Rolfes v. Dwellingham

• Decision Date: 02 September 1952
• Docket Number: No. 14352.,14352.
• Citation: 198 F.2d 591
• Parties: ROLFES et al. v. DWELLINGHAM et al.
• Court: U.S. Court of Appeals — Eighth Circuit

198 F.2d 591 (1952)

ROLFES et al. v. DWELLINGHAM et al.

No. 14352.

United States Court of Appeals Eighth Circuit.

July 15, 1952.

Rehearing Denied September 2, 1952.

Charles R. Judge, St. Louis, Mo. (W. Donald Dubail and Dubail & Judge, St. Louis, Mo., on the brief), for appellants.

Jacob N. Gross, Chicago, Ill. (Milton I. Goldstein, St. Louis, Mo., on the brief), for appellees.

Before GARDNER, Chief Judge, and WOODROUGH and RIDDICK, Circuit Judges.

WOODROUGH, Circuit Judge.

This appeal is taken to reverse a decree of injunction requiring Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, to refrain from displacing members of the class of his employees called "waiters-in-charge" from their jobs under compulsion of an award which was rendered on November 21, 1949, by a Special Board of Adjustment, and enjoining the dining car stewards and Brotherhood of Railroad Trainmen and others from interfering with compliance by the Trustee. By its terms the injunction remains in force pending determination by the National Railroad Adjustment Board of the question of jurisdiction involved in the dispute between plaintiff waiters-in-charge and the defendant dining car stewards, or for a reasonable time within which the plaintiffs, through their labor organization representatives, may invoke the jurisdiction of that Board.

The opinion of the trial court which identifies the parties and fully sets forth the issues that were presented and tried by the court, and the facts, conclusions and reasoning, is reported as Dwellingham v. Thompson, D.C., 91 F.Supp. 787.

As shown on page 794 of 91 F.Supp. of the report of the opinion, the court observed that "this case is very similar to Howard v. Thompson, D.C., 72 F.Supp. 695", and, 91 F.Supp. on page 795, "The similarity between the Howard case and the case at bar is apparent." "It is the court's opinion that the Howard case should be followed here."

The decision of this court in the appeal of the Howard case was handed down September 11, 1951, Howard v. St. Louis-San Francisco R. Co., 8 Cir., 191 F.2d 442, and this appeal was submitted to us on September 17, 1951. The Supreme Court granted certiorari in the Howard case, and on account of apparent similarity in the two cases we deferred our ruling in this case until the Supreme Court decided the Howard case on June 9, 1952.¹

We do not mean to say that the two cases are on all fours with each other. There are points of difference. In the Howard case the attempt was to drive the porters because they were Negroes entirely off the railroad where they had "for a great many years served the Railroad with loyalty, integrity, and efficiency". That is not being attempted in respect to the waiters-in-charge who are involved in this case. Their status as waiters on dining cars in the service of the railroad has not been attacked, but where they have heretofore been employed interchangeably with stewards at the discretion of railroad management, the Trustee has agreed to employ only dining car stewards in the future. And as stated by the trial court, "it is clear that there will be fewer jobs available in the future for the plaintiffs and others of their class on whose behalf they sue." Loc. cit. 795 of 91 F.Supp.

The points of similarity in the two cases are clearly set forth in the report of the District Court's opinion, 91 F.Supp. at pages 794, 795, following the words "Plaintiffs' second argument is". The court there pointed out that in both cases "a jurisdictional dispute existed, and the company was forced to give the disputed work to one union to exclusion of the other. In the one case, the company entered into a new contract under threat of a strike; in the other, in the face of a refusal to terminate an existing strike, the company agreed to submit the dispute to arbitration." In both cases the railroad undertook to discontinue services of one class of its employees and to substitute the members of the other class in employment.

But the identical point involved in both cases is that the Trustee of the railroad undertook to change his agreements with the two classes of his employees without giving the 30-day notice required by Section 6 of the Railway Labor Act, 45 U.S.C.A. § 156.²

On the appeal of the Howard case this court, at page 449 of 191 F.2d, held that "the notice given to the train porters, in the attempted abolition of their position and termination of their employment as of April 1, 1946, was in any event invalid, as not satisfying the requirement of the Railway Labor Act, 45 U.S.C.A. § 156, for the giving of at least 30 days notice of any intended change in agreements affecting working conditions". We affirmed the ruling of the trial court to the same effect.

The view taken by the Supreme Court in the Howard case made it unnecessary for that court to consider the particular question of the notice. Footnote #4 of the opinion. The facts in the Howard case required the issuance of a permanent injunction to protect the train porters from discriminatory practices of the Brotherhood of Railroad Trainmen and the case was remanded to the District Court to issue a decree permanently enjoining the Railroad and the Brotherhood from use of the contract or any other similar discriminatory bargaining device to oust the train porters from their jobs. But the opinion of the Supreme Court closes with admonition to the District Court to bear in mind "that disputed questions of reclassification of the craft of `train porters' are committed by the Railway Labor Act to the National Mediation Board."

In this case the trial court exercised its equity powers only to preserve the status quo ante of the waiters-in-charge in relation to the railroad and the dining car stewards and granted injunctive relief "in aid of the administrative machinery provided for the adjustment of disputes in the Railway Labor Act." It limited its injunction strictly to the purpose of affording opportunity for the administrative Board to function as contemplated by the Act. Concluding that the displacement of the waiters-in-charge in the manner attempted by the Trustee was wrongful and illegal, the court left the "determination of the question whether the plaintiffs or the dining car stewards are entitled to the jobs in question under the agreements involved and the other applicable facts to be made by the Third Division of the National Railroad Adjustment Board."

The appellants here contend (1) that the decision that the displacement of plaintiffs violated 45 U.S.C.A. § 156 was erroneous; (2) that the injunction was erroneously granted contrary to the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq.; (3) that plaintiffs were merely employed at will and therefore had no cause of action; (4) that the National Railroad Adjustment Board is without jurisdiction to consider the dispute over the jobs in question here.

(1) Howard v. St. Louis-San Francisco Ry. Co., 8 Cir., 191 F.2d 442, is conclusive against the first contention that there was no violation of the Railway Labor Act in the failure of the Trustee to give notice. In the same situation we found a violation in the Howard case. (2) Also we consider the decisions of the Supreme Court in Graham v. Brotherhood of Locomotive Firemen and Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22; Virginian R. Co. v. System Federation, No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; and Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187, are equally conclusive that the Norris-LaGuardia Act does not deprive the federal courts of power to issue such an injunction as has been issued here in aid of the administrative Board and to preserve the right of the waiters-in-charge to resort to the administrative procedure provided by the Congress under the Railway...