McGregor v. Louisville & N.R. Co.

• Decision Date: 24 June 1932
• Citation: 51 S.W.2d 953,244 Ky. 696
• Parties: McGREGOR v. LOUISVILLE & N. R. CO. et al.
• Court: Kentucky Court of Appeals

51 S.W.2d 953

244 Ky. 696

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

Court of Appeals of Kentucky

June 24, 1932

Appeal from Circuit Court, Hopkins County.

Suit by Ernest McGregor against Louisville & Nashville Railroad Company, wherein S.E. Bryant and others intervened. From judgment for defendant, plaintiff appeals.

Affirmed.

Gordon & Gordon & Moore, of Madisonville, for appellant.

White &amp Clark, of Hopkinsville, and C.J. Waddill, of Madisonville for appellees.

WILLIS J.

Ernest McGregor sued the Louisville & Nashville Railroad Company to enforce his seniority rights as a telegraph operator. He alleged that he had been employed by the defendant about the year 1910 and worked as a telegraph operator until 1920, when he was transferred to night duty as yardmaster at Atkinson Ky. He continued as night yardmaster at the point named until June 1, 1930, when he was relieved from duty. He then demanded a position as telegraph operator, and was given an assignment, serving in that capacity until July 30, 1930. He was then relieved of that duty at the instance of other employees in the telegraphic department, who insisted that McGregor had lost his seniority rights in the telegraphic department by engaging in service in a different department.

An intervening petition was filed by S.E. Bryant, A. W. Davis, H. A. Jones, and the Order of Railroad Telegraphers seeking for themselves and for the class of employees that were denying the rights claimed by McGregor, to defend the action and to defeat the demand of the plaintiff. The decision of the circuit court was against McGregor, and he has prosecuted an appeal.

The soundness of the decision depends upon an interpretation of several contracts made by the railroad with its telegraphic employees as a result of collective bargaining. Gregg v. Starks, 188 Ky. 834, 224 S.W. 459; Aden v. L. & N. R. Co. (Ky.) 276 S.W. 511. The first contract, as amended, and which was in effect in 1920 when McGregor became night yardmaster, provided: "(a) Employees accepting transfer to other class of service than covered by this agreement, except to official positions or supervisory agencies, shall forfeit their seniority after having filled such positions more than six months."

Provision was made in the rule preserving the seniority rights of employees accepting official positions or supervisory agencies when they should return to service in the telegraphic department.

The agreement mentioned was superseded in 1922 by a new agreement which enlarged the scope of the rule. It permitted "employees accepting positions of train dispatchers, supervisory agents, or official positions with the Louisville & Nashville Railroad Company, or the Order of Railroad Telegraphers," to continue to accumulate seniority in their home districts.

In 1924 a new contract was negotiated with a provision that "employees accepting subordinate official positions" also were permitted to accumulate seniority. Finally in 1927 still another change was made, so that the rule then stood: "Employees accepting subordinate official, or official positions with the Louisville & Nashville Railroad Company or the Order of Railroad Telegraphers, will be considered on leave of absence while so engaged when their duties so require, and will continue to accumulate seniority on their home districts."

The yardmasters were governed by rules in the nature of a contract. They classified yardmasters and assistant yardmasters as subordinate officials. But these rules were first adopted in 1923.

It is contended that the changes in the contract of the telegraphers, which enlarged the class of persons whose seniority rights were preserved while temporarily out of the telegraphic service, inured to the benefit of McGregor although he was then in another branch of the service. It is argued that, even though McGregor may have lost his status in the telegraphic department under the contract in force in 1920 after he had served as much as...