Thompson v. Brotherhood of Sleeping Car Porters

• Court: U.S. Court of Appeals — Fourth Circuit
• Writing for the Court: SOBELOFF, , and HAYNSWORTH and J. SPENCER BELL, Circuit
• Citation: Thompson v. Brotherhood of Sleeping Car Porters, 316 F.2d 191 (4th Cir. 1963)
• Decision Date: 22 March 1963
• Docket Number: No. 8729.,8729.
• Parties: Fred THOMPSON, Appellant, v. BROTHERHOOD OF SLEEPING CAR PORTERS, an Unincorporated Railroad Labor Organization, National in Scope, Appellee.

316 F.2d 191 (1963)

Fred THOMPSON, Appellant, v. BROTHERHOOD OF SLEEPING CAR PORTERS, an Unincorporated Railroad Labor Organization, National in Scope, Appellee.

No. 8729.

United States Court of Appeals Fourth Circuit.

Argued October 12, 1962.

Decided March 22, 1963.

Richard G. Dusenbury, Florence, S. C. (Dusenbury, Dusenbury & McKenzie, Florence, S. C., on brief), for appellant.

Joseph L. Nettles, Columbia, S. C. (F. Ehrlich Thomson, Columbia, S. C. and Delson, Levin & Gordon, New York City, on brief), for appellee.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and J. SPENCER BELL, Circuit Judges.

SOBELOFF, Chief Judge.

Does invidious discrimination, not based on race, furnish ground for a complaint in a federal court against a labor union by a person it is statutorily empowered to represent? The question arises on this appeal of plaintiff Thompson from an order of the District Court granting a motion to dismiss and directing a verdict for the defendant, Brotherhoood of Sleeping Car Porters.

Initiated on October 18, 1958,¹ in the Court of Common Pleas of Florence County, South Carolina, the action was removed to the federal District Court. There the defendant moved to quash service, and on June 16, 1960, the motion was denied pending the trial, but the question of service has not been pursued in this court. The trial was begun before a petit jury on December 11, 1961, and the verdict for the defendant was directed at the conclusion of the plaintiff's case on December 13, 1961.²

The complaint appears on its face to raise both federal and state causes of action. The theory of the federal cause of action was not explicated until late in the trial, and then never very clearly; but the crux of Thompson's allegations is that the Brotherhood was remiss in fulfilling its obligation, under the collective bargaining agreement between it and the Atlantic Coast Line Railroad and under the Railway Labor Act, 45 U.S.C.A. §§ 151-164, 181-188, "to represent the Plaintiff in claims and grievances against the `Railroad' and to protect the seniority rights of the Plaintiff as provided for by the Agreement setting forth said rights."³ Only on review of the evidence does it begin to appear that the federal claim Thompson has attempted to present is that the Brotherhood discriminated against him in failing to prosecute conscientiously his claims to seniority, because he was not constant in his union membership. Thereby, says the plaintiff, the Brotherhood breached its statutory duty to represent him fairly and in good faith.

The plaintiff claimed that the acts of the Brotherhood caused him to lose his seniority as a Mail Porter, with resulting deprivation of his rightful tours of duty and opportunities for employment with the Railroad. He sought actual damages of $10,000 for past losses, plus allowance for such losses as might accrue pending a final determination, as well as punitive damages of $75,000.

FACTS

Thompson came to work for the Railroad in 1946. Until 1948, when he was given a regular assignment as a Train Porter (the higher classification), he worked "off the extra board" both as Mail and as Train Porter. He asserts that he also made occasional runs as a Mail Porter in 1951, 1953 and 1955. Although first listed on the Train Porters' Seniority Roster on January 1, 1947, with seniority from January 18, 1946, the date of his initial run, he was not listed on the Mail Porters' Seniority Roster until January 1, 1957, with seniority from October 22, 1956. The delay in his listing on the Mail Porter roster occurred despite the apparently established practice under the collective bargaining agreements in effect from 1944 through 1956⁴ for a man to acquire seniority from the first day he worked in a given classification and to be listed on both rosters if he worked in both classifications.⁵

Thompson testified that he first received a copy of the Mail Porters' Seniority Roster in 1950 and only then discovered that he was not listed. Claiming seniority from 1948, he protested to the Trainmaster and then to the Chairman of the Brotherhood's Local Lodge. Nothing was done in his behalf. The reason assigned at the trial was that he had waived his right to seniority by not complaining within 60 days of the posting of the first roster listing Mail Porter seniority from 1948. See n. 4, supra. Subsequently, Thompson made persistent protests in 1952, 1953, 1954, 1955 and 1956 when the Mail Porters' Seniority Rosters were posted. In 1953, he apparently filed his first written complaint, still claiming seniority from 1948. He was unsuccessful in inducing action in his behalf by Railroad or by Local or International Brotherhood personnel, ostensibly because he was said to have waived his rights by failing to raise timely complaint.

In 1956 the job of Train Porter was in the process of being abolished in Thompson's district. Only then, after more than five years of repeated complaints, was a conference arranged between Thompson and representatives of the Brotherhood and of the Railroad. The evidence shows that the Railroad was agreeable to whatever arrangement its employees and the union might reach. At the conclusion of the conference, the Railroad agreed to a proposal to establish Thompson's seniority as Mail Porter from 1948. This proposal, however, was subject to the condition that the men who would thereby be made junior to Thompson would agree. This they refused to do. Thompson then asserted a specific claim to seniority as of 1953. Another conference was held on October 22, 1956. The Railroad accepted a proposal to establish Mail Porter seniority as of 1953, but again the proposal was coupled with the condition that the men who would be made junior should agree. Again they refused.

On November 7, 1956, A. Philip Randolph, President of the Brotherhood, wrote the Superintendent of the Railroad suggesting that Thompson be placed on the Mail Porters' Seniority Roster with seniority from October 22, 1956, making him the "youngest" Mail Porter on that roster. On November 16th, Randolph wrote Thompson advising him to agree to this settlement and to waive his more ambitious claims. On November 26th, Randolph informed the Superintendent that Thompson had agreed to the waiver and settlement.

Despite his having been placed on the Mail Seniority Roster, Thompson soon found that, since he was the "youngest" on the list, he was rarely in line to make runs. In 1958 he made no runs at all; by 1961 his name no longer appeared on either the Mail or Train Porters' Seniority Roster.

Evidence of Discrimination

There is no intimation in the record that racial considerations entered the case, but at the trial the plaintiff adduced substantial evidence tending to show that, because he adhered to the Brotherhood as a member only occasionally and not regularly, it discriminated against him in processing and securing his seniority rights, or rather in failing to represent him properly in these matters. Thompson himself testified that he had joined the Brotherhood for a short period sometime between 1952 and 1954 only after warnings by the local chairman and an international organizer that he "would have to be in the union before they could do anything to help" him. Although he also testified that he was a member for three months in 1951 and again briefly in 1956, he claimed that he joined on each occasion because the Brotherhood made it clear that this was the only way to gain its help in obtaining the seniority rights to which he was entitled.

A. J. Pringle, Secretary-Treasurer of the Local for six or seven years prior to the trial and Acting Chairman at the time of the trial, gave extensive testimony which strongly indicates a general policy of the Brotherhood not to recognize full responsibility as representative of a man unless he was in the organization. He testified further that Thompson's lack of steady membership was one reason the union did not accord him wholehearted support in the pursuit of his seniority claims. The impact of Pringle's and Thompson's testimony was cogently corroborated by a letter of May 8, 1956, addressed to Thompson by B. F. McLaurin, International Field Organizer of the Brotherhood. He wrote:

"I am sure you were aware that there was nothing I could do until you became a full fledged member; now that you have followed through on your responsibility, rest assured that we will do the same at this end. I have instructed your local chairman to request a formal hearing on your case. I trust that you will cooperate in every way possible to get this case started in order that we may be able to process it into the Railroad." (Emphasis added.)

Nowhere in the record is the sharp point of this statement blunted.

Certain unexplained circumstances have a further bearing on the accusation of improper discrimination.

The Brotherhood claims that Thompson was the author of his own misfortune. It says that in not raising his grievances formally within the time limited by the collective bargaining agreements, he waived his claims to seniority. See n. 4, supra. The Brotherhood does not, however, explain how it happened that four other employees, who according to its argument likewise would appear to have failed to make timely claims, nevertheless were not deemed to have waived their rights to seniority.⁶

The Brotherhood's position is that not until 1956 did Thompson in specific language articulate his claim to seniority as of 1953 (and his claim to seniority as of 1955 not until the trial) and therefore, under a literal reading of the collective bargaining agreements, he waived these rights. Yet the record is barren of any legitimate circumstance to explain why the Brotherhood, put on notice by Thompson's determined insistence that he was entitled to seniority from 1948, was not itself moved earlier to secure him seniority rights, at least as of 1953 or 1955. The Brotherhood now interposes an expression of concern for...