Russell v. Ogden Union Ry. & Depot Co.

• Decision Date: 06 August 1952
• Docket Number: No. 7647,7647
• Citation: 247 P.2d 257,122 Utah 107
• Court: Utah Supreme Court
• Parties: RUSSELL, v. OGDEN UNION RY. & DEPOT CO.

Page 257

247 P.2d 257

122 Utah 107

RUSSELL, v. OGDEN UNION RY. & DEPOT CO.

No. 7647.

Supreme Court of Utah.

Aug. 6, 1952.

Bryan P. Leverich, M. J. Bronson, A. U. Miner, Howard F. Coray, D. A. Alsup, all of Salt Lake City, for appellant.

Howell, Stine & Olmstead, Ogden, Clyde C. Patterson, Ogden, for respondent.

McDONOUGH, Justice.

Defendant appeals from a judgment awarding plaintiff substantial damages for an alleged arbitrary and wrongful discharge. Plaintiff, respondent here, was employed as a switchman by the defendant. The employment relationship was covered by a collective bargaining agreement between the defendant and the Brotherhood of Railway Trainmen. Article VIII, Rule 38, of this agreement provided:

'38. Investigations: No yardman will be suspended or dismissed without first having a fair and impartial hearing and his guilt established. The man whose case is under consideration may be represented by an employe of his choice; * * * In case dismissal is found to be unjust yardman shall be reinstated and paid for all time lost * * *.'

Article XIII, Rule 55(b) of the agreement stated:

'55(b). Yardmen taking leave of absence for a period of over ten days must secure and fill out Form 153 so the leave will be covered as a matter of record.'

Upon alleged violation of this latter provision, plaintiff was notified by defendant that a hearing in accordance with Rule 38 would be held. Subsequently, plaintiff, accompanied by a union representative, appeared at the hearing which was conducted in defendant's offices by Mr. Caulk, the defendant's assistant superintendent. The hearing was completely reported and transcribed by Mr. Caulk's clerk. Plaintiff was the only witness called and he was interrogated by Mr. Caulk as follows:

'Q. Mr. Russell this is an investigation relative you being absent from duty over 10 days without leave of absence in violation of BRT Rule 55B. Do you wish a representative. A. Yes sir, Mr. Hudgens. (Will represent me.)

* * *

* * * 'Q. Do you know the rule that you will not absent yourself from duty 10 days or over without written leave. A. Yes sir.

'Q. Why didn't you obtain written leave A. Because I was sick in bed at the time.

* * *

* * *

'Q. What other business are you engaged in that you cannot work for the Depot Co. A. None of my own.

'Q. Are you working any place else. A. No.

'Q. I understand you own a Club up the Canyou. A. No.

'Q. You work up there don't you. A. Yes.' (Plaintiff later upon signing the transcript, changed this answer to 'No.')

Mr. Hudgens then interrogated plaintiff and asked:

'Q. And you talked to train desk before the expiration of your 10 days. A. No. They called me on the 31st * * * and told me to be here for investigation and I was too sick and couldn't make it.'

Upon this transcript and upon undisclosed information that plaintiff falsified as to his illness and as to his employment elsewhere, the defendant discharged plaintiff giving as the basis for discharge the violation of Rule 55(b).

Plaintiff brought action alleging arbitrary, unjust, and wrongful discharge and asking for reinstatement and compensation for all time lost as provided for under Article VIII, Rule 38. The lower court, reasoning that Rule 55(b) did not cover situations where men were ill and hence was not applicable to the plaintiff, concluded that the discharge was arbitrary and wrongful. The court further concluded that plaintiff did not have a fair and impartial hearing, that his guilt was not established as required by Rule 38, and that hence there was an unjust and wrongful discharge of plaintiff resulting in a breach of the employment contract.

In determining the issues, the court considered only the unsworn transcript of the hearing and refused to admit defendant's proffers of proof which were offered to show that the testimony of plaintiff at the hearing was false in that plaintiff was working in a beer parlor; that plaintiff did not consult a physician until the seventh day he was absent, at which time he visited the doctor to be treated for an earache; that after his dismissal he requested a release from the physician without disclosing that he had been dismissed; that the physician would testify that plaintiff was able to work at the time he visited the office; that during the years plaintiff had been employed by defendant he could have worked every day, but he actually only worked a minor part of the time; and that during the entire ten days involved plaintiff was physicially able to work and he was working in a beer parlor. A letter to defendant dated May 14, 1946, from the acting vice president of the Switchmen's Union with respect to the union's investigation of plaintiff's conduct 'resulting in false testimony evidenced during formal investigation of August 3, 1945' and announcing that the 'investigation has been completed' and 'we are withdrawing the grievance and the case is closed,' was received in evidence by the court. In fixing damages, the court relied on his construction of Rule 38, and refusing to take plaintiff's interim earnings in mitigation, awarded plaintiff $18,892.76 as compensation for all time lost from his employment with defendant. On the basis of no jurisdiction to so order, the court refused to reinstate plaintiff. Defendant appeals.

Several assignments of error, presently to be individually considered, are bottomed on one fundamental contention. Defendant concedes that the respondent, although a railway labor employee and subject to the Railway Labor Act, might prosecute an action in the district court for wrongful discharge. But it contends that the respondent, having elected to bring a common-law action for wrongful discharge, the common-law principles relative to such action apply to the trial of the case, and that the court is without jurisdiction to construe the contract and to apply its provisions in such manner as might be done by the Railroad Adjustment Board pursuant to the provision of the National Railway Labor Act. U.S.Code, Title 45, Chapter 8, 45 U.S.C.A. Sec. 151 et seq. Appellant's position on this fundamental proposition is sound. That a distinction exists between proceedings before such Board and the awards which might be made by it, and a common-law action before the courts is, we think, abundantly clear from the cases of Slocum v. Delaware L. & W. R., 339 U.S. 239, 70 S.Ct. 577, 580, 94 L.Ed. 795, and Moore v. Illinois Central Railroad Company, 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089. In the Slocum case, the U. S. Supreme Court pointed out:

'Our holding here is not inconsistent with our holding in Moore v. Illinois Central Railroad Company, 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089. Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad's action in discharging him as final, thereby ceasing to be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the Board is empowered to provide, and does not involve questions of future relations between the railroad and its other employees. If a court in handling such a case must consider some provision of a collective-bargaining agreement, its interpretation would of course have no binding effect on future interpretations by the Board.'

See also to the same effect Order of Railway Conductors v. Southern Railway Company, 339 U.S. 255, 70 S.Ct. 585, 94 L.Ed. 811.

Respondent, plaintiff below, sought by his complaint all the relief which he might seek had he processed his grievance claim to the Railroad Adjustment Board, including the right to be reinstated to his former position with defendant company with seniority rights unimpaired. This last mentioned relief the court held, and correctly, it had no jurisdiction to grant. It, however, proceeded to adjudicate the case in all other respects in the same manner as might be done by such Board. In so doing, we are confident it erred. Thus concluding relative to the fundamental error alleged, we address ourselves to the several assignments of error with more particularity. Appellant asserts that the lower court erred in (1) receiving the unsworn transcript of the hearing before the assistant superintendent of the defendant as substantive evidence of the matters stated therein; and (2) even assuming the transcript receivable in evidence for that purpose, it erred in precluding defendant from showing the testimony given therein was false and the dismissal was in fact justified.

The transcript was properly received in evidence, but it was improperly considered by the court to be the exclusive evidence receivable as to facts therein testified to. Furthermore, the testimony therein given by plaintiff as to his illness was, as contended by defendant, hearsay and should not have been considered by the court as substantive evidence of the fact of illness. However, its contents were relevant and material to evidence the kind of hearing that was accorded plaintiff. It is evidence of the fact that he was given notice of the hearing, that it was postponed at his request, that he was given opportunity to present evidence, to be represented by an employee of his own choice. It further evidenced the contract provision he was charged with violating, and furthermore contained his admission of the fact that he did not comply with the provision in question. It also reveals the reason or excuse he advanced for failing to comply with such provision--Article 13a, Sec. 55(b) of the Collective Bargaining Agreement. But the issue before the court was whether or not the plaintiff was wrongfully and arbitrarily discharged. The plaintiff had the burden of establishing that fact. However, upon proof of the contract of...