Order of Railroad Telegraphers v. Railway Exp. Agency

• Decision Date: 26 June 1942
• Docket Number: Civ. A. No. 2223.
• Parties: ORDER OF RAILROAD TELEGRAPHERS v. RAILWAY EXPRESS AGENCY, Inc.
• Court: U.S. District Court — Northern District of Georgia

55 F. Supp. 319

ORDER OF RAILROAD TELEGRAPHERS v. RAILWAY EXPRESS AGENCY, Inc.^*

Civ. A. No. 2223.

District Court, N. D. Georgia, Atlanta Division.

June 26, 1942.

William G. McRae, of Atlanta, Ga., and Leo J. Hassenauer, of Chicago, Ill., for plaintiff.

Blair Foster, of Atlanta, Ga., and Albert M. Hartung, of New York City, for defendant.

RUSSELL, District Judge.

This is a suit instituted by the Order of Railroad Telegraphers against the Railway Express Agency, Incorporated, seeking to have this court enforce an award of the Third Division of the National Railroad Adjustment Board. In the proceeding eventuating in the award and in this suit the Order of Railroad Telegraphers appear as the representative of joint railroad express agents employed on the lines of the Seaboard Air Line Railroad. The term "joint railroad express agents" refers to and describes those individuals who are railroad agents and likewise express agents at designated points on the named railway. The respective parties and the board as concerned in this proceeding will be referred to as the O. R. T., the agency, the board, and the joint-agents.

The record of the proceeding before the board is exceedingly voluminous and embraces a wide range of what is denominated by the parties numerous and various "briefs", "pleadings", "oral presentation", "memorandum", "surrebuttal," "reply," relating to the question of jurisdiction of the board, and thereafter a response, oral argument, answer to oral argument and "reply to the answer." It is stipulated here that proceedings before the board are informal to the extent that testimony in the sense of evidence given under oath is not usually received; that the board generally acts upon unsworn statements contained in the documents above referred to. That such statements become a part of the record before the board and are considered by it in making its judgments and decisions. It is further stipulated that this rule of the board was applied in the present instance. It should be stated that some of the documents contained affidavits of various parties or its officers. All together there are sixteen exhibits in the present record, one exhibit having fourteen sub-exhibits, two others having one each. The parties have, for the convenience of the court, entered into a stipulation of facts identifying and explaining the exhibits, and have also stipulated the correctness of the exhibits as well as the truth of certain facts set forth in the exhibits.

The dispute revolves around the force and effect to be given an agreement concerning rates of pay and working conditions entered into on August 1, 1917 between the Southern Express Company and a representative of the joint-agents, and in connection therewith the validity of individual agreements and modifications of the 1917 agreement by the agency at sixteen of its offices, affecting through the years twenty-two joint agents. It should be stated that the agency contends that it has never assumed and is not bound by the 1917 agreement.

The agreement of 1917, above referred to, contains fourteen brief articles, and, as relates to the present controversy, it is designated "Southern Express Companyrates of pay and regulations for joint-express and railroad agents on the Seaboard Air Line Railway." Article 1 applies the "schedule" solely to express agents as above designated. Article 2 prescribes payment to be made as commissions on total business received and forwarded, based on previous year's business, and sets forth specified commissions. It is provided that when commissions do not exceed $10.00 per month a guarantee of $10.00 per month will be paid. Article 3 provides that at points where agents are required to transfer express matter to or from other lines or trains, they will be paid a minimum of $10.00 per month for such service. Article 9 provides that agents will be allowed to deduct their commissions at the close of each report. Article 12 provides "these rules are not to be construed so as to reduce compensation at points where the rates of pay are in excess of the above rates." Article 14 provides "no change will be made in the foregoing articles until after notice of thirty (30) days in writing has been given."

On July 1, 1918 express business of the Southern Express Company on the Seaboard Air Line Railway was taken over by the American Railway Express Company, the express business of which on such railway was taken over on March 1, 1929 by the Railway Express Agency, Inc., the defendant herein. The agency by means of individual agreements with agents at specified locations made what is contended are unlawful changes in the 1917 agreement by reason of reduction in transfer rates; abandonment of minimum monthly guarantee; and establishment of a flat rate of $5.00 per car on carload shipments.

In October 1935 the President of the O. R. T., in behalf of the General Chairman of the O. R. T. on the Seaboard Air Line Railway instituted the proceeding before the board predicated upon the following claim:

"1. The commission rate on carload express shipments accruing to the joint railway-express agent at Lawtey, Fla., as established by Article 2 of the Express Agreement of August 1, 1917, and all other joint agencies on the Seaboard Air Line handling carload express shipments, shall be restored as of the date the rates are arbitrarily reduced.

"2. That the minimum amount of commission of Ten Dollars ($10.00) per month, as established and guaranteed by Article 2 of the Express Agreement of August 1, 1917, shall be restored to the joint railway-express agency at Rutherford, Ala., and at all other joint railway-express agencies where the minimum rate has been arbitrarily reduced or reduced through individual agreement between the express company and agent; and that these agents be retroactively reimbursed in the amount of the difference that should have been paid under the Express Agreement.

"3. That all transfer allowances established by Article 3 of the Express Agreement of August 1, 1917, and higher rates in effect which have been arbitrarily changed, or changed by individual agreement, as at Moncure, N. C., shall be restored retroactively to the date such changes were made in violation of the Express Agreement, and all agents affected be paid the difference due them under said Express Agreement."

The respondent agency denied the jurisdiction of the board, contending that under the Railroad Adjustment Act, 11 U.S.C.A. § 1200 et seq., the relation of employer and employee did not exist between it and the joint-agents, and that even if such relationship did exist respondent had no contract with such employees and that therefore there could be no violation thereof within the provision of the Railway Labor Act, 45 U.S.C.A. § 151 et seq. This contention was denied, the board holding that it had jurisdiction of the dispute and ordered that the case be heard on its merits. Thereafter further responses of fact and argument were presented, the third division board was divided, a referee was named and the board made its findings and award.

In the present petition the O. R. T. sets forth the award and asserts that thereunder the agency should be required to pay to it as a representative of the persons for whose benefit such order was made the sum of $46,314.86. Specification is made of the amount due individual agents by name of agent and name of station. The petitioner prays for attorney's fees and that the court enter such judgment by writ of mandamus or otherwise as may be appropriate to enforce the order of the board requiring the agency to make effective the award. The defendant agency reasserted affirmative defenses which by amendment have been reduced so that those now presently insisted upon are in effect: (1) That the board was without jurisdiction for the reason that there was on June 17, 1934 no dispute or case pending within the terms of the statute. (2) That the agency did not assume, become subject to, and is not bound by the agreement of August 1, 1917, and that therefore the order of the board which in effect required it to pay a sum equaling the difference between the commission specified by the contract and those actually paid under the individual agreements is arbitrary and unreasonable. (3) That it does not owe the total amount or sums alleged to be due the individuals. (4) That for reasons stated the individual contract for maximum commission on shipments of refrigerated carloads of strawberries from Lawtey, Florida was a valid contract. (5) That the award and order of the board are arbitrary and of no effect and validity for the reason that no sufficient findings of the fact are made by the board to support its award, nor do the findings of fact made by the board support the award; and that there was no substantial evidence before the board to support or authorize the finding, award or order of the board to the effect that (a) defendant was bound by the contract of August 1, 1917; (b) that the contract was breached when defendant made separate and different compensation arrangements with certain joint railway-express agents, and (c) that there was any pending dispute which gave the board jurisdiction to make the award or issue an order thereon.

Upon a trial of the case before this court, in addition to the stipulation of facts above referred to, and in accordance with the reservation therein contained, evidence was introduced upon the issue of whether there was a case pending and unadjusted as of the date of the enactment of the Railway Labor Act. From this it appears that from the sixteen stations and twenty-two joint-agents employed thereat during the time covered by the present controversy there were four instances of claims presented seeking to recover the difference in the compensation paid and that contended to be provided for by the agreement of August 1, 1917. In each of these cases, the last communication being dated March...