SYSTEM FED. NO. 59 OF RY. ED OF AFL v. LOUISIANA & RY. CO.

• Decision Date: 09 October 1944
• Docket Number: Civil Action No. 375.
• Citation: 57 F. Supp. 151
• Parties: SYSTEM FEDERATION NO. 59 OF RAILWAY EMPLOYEES' DEPARTMENT OF AMERICAN FEDERATION OF LABOR et al. v. LOUISIANA & A. RY. CO.
• Court: U.S. District Court — Western District of Louisiana

57 F. Supp. 151

SYSTEM FEDERATION NO. 59 OF RAILWAY EMPLOYEES' DEPARTMENT OF AMERICAN FEDERATION OF LABOR et al. v. LOUISIANA & A. RY. CO.

Civil Action No. 375.

District Court, W. D. Louisiana, Shreveport Division.

October 9, 1944.

Floyd D. Culbertson, of Minden, La., Jones & Jones, of Marshall, Tex., and Byron Bullock, of Shreveport, La., for plaintiffs.

A. L. Burford, of Texarkana, Ark., and T. W. Holloman, of Alexandria, La., for defendant.

PORTERIE, District Judge.

This case in so far as its original complaint be concerned is the same in legal principles as the case of System Federation No. 59, etc., v. Louisiana & A. R. Co., 30 F.Supp. 909, decided by us, followed by us again at 32 F.Supp. 89, by appellate consideration at, 5 Cir., 119 F.2d 509, and with final refusal of writ of certiorari at 314 U.S. 656, 62 S.Ct. 108, 86 L.Ed. 526. There is a different factual set-up.

The instant factual set-up (the factual set-up in the former companion case can be gleaned from the previous district and circuit opinions) is that the complainant through the instrumentality of a Federation of Craft Unions sues the defendant for the enforcement of an award made to her deceased collateral, of whom she is the declared sole heir by proper decree of court declaring one J. J. Kelly (the deceased), a former employee of the defendant, entitled to reinstatement as of the day of his dismissal from employment, March 13, 1932, until the date of his death.

That the former cited case is a companion case to the instant one in the relation previously described is shown by the joint letter of the attorneys for both parties filed with the clerk of this court on December 3, 1940, reading as follows:

"System Federation No. 59 et al. has another suit against the Louisiana & Arkansas Railway Company now pending on appeal in the Fifth Circuit Court of Appeals from your court which involves some of the same questions presented by the pending motion.

"The parties to the above styled cause have therefore agreed that presentation of the motion to dismiss shall be postponed until after said case on appeal has been decided by the Circuit Court of Appeals.

"Will you please present this agreement to the Judge and advise us whether or not this arrangement is agreeable to him?"

The District Court gave its opinion on January 16, 1940, the appellate court gave its opinion on May 2, 1941, and the instant suit was filed on October 29, 1940; so it is evident that the above agreement arose when the decision of the upper courts was awaited.

On November 23, 1940, the plaintiff filed a motion to dismiss, on the ground that the complaint failed to state a claim on which relief could be granted on a number of grounds, the first three of which should be considered by us, as at the end of the litigated case, when the Supreme Court denied the writ, reading as follows:

"(a) The complaint and exhibits made part of same show that Kelly was employed at the time of his discharge, and was working under the contract constituted by the rules of February 9, 1941, while the Award was sought and obtained on an alleged violation of the prior and superseded contract of August 1, 1929.

"(b) The allegations and exhibits show that there was no dispute pending and unadjusted on June 21, 1934.

"(c) The allegations show that Kelly's grievance, if any, was not handled in the usual manner up to and including the chief operating officer."

Therefore, ruling as of the time before the filing of the amended complaint, predicated upon the law of the decided case, which is as applicable in principle to the facts of the instant case as it was applicable to the facts of the original case, repeating all of the reasoning of these former cases, the motion to dismiss must be sustained on these three grounds.

However, on November 16, 1943, after the first case had been definitely decided, an amended complaint was filed by the sister and sole heir at law of J. J. Kelly, reciting the original facts, but premising its complaint no more under the Railway Labor Act, nor on the award made to J. J. Kelly, the dismissed employee, No. 280, Docket No. 291, dated November 21, 1938, but under a new jurisdiction, that of diversity of citizenship and the existence of a federal question in that a part of the action arises under an act of Congress, 45 U.S.C.A. § 151 et seq., and, also, that the amount in controversy is over $3000. Further, now relying altogether on the new contract of February 9, 1931, and not on the old contract of August 1, 1929; showing that Rule 15, Sec. A of the new contract reads as follows: "No employee will be dismissed or suspended without just and sufficient cause. If after proper investigation it is found that a man has been unjustly discharged or suspended he will be reinstated and paid for all time lost"; and that the new rules of February 9, 1931, were in full force and effect; that Kelly's dismissal was wrongful, without just and sufficient cause; that through no fault or lack of effort on Kelly's part he was never during his life reinstated and paid for the time lost, by reason of his wrongful and unjust discharge, complainant emerges practically with a new suit.

It is further alleged in this amended complaint that: Kelly died on or about January 21, 1940, and prior thereto, towit, on or about October 20, 1937, the defendant entered into a new working agreement with its various shop crafts, which in part provided that the same should cover all "rules, working conditions, and rates of pay, (that it) covers all understandings now in effect, and supersedes rules posted February 9, 1931 * * *."

In order to give properly the multifarious contentions of the complainant, we should better quote than digest Paragraphs 13, 14 and 15 of the complaint:

"Under the rules of February 9, 1931, and all possible amendments thereto, Kelly, from March 13, 1932, until October 29, 1937, would have held what are commonly called seniority rights of such nature as to have allowed him to work for the defendant over all or the greater part of said period of time at the prevailing rate of pay, being unknown to the plaintiffs, but known to defendant and Kelly's seniority number being such that in due order of seniority he would have worked over such period of time.

"That over all of such period of time Kelly was unable to procure employment, or employment as remunerative as that he would have held with the defendant, but for his wrongful discharge all to his damage as hereinafter set out.

"Mrs. Mary Margerum being in possession of all of effects, rights, benefits and property belonging to Kelly deceased, demands an accounting of the defendant, and judgment against the defendant in the amount due Kelly by reason of the facts above alleged, which she avers will be in excess of $3,000.00, all by reason of the breach of contract alleged above, and she asks general relief."

This is but one angle of the amended complaint; in others of the alternatives it is alleged that if complainant "* * * be mistaken in alleging that the agreement of October 20, 1937, superseded the rules posted February 9, 1931, or for any reason Kelly was entitled to be returned to work with the defendant after October 20th, 1937, and prior to his death, then in that event she shows:

"Under existing and applicable rules and contracts with respect to seniority, the deceased, Kelly, would have been employed at the prevailing rate of pay between October 20th, 1937 and January 21st, 1940, over such a period of time as to have caused him to earn a sum of money in excess of $3,000.00, the exact amount of which is known to the defendant but unknown to the plaintiffs."

We come next to the final alternative. The complainant joins again under a company partnership with the System Federation No. 59 of the Railway Employees' Department of the American Federation of Labor, and alleges that as long past as August 1, 1929, the defendant entered into a written agreement with his employees (Kelly being one); and that the agreement was through the instrumentality of the System Federation No. 59; that Rule 15 A, supra, was contained in the contract at that time, being the identical rule promulgated in the contract of February 9, 1931; that it has been judicially determined through the litigated case, supra, that the whole contract of August 1, 1929, was superseded by the rules of February 9, 1931; that Paragraphs 7 through 15 of the original petition are made a part of this contention by reference; then it is further alleged that Kelly and those seeking to represent him made repeated efforts to procure an investigation of his wrongful discharge and to procure his reinstatement, but the defendant would not, and refused to have any hearing or investigation whatever, and moreover refused to recognize the accredited and authorized labor representative for Kelly; that a "dispute" between Kelly and the defendant, or between the accredited representative of the class of employees to which Kelly belonged, existed and continued to exist until the adjustment made by the National Railroad Adjustment Board; that on or about September 12, 1935, Kelly still seeking to procure an adjustment of his grievances, sought relief at the hand of the President of the defendant railroad, but his request of such officer was declined by being ignored; that by reason of this sequence of facts, there was a dispute between Kelly and the defendant which was "pending and unadjusted" on June 21, 1934, within the meaning of Section 3(i) of the Railway Labor Act as amended; that on or about April 27, 1938, Kelly and the System Federation No. 59 petitioned the National Railroad Adjustment Board to hear and determine Kelly's case against the defendant under the applicable provisions of the Railway Labor Act, out of which procedure the Board rendered its award No....