Noles v. Terminal R. R. Ass'n of St. Louis
| Decision Date | 07 October 1941 |
| Docket Number | No. 25650.,25650. |
| Citation | 154 S.W.2d 606 |
| Parties | NOLES v. TERMINAL R. R. ASS'N OF ST. LOUIS et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Frank C. O'Malley, Judge.
"Not to be reported in State Reports."
Action by Burgess R. Noles against the Terminal Railroad Association of St. Louis, a corporation, E. A. McNew, and C. J. Jenkins, to recover damages for loss of plaintiff's seniority rights as defendant association's employee. From a judgment for plaintiff against defendants association and McNew and in favor of defendant Jenkins, defendants association and McNew appeal.
Reversed as to appellants, and affirmed as to defendant Jenkins.
Carleton S. Hadley, Walter N. Davis, and Arnot L. Sheppard, all of St. Louis, for appellant Terminal R. R. Ass'n of St. Louis.
Mark D. Eagleton and Roberts P. Elam, both of St. Louis, for appellant E. A. McNew.
James A. Riley, of St. Louis, for respondent.
SUTTON, Commissioner.
This is an action, commenced by plaintiff on September 14, 1938, to recover damages for loss of his seniority rights with defendant Terminal Railroad Association of St. Louis. The trial, with a jury, resulted in a verdict in favor of plaintiff and against defendants Terminal Railroad Association and E. A. McNew for $1,350, and in favor of defendant C. J. Jenkins. Judgment was given accordingly. Defendants Terminal Railroad Association of St. Louis and E. A. McNew appeal.
During the years 1932 to 1936, defendant E. A. McNew was general chairman of the Brotherhood of Railroad Trainmen and chairman of the general grievance committee. He was succeeded by defendant C. J. Jenkins on March 1, 1936.
On February 18, 1930, an agreement captioned, "Schedule of Pay and Regulations for Employees in Yard Service of the Terminal Railroad Association of St. Louis and its Leased and Operated Lines," was entered into by and between the Brotherhood of Railroad Trainmen and the Terminal Railroad Association of St. Louis. The agreement, provides, among other things, that in the promotion of switch tenders to yardmen the senior men in service eligible will be given preference, and so on in turn; that seniority rights of all yardmen or switch tenders shall commence from date of their first time slips on which their names appear, and that they will work extra until assigned to regular positions; that extra yardmen shall be required to report to protect each shift, but if this can be accomplished by reporting once in each twenty-four hours, the general chairman and superintendent may perfect arrangements for the different districts; that yardmen and switch tenders will not be granted leaves of absence of more than sixty days except in case of sickness or official promotion; that the proper officers of the company may hear any complaint or grievance made by the properly authorized committee of the Brotherhood of Railway Trainmen; that when a complaint or charges are made against any yardman or switch tender they shall be put in writing and shall convey a full and clear statement of the complaint or charges; that yardmen or switch tenders will not be suspended, dismissed, or otherwise disciplined without cause; that when suspension or dismissal has been assessed full investigation of the case will be held within five days at which all parties interested may be present together with their representatives if desired; that if at such investigation the suspension or dismissal is upheld the party disciplined will have the right to appeal, such appeal to be made in writing within fifteen days.
The agreement further provides that the rates of pay, rules and regulations therein prescribed shall govern the pay of employees in yard service and define their rights as agreed to, understood and arranged between the officials representing the Terminal Railroad Association of St. Louis and its leased and operated lines by its officers and a committee of the Brotherhood of Railway Trainmen who represent the employees in the yard service of the Terminal Railroad Association of St. Louis and its leased and operated lines; and that they will remain in effect until thirty days' notice shall have been given by either party requesting a change.
Plaintiff bases the seniority rights for which he sues on this agreement. He was in the employ of the Terminal Railroad Association as an extra switchman at the time the agreement was made, and had been for some time prior thereto, and continued as an extra switchman for some time thereafter. It is not disputed that his employment after the making of the agreement was under the rules and regulations of the agreement and was governed thereby. He worked in the Terminal's Madison district or yard. His file number on the seniority list was 80. In other words, there were 79 men in that particular district who had been in the Terminal's employ for a longer period than had plaintiff. It appears that in 1932 there were more extra switchmen in the Madison district than there were switchmen regularly employed. There were 36 regular and 94 extra switchmen. On May 10, 1932, on account of the business depression which kept a large number of switchmen on the extra list, an agreement was entered into between the Brotherhood and the Terminal suspending the existing leave of absence rule temporarily, which prohibited leaves of absence for longer than sixty days except for sickness or official promotion, so that leaves of absence might be granted for six months. This suspension of the rule expired December 1, 1932. During the period of such suspension of the rule the Terminal's business continued to grow worse and the men on the extra list increased in numbers. They congregated on the Terminal's property while reporting for work to such an extent as to interfere with the work of the regular men. Under the original working agreement of February 18, 1930, they were required to report daily in order to protect their seniority rights. On December 6, 1932, the following agreement was executed by J. A. Mathewson as general manager on behalf of the Terminal and by E. A. McNew as general chairman on behalf of the Brotherhood:
From 1932 on business continued to grow worse and the Terminal continued to eliminate crews so as to continuously throw more men out of work, so that on October 1, 1934, a further agreement was executed by J. A. Mathewson as general superintendent on behalf of the Terminal and E. A. McNew as general chairman on behalf of the Brotherhood, as follows:
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