Tunstall v. Brotherhood of Locomotive F. and E., 5125.

• Decision Date: 09 April 1945
• Docket Number: No. 5125.,5125.
• Citation: 148 F.2d 403
• Parties: TUNSTALL v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al.
• Court: U.S. Court of Appeals — Fourth Circuit

148 F.2d 403 (1945)

TUNSTALL v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al.

No. 5125.

Circuit Court of Appeals, Fourth Circuit.

April 9, 1945.

Charles H. Houston, of Washington, D. C. (Joseph C. Waddy, of Washington, D. C., on the brief), for appellant.

William G. Maupin and James G. Martin, both of Norfolk, Va. (Harold C. Heiss and Russell B. Day, both of Cleveland, Ohio, on the brief), for appellees.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is a suit by a Negro fireman employed by the Norfolk-Southern Railway Company, who brings the suit in behalf of himself and other Negro firemen employed by that company. The defendants are the railway company, the Brotherhood of Locomotive Firemen and Enginemen, certain subordinate lodges of that brotherhood and one of the officers of a local lodge. The gravamen of the complaint is that the brotherhood has been selected as bargaining agent of the firemen of the defendant railway company; that it excludes Negro firemen from membership; that it has negotiated a trade agreement with the company discriminating against Negro firemen; and that as a result of this agreement plaintiff has suffered discrimination with respect to seniority rights and has been damaged thereby. The relief asked is a declaratory judgment to the effect that the brotherhood as bargaining representative is bound to represent fairly and without discrimination all members of the craft, an injunction restraining the defendants from giving effect to the trade agreement in so far as it discriminates against Negro firemen and restraining the brotherhood from acting as bargaining representative of Negro firemen so long as it refuses to represent them fairly and impartially, an award against the brotherhood for damages sustained by plaintiff, and an order that plaintiff be restored to the position to which he would be entitled by seniority in absence of the contract.

In the court below motions were made to dismiss the case on the grounds that process had not been served on the brotherhood and one of its subordinate lodges and that the court was without jurisdiction of the causes of action alleged. The court overruled the motion based on lack of service of process but dismissed the case because of opinion that there was lack of jurisdiction of the causes of action. We affirmed the dismissal on the authority of decisions which we thought controlling rendered by the Supreme Court while the appeal was pending before us. See 140 F. 2d 35. The Supreme Court reversed the dismissal and remanded the case to us for consideration of the jurisdictional questions arising out of service of process. 323 U.S. 210, 65 S.Ct. 235.

With respect to the service of process, it appears that summons was issued against the brotherhood, two of its subordinate lodges, Ocean Lodge No. 76 and Port Norfolk Lodge No. 775, W. M. Munden, Chairman of Ocean Lodge, and the railway company. Defendants admit that it was duly and regularly served upon the railway company, Port Norfolk Lodge and W. M. Munden, but deny that the brotherhood and Ocean Lodge were served, since service was not made on an officer, manager or general or authorized agent of the brotherhood and the only service upon Ocean Lodge was service upon its chairman by leaving copies of the summons and complaint with his wife at his usual place of business. They ask that the suit be dismissed as to all parties because they contend that the brotherhood has not been made a party and that its presence is indispensable to jurisdiction against the others. Plaintiff contends that the suit is a class suit and that the service obtained upon members of the class is sufficient to give the court jurisdiction. Three questions are presented for our consideration: (1) May a class suit be brought against an unincorporated association in such a way as to bind the association? (2) May the suit here be treated as such a class suit? (3) If so, has there been sufficient service of process to bring the brotherhood into court? We think that all of these questions should be answered in the affirmative.

The right to bring a class suit to enforce the liability of an unincorporated association existed long prior to the adoption of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Smith v. Swormstedt, 16 How. 288, 302, 303, 14 L.Ed. 942. In Story's Equity Pleading, from which quotation is made in the case cited, Mr. Justice Story arranges the cases in which a class suit is proper as follows: "1. Where the question is one of a common or general interest, and one or more sue or defend for the benefit of the whole. 2. Where the parties form a voluntary association for public or private purposes, and those who sue or defend may fairly be presumed to represent the rights and interests of the whole; and 3. Where the parties are very numerous, and though they have or may have separate and distinct interests, yet it is impracticable to bring them all before the court." See also 39 Am.Jur. pp. 920-921, 924. That an unincorporated labor association may sue and be sued in equity in a class suit, with the suit brought by or against representatives of the class is but an application of the well settled general rule. Evenson v. Spaulding, 9 Cir. 150 F. 517, 9 L.R.A.,N.S., 904; Philadelphia Local 192 of American Federation of Teachers v. American Federation of Teachers, D.C., 44 F.Supp. 345; International Allied, etc., Ass'n v. Master Printers Union, D.C., 34 F.Supp. 178; Pickett v. Walsh, 192 Mass. 572, 78 N.E. 753, 760, 761, 6 L.R.A.,N.S., 1067, 116 Am. St.Rep. 272, 7 Ann.Cas. 638; Reynolds v. Davis, 198 Mass. 294, 84 N.E. 457, 17 L. R.A.,N.S., 162; Oster v. Brotherhood of Locomotive Firemen & Enginemen, 271 Pa. 419, 114 A. 377. Even in a state like West Virginia which adheres to the common law rule that an unincorporated labor association may not be sued as an entity, see Milam v. Settle, W.Va., 32 S.E.2d 269, such an association may be sued in the state courts by naming as parties and serving individually some of the members composing the association. See West v. Baltimore & Ohio R. Co., 103 W.Va. 417, 137 S.E. 654; Simpson v. Grand International Brotherhood of Locomotive Engineers, 83 W.Va. 355, 98 S.E. 580.

The federal rules have in no wise limited or restricted the right to bring class suits in proper cases. Rule 23 provides for them; and, in a note to the rule, the Rules Committee states that it is a substantial restatement of the former equity rule as that rule has been construed by the courts. Subsection a(1) of the rule provides for class actions where the character of the right sought to be enforced for or against the class is joint or common and the persons constituting the class are so numerous as to make it impracticable to bring them all before the court, the typical case of suit by or against an unincorporated association. Professor Moore in Federal Practice vol. 2, p. 2235 et seq. cites suits against unincorporated associations as typical of what he calls the "true class suit" under this rule, i.e. a suit wherein, but for the class action device, the joinder of all interested persons would be essential.

And there is nothing in rule 17(b) which limits the right to bring a class suit under rule 23(a) in proper cases. Rule 17 (b) relates to capacity to sue or be sued; and it provides that, where a partnership or unincorporated association has no such capacity by the law of the state where the court is held, it may nevertheless sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United...