Oliphant v. Brotherhood of Locomotive Fire. & Eng.

• Decision Date: 09 March 1959
• Docket Number: No. 13387.,13387.
• Citation: 262 F.2d 359
• Parties: Lee OLIPHANT et al., Appellants, v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al., Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

262 F.2d 359 (1958)

Lee OLIPHANT et al., Appellants, v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al., Appellees.

No. 13387.

United States Court of Appeals Sixth Circuit.

November 26, 1958.

Certiorari Denied March 9, 1959.

Joseph L. Rauh, Jr., Washington, D. C., John Silard, Washington, D. C., on brief, for appellants.

Harold C. Heiss, Cleveland, Ohio, Milton Kramer, Washington, D. C., Russell B. Day, Cleveland, Ohio, on brief, for appellees.

Harold Ticktin, Cleveland, Ohio, Rowland Watts, New York City, on brief amici curiæ, American Civil Liberties Union and the Ohio Civil Liberties Union.

Before MARTIN and MILLER, Circuit Judges.

Certiorari Denied March 9, 1959. See 79 S.Ct. 648.

PER CURIAM.

Appellants are Negro firemen who brought suit in the United States District Court for themselves and others similarly situated, seeking admission to membership in the Brotherhood of Locomotive Firemen and Enginemen whose constitution limits membership to applicants "white born". This appeal is from an order of the United States District Court denying the relief requested, for the reason that sufficient federal action was not present to subject the membership policies of the Appellee Brotherhood to judicial control. The opinion of the district court may be found at 156 F.Supp. 89; certiorari denied 355 U.S. 893, 78 S.Ct. 266, 2 L.Ed.2d 191.

The Brotherhood is and for many years has been designated, in accordance with the Railway Labor Act 45 U.S. C.A. § 151 et seq., as the statutory bargaining representative for the locomotive firemen, hostlers, and hostler helpers, hereinafter collectively referred to as "firemen". A Negro fireman cannot become a member of the Brotherhood under existing provisions of the Brotherhood's Constitution, nor may any firemen who are not members of the Brotherhood attend meetings of its local lodges.

Appellants advance a double-barreled hypothesis, which roughly parallels the two judicial approaches to racial segregation in public education. Their first argument is that, inasmuch as racial exclusion from public schools is inherently a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 and of due process of law guaranteed by the Fifth Amendment Bolling v. Sharpe, 1954, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 it follows that denial of membership in the duly elected statutory bargaining representative, based upon race, is inherently incompatible with the rights afforded by the Fifth Amendment to the Constitution of the United States and by the equal protection and equal representation guaranteed to them by the doctrine of Steele v. Louisville and Nashville Railroad Co., 1944, 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173. There, the Supreme Court held that "the language of the Railway Labor Act * * * read in the light of the purposes of the Act, expresses the aim of Congress to impose on the bargaining representative of a craft or class of employees the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against them. * * *." 323 U.S. 192, 202-203, 65 S.Ct. 226, 232. In short, appellants' first argument is that, as a matter of law, their constitutional rights and those enumerated in the Steele case are denied them as long as they are ineligible for membership in the exclusive collective bargaining agency which undertakes to represent their craft. They state in their brief: "Denial of voice and vote in the election of bargaining representatives and the formulation of bargaining objectives in and of itself denies Negro firemen equal representation."

If denial of membership in the Brotherhood is held to be not in violation of their rights as a matter of law, appellants assert that they are entitled to membership on a second and alternative ground. Cases decided under the earlier "separate but equal" doctrine of public schooling proscribed racial exclusion where in fact equal schooling was denied. See State of Missouri ex rel. Gaines v. Canada, 1938, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Sweatt v. Painter, 1950, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114. Analogizing their case to the stated doctrine, these appellants assert that the Brotherhood is in fact guilty of discriminatory practices and that the removal of the racial barrier to Brotherhood membership alone will afford them some measure of relief from discrimination.

In his carefully considered opinion, Chief Judge Paul Jones decided the facts pertaining to discrimination adversely to the contention of appellants. He stated the position of the Negro firemen to be that the "Brotherhood continues to exercise discrimination in its representation, particularly in (1) reducing the minimum mileage requirements for firemen, which has the effect of reducing the monthly income of the Negroes; (2) applying the `gouge' rule in such a way as to reduce earnings of the Negroes; (3) applying the mileage rules to firemen and not to demoted engineers; and (4) bargaining for a compulsory retirement at age 70." 156 F.Supp. 90 The Judge continues: "* * * these alleged acts of discrimination will not be discussed in detail, but it should be noted that as to (3) above, proof was mainly in the form of opinion and was denied by Brotherhood officials, while (1), (2) and (4) are legitimate practices used by most unions for reasons other than discrimination, and since they apply to all who come within the terms of the rule involved, whether the individuals are white or colored, this court cannot state definitely that this Brotherhood adopted these practices for the purpose of discriminating against the Negroes." 156 F.Supp. 89, 90.

A meticulous examination of the detailed record in this case has been made by us, resulting in our opinion that the above findings of the district court are eminently correct and are supported by substantial evidence. There is, therefore, no occasion for further consideration of appellants' second argument.

Accordingly, we address ourselves solely to the contention advanced by the appellants that exclusion from membership in their collective bargaining representative based upon race is inherently a denial of their rights as a matter of law.

The appellee's authority as collective bargaining "representative" of the fireman craft is derived from the Railway Labor Act, which contains, inter alia, the following definition: "Sixth. The term `representative' means any person or persons, labor union, organization, or corporation designated either by a carrier or group of carriers or by its or their employees, to act for it or them." 45 U.S. C.A. § 151. The Brotherhood was duly elected as bargaining representative in accordance with provisions of the Act. Nowhere does the statute manifest the intention of Congress to establish criteria for membership in the bargaining representative. Nor can it be said that the attention of the Congress was not directed to the fact that some craft members were being denied membership in certain railway labor organizations by virtue of their race. An amendment to the Act (later tabled) proposed to refuse certification to any such organization which denied membership on the basis of race. The able district judge observed: "Apparently the Act itself would not have been acceptable to the Congress if Negro membership in the agent had been required." 156 F.Supp. at page 93. The Supreme Court points out in its opinion in the Steele case, supra, that "the statute does not deny to such a bargaining labor organization the right to determine eligibility to its membership * * *." 323 U.S. at page 204, 65 S.Ct. at page 233. In our judgment, the language of the statute does not support reasonably any other interpretation.

A perusal of the Railway Labor Act makes it abundantly clear that no means of direct control over the actions of the agent selected by a majority of the craft was reserved by the statute to the individual employees. Apparently, the only supervision which any individual may exercise over the duly-elected bargaining representative is the threat of casting his vote in favor of a different representative at a subsequent election. The objective of Congress was industrial tranquility in the arteries of commerce. In choosing the method by which this goal could be achieved, it was deemed necessary to take from...