Switchmen's Union v. LOUISVILLE AND NASHVILLE R. CO.

• Decision Date: 22 March 1955
• Docket Number: Civ. A. No. 2628.
• Citation: 130 F. Supp. 220
• Parties: SWITCHMEN'S UNION OF NORTH AMERICA, an unincorporated labor union, and J. L. Shay, Plaintiffs, v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, a corporation (Serve M. C. Browder, 908 W. Broadway, Louisville, Kentucky, Process Agent), Defendant.
• Court: U.S. District Court — Western District of Kentucky

130 F. Supp. 220

SWITCHMEN'S UNION OF NORTH AMERICA, an unincorporated labor union, and J. L. Shay, Plaintiffs, v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, a corporation (Serve M. C. Browder, 908 W. Broadway, Louisville, Kentucky, Process Agent), Defendant.

Civ. A. No. 2628.

United States District Court W. D. Kentucky, at Louisville.

March 22, 1955.

Louis Lusky, Louisville, Ky., Solomon Sachs, Chicago, Ill., for plaintiffs.

C. S. Landrum, Lexington, Ky., J. P. Hamilton, Louisville, Ky., for defendant.

Samuel M. Rosenstein, Herman G. Handmaker, Louisville, Ky., for intervening defendants Brotherhood of Railroad Trainmen.

SHELBOURNE, Chief Judge.

This action was instituted in this Court June 5, 1953 by the filing of the complaint of Switchmen's Union of North America and by J. L. Shay as plaintiff and Louisville and Nashville Railroad Company, defendant. July 21, 1953, the Brotherhood of Railroad Trainmen was, by order of Court, permitted to intervene as defendant.

The complaint alleged jurisdiction in this Court under Title 28 U.S.C. § 1337 and sought a declaration of rights as authorized by Section 2201 of Title 28 U.S. C. claiming that its right to such declaration of rights emanated from a violation of the defendant Railroad Company of plaintiffs rights under the provisions of the Railway Labor Act, Title 45 U.S.C.A. § 151 et seq.

Each defendant filed a motion to dismiss accompanied by certain factual affidavits and exhibits, which did not dispute but tended to amplify the essential allegations of facts contained in the complaint.

The essential facts, considered as true on the motion to dismiss, may be summarized as follows:

J. L. Shay was for many years prior to November 4, 1950 employed by the Railroad as a switchman; on the date aforesaid he was discharged for the violation of the Railroad's operating rules; at the time of his dismissal Shay was a member of plaintiff, Switchmen's Union of North America;

The intervening defendant, Brotherhood of Railroad Trainmen was the statutory collective bargaining agent and representative of the craft or class of the Railroad's employees of which Shay was a member;

Following his dismissal by Railroad Shay, denying the infraction of rules charged to him and claiming that his dismissal was an improper and inappropriate discipline even if the charged infraction had taken place, designated the Switchmen's as his representative to confer and treat with Railroad upon his claimed grievance;

Railroad refused to negotiate with the Switchmen's Union, claiming that it was precluded from so doing by Articles 31 and 42 of the bargaining agreement in force between it and Shay's craft negotiated for the craft by the Brotherhood union.

Articles 31 and 42 of that agreement are as follows:

"Article 31

"Investigations and Discipline

"1. Trainmen will not be demerited, disciplined or discharged without just cause. When such action shall become necessary, the accused shall be duly apprised, in writing, within ten (10) days of the occurrence, the nature of the charge or charges that are to be brought against him; and within five (5) days after such notification he will be given an investigation by the proper officer of the Railroad, at which time all evidence in the case will be submitted. A proper record in the case will be kept, authenticated by both parties, and made the basis for any discipline that may be administered, or an appeal to a higher officer.

"2. The accused will be permitted to attend the investigation, hear all the evidence submitted and be represented by fellow employes of his own selection. Within thirty (30) days after the investigation closes, the proper officer will render a decision, and advise the accused, in writing, the penalty imposed. If the decision is unsatisfactory, the accused, through his representatives, will have the right to appeal to higher officers of the Railroad. In the event the charge or charges are not proven, the accused will be promptly restored to the service with full rights and paid full wages for any time he may have lost as a result of the charge or investigation.

"3. Trainmen losing a run or day's work attending the investigations in connection with matters coming under this Article, who are not held responsible, will be paid full wages for any time they may have lost as a result of investigation."

"Article 42.

"Representation and adjustment of matters.

"(a) Local grievances and differences of opinion shall be taken up with division officers by the duly authorized representatives of the men. Failing to be adjusted, they will be referred to the general officers. When an appeal is to be taken to the general officers, however, division officers will be advised to that effect, in writing, in order that their data may be sent to the general officers for their use in considering the case.

"(b) 1. General rulings or interpretations will not be made on this Agreement between sessions of General Committee, except in conference, held between General Officers and General Chairman. Should such rulings be agreed upon a copy will be furnished to the parties affected and the General Chairman.

"2. Local officers and local committees or men will not enter into local agreements."

Shay and the Switchmen's Union allege that under the provision of Section 2, First, Second, Third, Fourth, Sixth, Eighth and Section 3, First (i) of the Railway Labor Act, every employee is guaranteed representation in the handling of individual grievances by any person or labor organization of his choice and that the Act forbids the Railroad from interfering with the employee's choice of a representative and compels the Railroad to meet and negotiate with such representative, though it be a labor organization other than the one chosen by a majority of the craft of which the aggrieved employee is a member and despite any provision of a bargaining agreement making the bargaining agent the exclusive representative, (other than the employee himself) on hearings at company levels.

Plaintiffs seek a judgment in declaration of the rights involved here;

(1) That Articles 31 and 42 of the Agreement between Railroad and Shay's craft negotiated by the Brotherhood are invalid and that defendant Railroad be enjoined from applying, enforcing or continuing in effect such Articles;

(2) That defendant, Railroad, be enjoined from refusing to meet with Shay and Switchmen's Union as Shay's designated representative in a good faith effort to settle or adjust the dismissal and/ or reinstatement of plaintiff Shay".

A more detailed statement of the handling of Shay's initial hearing when charged with violations of the operating rules of the Railroad and the subsequent conduct of his grievance as reflected in the complaints and affidavits is that he, when notified, pursuant to the provisions of Article 31 of the bargaining agreement, of the charges against him, appeared alone for the initial hearing conducted by Train Master T. E. Schwind on October 24, 1950. Following this hearing and on November 4, 1950, the carrier notified the plaintiff of his dismissal pursuant to the charges. Shay then requested his Union, plaintiff herein, to appeal his discharge before G. C. Howard, the carrier's director of personnel and provided the plaintiff Union with a power of attorney for that purpose. The plaintiff Union appeared on the carrier's property through the visit of two of its officials seeking reconsideration of the plaintiff's discharge pursuant to contract's article 31.2, providing for an appeal to higher officers of the Railroad, and in accordance with Section 3, First (i) of the Railway Labor Act for handling disputes "up to and including the chief operating officer of the carrier". A request by these union officials for the full record regarding the plaintiff employee's hearing and discharge was referred to the attention of personnel director G. C. Howard, but never acknowledged by him nor were further letters from the plaintiff union in this matter ever answered by G. C. Howard. The plaintiff employee has never sought this second-step negotiation with the carrier in person, relying entirely upon the plaintiff Union's efforts on his behalf.

On April 12, 1951, the Switchmen's notified the Railroad that if its requests for a conference concerning the plaintiff employee's discharge were not answered within a reasonable time, it would file the dispute with the National Railway Adjustment Board. This it did along with a statement of the claim and the employee position relevant thereto. On October 11, 1951, the carrier filed its statement of position, and on July 23, 1952, the National Railroad Adjustment Board, through Referee Thomas J. Mabry, made its findings, upholding the defendant carrier.

Although both the defendant carrier and the plaintiff Union argued the merits of the question of "just cause", their respective statements also pleaded the issue of the carrier's right to deny the plaintiff Union a conference or "hearing" on the property of the carrier.

It was this issue which the Referee adjudicated in favor of the carrier. The Referee of the Adjustment Board made the following findings relevant to this Memorandum:

"Was petitioner Pollard, International Vice-President of the Switchmen's Union of North America, authorized to represent claimant on the property, as he undertook to do? There can be no doubt that under the statute an employee has absolute freedom of representation before this Division. And it is equally well settled that he has no such freedom under contract. Carrier and employee may contract so as to restrict representation on the property. See Broady v. Illinois Central Railroad Company, U.S.C. A., Seventh Circuit, 96 F.Supp. 751, 20 L.C. 66, 462, 191 F.2d 73 decided in 1951; and Butler v. Thompson, U.S.C.A. Eighth Circuit 192 F.2d 831 20 L.C. 66, 68, also recently decided.

"Under the governing agreement (Article 42) we have such a restriction on the right to

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