Order of RR Telegraphers v. New Orleans, T. & M. Ry. Co.

• Decision Date: 10 July 1945
• Docket Number: No. 2606.,2606.
• Citation: 61 F. Supp. 869
• Parties: ORDER OF RAILROAD TELEGRAPHERS et al. v. NEW ORLEANS, T. & M. RY. CO. et al.
• Court: U.S. District Court — Eastern District of Missouri

61 F. Supp. 869

ORDER OF RAILROAD TELEGRAPHERS et al. v. NEW ORLEANS, T. & M. RY. CO. et al.

No. 2606.

District Court, E. D. Missouri, E. D.

July 10, 1945.

R. Walston Chubb, of St. Louis, Mo. (Lewis, Rice, Tucker, Allen & Chubb and Ralph E. Kennedy, all of St. Louis, Mo., of counsel), for plaintiffs.

Thos. T. Railey and H. H. Larimore, both of St. Louis, Mo., for defendant carriers.

Clarence T. Case, of St. Louis, Mo., Frank L. Mulholland, Clarence M. Mulholland, and Willard H. McEwen, all of Toledo, Ohio, and James L. Crawford, of Cincinnati, Ohio, for defendant Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes.

HULEN, District Judge.

This case primarily involves a contest between two railroad labor unions. Plaintiffs, comprising the Order of Railroad Telegraphers,¹ and certain of its officials and members, acting as representatives of all in a similar class, seek a declaratory judgment voiding a certain contract between the defendants, Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees,² and defendant carriers, insofar as the contract purports to control clerical work of the carriers now being performed by the O. R.T. Injunctive relief against defendants in accord with the contract interpretations is also prayed for. The contract thus in issue we refer to as the "Memorandum Agreement." Count Two prays for injunctive relief against the enforcement of certain awards of the National Railroad Adjustment Board, in favor of the defendant B.R.C. and against defendant carriers, which were based on the "Memorandum Agreement."

Plaintiffs' complaint, under Count One, in brief, is based upon a claim that the enforcement of the "Memorandum Agreement" involves an interference with plaintiffs' employment and working conditions and threatens irreparable injury to their craft, contrary to the provisions of the Railway Labor Act, 45 U.S.C.A. § 151 et seq. Count Two seeks to enjoin the enforcement of certain awards of the Railroad Adjustment Board because plaintiffs O.R.T. were not permitted to intervene in the proceedings and for alleged irregularities in the proceedings of the Board leading up to making the awards. Defendants B.R.C. challenge the jurisdiction of the Court on each count of the complaint, and also defend on the grounds, (1) the "Memorandum Agreement" violates no right of the plaintiffs O.R.T.; (2) a decision by arbitration under the Railway Labor Act has been made; and (3) a ruling of the American Federation of Labor has settled the issue. The carrier defendants join with defendants B.R.C. in pleas to the jurisdiction of the Court under Count One, and join with plaintiffs O.R.T. under Count Two, in their attack on the orders of the Railroad Adjustment Board.

The controversy between the plaintiff and defendant unions is not of recent origin.³ For many years there have been complaints by the Clerks' Union that work properly coming within the scope rules of their contract was being assigned by the carriers to telegraphers, members of plaintiff union. This issue became acute during the depression, when, as a result of decrease in business, the carriers retrenched in personnel. Time has widened the breach. To effect economies, in many cases the carriers reduced station forces. The Clerks' Union claim this was done by laying off clerks, members of the B.R.C., and causing work previously done by such employees to be taken over by telegraphers, members of the O.R.T. It is charged that in some cases, when the station forces were again enlarged, members of plaintiff union were recalled and assigned clerical work instead of members of the defendant union. Each of the unions had collective bargaining contracts with the carriers. These contracts included scope rules, which undertook to define the rights of employees, including work and jobs covered by the agreement between the carrier and the union. It is not claimed by the plaintiff that its collective bargaining contract in express terms sets forth the character of work to be performed by its members, but the plaintiff asserts the character of work covered has been established to include some clerical work by custom and practice of the carriers over many years. The contract with B.R.C. sets out in the scope rules positions that are covered and places all clerical work under the agreement, subject to certain exceptions and conditions.

The Clerks' Union complained in 1932, as a result of the practice of the carriers in assigning clerical work to members of the Telegraphers' Union. At that time it presented a number of claims against the carriers, based upon its collective bargaining contract, resulting from a charge that the carriers were displacing members of its union, and assigning their work to members of the plaintiff union. At that time the provisions for the Adjustment Board of the Railway Labor Act were not in effect. The amendment to the Railway Labor Act was passed in 1934, "to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; * * * to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions," U.S.C.A. Title 45, Section 151a, etc. between carriers and their employees. The first cases to come before the Adjustment Board provided by the Act, U.S.C.A. Title 45, Section 153, filed by the defendant B. R. C., were decided in June, 1937, being awards Nos. 450, 451, and 452. Reference to the award in one of these cases will disclose the issue that is fundamental between the plaintiff and defendant unions in this case. In Award No. 451, defendant B.R.C. claimed that the carriers were violating their collective bargaining agreement by assigning clerical work to employees not covered by the agreement, at Weslaco, Texas. As disclosed by the award, in 1929 there were three clerical positions at Weslaco. Two of these positions were abolished in 1930. In 1935, the force at Weslaco consisted of two telegraphers and one cashier, and when it became necessary to increase the force, two additional telegraphers were added, making four telegraphers' positions and one clerical position. The position of the carriers in Award No. 451 was that:

"The three telegrapher clerks assigned at the above mentioned point are properly classified as coming under the telegraphers' agreement, and employees listed as coming under the purview of the telegraphers' agreement were assigned. We have an agreement with the O.R.T. that telegraphers may be required in addition to their telegraphic duties, to perform clerical service."

The Referee's (U.S.C.A. Title 45, Section 153(2) opinion in Award No. 451 sustained the position of the Clerks, with this observation as to the conflict of the two unions under their contracts:

"We do not overlook the hardship that may be imposed upon the carrier because of the effect of the Agreement with another Brotherhood such as the Order of Railroad Telegraphers. There is no doubt that in many cases requirements of Agreements with different Brotherhoods impose upon a carrier certain hardships in particular instances where there is not enough work to employ full time men under each Agreement. However, this is a matter that cannot be solved by violating one agreement in order to abide by another. The solution lies rather in proper conferences and agreements with the respective brotherhoods. Such conferences should be held with a view of reaching an amicable and reasonable result which would impose no hardship upon either side. It is, however, not within the province of this Board to uphold one such agreement and at the same time strike down the other. When such Agreements are fairly made this Board can but construe them. We cannot excuse the violation of the terms of one agreement by invoking the terms of another.

"Such agreements are analogous to separate contracts and the parties themselves must adjust the hardships resulting from overlapping.

"We have no alternative but to sustain claim of the employes."

There was testimony in this case that Awards Nos. 450, 451 and 452 were compromised by the carriers, and the settlement put into effect.

The Clerks' Union, at its convention in 1939, adopted a resolution seeking the appointment by the Telegraphers' Union of a jurisdictional committee to meet with a like committee of the Clerks' Union, for the purpose of settling the jurisdictional dispute between the two unions, regarding the performance of clerical work and the claims of the two unions to the performance of such work under their contracts.⁴ Although committees were appointed by both unions, and conferences held, no agreement was reached on the "jurisdictional" dispute.

In 1940 the B.R.C. initiated proceedings to change the existing collective bargaining agreement with the carriers, and in the course of the proceedings leading up to the 1940 agreements, including the "Memorandum Agreement" here in issue, a strike ballot was circulated by the Clerks' Union, with the result that the carriers invoked the services of the National Mediation Board. U.S.C.A., Title 45, Section 152, Ninth. The Mediation Board's services resulted, or at least aided, in three agreements being executed by the carriers and defendant B.R.C., on October 14, 1940. These included a new collective bargaining agreement and the "Memorandum Agreement"⁵ under attack in this case. The third agreement withdrew all matters from mediation. Soon after the execution of the "Memorandum Agreement," the B.R.C. alleged that the carriers were violating its terms, with the result that claims were filed with the Railroad Adjustment Board under the terms of the Act. Awards Nos. 2253 to 2258, inclusive, resulted. Claims of the B.R.C. were sustained in these awards. Plaintiffs seek their annulment by the second count...