SYSTEM FEDERATION NO. 59, ETC. v. Louisiana & A. Ry. Co.

• Decision Date: 31 May 1941
• Docket Number: No. 9583.,9583.
• Parties: SYSTEM FEDERATION NO. 59 OF RAILWAY EMPLOYEES DEPARTMENT OF AMERICAN FEDERATION OF LABOR v. LOUISIANA & A. RY. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

119 F.2d 509 (1941)

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

No. 9583.

Circuit Court of Appeals, Fifth Circuit.

May 2, 1941.

Rehearing Denied May 31, 1941.

Franklin Jones and Clay A. Brian, both of Marshall, Tex., and Floyd D. Culbertson, Jr., of Minden, La., for appellant.

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

Before FOSTER, HUTCHESON, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

Plaintiff, a federation of craft unions, members of which are shop craft employees, is the duly and legally selected representative of all the members of defendant's shop craft employees. As such, it brought this suit in behalf of its members named in the petition. Brought by authority of the National Railway Labor Act, Subdivision 1(p),¹ Sec. 153, Title 45 U.S. C.A., pursuant to an award of the National Railroad Adjustment Board, it was for loss of wages resulting from a claimed denial of, and for restoration to, seniority rights, accorded under Rules 8² and 9³ of a collective bargaining agreement,⁴ effective August 1, 1929. The claim in general was that each person named in the petition had been wrongfully deprived of his seniority rights, in violation of the agreement, by furloughing him from the service of the defendant upon the untrue pretext that a reduction in force was then necessary, or by denying his return thereto, when in fact defendant was actually hiring new men for or advancing men junior in seniority, to his place; that proceedings had been taken before, and a favorable award obtained from, the National Railway Adjustment Board; and that plaintiff was entitled to have it enforced.

The defense to the suit, viewed either as one to enforce the order of the Board or as an independent suit, was that the petition stated no cause or right of action. To the suit viewed as one to enforce the order of the Board, the defense was that upon the petition and the Board's order attached, the Board was without jurisdiction of the claim, because they show that within the meaning of the act there was no case pending⁵ and unadjusted on June 21, 1934, in regard to them or any of them. To the suit viewed as one brought independently of the Board's order, there were two defenses. The first was that the 1929 contract was abrogated and set aside in February, 1931, and thereafter the relations of defendant and its employees were governed not by the contract but by rules promulgated by defendant; that as to the employees furloughed before February 9, 1931, there is no showing that they applied for and were denied reinstatement while the 1929 contract was in force; that those furloughed after the 1929 contract was abrogated were working not under the 1929 contract but under rules promulgated by the company; and that none of them therefore have shown any contract right to complain of the treatment accorded them since, as the pleadings show, it was accorded them under the company's rules.⁶ The second was; that plaintiff in October, 1937, entered into a contract with it as representative of all the shop crafts,⁷ expressly recognizing that the 1929 contract was validly abrogated and superseded by the 1931 rules, and that the rights of the employees had been fixed and were to be measured, not by the 1929 contract, but by the 1931 rules, and that at the time of and after making the 1937 contract, none of the employees were claiming or had any seniority rights under the 1929 contract.

The District Judge agreed with defendant that no cause of action was stated either as a suit on the award or as an independent suit, and, in a careful opinion, D. C., 30 F.Supp. 909, fully setting out his reasons for the decision, sustained the motion to dismiss, and gave judgment accordingly. Plaintiff is here insisting that the judgment was wrong and should be reversed.

Because the matter comes up on the pleadings and the correctness of the judgment must be tested by the material allegations of the petition, we here set them out.

Stripped of the redundancies, prolixities and inconsistencies with which its many pages abound, the confused and confusing allegations of fact and law, come down at last to this; that the 95 persons named in paragraph 4 of the petition were in the service of defendant when the August 1, 1929, contract was made; that on the dates shown in that paragraph⁸ each was furloughed and not taken back in the order of his seniority, though each requested that he be, the company giving as the reason for not doing so, the abrogation of the August 1, 1929, contract and the substitution therefor, of the rules of February 9, 1931, and the shop rule of September 1, 1931, Note 6, limiting the reinstatement rights of fur-loughed employees to 12 months; that this action was in violation of Clauses 8 and 9 of the 1929 contract, which was never legally abrogated but remained in force, covering their rights and relations with the defendant.

There was a further claim that if the 1929 contract was at all abrogated or at all affected by the 1931 rules, it was only partially abrogated to the extent that the contract conflicted with those rules; that the 1931 rules as to seniority were the same as those of the 1929 contract, the provisions of the contract being continued and carried forward into and by the rules; and that plaintiff's rights continued to be governed by the 1929 contract as so carried forward, unaffected by the September 1 rule. The date, the time, the occasion on which each made his demand for reinstatement is not set out or shown, except inferentially by the allegation that the company uniformly gave as its reason for declining to recognize their seniority rights that they had lost them under the 12 months rule of September 1, 1931; nor is there any claim that prior to the making of the contract of 1937, any action or proceeding was taken by plaintiff or any of its members, to present, make or maintain, a case involving these so-called seniority disputes. There is only the general allegation that those furloughed did not recognize the legality of the September 1, 1931 rule, requested the defendant to reinstate them to service according to their seniority rights under the agreement of August 1, 1929, as confirmed or carried forward in the purported rules of February 9, 1931, and that these requests were uniformly refused. Indeed, so far from alleging that there was any case pending and unadjusted involving the seniority rights in question, the petition alleged that there were no agreements or negotiations between defendant and plaintiff; that the purported rules of February 9, 1931, and of September 1, 1931, were applied by the defendant from February 9, 1931, until October 20, 1937, when another agreement, covering the rules and working conditions of the shop craft employees, was entered into between defendant and its shop craft employees, and that during all of that time there were no negotiations or pending cases, indeed there was no regular channel for presenting disputes or cases.

In its petition to the Board, plaintiff's claim was roundly based on a claimed breach of the 1929 contract.⁹ Nowhere in the claim before the Board was it contended that any of the seniority disputes in question were ever presented to anyone or were pending as a "case" anywhere, until after October, 1937. The Board found it had jurisdiction, basing this finding, not on a finding of fact that any dispute over the seniority questions had been presented as, and constituted "a pending and unadjusted case" on June 21, 1934, "but that a dispute existed on this railway to the extent that the president appointed a fact finding commission to report on the same and while the case in question is not one in which the fact finding commission investigated, it is one of the instances growing out of this dispute, therefore, the claim was pending and unadjusted June 1, 1934."

As the basis of its order, it found that Rule 9 of the agreement of August 1, 1929, was in effect, "either by agreement" or by Rule 9 of the February 9, 1931 rules, posted by the carrier, which was identical with Rule 9 of the 1929 agreement, and that the September 1, 1931, amendment to these rules was without force or effect. Further finding that it was unable to determine who upon the list submitted, was entitled to relief, it yet found generally that many of the employees had been furloughed and not re-employed in violation of the rules and were therefore entitled to relief. Its findings of fact therefore, and its award, instead of being and containing the definite determinations of fact, as to the persons entitled to relief, and the relief to which they are entitled, contemplated and required by the act, consisted of merely general statements, that some of the employees were entitled to some relief, and that those so entitled should be awarded such relief as they were entitled to. The act contemplates not merely general conclusions, but precise and definite findings of fact and final and definite awards, capable of enforcement, not vague general outlines which must be filled in by the courts.¹⁰

Considering the suit then as purely a statutory suit upon the award, we think it clear that it contains neither definite findings of fact entitled to have the effect of prima facie evidence, nor an award capable of enforcement. If then, the petition had stated facts showing a cause of action, within the jurisdiction of the Board, and that plaintiff was entitled to have a Board award on it, the suit should have been either dismissed, without prejudice to plaintiff's right to apply to the Board for a reopening and redetermination, or stayed, until on a re-reference to the Board, definite findings of fact and a definite award was made. The claim, however, was not a "pending and unadjusted case" on June 21, 1934, and therefore not one of which the Board had jurisdiction....