Roberts v. Western Pac. R. Co.

• Decision Date: 18 June 1956
• Citation: 142 Cal.App.2d 317,298 P.2d 120
• Court: California Court of Appeals Court of Appeals
• Parties: , 38 L.R.R.M. (BNA) 2348, 30 Lab.Cas. P 70,092 S. ROBERTS, Appellant, v. The WESTERN PACIFIC RAILROAD COMPANY, Respondent. Civ. 16758.

Page 120

298 P.2d 120

142 Cal.App.2d 317, 38 L.R.R.M. (BNA) 2348,

30 Lab.Cas. P 70,092

S. ROBERTS, Appellant, v. The WESTERN PACIFIC RAILROAD COMPANY, Respondent.

Civ. 16758.

District Court of Appeal, First District, Division 1, California.

June 18, 1956.

Rehearing Denied July 18, 1956.

Hearing Denied Aug. 16, 1956.

S. Roberts, San Francisco, in pro. per.

E. L. Van Dellen, San Francisco, for respondent.

PETERS, Presiding Justice.

Plaintiff, S. Roberts, in propria persona, brought this action against the Western Pacific Railroad Company for damages, claiming that the company, as employer, had unlawfully deprived him of certain contract seniority employment rights. From a judgment for defendant, plaintiff appeals.

This appeal is on the clerk's transcript alone. Plaintiff attempted to prosecute the appeal on a settled statement, but the statement was never perfected. Plaintiff has filed what he calls an 'election of record' purporting to elect to prosecute the appeal on the 'clerk's transcript alone with all the original exhibits.' Of course, on a clerk's transcript appeal exhibits are not part of the record on appeal. The only record this court may consider is the judgment roll, consisting of the pleadings, findings conclusions and judgment. Hunt v. Plavsa, 103 Cal.App.2d 222, 229 P.2d 482.

The theory of the complaint was that plaintiff was hired by defendant on June 12, 1945, under the terms of a collective bargaining agreement between defendant and the appropriate Union; that under such agreement plaintiff gained certain seniority rights up to September 13, 1949; that on December 13, 1949, the defendant wrongfully dismissed plaintiff without a hearing although such hearing was required under the terms of the collective bargaining agreement. Damages of $35,000 were prayed for. The answer admitted the employment of plaintiff and the establishment of his seniority rights from June 13, 1945, to September 13, 1949, admitted the existence of the collective bargaining agreement and incorporated it into the answer, and admitted that this agreement, as modified and interpreted, was in effect at all times here pertinent. Defendant denied, however, that it had breached the agreement.

The trial court found that plaintiff was employed by defendant on June 13, 1945, in a craft covered by a collective bargaining agreement, and worked for defendant until September 13, 1949, under that agreement; that plaintiff's seniority rights under that agreement dated from June 13, 1945; that the agreement contained provisions for seniority, the methods such was to be maintained, exercised and lost; that Rule 40(a) of the agreement provided the mothod of protecting seniority when an employee was displaced or 'bumped' by a senior employee; that such provision, in part, provided:

'Employees displaced, whose seniority rights entitle them to a regular position, shall assert such rights within 10 days. Employees who do not possess sufficient seniority to displace a junior employee shall be considered as furloughed'; that on March 26, 1946, the Union and defendant agreed to an interpretation of this rule, which interpretation, in part, provided:

'This rule requires that an employee displaced must assert displacement rights over any junior employees within ten days from date of displacement in order to retain seniority'; that in August of 1949, plaintiff was displaced by a senior employee and on August 4, 1949, defendant's agent advised plaintiff by letter that he must exercise his seniority rights in accordance with Rule 40(a); that on this date plaintiff's seniority rights entitled him to a regular position over certain junior employees, but instead of exercising such rights, plaintiff on August 10, 1949, filed furlough papers under Rule 40(b) of the agreement; that plaintiff subsequently accepted temporary work as a furloughed employee; that on August 21, 1949, defendant listed certain open positions and plaintiff applied for one of these, listing his seniority date as June 13, 1945; that on August 29, 1949, plaintiff was assigned one of these positions on the basis of his seniority date being June 13, 1945; that on August 29, 1949, the Union protested plaintiff's appointment on the ground that when plaintiff was displaced he had seniority sufficient to displace certain junior employees, but under Rule 40(a) and its interpretation he had not exercised those rights and had lost his seniority, and should be discharged; that the defendant 'determined that such request was in accordance with the facts,' and in a letter dated September 7, 1949, advised plaintiff that he had lost his seniority, and was discharged; that plaintiff then engaged in litigation against defendant which occupied most of his time from September 14, 1949 to June 20, 1952, when the complaint in the present action was filed; that during the times plaintiff was not engaged in such litigation 'he was able to, and did, secure employment which paid him substantially as well as his employment by defendant had.'

The court concluded that the only rights of plaintiff to continued employment were based upon the agreement as modified and interpreted by defendant and the Union; that plaintiff had failed to comply with Rule 40(a) of the agreement and thereby had lost his seniority; that when plaintiff lost his seniority he lost any right to continued employment; that defendant did not violate plaintiff's rights in removing him from service.

Based on these findings and conclusion, judgment was entered in favor of defendant and plaintiff appeals.

Whatever rights plaintiff has to continued employment must be predicated upon the collective bargaining agreement. This is so, because in the absence of a statute or contract, an indefinite employment is terminable at will by the employer, with or without cause. Austin v. Southern Pacific Co., 50 Cal.App.2d 292, 123 P.2d 39; sec. 2922, Labor Code. Both parties to this appeal attempt to interpret Rule 40(a), appellant contending that the right conferred upon him by that rule to 'bump' junior employees was a mere privilege, and that a failure to exercise such privilege did not result in a loss of seniority, respondent contending to the contrary. Even if the rule were ambiguous, such ambiguity was clarified by the Union and the defendant when they entered into an agreed interpretation of the rule in 1946. By that interpretation it was agreed that a displaced employee with seniority 'must assert displacement rights over any junior employees within ten days from date of displacement in order to retain seniority.' It is too clear to require further discussion that, if this interpretation of the rule was binding on plaintiff, by failing to exercise his displacement rights as provided in the rule, plaintiff lost, i. e., no longer 'retained' his seniority rights. It is equally clear that the interpretation agreed to by the...