Neal v. System Board of Adjustment (Missouri Pacific R.)

• Decision Date: 21 July 1965
• Docket Number: No. 17728.,17728.
• Citation: 348 F.2d 722
• Parties: Washington NEAL et al., Appellants, v. SYSTEM BOARD OF ADJUSTMENT (MISSOURI PACIFIC RAILROAD) et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

348 F.2d 722 (1965)

Washington NEAL et al., Appellants, v. SYSTEM BOARD OF ADJUSTMENT (MISSOURI PACIFIC RAILROAD) et al., Appellees.

No. 17728.

United States Court of Appeals Eighth Circuit.

July 21, 1965.

Wilson Gray, St. Louis, Mo., for appellants.

Robert W. Yost, St. Louis, Mo., for appellee, Missouri Pac. R. Co.

Edward J. Hickey, Jr., Washington, D. C., for all appellees other than Missouri Pac. R. Co.

M. M. Hennelly and Robert W. Yost, St. Louis, Mo., Edward J. Hickey, Jr., James L. Highsaw, Jr., of Mulholland, Hickey & Lyman, Washington, D. C., Carroll J. Donohue, Stephen W. Skrainka, of Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, Mo., were on joint brief for appellees.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

BLACKMUN, Circuit Judge.

Judge Regan has entered summary judgment for the defendants in this proceeding by which seven Negro plaintiffs, alleging racial discrimination, seek injunctive relief and damages for claimed violations of the Railway Labor Act, as amended, 45 U.S.C. §§ 151-163.

The plaintiffs are employees of the Missouri Pacific Railroad Company in the Saint Louis Terminal. They and other employees are persons for whom the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes is the designated representative, within the definition of § 1 Sixth of the Act, 45 U.S.C. § 151 Sixth. The Brotherhood is an unincorporated association with headquarters at Cincinnati. It and the Missouri Pacific have negotiated a collective bargaining agreement which groups freight warehouse employees into Classes A, B and C, consisting, respectively, of clerks, messengers, and laborers. It also contains seniority provisions.

In 1962 the Missouri Pacific began the installation of an electronically controlled conveyor system at the Miller Street freight house in Saint Louis. The System Board of Adjustment (Missouri Pacific Railroad), which is a committee of the Brotherhood formed under the union's Protective Laws to represent employees of the Missouri Pacific, in November 1962 served on the railroad notice under § 6 of the Act, 45 U.S.C. § 156, of a desire to enter into an agreement defining the rights of employees affected by the installation of the conveyor system. In due course a Supplemental Agreement, dated April 17, 1963, was executed. This provides,

"It is agreed that when the Carrier desires to establish positions of `Checker-Stowman\' which will result in the abolishment of warehouse laborer positions, notice will be given the General Chairman and conference arranged to work out details regarding promotion of `Class C\' employes to the `Class A\' roster.

"The positions of `Checker-Stowman\', when established, shall be considered `Class A\' positions and will be paid the prevailing Check-Clerk rate of pay."

The plaintiffs' original petition presumed the status of a class action and named as defendants the System Board, two of its officers, the Brotherhood, three officers of it, and the railroad. It alleged, among other things, that: (a) The clerks of Class A and the messengers of Class B were white and the laborers of Class C were Negro. (b) The Brotherhood, through the System Board, maintained two locals, Nos. 280 and 1740, in the bargaining unit. The former was 97% white; the latter was all Negro. The plaintiffs were members of No. 1740. (c) The conveyor system, when complete and operative, would cause the abolition of most of the Class A and Class B positions but would not affect the Class C positions. (d) The System Board, with the advice and consent of the Brotherhood, set up a plan by which the Class A and Class B employees would be reclassified under a new Class A roster of checker-stowmen who would do the work now being done by Class C employees. This would result in the displacement of the plaintiffs and other Class C employees and the loss of seniority rights. (e) The System Board, solely because of race, did nothing to protect the Negro Class C employees. This constituted a violation of the plaintiffs' rights under the Act. (f) All three classes should be dovetailed on the new Class A roster. (g) The railroad, by agreeing to the plan, was also refusing to recognize the rights of the plaintiffs and other Class C employees.

The relief requested included an injunction against placing the agreement of April 1963 into effect, and requiring its appropriate modification, and actual and punitive damages.

The following events then took place:

1. In September 1963 the district court quashed Ohio service upon the Brotherhood and two of its officers, and also dismissed the action as to those three defendants and as to the third officer on grounds of improper venue.

2. In November the court entered its order dismissing the case as to the railroad and as to the System Board and its two officers for failure to join indispensable parties and for failure to allege exhaustion of administrative, contractual and union remedies, "unless plaintiffs amend within ten days so as to cure these defects". In its accompanying memorandum the court upheld its general jurisdiction "over a claim of hostile discrimination" and concluded that the petition, although not too clear, stated a claim against the railroad. But it also held that the Brotherhood was an indispensable party; that, although the System Board did not have capacity to be sued, its membership and officers might constitute representatives of a class which includes the Brotherhood; that process upon it as a representative might then be notice to the whole class; that some employees who were members of the locals would benefit or be bound by a decree; that those members of No. 280 who might be adversely affected by it were indispensable parties; and that exhaustion of contractual and internal remedies was a prerequisite to equitable relief in federal court.

3. In December the plaintiffs filed their amended petition. This named as additional defendants three other officers of the System Board, the two local Lodges, and eight individuals as officers of the locals. It did not name the Brotherhood as such, although it named the Grand Lodge and the same three national officers. It alleged, among other things, that the several System Boards had the duty to negotiate working conditions and other employment relations; that the individual defendants were made parties individually and as representatives of the "International and Local Lodges", the System Board, and the entire membership of each of them; that since the suit was instituted the two locals have consolidated; that it was impractical to make the entire membership of the Brotherhood, of the System Board, and of the locals parties to the action; that the individual plaintiffs and defendants were appropriate representatives of all; that there was no administrative remedy available because the National Railroad Adjustment Board did not have jurisdiction and could not determine the rights of the parties; that under the supplemental agreement of April 1963 the new Class A checker-stowmen positions would be filled by former Class A clerks and Class B messengers ahead of all Class C employees, regardless of seniority possessed by the latter; that this was hostile, prejudiced, and discriminatory toward the plaintiffs and other Class C employees similarly situated; that the railroad, when joining in the supplemental agreement, was aware of this discrimination; and that the acts of the Brotherhood, its officers, and the System Board were willful and injurious to the plaintiffs and others similarly situated.

4. Motions by the System Board and two of its officers, by the officers of the locals, and by the railroad for summary judgment were then made and sustained by the court.

We thus have a situation where the trial court granted the plaintiffs an opportunity to remedy what it felt were the deficiencies in their petition as to persons and allegations, and where it concluded that those defects were not remedied by the amended petition.

A. The availability of internal union and contractual remedies and the necessity of their exhaustion. The plaintiffs' argument, as we understand it, is that an employees' representative under the Railway Labor Act is obliged to represent all in the bargaining unit fairly and without discrimination; that the courts have power to protect employees against any such discrimination; and that in racial cases of this kind the usual rule that internal or contractual remedies must first be exhausted has no application.

1. The union and its officers. It is of course long settled that a designated representative under the Railway Labor Act has the duty to represent all employees of a class without discrimination as to race, and that the courts have jurisdiction to protect a minority from a violation of that obligation. Steele v. Louisville & N. R. R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944); Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Haley v. Childers, 314 F.2d 610, 616 (8 Cir. 1963). See Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). This principle of itself, however, does not render the plaintiffs' amended petition here immune from fatal attack.

There is no dispute that plaintiffs are members of the Brotherhood and that remedies within the union are provided. There are carefully delineated grievance procedures in the Protective Laws with appeals allowed ultimately as high as the Grand Executive Council. And Article 5 of the Constitution provides,¹ as plaintiffs concede, that it is the obligation and responsibility of every member to comply with the Constitution and that no member shall resort to the courts until he "first shall have exhausted all remedies by appeal or otherwise provided herein". Each plaintiff, by becoming a member of the Brotherhood,...