Estes v. Union Terminal Co.

• Decision Date: 28 May 1937
• Docket Number: No. 8151.,8151.
• Citation: 89 F.2d 768
• Parties: ESTES et al. v. UNION TERMINAL CO.
• Court: U.S. Court of Appeals — Fifth Circuit

89 F.2d 768 (1937)

ESTES et al. v. UNION TERMINAL CO.

No. 8151.

Circuit Court of Appeals, Fifth Circuit.

April 21, 1937.

Rehearing Denied May 28, 1937.

John H. Crooker and Carl G. Stearns, both of Houston, Tex., and Frank L. Mulholland, of Toledo, Ohio, for appellants.

Robert G. Payne and John C. Robertson, both of Dallas, Tex., for appellee.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

FOSTER, Circuit Judge.

This is an appeal from a judgment dismissing a suit to enforce an award of the National Railroad Adjustment Board, Third Division, on the ground that the Board was without jurisdiction. The undisputed facts shown by the record are these. On March 1, 1922, Union Terminal Company entered into an agreement with certain classes of its employees, represented by a labor organization, known as Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees. The agreement covered rules providing for promotion by seniority. On August 23, 1931, John Lane, who had been assistant station master, which position was not covered by the contract, was made a gateman, which position came under rules as to seniority. Appellants, D. W. Estes and Felton, were respectively first and second on the seniority list of gatemen. The appointment of Lane as gateman displaced Estes who in turn displaced Felton, with consequent change in hours and working conditions and reduction in pay. Negotiations between the Brotherhood and the Terminal Company failing, the case was taken to the National Railroad Adjustment Board, with the result that after a hearing before the Third Division, sitting in Chicago, the Board concluded that Lane did not have seniority rights, under the provisions of the agreement, to displace Estes and Felton and the Terminal Company was ordered to compensate Estes and Felton in an amount equal to the difference between what they had earned and what they would have earned if not displaced, and to remove Lane from his position as gateman. Suit was brought in the District Court to enforce the order. The Terminal Company filed five pleas in abatement. The District Court overruled all the pleas except the fifth, which was based on the failure of the Board to give notice to Lane of the proceedings before it. Since no other point is urged by appellee, we may confine our consideration of the case to that plea.

The purpose of the Railway Labor Act (45 U.S.C.A. § 151 et seq.) is to facilitate peaceful, orderly adjustment of disputes between railroads and their employees, to prevent strikes and other disturbances. That the legislation is valid is settled. Brotherhood of Locomotive Firemen and Enginemen v. Kenan (C.C.A.) 87 F.(2d) 651. Section 3(j) of the act, as amended by the Act of June 21, 1934, § 3, 45 U.S.C.A. § 153(j), as to hearings before the Board, provides:

"Parties may be heard either in person, by counsel, or by other representatives, as they may respectively elect, and the several divisions of the Adjustment Board shall give due notice of all hearings to the employee or employees and the carrier or carriers involved in any dispute submitted to them."

Under the plain provisions of the act an employee may conduct his negotiations with his employer and the proceedings before the Board, if necessary, either personally or through a chosen representative, which may or may not be a labor organization.

Apparently, the Board held that Lane was not involved in the dispute and therefore was not entitled to notice under the provisions of section 3. In this we think the Board was wrong. Conceding that while Lane was employed as assistant station master he was not covered by the provisions of the contract, when he was given the position of gateman, he became subject to it and was as much involved in the controversy before the Board, as either Estes or Felton. Furthermore, he was materially affected by the order. Section 3 is rendered somewhat ambiguous by the use of the word "involved" instead of a more comprehensive term. But in justice and fairness every person who may be adversely affected by an order entered by the Board should be given reasonable notice of the hearing. Lane was occupying the position of gateman. The order of the Board required his dismissal. No man should be deprived of his means of livelihood without a fair opportunity to defend himself. Plainly, that is the intent of the law. The case at bar illustrates how a single employee may be caught between the upper and nether millstones in a controversy to which only a labor organization and a carrier are parties before the Board. It is not necessary for an employee to be named as a party to the proceeding before the Board to be involved in the controversy within the meaning of the law.

It is urged that in some cases such a great number of employees may be affected that it would be impossible to give them all notice. This argument unnecessarily magnifies the difficulty. The solution of the problem is practical and neither technical nor theoretical. The notice may be informal and delivered by mail. If two organized groups of employees are involved in the controversy, of course, it would not be necessary to give notice to every individual member of those organizations. Parties to a lawsuit are bound by notice to their counsel. In such case notice to the duly constituted officers of the organization would generally be sufficient to bind its members. It may be assumed that in most controversies before the Board only a few individuals not connected with an organization will be involved. There should be no difficulty in notifying them by mail. Notice may be brought to the attention of large groups of interested parties by posting it in appropriate places, the same as is usually done when an injunction is issued against a large class of persons. The difficulty of giving notice, or rather the inconvenience occasioned to the Board by doing so, would not excuse compliance with the law. Notice should be given in some adequate way to all persons who will be substantially affected by the order that may be entered by the Board, unless notice is waived.

However, it is shown that while Lane did not receive formal notice of the hearing from the Board he had actual knowledge and was well aware that a meeting would be held that might adversely affect his status as an employee of the Terminal Company. He consulted with the representatives of the Terminal Company, who attended the meeting and no doubt was satisfied to have them protect his rights. He could have named them as his representatives. He had the right to intervene in the proceedings before the Board. Had he done so he would have waived notice. Proceedings before the Board are informal and an order of the Board is not self-executory. The rights of all persons affected by the order may be adjudicated in a suit to enforce it. Lane can now intervene in or otherwise be made a party to the suit in court, which will afford due process of law. In the circumstances shown we do not consider the Board was deprived of jurisdiction to proceed with the case and enter the order that is sought to be enforced. The error in not giving notice to Lane could have been corrected by the Board. It may be corrected now by the court. Orders of the Board should not be set aside for technicalities if all substantial rights can be finally protected.

The judgment appealed from is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

HUTCHESON, Circuit Judge (concurring specially).

I agree that it was plain error to dismiss the cause for want of jurisdiction, and that it should be remanded for trial upon its merits. I agree, too, that Lane had actual knowledge of the hearing; that the carrier undertook in effect, if not in fact, to represent him at the hearing, and that the carrier cannot now defend against the suit because the Board did not give Lane formal notice of the hearing.

I do not, however, agree with the opinion expressed by the majority, that Lane was, within section 3(j) of the act (as amended, 45 U.S.C.A. § 153(j), an employee involved in the dispute, to whom the Adjustment Board was required to give notice of hearings. I think it quite plain that he was not.

Neither can I at this time, with Lane not before us, join with the majority in its expression of opinion as to the effect upon Lane's rights of the proceedings already taken. I think it well, then, to make a statement of my view of the rights of the parties as they are presented to us.

This appeal tests whether a suit brought under subdivision (p) of section 153, title 45, U.S.C.A., to enforce an award of the Railroad Adjustment Board, was rightly dismissed for want of jurisdiction. The petition set forth, as required by the statute, the causes for which relief was claimed, "and the order of the Division Adjustment Board in the premises." The plaintiffs were the Brotherhood of Railway and Steamship Clerks, Freight Handlers, and Express and Station Employees, and D. W. Estes and A. Felton, two of its members. Union Terminal Company was defendant.

The claim was that the defendant, in violation of a written agreement entered into March 1, 1922, with the Brotherhood as the duly designated and authorized representative of the clerical and station employees engaged by defendant in and about its Dallas terminal, had denied, and deprived two of them, Estes and Felton, of their seniority rights. That this had been done by permitting one John Lane, a former assistant station master, to take the position of gateman, though under the agreement both Estes and Felton ranked him in seniority, and were entitled, ahead of him, to the position.

It was alleged that the dispute between the parties to it, the Brotherhood on the one hand, and the defendant carrier on the other, had been proceeding as required by law in the usual channels since September, 1931, when Estes and Felton were displaced, but...