Order of RR Tel. v. New Orleans, Texas & Mex. Ry. Co.

• Decision Date: 21 October 1946
• Docket Number: No. 13225.,13225.
• Citation: 156 F.2d 1
• Parties: ORDER OF RAILROAD TELEGRAPHERS et al. v. NEW ORLEANS, TEXAS & MEXICO RY. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

156 F.2d 1 (1946)

ORDER OF RAILROAD TELEGRAPHERS et al. v. NEW ORLEANS, TEXAS & MEXICO RY. CO. et al.

No. 13225.

Circuit Court of Appeals, Eighth Circuit.

June 24, 1946.

Rehearing Denied August 1, 1946.

Writ of Certiorari Denied October 21, 1946.

R. Walston Chubb, of St. Louis, Mo. (Ralph E. Kennedy and Lewis, Rice, Tucker, Allen & Chubb, all of St. Louis, Mo., on the brief), for appellants.

Willard H. McEwen, of Toledo, Ohio (Clarence T. Case of St. Louis, Mo., Frank L. Mulholland, and Clarence M. Mulholland, both of Toledo, Ohio, and James L. Crawford, of Cincinnati, Ohio, Case, Voyles & Case., of St. Louis, Mo., and Mulholland, Robie & McEwen of Toledo, Ohio, on the brief), for appellees Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes, and H. R. Lyons.

Before GARDNER and THOMAS, Circuit Judges, and DUNCAN, District Judge.

Writ of Certiorari Denied October 21, 1946. See 67 S.Ct. 112.

THOMAS, Circuit Judge.

This is an action in two counts for a declaratory judgment and for injunctive relief. The appeal is from a judgment dismissing both counts of the petition on the merits. The first count was dismissed on the ground that the court had no jurisdiction to pass upon the controversy presented by the pleadings and the evidence, and the second count on the ground that the plaintiffs were not parties to the alleged erroneous proceedings referred to in said count, were not involved therein, and are, therefore, in no position to complain of the rulings of the court. The facts and contentions of the parties are set out in detail in the opinion of the trial court in 61 F.Supp. 869.

Jurisdiction of the federal court is invoked under § 24(8) of the Judicial Code, 28 U.S.C.A. § 41(8), because the petition alleges a violation of the Railway Labor Act, 45 U.S.C.A. § 151 et seq., and as to the second count of the petition under § 24(1) of the Judicial Code, 28 U.S.C.A. § 41(1), because a violation of the due process clause of the Constitution is alleged.

The plaintiffs include the Order of Railroad Telegraphers, an unincorporated labor union, herein called the O.R.T., three of its officers and three of its individual members. The defendants are the New Orleans, Texas & Mexico Railway Company and twelve other railroad corporations known collectively as the Gulf Coast Lines, the International-Great Northern Railroad Company, Guy A. Thompson, Trustee for each of the defendant railroad corporations, the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, an unincorporated labor union, herein called the B.R.C., and H. R. Lyons, its Vice Grand President.

The plaintiffs bring this action in their own behalf and in behalf of and as representatives of all the members of the O.R.T. employed by the defendant railroad corporations and Thompson as Trustee, and in behalf of all others who may be similarly situated. Both the O.R.T. and the B.R.C. are accredited bargaining agents for their respective crafts and have collective bargaining contracts with the defendant railroad corporations and their Trustee, Thompson, covering wages, rules and working conditions for all employees belonging to their crafts and classes. Both unions are affiliated with the American Federation of Labor.

The controversy concerns the proper interpretation and application of the collective bargaining contracts of the two unions to the positions and work performed by the telegraphers' craft on the one hand and the clerks' craft on the other. The avowed purpose of the action is to protect the alleged individual contract rights of individual telegraphers employed at stations on the lines of the defendant carriers. The boundary line between the functions of the two crafts is not clearly defined in their contracts. The plaintiffs contend that the telegrapher craft may, if not according to the express language of their contracts with the carriers, then in light of long custom and usage, do both telegraphic and clerical work. The defendant B.R.C. contends that, except for clerical work incidental to certain positions, all clerical work is covered by its contracts with the defendants.

The subject of dispute in Count I of the petition is a collective Memorandum Agreement entered into on October 15, 1940, effective November 1, 1940, between the B.R. C. and the defendant carriers. This Agreement provides among other things:

"(a) It is recognized and agreed that all of the work referred to in Rule 1 of the Agreement dated November 1, 1940, between the Carrier and the Brotherhood belongs to and will be assigned to employes holding seniority rights and working under the Clerks' Agreement, except as provided below:

"(b) Due to the peculiar conditions existing in station service it is agreed that:

"(1) Where an Agent covered by an agreement other than the Clerks' Agreement is the only employe on duty not covered by the Clerks' Agreement the Carrier may assign such Agent any work covered by the Clerks' Agreement.

"(2) At stations where two employes not covered by the Clerks' Agreement are on duty at the same time and the work covered by the Clerks' Agreement is less than five hours the Carrier may assign such work to those two positions.

"(3) In all instances other than those set out in Items (1) and (2) above, it is agreed that where the work covered by the Clerks' Agreement is less than three hours on any shift of eight hours the Carrier may assign such work to station employes not covered by the Clerks' Agreement."

The plaintiffs say that this Agreement has been made the basis of claims by the B.R.C. to the exclusive right to perform clerical duties on the lines of the defendant railroads to the exclusion of the members of the O.R.T. engaged in such work contrary to the provisions of their collective contract as it has been applied for many years; that the enforcement of the Agreement would deprive telegraphers of valuable seniority rights and in many instances of their positions; and they demand (1) that it be declared and adjudged wholly void and of no effect in that it violates the Railway Labor Act, supra, and (2) that the defendants be permanently enjoined from enforcing it.

The court held that it was without jurisdiction to decide the controversy presented in Count I because the controversy is not justiciable in a federal court; that it is a jurisdictional dispute between two labor unions in a field covered by the Railway Labor Act, supra; and that such a dispute is governed by the provisions of that Act without a right to review by the court.

If we assume that the collective bargaining contract between the defendant carriers and the O.R.T. should be interpreted and applied as claimed by plaintiffs and that the Memorandum Agreement between the carriers and the B.R.C. means what that union claims for it, then the jurisdiction of the two unions overlap and there exists an undetermined zone of clerical work at the stations on the lines of the defendant carriers jurisdiction over which is claimed by each union and which is the subject of this controversy. In General Committee v. Missouri-K.-T. R. Co., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76, the Supreme Court considered a controversy between two railroad Brotherhoods, the engineers' and firemens' crafts. At page 334 of 320 U.S., at page 151 of 64 S.Ct., the Court said: "It is true that the present controversy grows out of an application of the principles of collective bargaining and majority rule. It involves a jurisdictional dispute — an asserted overlapping of the interests of the two crafts. It necessitates a determination of the point where the authority of one craft ends and the other begins or of the zones where they have...