McClure v. Louisville & N. R. Co.

• Decision Date: 06 May 1933
• Citation: 64 S.W.2d 538
• Parties: McCLURE v. LOUISVILLE & N. R. CO. et al.
• Court: Tennessee Supreme Court

64 S.W.2d 538

McCLURE v. LOUISVILLE & N. R. CO. et al.

Court of Appeals of Tennessee, Eastern Section.

May 6, 1933.

Certiorari Denied by Supreme Court October 14, 1933.

Appeal from Chancery Court, McMinn County; T. L. Stewart, Chancellor.

Suit by M. R. McClure against the Louisville & Nashville Railroad Company and another.

From a decree dismissing complainant's bill, complainant appeals.

Affirmed.

D. Sullins Stuart, of Cleveland, and S. B. Gilreath, of Lebanon, for appellant.

Jones & Davis, of Athens, and J. B. Wright and Johnson & Cox, all of Knoxville, for appellees.

PORTRUM, Judge.

This suit was filed by Mr. M. R. McClure, a railroad telegrapher, against his employer, the Louisville & Nashville Railroad Company, and his union, the Order of Railroad Telegraphers, to compel the restoration of his asserted seniority status, and the retention of a position which the restored seniority of service would entitle him; and for immediate relief he prayed for an injunction restraining the railroad authorities from dropping him from the rolls of its employees, under its agreement with the union, because of his present seniority status. The injunction was granted, but later dissolved upon the company giving bond to respond in damages for his wrongful discharge.

The position of the defendants is that the complainant is now correctly classified, and that their only interest in the litigation is to maintain correct classification of the employees, as contemplated by the agreement entered into between the company and the union.

In the lower court the case was heard upon its merits, and the bill dismissed. The complainant has appealed.

Mr. McClure entered the employ of the Louisville & Nashville Railroad Company March 2, 1912, as a telegrapher, in the operating or transportation department on the Atlanta division, under E. F. Vandivere, chief dispatcher, his immediate superior. He was employed as a reserve man to take the place of any operator in the department who was absent from duty. Later he was assigned to a regular job at Canton, Ga., where he served until June, 1917, when he secured a position in the office of J. F. Hartsough, division freight agent in Atlanta. He wrote his superior this letter:

"Mr. E. F. Vandivere, C. D., Etowah, Tenn.

"Dear Sir: Our Division Freight Agent, Mr. J. F. Hartsough, has offered me a position with him as operator at `R G,' also trace clerk, effective next Monday the 18th inst.

"After going to Atlanta yesterday and looking over the situation, I accepted the position and will thank you to arrange to send a man here to relieve me by the 18th.

"I believe by going to Mr. Hartsough's office I will have a better opportunity of advancement, as I will have the opportunity of studying the tariffs in his office, which I hope will benefit me to a great extent.

"In leaving your service, I wish to say that I certainly do appreciate the kindness shown me by you and your dispatchers while in this service, and I am leaving you wishing you much success in your work.

                    "Yours truly
                                "(Signed) M. R. McClure."
                

He remained in his new position in the traffic department of the Atlanta division, under Mr. J. F. Hartsough, until September, 1917, when he was drafted into the service of the United States Army. Thereafter he was considered as an employee on leave of absence, for he applied for, and was granted, transportation, and so designated. Shortly after the United States declared war, the superintendent of the Atlanta division of the Louisville & Nashville Railroad Company published a bulletin stating that all employees, who left the service of the company to enter service in the Army or Navy, upon their return would be given their old positions or similar rating. At this time the company had not granted to its employees seniority privileges. Later the railroads were taken over and operated by the government through a Director General of Railroads, and general order No. 51, pertaining to employment, was issued November 1, 1918, containing these provisions:

"(1) In order that as nearly as practicable there shall be a uniform treatment of this matter, the following general principles will govern:

"(a) In the case of an employee having established seniority rights, so far as practicable, and where the employee is physically qualified, he will be restored to such seniority rights.

"(b) In the case of employees who do not have seniority rights under existing practices, a consistent effort will be made to provide employment for them when mustered out of Military service."

Prior to 1919 the telegraph operators on the Atlanta Division were not organized or allied with the Order of Railroad Telegraphers, but during the year they organized and affiliated with the order, and the order, for and on behalf of its members, entered into a contract with the company, designated as "Working Agreement," effective October 15, 1919. By this agreement the company recognized the right of the employees to deal through the union, and established the rule of seniority, with provision for the interpretation and definition of this right. It provides that, where an employee was discharged, or resigned, or was transferred, he should lose his seniority, but in case he was reemployed in his old department, then his seniority should date from his new employment.

The complainant, McClure, was returned from France, and discharged at Camp Wheeler Ga., in June, 1919. While he was awaiting his discharge he wrote Mr. J. F. Hartsough, head of the traffic department, a letter, informing him he expected to be discharged and when discharged he would report for duty as clerk operator, the position held by him before his induction into the Army. When discharged he reported to Mr. Hartsough, at the office of the division freight agent, and informed him he (McClure) understood the Director General of Railroads had ordered railroads to either give the employees who had joined the Army their positions or their seniority. The agent informed him he had no instruction to let seniority prevail in his office, and that he had filled the old position with a Mr. Newsome, who came from the employ of the N. C. & St. L. Railway, and to replace him would leave him without any seniority, or, as he stated, "Newsome would have no recourse." McClure states the agent said he would recommend him for his old position as operator at Canton, Ga.

McClure then proceeded to his home, which was at Canton, Ga., and found a vacancy for an operator at Canton. He then wrote the chief dispatcher, Mr. E. F. Vandivere, of the Atlanta division (his former superior), and applied for the position. Mr. Vandivere replied that, on account of his having gone to the division freight office in Atlanta, he had lost his seniority, but...