Rose v. Great Northern Railway Company

• Decision Date: 10 June 1957
• Docket Number: Civ. 3163.
• Citation: 151 F. Supp. 806
• Parties: Guy ROSE, Plaintiff, v. GREAT NORTHERN RAILWAY COMPANY, Defendant, and International Brotherhood of Firemen and Oilers, Helpers, Roundhouse and Railway Shop Laborers, Intervening Defendant.
• Court: U.S. District Court — District of South Dakota

151 F. Supp. 806

Guy ROSE, Plaintiff, v. GREAT NORTHERN RAILWAY COMPANY, Defendant and International Brotherhood of Firemen and Oilers, Helpers, Roundhouse and Railway Shop Laborers, Intervening Defendant.

Civ. 3163.

United States District Court D. North Dakota Northeastern Division.

June 10, 1957.

Day, Stokes, Vaaler & Gillig, Grand Forks, N. D., for plaintiff.

Nilles, Oehlert & Nilles, Fargo, N. D., for defendant.

Hallan Huffman, St. Paul, Minn., for defendant.

Mulholland, Robie & Hickey, Toledo, Ohio, for intervening defendant.

Shaft, Benson & Shaft, Grand Forks, N. D., for intervening defendant.

DAVIES, District Judge.

This is an action by a railroad boilermaker helper to recover damages for wrongful discharge and loss of seniority as a roundhouse laborer.

Plaintiff was employed at defendant's Grand Forks roundhouse on September 10, 1928, and was listed on the seniority roster as a laborer. On June 4, 1934, plaintiff became a boilermaker helper and was listed on the seniority roster for that position also. During 1934, 1935, and 1936, in accordance with the collective bargaining agreement then in force, plaintiff retained seniority dates for both positions with the resultant right to reemployment in available work as laborer in the event of layoff as boilermaker helper. But in 1937 the names of the plaintiff and some other helpers were no longer listed on the laborers' roster. They complained to the roundhouse foreman who assured them that their seniority rights as laborers were not thereby impaired and that they could assert these rights at any time.

So long as defendant continued to use steam locomotives, their rights as laborers had little practical utility, but as steam engines were gradually superseded by Diesels the number of jobs for boilermaker helpers was greatly reduced. Plaintiff, because of ensuing irregular employment as a boilermaker helper, tried on March 3, 1954, to exercise rights as a laborer but was denied these rights by defendant.

Plaintiff filed his Complaint on September 3, 1955, claiming to have been damaged by loss of laborer income, seniority rights and pension benefits in the sum of $30,000. In its Answer the defendant railway company contended that plaintiff had made no protest within 60 days after the seniority roster for laborers was posted in 1937, as required by the collective bargaining agreement, and that the controversy was within the exclusive jurisdiction of the National Railroad Adjustment Board established under Section 3 of the Railway Labor Act, 45 U.S.C.A. § 153.

Pursuant to stipulation, the International Brotherhood of Firemen and Oilers, Helpers, Roundhouse and Railway Shop Laborers, was granted leave on March 12, 1956, to become a party as intervening defendant. In its Answer this defendant contended that the court lacked jurisdiction because the Railway Labor Act gave exclusive jurisdiction to the National Railroad Adjustment Board, that the plaintiff failed to exhaust administrative remedies, that the plaintiff had not been on the laborers' seniority roster at any time since this defendant became bargaining representative for the laborers on November 15, 1938, and that plaintiff had inexcusably delayed for some 15 years to protest the omission of his name from the laborers' roster and was thus barred by waiver, laches and limitations.

At a hearing on January 31, 1957, the Court dismissed the action for lack of jurisdiction under Rule 12(h) of the Federal Rules of Civil Procedure, 28 U.S. C.A. On February 6, 1957, plaintiff filed a Petition for Rehearing pursuant to Rule 59(a) (2), on the ground that the Court has jurisdiction of an action to recover damages for wrongful discharge from employment; and plaintiff submitted a proposed Amended Complaint specifically alleging wrongful discharge damaging the plaintiff by loss of seniority rights, employment, and benefits of pension, insurance and vacation. On February 7, 1957, the Court ordered the matter submitted for determination upon written statements of counsel agreeable to Rule 78.

The question here presented is whether a railroad employee who has established seniority in two distinct crafts can maintain an action against the railroad for wrongful discharge based upon the loss of seniority in one craft while retaining seniority and employment in the other.

Plaintiff is not seeking performance of a contractual right to reemployment as a laborer, but damages for the loss of that right. Under the Railway Labor Act beyond doubt the National Railway Adjustment Board has exclusive jurisdiction of an action for reinstatement as an employee in a craft, because it would involve interpretation and enforcement of the collective bargaining agreement and would affect other employees directly. Slocum v. Delaware, L. & W. R. Co., 1950, 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795. However, the Court does have jurisdiction where the action is by an employee against the railroad to recover damages for wrongful discharge in breach of his contract of employment on the theory that apart from the Act it is a valid claim under state law.¹ In some states a prerequisite to court jurisdiction would exist where by state law it is prescribed that administrative remedies under the collective bargaining agreement be exhausted first. Transcontinental & Western Air v. Koppal, 1953, 345 U.S. 653, 73 S.Ct. 906, 97 L.Ed. 1325. But under North Dakota law the exhaustion of...