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

• Decision Date: 13 March 1940
• Docket Number: No. 75.,75.
• Citation: 30 F. Supp. 909
• Parties: SYSTEM FEDERATION NO. 59 OF RAILWAY EMPLOYEES DEPARTMENT OF AMERICAN FEDERATION OF LABOR v. LOUISIANA & A. RY. CO.
• Court: U.S. District Court — Western District of Louisiana

30 F. Supp. 909

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

No. 75.

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

January 16, 1940.

Rehearing Denied March 13, 1940.

Frank L. Mulholland, of Toledo, Ohio, Floyd D. Culbertson, Jr., of Minden, La., and Clarence M. Mulholland and Willard H. McEwen, both of Toledo, Ohio, for plaintiff.

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

PORTERIE, District Judge.

For the purpose of passing on the question of whether or not plaintiff has stated a cause of action, all the well-pleaded facts of the petition must be taken as true and proved.

The plaintiff is an unincorporated association, a federation of craft unions, members of which are former shop craft employees of the defendant, formerly engaged as machinists, boiler makers, blacksmiths, electrical workers, sheet metal workers, and carmen, or as helpers or apprentices in the above crafts. The plaintiff is the legally selected representative of all the members of the said crafts, former employees of the defendant.

The defendant, Louisiana & Arkansas Railway Company, is a corporation organized under and existing by virtue of the laws of the State of Delaware, with its principal place of business in the City of Shreveport, Louisiana. It is engaged in the business of a common carrier by railroad and is a "carrier" subject to the provisions of the Railway Labor Act, 45 U.S. C.A. § 151 et seq.

There are ninety-five shop craft employees, given by name, shown to have entered the service of the carrier prior to the year 1929. These employees on August 1, 1929, entered into a written agreement with the carrier. This agreement set up the rules and working conditions under which all of the said shop craft employees of the defendant should perform their services thereafter. Under the said agreement and in particular by virtue of Rules 8, 9 and 12 thereof, the said shop craft employees were accorded certain legal rights of seniority, among which was the right that if employees should be furloughed from service due to a reduction in forces, the said employees should be restored to service in the event of an increase in forces in order of their seniority. In this agreement no restriction was placed upon the length of time during which a furloughed employee might retain his right to reinstatement thereunder.

The said agreement of August 1, 1929, remained in effect without objection by either party until September 15, 1930, when the defendant served notice on the plaintiff of its desire "to abrogate and revise the present schedule covering rates of pay and working conditions of the shop craft employees." On October 1, 1930, a conference was held at which time the carrier submitted its proposed new wage scale and draft of new rules. No agreement was reached at this conference, and on October 4, 1930, the employees invoked the services of the Board of Mediation to settle the dispute. Active efforts to mediate were unsuccessful and on or about February 6, 1931, the mediator in charge suggested to both parties that they submit their differences to arbitration. This suggestion was accepted by the employees but rejected by the carrier on February 7, 1931.

Here is the line of cleavage into which mover to dismiss for want of a cause of action inserts its plea. The carrier claims that, at this time, all that the Railway Labor Act, as it then read, required to be done, had been done, and the agreement of August 1, 1929, was ended and dead.

At this point, the court might say that, after study and thought, it has solved this case against the plaintiffs, because of the want of a cause of action. We must write now in support of this decision. As Judge Hutcheson says, in his work, Judgment Intuitive, "I speak of the judgment pronounced as opposed to the rationalization by the judge on that pronouncement." With our ultimate mental destination avowed frankly, we proceed.

The next act of the carrier shows that it believed the contract to be ended, for in less than two days, on February 9, 1931, the carrier promulgated a set of rules which it stated were to govern employment in its shops thereafter. These rules differed in some particulars from the proposed draft submitted to the committee on October 1st, 1930. The seniority provisions, however, were unchanged and were in fact identical with those contained in the agreement of 1929.

Subsequently, on September 1, 1931, a list or roster of carmen in the shop at Minden, Louisiana, set up in order of their seniority, was posted on the bulletin board of the defendant in the said shop. At the bottom of the said list and over the signature of a subordinate foreman appeared the following statement:

"This seniority list will be held open for adjustment for a period of thirty (30) days or until September 30, 1931, after which time no adjustment will be made. Requests for adjustment of seniority must be made in writing to the undersigned.

"Seniority of former employes, who have not worked under the classification for which they held seniority during any twelve (12) months period, will be dropped from the seniority list."

Whether these notices complied in a technically, legally satisfactory manner with Sections 2 and 6 of the Railway Labor Act of May 20, 1926, c. 347, 44 Stat. 577, 45 U.S.C.A. §§ 152, 156, then in force, is immaterial; the original agreement of August 1, 1929, is dead nevertheless. There is no survival of it. Its life was ended according to all the provisions of the Act of 1926, meticulously followed. It could only be extant if subsequent agreement particularly preserved the supposed cause of plaintiffs, and stated its origin to be in the agreement of August 1, 1929.

Neither the carrier nor the workers took steps to get a conference under the new notices of February 9 and September 1, 1931, establishing a new contractual relation.

The rules of February 9 and September 1, 1931, however, were applied by the defendant until October 20, 1937, when another agreement was entered into between the defendant and its shop craft employees (the latter represented by the plaintiff), covering the rules and working conditions of said employees. A copy of the agreement, which is still in full force and effect, is made a part of the petition of plaintiff. This agreement contains no provision limiting the reinstatement rights of furloughed employees to one year, or to any other stated length of time. It is totally disconnected from the agreement of August 1, 1929; the ninety-five plaintiffs of the instant action do not appear therein, nor are their rights a subject of the contract.

During the period from 1929 to 1937 the various employees who are plaintiffs herein were each and all furloughed from the service of the defendant pursuant to a curtailment of operations in the defendant's shops and to a general reduction of shop forces.

At various times the carrier found it necessary to increase its shop operations and forces, but when such increases were made it refused to reinstate the plaintiffs. Instead, it advanced apprentices and helpers into positions formerly held by craftsmen or hired new employees to take the places of plaintiffs, and to perform their work. The carrier gave as its sole reason for so doing the rule of September 1, 1931, limiting the reinstatement rights of furloughed employees to a period of one year after furlough.

If, in the period intervening between September 15, 1930, and October 20, 1937, relations existing between the carrier and its shop craft employees were disorganized and antagonistic, and if, from February 7, 1931, to October 20, 1937, the carrier refused to recognize the plaintiff as the representative of any of its employees for any purpose, or to recognize any person or organization as the representative of any of its shop craft employees for any purpose, and provided no regular channel whereby any dispute between them, whether growing out of the interpretation or application of an agreement or otherwise, could be considered in conference by the representatives of the parties as provided in Section 7, First and Second of the Railway Labor Act as enacted in 1926, 45 U.S.C.A. § 157, subds. 1, 2, is altogether immaterial, insofar as the agreement of August 1, 1929, is concerned — non-extant and dead since February 7, 1931.

The court is constrained to this holding because of the clarity and force of the language of Sec. 7 of the Railway Labor Act as enacted in 1926, applicable to the agreement made August 1, 1929, and being considered in 1931. The section reads: "Sec. 7 § 157. First. Whenever a controversy shall arise between a carrier or carriers and its or their employees which is not settled either in conference between representatives of the parties or by the appropriate adjustment board or through mediation, in the manner provided in the preceding sections, such controversy may, by agreement of the parties to such controversy, be submitted to the arbitration of a board of three (or, if the parties to the controversy so stipulate, of six) persons: Provided, however, That the failure or refusal of either party to submit a controversy to arbitration shall not be construed as a violation of any legal obligation imposed upon such party by the terms of this Act chapter or otherwise."

Plaintiff further shows that on April 27, 1938, acting again as the representative of all of the shop craft employees of the carrier, it petitioned the National Railroad Adjustment Board, Second Division, to take jurisdiction of and adjust the supposed dispute which forms the basis of this suit, and filed with the said Board its submission, setting forth its claims and contentions in the matter, together with all facts and arguments relative thereto.

Notice was given by the National Railroad Adjustment Board, Second Division, to...