Norfolk & W. Ry. Co. v. Harris

• Decision Date: 18 June 1935
• Parties: NORFOLK & W. RY. CO. v. HARRIS.
• Court: Kentucky Court of Appeals

84 S.W.2d 69

260 Ky. 132

NORFOLK & W. RY. CO. v. HARRIS.

Court of Appeals of Kentucky

June 18, 1935

Appeal from Circuit Court, Martin County.

Suit by G. D. Harris against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant appeals.

Reversed.

W. R McCoy, of Inez, Holt & Holt, of Huntington, W. Va., and F. M Rivinus, of Roanoke, Va., for appellant.

Jasper H. Preece, of Inez, for appellee.

RICHARDSON Justice.

This appeal requires a review and a consideration of a claim for loss of wages of G. D. Harris, a section laborer against the Norfolk & Western Railway Company. The basis of the claim is that he was wrongfully discharged from services, and that he is entitled to wages during the period of discharge, and that his seniority rights were disregarded after he was restored to his employment and returned thereunder to the services of the railway company. He entered the employment of the railway company in 1925, and performed the service of "way worker" until his discharge in March, 1932. His services were performed as directed by, and under the supervision of a section boss. For a period of time next before his discharge, he was assigned to the work of "day ashman," in which he was engaged at the time of his discharge. The agreement between the railway company and the Brotherhood of Maintenance of Way Workers embraces the rules governing the hours of service and working conditions in the maintenance of the way department. Section 4 thereof states the rule of discipline and grievances and provides that "an employee dismissed shall upon making a written request *** be given an investigation at which investigation he may be represented by representative of his choice. *** If the charge against the employee is not sustained, it shall be stricken from the record and employee reinstated and paid for the assigned working hours actually lost, less the amount earned from time of suspension until reinstated. The right of appeal through the regular channels is accorded."

It is agreed that the constitution and by-laws of the Brotherhood of Maintenance of Way Workers provide tribunals with authority to hear and determine grievances and the rights of employees. And if on such trial the ruling is adverse to him an appeal lies to a board, composed of the president of the organization and the executive board, and in further meritorious cases, he has the privilege to appeal under the Federal Railway Labor Act of May 20, 1926, 44 Stat. 577 (see 45 USCA § 151 et seq.).

Harris exercised his right of appeal from the act of the railway company discharging him, which, on being tried, was determined adversely to him. He chose as his representative at this trial, C. E. Vance, the general chairman of the brotherhood who represented him on the appeal from the act of the railroad dismissing him. After he lost on his appeal, on account of his financial condition and the needs of his family, Vance made a special, personal plea in Harris' behalf, to Angeline, assistant superintendent of the division on which Harris worked, which resulted in a settlement or compromise of Harris' case, of which he was notified by Vance. Harris thereafter by letter, addressed to Vance, stated, "the settlement without pay as you made in Angeline's office meets with my approval, as I figured you did the best you could in settling this without pay and I don't care to lose it. ***"

Angeline, on May 12, 1932, in a letter addressed to Vance, stated: "It is understood that Harris will not be paid for any time lost between March 19th and April 20th, when he was notified to return to work." "I wrote Mr. Porter on the 18th to put G. D. Harris back to work without any change in his seniority. *** I put him back on account of sympathy for his family and I hope he will work and protect his job without any further trouble."

Harris admits that on or about the 20th of April, he was directed to report on the next morning for work. In a conversation with section foreman Williamson, Harris stated that he was returning, not "expecting to work because they had notified" him "that the job (of 'day ashman') was suspended"; that he "would report with that understanding." He failed to report for work on the 21st. On the morning of the 25th, he did so under protest. From the morning of the 25th of April, he worked until the 14th day of July, when he asked the foreman to allow him to be "off" the following day. Thereafter he did not report for, or engage in, the services of the railway company.

The work of the "day ashman" was seven days a week, while the general work of the "way workers" to which Harris, after his return to work, was assigned, was 5 1/2 days a week. He asserts the right to recover at the rate of $2.88 a day, for the difference between 5 1/2 days and 7 days a week, during the month of April; 8 days in May; 10 in June; 5 1/2 in July; and full time for 20 1/2 in August; 20 1/2 in September; 28 1/2 in October; 25 in November; 29 in December; 28 1/2 in January, 1933; 26 in February, 1933; 29 in March, 1933; and 14 1/2 in April, 1933, totaling $690.24.

Harris' view was, and he is here so insisting, that the settlement or compromise restored his seniority rights, and that these rights gave him the right to demand the job of "day ashman." The railway company disagreed with him and the officials of the brotherhood concur in the railway company's contention. The railway company pleads as its chief defense that the exclusive jurisdiction was in the tribunals of the brotherhood to interpret, construe and determine according to its constitution, by-laws and its agreement with the railway company, the term "seniority" as it is here used, and that Harris' failure to have it interpreted, construed, and determined through the channels of the brother-hood was, and is, a complete bar of his action to recover of it the sum sued for.

It will be observed that, notwithstanding he was restored to his seniority rights upon the condition that he was not to be paid for any time lost between March 19th and April 20th when he was notified to "return to work," he has sued to recover therefor; also, for the time expiring after he voluntarily quit the service, July 14th. It must be noted that at the time of his statement to Williamson he had information the job of "day ashman" had been abolished, and that he was intending to report under protest on this account; that he immediately began to contend that the settlement or compromise made by Vance and Angeline entitled him not only to his seniority rights, but to the particular job of "day ashman." If his seniority rights entitled him to choose the job of "day...