Railway Express Agency v. ORDER OF R. TELEGRAPHERS

• Decision Date: 18 October 1943
• Docket Number: No. 10509.,10509.
• Citation: 137 F.2d 46
• Parties: RAILWAY EXPRESS AGENCY, Inc., v. ORDER OF RAILROAD TELEGRAPHERS.
• Court: U.S. Court of Appeals — Fifth Circuit

137 F.2d 46 (1943)

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

No. 10509.

Circuit Court of Appeals, Fifth Circuit.

July 9, 1943.

Writ of Certiorari Granted October 18, 1943.

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

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

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit, in form to enforce an award of the National Railroad Adjustment Board, was for the compensation claimed to be due and unpaid various railroad agents under the contract made August 1, 1917,¹ between the Southern Express Company and the General Committee of the Order of Railroad Telegraphers in behalf of joint railway express agents on the Seaboard Air Line Railway. The claim was that the facts and law were as the Board had found; that the defendant, though not a signer of, had, as successor to the Southern Express Company, assumed or otherwise become obligated to carry the contract out; that, without effecting a change of the rates the contract fixed by giving the thirty days notice in writing provided for in it, it had in three respects² changed the basis of compensation provided for in the contract; and that it was liable to the agents in whose interest the suit was brought for the difference between the amounts which had actually been paid them and the amounts which, under the contract, should have been paid them. Defendant denied the jurisdiction of the board on the grounds that (a) the claimants were not employees; and (b) the claim was not with regard to a claim pending and unadjusted on June 21, 1934. It defended on the merits that: (a) The August 1, 1917 contract was not its contract by execution, assumption or otherwise, and it was not and is not bound by its terms; (b) If mistaken in this, it was not liable for any of the amounts sued for because the sums paid each of the agents were paid him under a contract with him, and were paid to, and received, and retained by him as his part of the receipts in full and complete satisfaction of amounts due him for the service rendered under the contract he had with it; (c) As to Dinkins, agent at Lawtey, Florida, and the others under group one, it defended further on these grounds: that prior to the arrangement made in 1929 between the Seaboard Air Line and it for handling berries under refrigeration in carload lots, there was no carload express business in such perishables; that the 1917 contract, therefore, did not purport to cover compensation for that business; and that before making the amended agreement with the railroad to handle perishables by carload express, instead of installing its own exclusive agent at Lawtey, and compensating him on a salary basis, as it notified Dinkins it would do, it, on Dinkins' request that it not make the change, and his agreement that he would handle these cars not on a commission basis but at a flat rate of $5.00, accepted Dinkins' offer, and, thereafter, paid him $5.00 per car, that is, thereafter, Dinkins deducted his commission from the express receipts and withheld and accepted them as full compensation for services rendered in connection with carload shipments; and that all of the other agents claiming in this group made the same arrangement. Finally it pleaded The Statute of Limitations of Six Years.

The district judge sustained the board's assertion of jurisdiction, its finding of fact that defendant had assumed and was obligated on the Southern Express contract, its conclusion of law that the individual arrangements made with the agents under which the traffic was handled and the compensation paid were invalid and ineffectual to relieve defendant from the payment of the compensation provided for therein, and without finding on, but disregarding, the defense of limitation, he gave judgment as to each claimant for the amounts sued for under the three heads.

Here, abandoning its claim that the agents concerned were not in its employ, defendant urges, as it did below, that the board was without jurisdiction of the claims because they were not in 1934 pending and unadjusted disputes, and further insists that the suit was wrongly decided upon its merits.

We cannot agree with appellant that the board was without jurisdiction. It is true that as to complaints under groups (2), the abolition of the guarantee, and (3), the reduction of transfer allowances, no complaints were filed with defendant before, and therefore none were pending and unadjusted, on June 21, 1934. But it is equally true that there were claims under this head presented to the board covering grievances for years after June 21, 1934, over which the board undoubtedly had jurisdiction, sufficient to support its findings. As to claims under group (1), the institution in respect of express shipments of the $5 per car flat rate, while it is true that the record shows before June 21, 1934, only one complaint filed and that in respect of Dinkins only, and only for one year, this was sufficient to constitute a pending and unadjusted complaint as to the rights under the contract of Dinkins and other express agents affected by the change. Besides the complaint under this head also included many years after June, 1934. Neither can we agree with appellant that the board's finding that it assumed the obligations of the 1917 contract is without support in the record. It is true that the evidence to this effect is not as full as might have been expected if the contract was actually in force and that it is contrary to not only the oral evidence of the express company's officers that they never assumed the contract but to the letter of McFarland, the general manager of the Railway Express Company,³ which in turn is consistent with the position Mr. Owens and Mr. Glyn for the company took in 1935, when written to by Thompson, chairman of the O. R. T. about matters he claimed were pending, and with the statement in Thompson's claim before the board that the company takes the position that "our organization has no agreement with the company". But it is equally true; that the O. R. T. was all along insisting that it did have the contract; that the compensations fixed in it, except where changed by special agreement, were recognized and paid by the company; and that the record contains correspondence between Scruggs, Supt. of the Express Company, and May, general chairman of the Telegraphers, in October, 1925, about claims with no suggestion on the company's part that May was not authorized to present them, but, on the contrary, with a request by Scruggs that May, as general chairman, see that agents who had overpaid themselves from company funds be required to make restitution. There is, too, correspondence in 1930, 1931 and 1932 between Bryant, vice-president of the O. R. T., Smith of the Railway Express Agency and Frank Morgan of the Alabama Public Service Commission, stating that the company did have a contract with the O. R. T. with no denial by the company that such a contract existed. We cannot say, when all of this evidence is considered, that the board's finding that the company in fact assumed, and operated under, the contract is without support in the evidence.

When it comes to the merits, though, the matter stands quite differently. In Yazoo & M. V. R. Co. v. Webb, 5 Cir., 64 F.2d 902, Illinois Cent. R. R. Co. v. Moore, 5 Cir., 112 F.2d 959, and System Federation v. L. & A. Ry. Co., 5 Cir., 119 F.2d 509, we have canvassed, and carefully set down our conclusions as to the state of the law governing suits on contracts between employers and unions of the nature of the September 17th contract made the basis of this suit. Without restating them at any length, we refer to those cases for the general principles controlling here. They hold that persons employed under the terms of such a contract have their tenure and rights governed by its terms and that for action taken contrary thereto, to their damage, there is a right of action in them or in the union to redress their grievances. They do not hold that contracts so made are binding on individual employees beyond their power to change the terms by individual contracts with their employer. On the contrary, their holding is "In the absence of any special agreement otherwise, every employment may be presumed to be on the basis of the collective agreement and to adopt its terms. But ordinarily there is nothing to prevent a special agreement if an employee desires it", Illinois Cent. R. Co. v. Moore, supra, 112 F.2d at page 964, and...