Decision Date09 April 1942
Docket NumberNo. 8937.,8937.
Citation127 F.2d 53
CourtU.S. Court of Appeals — Sixth Circuit

Charles H. Houston, of Washington, D. C. (Charles H. Houston and J. T. Settle, both of Memphis, Tenn., on the brief), for appellant.

Harold C. Heiss, of Cleveland, Ohio (Harold C. Heiss and Russell B. Day, both of Cleveland, Ohio, and William P. Moss, of Jackson, Tenn., on the brief), for appellees.

Before SIMONS and McALLISTER, Circuit Judges, and SWINFORD, District Judge.

SIMONS, Circuit Judge.

The appellant, a fireman employed by the Gulf, Mobile & Northern Railroad Company, conceiving his seniority rights as an employee of the Railroad to have been impaired by reason of an unlawful agreement between the Railroad and the Brotherhood, the collective bargaining agent of his craft, brought the present suit in the United States District Court for the Western District of Tennessee, for himself and others of his class, to set aside the agreement, seeking injunction, discovery, restoration of seniority rights, damages and other relief. The bill was dismissed for want of a Federal question.

The basic question set forth by the appellant, upon which he says the case turns, is whether Congress, under the Railway Labor Act, 45 U.S.C.A. § 151 et seq., has conferred upon the representative of the craft or class to which he belongs, the power to make a collective bargaining agreement destructive of the vested rights of the minority workers in order to advantage the majority, and if so, whether such grant of power violates the due process clause of the Fifth Amendment. The appellant asserts that he does not ground his claim of Federal jurisdiction on diversity of citizenship, but bases it expressly on § 24(8) of the Judicial Code, 28 U.S.C.A. § 41(8), which gives to United States District Courts original jurisdiction of all suits and proceedings arising under any law regulating commerce.

The appellant is a negro locomotive fireman, employed, up to May 17, 1928, on a hand-fired coal burning locomotive in interstate freight service on the Tennessee division of the Railroad, with seniority rights dating from March 15, 1917. He asserts that under uniform employment contracts between individual negro firemen and the Railroad he is entitled to seniority preference rights on employment assignments carrying favored rates of pay, hours and workings conditions, and such rights were recognized and respected by both the Railroad and the Brotherhood up to May 5, 1938. He alleges that on that date a secret agreement was entered into between the Brotherhood and the Railroad, whereby white firemen who were members of the Brotherhood, were given preference over negro firemen, in assignments on mechanical stoker fired locomotives, regardless of seniority, and that such service is a preferred assignment involving less work and less hazard that on hand-fired locomotives. On May 17, 1938, a mechanical stoker fired locomotive was placed on the appellant's run. Though entitled to assignment on the engine, because of seniority, he was displaced by a junior white fireman, a member of the Brotherhood, in pursuance of the alleged secret agreement. In consequence, he asserts that he lost his regular employment; was forced on the "extra board"; has not since worked regularly, but only at intervals; and has been forced to accept assignments more hazardous and burdensome than would have been his if his seniority rights had been respected. The Railroad has refused to permit him to learn the technique of handling a mechanical stoker, although junior white firemen have been so instructed, and at the time of filing his suit he had already lost 200 days pay, and his annuity potential under the Railway Retirement Act of 1937, 45 U.S.C.A. Chap. 9, § 228a et seq. has been prejudiced.

The appellant further asserts that since the passage of the Railway Labor Act of 1934, the Brotherhood, by virtue of its membership constituting a majority of the locomotive firemen, has established itself as their exclusive bargaining representative for the entire craft, including a minority of non-member negro firemen; that instead of acting impartially for the entire class it has used its position to eliminate the negro firemen and obtain a monopoly of employment for its own white members, as a result of which employment of negro firemen on all railroads has declined. He also asserts that the Brotherhood has refused, and still refuses, to disclose to the negro firemen its proposed actions as sole bargaining representative of the craft, to give them notice or opportunity to be heard, or to permit them to vote on matters affecting their interests, and that pursuant to the agreement every negro locomotive fireman has been displaced by a junior white fireman, when a mechanical stoker fired engine has been placed on his run. The appellant alleges that he has exhausted his administrative remedies; that he has requested both the Railroad and the Brotherhood to set aside the agreement of January 5, and to restore his seniority rights, but that both have denied him relief. He has submitted his grievance to the National Railroad Adjustment Board and to the National Mediation Board, but in each case his petition has been rejected without hearing, based on lack of jurisdiction.

The single question presented for adjudication is whether the complaint states a cause of action that arises under the Constitution or laws of the United States. The Constitutional provision relied upon is the Fifth Amendment, and the law is the Railway Labor Act. Accepting, as we must, the allegations of the complaint, and so assuming that the defendants entered into a secret agreement, the effect of which was to impair the seniority rights of the plaintiff and members of his class, and that the complaint states a justiciable controversy, our inquiry must be directed to whether it is cognizable in a Federal Court. It has long been settled that a suit arises...

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