ. WHITTEMORE, Justice.

We construe the bill of complaint as a bill for a decree under G.L. (Ter.Ed.) c. 231A, §§ 1-8, to declare the rights of a union, and its affected members, to have grievance complaints, allegedly pending, concerning the suspension of Douglas Holder and the discharge of Lynwood M. Hyde, heard and determined in accordance with the terms of a collective bargaining agreement. The bill in averring a controversy in respect of the rights to further processing and arbitration of the grievances and in praying for specific performance of the alleged agreememt to arbitrate and for 'such other and further relief as * * * [the court] shall deem meet and proper' is sufficient to present for construction the relevant parts of the agreement and rights thereunder (see c. 231A, § 6), even though in our view, for reasons hereinafter stated, there is no occasion now to ask for an order to enforce arbitration.

The judge in the Superior Court dismissed the bill of complaint having found and ruled that 'the petitioners seek to compel the respondent to submit to further arbitration which, in its essence and effect, will be a retrial of substantially all issues and facts fully tried out before the N. L. R. B. [national labor relations board], and determined adversely to the petitioners.' See National Labor Relations Board v. Eastern Massachusetts Street Railway, 1 Cir., 235 F.2d 701 ¹ two cases; proceedings upon petitions for enforcement of orders of the national labor relations board reported in 110 N.L.R.B. (1963). The decision and order of the national labor relations board is an exhibit here.

The evidence, directly or by inference, shows the following facts: The union which entered into the collective bargaining agreement with the defendant was a voluntary association of the members of eleven local unions of Amalgamated Association of Street Electric Railway and Motor Coach Employes of America. In 1952 Holder was president and Hyde was a member of the executive committee of Haverhill Local 503. They were active in a strike in 1952 and opposed a back-to-work movement which resulted in the suspension from the local union of those who returned to work before the end of the strike. After Holder and Hyde returned to work as bus drivers they were charged with deviations from schedule. Holder was 'indefinitely suspended' on December 5, 1952, and Hyde was discharged on January 5, 1953. The action in each case was not long after two suspensions of the employee for one or two days for like alleged cause. The union brought complaints before the national labor relations board based, inter alia, on the suspension of Holder and the discharge of Hyde, and Local Union 503 initiated grievance procedure under the contract for Holder, Hyde, and one Marcotte. Holder and Hyde had each been employed by the defendant for over sixteen years and had seniority rights in respect of choice of routes any layoffs and an expectation of a pension of $44 a month after twenty-five years of service at age sixty-five. The contract provides ² that the grievance procedure is available '[w]hen any employee * * * has been suspended or discharged and his division * * * [local union] feels that an injustice has been done him.' The trial examiner for the national labor relations board found that Holder and Hyde had been discharged for union activity. The board reversed his findings as to these two men and some others and no appeal was taken as to Holder and Hyde. Other relevant facts are stated hereinafter.

1. The ruling that the issues have been determined is erroneous. The most that the national labor relations board has found ³ is that Holder and Hyde had been disciplined for cause and that it had not been proved that there was unlawful discrimination in the disciplinary action taken. As to the jurisdiction of the national labor relations board over unfair labor practices see U.S.C. (1952 ed.) Title 29, §§ 160, 158 [29 U.S.C.A. §§ 160, 158]. The national labor relations board's finding that grievance appeals were being presented for Holder and Hyde is recognition by it of issues other than those which it decided. These included whether it was 'the normal experience,' as the national labor relations board expressly found as to indefinite suspensions, that the affected employees on invoking the grievance procedure would 'in almost all instances' have the penalty reduced to a fixed number of days, seldom exceeding ten, and whether the deviations from schedule of Holder and Hyde were such as to warrant prompt reinstatement if established policy was applied to them, or were deliberate violations of rules, of which there is a suggestion in the record. Neither the existence of the grievance procedure nor the processing of the complaints under it impairs the function of the national labor relations board under the Federal statute. We are not concerned here with a contract violation which is also an unfair labor practice. See Post Publishing Co. v. Cort, Mass., 134 N.E.2d 431. This case is in the area which in the Cort case, citing McAmis v. Panhandle Eastern Pipe Line Co., Mo.App., ⁴ we declared was surely not excluded by the Federal statute.

2. Any question of the validity of a collective bargaining agreement such as the one before us has been disposed of by St.1949, c. 548, inserting § 11 ⁵ in G.L. (Ter.Ed.) c. 150. There is nothing in the nature of the agreement to make it impossible or inappropriate for us to declare rights under or in respect of it. Members of Bakery & Confectionery Workers Union, Local No. 458 v. Hall Baking Co., 320 Mass. 286, 293, 69 N.E.2d 111, 167 A.L.R. 986. See Anderson Actions for Declaratory Judgments (2d ed.) 1316.

3. The plaintiffs are sufficiently representative of the contracting union. The plaintiff Leonard is chairman and the plaintiff McNeill is financial secretary of General Conference Committee of Boston (hereinafter called GCC). GCC consists of the presidents of the several locals which comprise the contracting union, and acts as bargaining agent and handles grievances for the locals, beginning at some point after they have been initiated by the local union. The cases had been brought to GCC by the Haverhill local and Leonard had negotiated in regard to them with the late John Moran, then president, general manager, and chairman of the executive committee of the defendant. Leonard had 'been a member of the General Conference Committee dealing with the Company' for about twenty years. While a vote of GCC to institute these proceedings would have been appropriate we do not think the bill must fail for lack of it Compare Donovan v. Danielson, 244 Mass. 432, 138 N.E. 811. There is no suggestion in the record that the bill of complaint is unauthorized or has been filed against the will of the union, Local Union 503 or GCC. The inference is to the contrary. Leonard's duties make him an appropriate representative. The chairman and the financial secretary of GCC, by virtue of their offices in that representative committee, are appropriate representatives of all the members of the contracting union, on whose behalf the bill is expressly stated to be brought. Hamer v. Nashawena Mills, Inc., 315 Mass. 160, 162, 52 N.E.2d 22; Pascale v. Emery, D.C.Mass., 95 F.Supp. 147, 149.

That all the members of the contracting union are too numerous to be joined as parties plaintiff is manifest, and therefore, while this or other allegation stating why all the members of the class have not been joined should have been in the bill, Wilkinson v. Suitt, 175 Mass. 581, 584, 56 N.E. 830, this is not a defect to bar relief under the circumstances.

The fact that the grievance procedure, by the terms of the contract, is to be handled locally does not make it imperative that officers or members of Local 503 be parties plaintiff or that there be a vote of that local. We have for interpretation a single contract made with the voluntary association of all the members of all the locals. The union status of Holder (the third plaintiff) at the time when the bill was brought is not established. If he then had no representative status he would be entitled nevertheless, in view of his interest, to maintain the bill in his own behalf. See Members of Bakery & Confectionery Workers Union, Local No. 458 v. Hall Baking Co., 320 Mass. 286, 289, 69 N.E.2d 111, 167 A.L.R. 986, and cases cited; School Committee of Cambridge v. Superintendent of Schools of Cambridge, 320 Mass. 516, 70 N.E.2d 298.

4. The union is not barred here, or under the contract, by lapse of time.

On January 30, 1953, the local union sent a letter to the defendant reading, 'In accordance with the Agreement in effect between the Union and the Company, a vote was taken by the members of the Local 503 on January 8, 1953, to appeal the decision of the Assistant General Manager in the instance of the indefinite suspension of the President of this local, Douglas W. Holder' (emphasis supplied). The assistant general manager replied on February 6, 1953, that he would bring the letter to the attention of the executive committee. The defendant by the express terms of s. 2(15) of the contract was bound to proceed to hearing within fourteen days of receipt by the executive committee of such a notice as was sent. The obligation of the defendant to go forward is, in express terms, conditioned on the receipt of notice of a vote under the contract, not on the fact of a vote conforming thereto.

On March 10, 1953, the local union wrote that a hearing was also requested for Hyde and Marcotte. The vote on January 8 had been a...