Taylor v. Fee

• Decision Date: 07 June 1956
• Docket Number: No. 11573.,11573.
• Citation: 233 F.2d 251
• Parties: Harry TAYLOR, Peter A. Calus, James W. Brewster, William J. Langston and H. C. Greer, Plaintiffs-Appellants, v. L. B. FEE et al., Defendants-Appellees, and State of California, Intervening Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

233 F.2d 251 (1956)

Harry TAYLOR, Peter A. Calus, James W. Brewster, William J. Langston and H. C. Greer, Plaintiffs-Appellants, v. L. B. FEE et al., Defendants-Appellees, and State of California, Intervening Defendant-Appellee.

No. 11573.

United States Court of Appeals Seventh Circuit.

April 23, 1956.

Rehearing Denied June 7, 1956.

Burke Williamson, Jack A. Williamson, Chicago, Ill., Adams Williamson & Turney, Chicago, Ill., of counsel, for appellants.

Edmund G. Brown, Atty. Gen., Herbert E. Wenig, Asst. Atty. Gen., for the State of California.

Kenneth F. Burgess, Edward M. White, Douglas F. Smith, Richard L. Selle, Chicago, Ill., Sidley, Austin, Burgess & Smith, Chicago, Ill., of counsel, for appellees L. B. Fee, H. W. Burtness, George H. Dugan, H. V. Bordwell and H. J. Reeser, Carrier Members of the First Division of the National Railroad Adjustment Board.

Before FINNEGAN, LINDLEY and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

This suit was brought in the district court to compel the First Division of the National Railroad Adjustment Board to take jurisdiction of and decide five claims filed there by plaintiffs.

Among the facts found by the district court¹ are those which we now state.

On September 1, 1942, the California Board of State Harbor Commissioners,² which operates the state-owned State Belt Railroad, entered into an agreement covering rates of pay and working conditions with two railroad unions — the Brotherhood of Locomotive Firemen and Enginemen and the Brotherhood of Railroad Trainmen. The five plaintiffs in this action were at all material times employees of State Belt and members of one or the other of the two brotherhoods.

At various times during the period beginning September 1, 1942 and the filing of this suit on January 14, 1953, the plaintiffs were employed as trainmen, engineer and pilot for the State Belt Railroad. Between April 6, 1949 and August 13, 1951, grievances on behalf of plaintiffs were filed with the First Division of the National Railroad Adjustment Board, which never acted upon them. The Adjustment Board was created by the Railway Labor Act, 45 U.S. C.A. § 151 et seq., to hear and make awards in "* * * disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions * * *".³ The Board, and each division thereof, is composed of equal numbers of representatives of the carriers and of the labor organizations.

Following a decision by the California Supreme Court, State of California v. Brotherhood of Railroad Trainmen, 37 Cal.2d 412, 232 P.2d 857,⁴ the five carrier members of the First Division of the Adjustment Board declined to proceed, claiming that the Division was without jurisdiction due to the California court's ruling. Faced with an administrative deadlock in the Division, the plaintiffs filed this suit.

The attorney general of the United States filed an answer on behalf of the First Division, in which the allegations of plaintiffs' complaint were admitted and the plaintiffs' right to the relief prayed for was also acknowledged. The five carrier members of the First Division appeared by special counsel and resisted plaintiffs' claim to the relief sought. The state of California was permitted to intervene as a defendant.

The district court granted a motion of the state for summary judgment and entered a final judgment order dismissing the plaintiffs' complaint as to all defendants, from which this appeal was taken. The errors relied on arise out of conclusions of law made by the court. There is no contested issue of fact.

The State Belt Railroad is a common carrier engaged in interstate commerce. Its lines parallel the waterfront of San Francisco Harbor and serve some 45 wharves and 175 industrial plants. It has track or freightcar ferry connections with three interstate railroads. The State Belt Railroad is a vital link connecting various steamship terminals and adjacent industrial plants with three interstate carriers by railroad. The number of its employees varies between 125 and 225 persons, depending upon the volume of its business. State v. Brotherhoods, supra. In this court these facts are not disputed.

The Harbor Board operated the Railroad and applied the provisions of the collective agreement from September 1, 1942, to about November 13, 1951. The plaintiffs and the other enginemen and trainmen employees rendered services to the Harbor Board and received their pay under the September 1, 1942 agreement. During the period referred to, claims were filed by or on behalf of various employees with the National Railroad Adjustment Board, and awards were rendered on these claims.

Early in 1948 the state of California filed an action for declaratory judgment against the two brotherhoods in the Superior Court of the City and County of San Francisco. This action sought to have the September 1, 1942 agreement declared illegal, and was predicated upon two contentions: first, that, because the Railway Labor Act does not expressly apply to state-owned railroads, the operation of the State Belt Railroad is not subject to that act and the Harbor Board is not obliged to bargain collectively with the representatives of its employees for the purpose of establishing employees' rates of pay, rules and working conditions, and secondly, that the collective agreement of September 1, 1942 does not conform to the requirements of California statutory laws, because the rates of pay, which comprise article 1 of the agreement, were not submitted to the Department of Finance for its approval.

Section 1 of the statute upon which the state relies, as it existed when this contract was signed, being the act of September 15, 1935, § 675.1 of Political Code of California, reads as follows:

"Unless the Legislature specifically provides otherwise, whenever any State department, board, commission, court or officer fixes the salary or compensation of an employee or officer, which salary is payable out of State funds, the salary shall be subject to the approval of the State Department of Finance before it becomes effective and payable."

In 1943 (California Laws 1943, ch. 1016, § 1) slight changes in phraseology were made. They are not material here. In its present form § 675.1 is known as § 18004, Gov.Code of California.

The Superior Court entered judgment in favor of the defendant brotherhoods. This judgment was affirmed on appeal by the District Court of Appeals, First District, but the judgment was reversed by the California Supreme Court on June 20, 1951, 37 Cal.2d 412, 232 P.2d 857. Certiorari was denied by the United States Supreme Court. 342 U.S. 876, 72 S.Ct. 166, 96 L.Ed. 658.

1. The state of California takes the position that the decision of its highest court in State v. Brotherhoods, supra, determining that the Railway Labor Act is not applicable to the state, and that the contract of September 1, 1942 is invalid, is res judicata in this case, and that the district court was correct in so holding.

It is significant that plaintiffs in this case were not parties to State v. Brotherhoods. But, says the state of California, plaintiffs in this action "are in privity with the Brotherhoods who represented them before the California court and now represent them before the Adjustment Board". The state does not define the capacity in which it claims the brotherhoods represented plaintiffs. Certainly the record is devoid of any evidence of an express grant of authority. If the brotherhoods had an agency to represent the plaintiffs in that case, as far as the record before us shows, it could have been derived only from (a) the provisions of the federal Railway Labor Act, or (b) the bargaining agreement of September 1, 1942, or both.

(a) The Railway Labor Act,⁵ in § 151, defines the term "employee" as used therein, as including "every person in the service of a carrier * * * who performs any work * * *." The same section also defines the term "representative" as meaning "any person or persons, labor union, organization, * * * designated either by a carrier * * * or by its or their employees, to act for it or them."

Section 152, after placing a duty upon all carriers and employees to exert every reasonable effort to make agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, provides that all disputes between a carrier and its employees shall be considered, and, if possible, decided in conference between representatives designated and authorized so to confer, respectively, by the carrier and the employees thereof interested in the dispute. It further provides that representatives, "for the purposes of this chapter, shall be designated by the respective parties * * *."⁶ It also stipulates that employees shall have the right to organize and bargain collectively through representatives of their own choosing, and that in case of a dispute arising out of grievances, the designated representatives of the carrier and such employees, shall confer in respect to such dispute.

Section 153(i) provides that disputes growing out of grievances may be referred by either party to the appropriate division of the Adjustment Board. Section 153(j) states that the parties may be heard either in person, by counsel, or by other representatives, as they may respectively elect.

(b) We have examined the excerpts from the agreement of September 1, 1942 appearing in the record, and we find no authorization therein empowering the brotherhoods to represent the individual members in any court whatsoever, and counsel has not directed our attention to any part of the contract granting such authority. The record is silent as to this aspect of the case. Moreover, there is nothing in the record to indicate that the brotherhoods...