ORDER OF RAILROAD TEL. v. NEW ORLEANS, TEXAS & M. RY. CO.

• Citation: 229 F.2d 59
• Decision Date: 26 March 1956
• Docket Number: No. 15177.,15177.
• Parties: The ORDER OF RAILROAD TELEGRAPHERS, Appellant, v. NEW ORLEANS, TEXAS & MEXICO RAILWAY COMPANY, Debtor, Guy A. Thompson, Trustee, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

229 F.2d 59 (1956)

The ORDER OF RAILROAD TELEGRAPHERS, Appellant, v. NEW ORLEANS, TEXAS & MEXICO RAILWAY COMPANY, Debtor, Guy A. Thompson, Trustee, Appellee.

No. 15177.

United States Court of Appeals Eighth Circuit.

January 10, 1956.

Writ of Certiorari Denied March 26, 1956.

Milton Kramer, Washington, D. C. (George A. McNulty, St. Louis, Mo., and Lester P. Schoene, Washington, D. C., on the brief), for appellant.

Thomas T. Railey, St. Louis, Mo., for appellee.

Carroll J. Donohue, St. Louis, Mo., Clarence M. Mulholland, and Edward J. Hickey, Jr., Washington, D. C., filed brief for Railway Labor Executives Ass'n et al., amici curiae.

Before GARDNER, Chief Judge, and WOODROUGH and VOGEL, Circuit Judges.

Writ of Certiorari Denied March 26, 1956. See 76 S.Ct. 548.

WOODROUGH, Circuit Judge.

This suit was brought in the District Court by the Order of Railroad Telegraphers, here called Telegraphers, under authority of 45 U.S.C.A. § 153, First (p) to obtain enforcement of Award No. 4734 rendered in their favor against the railroad by the National Railroad Adjustment Board, Third Division, on February 28, 1950 and not complied with by the railroad. The Award sustained a claim filed by the Telegraphers against the railroad and its trustee (here called carrier) to the effect that the carrier violated its collective bargaining agreements with the Telegraphers by assigning work covered by such agreements then being done by Telegraphers to members of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees (here called Clerks) and that the carrier should restore the displaced Telegraphers to their former positions and reimburse them.¹

The defendant carrier pleaded in its amended answer as its second affirmative defense that the Award No. 4734 sought to be enforced was void and unenforceable because the Adjustment Board failed to comply with the requirements of 45 U.S.C.A. § 153, First (j) that "the several divisions of the Adjustment Board shall give due notice of all hearings to the employee or employees and the carrier or carriers involved in any dispute submitted to them." Defendant alleged that the Clerks then performing the work claimed by the Telegraphers being adversely affected by the Telegraphers' claim of right to the same work were "employees involved in the dispute" and were indispensable parties necessary to be notified and given an opportunity to be heard in the proceedings before the Adjustment Board and the right was denied them. It was also alleged that the Award was "unenforceable for want of indispensable parties in this pending court proceeding."²

On the trial of the case before the Court without a jury, there was no material dispute as to the facts which were established through the pleadings which included a complete record of the proceedings before the Adjustment Board and its award, by pretrial proceedings and by stipulations, and the court sustained the second affirmative defense asserted by defendant³ and entered judgment for defendant dismissing the case with costs made payable as prescribed by 45 U.S.C.A. § 153, First (g). The judgment was accompanied by Opinion, Findings of Fact and Conclusions of Law. 135 F.Supp. 825.

The Court recited in its opinion that:

"In 1943 the Brotherhood of Railway and Steamship Clerks (hereinafter referred to as BRS) obtained an award and order 2254⁴ by the National Railroad Adjustment Board, which held that the carrier was violating the Clerks\' Agreement at Anchorage, Louisiana, with respect to the assignment of work. The plaintiff in this court filed suit to declare Award 2254 invalid, to enjoin the enforcement of the award and to declare the contract between BRS and the carrier upon which Award 2254 was based void, and to enjoin the enforcement of the contract. The injunctive relief sought was denied, 8 Cir., 156 F.2d 1, but the Court of Appeals held that the decision of the District Court dismissing the petition, 61 F.Supp. 869, be stayed until an opportunity was given plaintiff for application to the Railroad Adjustment Board for interpretation of the plaintiff\'s agreement. The plaintiff chose not to file an application with the Board and its suit was dismissed with prejudice. Subsequent to the dismissal of the suit after the members of BRS had taken over the work in accordance with Award 2254, which the plaintiff\'s members formerly performed, the plaintiff sought interpretation of its contract by the Railroad Adjustment Board which resulted in the award and order 4734, sustaining the plaintiff\'s interpretation of its contract awarding its members the work, which award and order is sought to be enforced in this suit. * * *

"Simply stated, the BRS Clerks contract with the carrier and the plaintiff\'s contract with the carrier overlapped. Both contracts proposed to cover the same work at Anchorage, Louisiana, and the National Railroad Adjustment Board has sustained both BRS and the plaintiff in their interpretation of their respective contracts with respect to the work in question. Award 2254 was entered without the plaintiff being a party to the hearing and Award 4734 was entered without BRS being a party to the hearing: * * *."

The Court observed that this Court in Brotherhood of Railroad Trainmen v. Templeton, 181 F.2d 527, in dealing with an award where a somewhat similar situation to the one presented here was involved, approved conclusions of law by the District Court, loc. cit. 534, as follows:

"`That the aforesaid awards of the National Railroad Adjustment Board, First Division, are illegal and void, in that they were rendered by said Board, in violation of Section 3 (j), Title 45 U.S.C.A. § 153(j), of the Railway Labor Act, because plaintiff and the members of the class whom he represents involved in said proceedings, were given no notice thereof, or afforded an opportunity to be heard therein, either in person or by counsel.

"`Compliance by the Santa Fe with the provisions of said awards deprives plaintiff and the class he represents, of property rights without due process of law, in violation of the Fifth Amendment to the Constitution of the United States.\'"

The trial Court also noted that this Court in approving the District Court's conclusions of law referred to above cites and indicates that it is in accord with Hunter v. Atchison, Topeka and Santa Fe Railway, 171 F.2d 594, wherein the Court of Appeals for the Seventh Circuit held a similarly obtained award to be void. The case of Missouri, Kansas and Texas R. Co. v. Brotherhood of Ry. & S. S. Clerks, 7 Cir., 188 F.2d 302, 305, was also cited. The Court there was concerned with an appeal from an injunction issued by the District Court temporarily enjoining the Clerks from prosecuting any suit to enforce awards entered in their favor by the National Railroad Adjustment Board. The carrier brought the action because awards had been entered in favor of both the Clerks and the Telegraphers covering the same jobs in the interpretation of their respective contracts. The trial Court quoted from the Seventh Circuit opinion upholding the granting of temporary injunction as follows:

"`The dilemma here posed results in a large part from the refusal of the Board to bring both groups of claimants before it in one proceeding. Judging from a number of opinions accompanying awards and orders which were introduced as evidence in this cause, it appears to have been generally assumed that the Board has no authority under the Act to consider two agreements simultaneously, each in the light of the other. However, we are convinced from our examination of the Act that it does not require such construction. It has been stated that the rules of the Board which it is authorized to promulgate under § 3, First (u) forbid such procedure. However, we have been cited no such rule and doubt its existence in view of the fact that it appears that the Board itself has generally deadlocked on the question, with the carrier members consistently upholding the view that where a claim is filed against a carrier by a labor group contemplating the ousting of other employees in favor of the claimant, those other employees sought to be ousted have a vital interest in the proceeding and, under § 3, First (j) of the Act, a right to notice and opportunity to participate in the hearing before the Board. The labor members have with equal consistency denied this contention. We think logic and reason support the carriers\' construction of § 3, First (j), which provides that the Board shall give due notice of all hearings "to the employee or employees and the carrier or carriers involved in any dispute submitted to them." We can think of no employee having a more vital interest in a dispute than one whose job is sought by another employee or group of employees.

"`Obviously it is desirable to settle controversies such as these involving so-called "overlapping contracts" on the basis of the existing contracts wherever possible instead of compelling resort to the machinery provided by § 6 for changing agreements. Of course this may not always be possible, but it is certainly much more likely to result if both parties to the dispute are brought before the Board with their respective agreements and each is considered in the light of the other, together with the usage, practice and customs of the industry, or of the particular carrier.\'"

The trial Court noted further that the Court of Appeals for the Seventh Circuit had reiterated in Illinois Central R. Co. v. Whitehouse, 212 F.2d 22, and Allain v. Tummon, 7 Cir., 212 F.2d 32, that an award made by the Board in the absence of due notice to the involved parties with an opportunity accorded to be heard is void and enjoined its enforcement for that reason.

The trial Court accordingly declared in its opinion in this case that "The award and order of the National Railroad Adjustment Board, 4734, is illegal and void, in that it was rendered by...