Wallace v. Southern Pac. Co., 29015.

• Decision Date: 12 June 1951
• Docket Number: No. 29015.,29015.
• Citation: 106 F. Supp. 742
• Court: U.S. District Court — Northern District of California
• Parties: WALLACE v. SOUTHERN PAC. CO.

106 F. Supp. 742

WALLACE v. SOUTHERN PAC. CO.

No. 29015.

United States District Court N. D. California, S. D.

May 23, 1951.

Findings of Fact and Conclusions of Law June 12, 1951.

Ryan & Ryan, San Francisco, Cal., for plaintiff.

Burton Mason and W. A. Gregory, Jr., San Francisco, Cal., for defendant.

GOODMAN, District Judge.

On the merits, the evidence does not sustain plaintiff's allegation that his discharge by defendant was a breach of the agreement delineating the terms of his employment. To the contrary, I find the evidence to be persuasive that the discharge of plaintiff was proper. Furthermore, as in Buberl v. Southern Pac. Co., D.C., 94 F.Supp. 11, plaintiff not only failed to pursue the remedies provided by the contract governing his employment, but he had already been compensated in Wallace v. Southern Pac. Co., No. 27184,¹ for the loss of earnings he seeks to recover in this case.

Judgment for defendant. Prepare findings pursuant to the rules.

Findings of Fact.

1. This action was brought for alleged breach of the collective bargaining agreement which sets forth the general terms and conditions covering the former employment of plaintiff by defendant. Jurisdiction of this Court arises under 28 U.S.C.A. § 1332, the plaintiff being a citizen of the State of California and a resident and inhabitant of the Northern District of California, Southern Division, the defendant being a Delaware corporation, and the amount in controversy being, exclusive of interest and costs, in excess of $3,000, to-wit: approximately $6,000.

2. From November 21, 1944, until January 23, 1946, plaintiff was employed by defendant, a common carrier by railroad, as a brakeman.

3. At all times material to this case brakemen employed by defendant were within the class or craft of employees represented, pursuant to the provisions of the Railway Labor Act, 45 U.S.C.A. 151, et seq., for collective bargaining purposes by the General Committee, Brotherhood of Railroad Trainmen (hereinafter referred to as the B. R. T.).

4. At all times material to this case there was in force and effect a written collective bargaining agreement between defendant and the B. R. T. which set forth the rates of pay, rules and working conditions including the procedure for the handling of grievances, applicable to brakemen. The provisions of Article 57 and Article 58 of said collective bargaining agreement are set forth in defendant's Exhibit F in evidence and are referred to and incorporated herein by reference.

5. Additionally, at all times material to this case there was in force and effect between defendant and the B. R. T. a written Agreed-to Interpretation of the provisions of said Article 58, Section (c). The provisions of said Agreed-to Interpretation are set forth in Appendix B to defendant's Answer and are referred to and incorporated herein by reference.

6. On or about July 28, 1945, plaintiff fell from the top of a railroad car and suffered certain injuries while working during the course of his employment with the defendant as a brakeman. Plaintiff was a patient for three days in a hospital at Dunsmuir, California, under the care of Dr. Eugene V. Anderson, and then was permitted at his request to go to his home. After two further visits to Dr. Anderson's office in the ensuing few days, plaintiff, alone and unassisted, made a round trip from Dunsmuir, to Chicago, Illinois. He did not return to Dr. Anderson for any purpose and consequently was never given a return-to-duty slip. Plaintiff made a second trip in which he drove to Kansas City, Mo., in October of 1945, and he remained out of the State of California continuously from that time until about September, 1946. While in Missouri, plaintiff engaged in various activities. On or about November 1, 1945, plaintiff filed an action in the Superior Court of Cook County, State of Illinois, against this defendant as defendant therein, seeking damages from defendant on account of personal injuries, resulting from his aforesaid fall, which he alleged on information and belief to be permanent in character. Said suit was later dismissed by plaintiff without prejudice.

7. On or about December 10, 1945, defendant addressed and mailed to the plaintiff a registered letter (Exhibit No. 1 in evidence, the terms of which are referred to and incorporated herein by reference), which was received by him personally on or about December 16, 1945, advising him that it was necessary for him to report for work in order to preserve his employment relationship and seniority. Plaintiff made no response to said letter.

8. On or about December 27, 1945, defendant addressed and mailed to plaintiff a letter (plaintiff's Exhibit No. 2), the body of which reads as follows:

"You are hereby notified to be present in the Assistant Trainmaster's office at Dunsmuir on January 14, 1946, at 10:00 AM for formal investigation in which you will be charged with the violation of Rule 810 of the Rules and Regulations of the Transportation Department, for being absent from duty since July 30th, 1945, without permission and failure to report for duty as instructed.

"You are entitled to representation in accordance with the Brotherhood of Railroad Trainmen's Agreement, and to bring to the investigation such witnesses as you may desire."

This notice was personally received by plaintiff on or about January 2, 1946, but plaintiff nevertheless failed to attend the investigation, arrange for representation or witnesses thereat, or to make any request upon defendant for postponement thereof. No response whatever was made by plaintiff to said letter.

9. The investigation referred to in Finding 8 was held at 10:00 A.M. at Dunsmuir, California, on January 14, 1946, in plaintiff's absence. The proceedings which took place at said investigation are correctly set forth in defendant's Exhibit B in evidence and are referred to and incorporated herein by reference.

10. Following said investigation plaintiff was dismissed from his employment by defendant, and was notified of such dismissal by letter dated and mailed January 23, 1946, which was personally received by plaintiff on or about January 28, 1946. The Provisions of such letter of dismissal are set forth in defendant's Exhibit A in evidence, and are referred to and incorporated herein by reference.

11. Plaintiff did not present his grievance, or any grievance or claim arising by reason of his said dismissal, to defendant in writing or through his local committee within sixty days next succeeding his said dismissal on January 23, 1946, as required and contemplated by Section (c) of Article 58 of the Agreement between defendant and the Brotherhood of Railroad Trainmen referred to in Finding 4 above, and the Agreed-to Interpretation referred to in Finding 5 above, which are incorporated by reference herein. By letter of March 6, 1947, plaintiff for the first time in writing presented to defendant's Superintendent a request for reinstatement as an employee, which request was denied by said Superintendent by letter of March 12, 1947. The said letter of March 6, 1947, is correctly set forth in plaintiff's Exhibit No. 3 and the said letter of March 12, 1947, is correctly set forth in defendant's Exhibit No. D, both of which letters are referred to and incorporated herein by reference. No appeal was ever taken by plaintiff in writing or otherwise, to the General Manager or any other officer of defendant, from the Superintendent's decision denying plaintiff's request for reinstatement, as set forth in said letter of March 12, 1947, last mentioned.

12. On or about November 15, 1947, plaintiff filed an action in this Court, numbered 27814, against this defendant as defendant therein, seeking damages from defendant on account of injuries sustained in his fall from a car on July 28, 1945, which he alleged on information and belief to be permanent in character. Said suit was compromised and settled on January 5, 1948, by payment to the plaintiff of the sum of $17,500.

Conclusions of Law

1. This Court has jurisdiction of the subject matter and the parties to this action.

2. In the absence of an applicable statutory provision or an enforceable contract, an employment for an indefinite time is terminable at the will of the employer, with or without cause. Plaintiff's right to be discharged only after a formal investigation existed solely by virtue of the collective bargaining agreement between the defendant and the craft of employees represented by the B. R. T., and was measured by the provisions of such agreement, which provisions must be considered together. The B. R. T. being, pursuant to the provisions of the Railway Labor Act, the collective bargaining representative of the craft or class of defendant's employees of which plaintiff was a member, plaintiff's employment was subject to all of the provisions of such collective bargaining agreement, and the amendments and modifications thereof, whether known to plaintiff or not, and could be on no other terms.

3. Prior to and in connection with the dismissal of plaintiff from his employment on January 23, 1946, and thereafter defendant complied with each, every and all of the applicable provisions of said collective bargaining agreement, and particularly with Article 57 thereof.

4. Compliance by plaintiff with the provisions of Article 58 (as modified by the Agreed-to Interpretation) of the applicable collective bargaining agreement was a condition precedent to the assertion by him of any claim or grievance arising from his dismissal on January 23, 1946, or from the proceedings leading thereto. Plaintiff having failed to comply with such provisions is barred from asserting any such grievance, i. e., claim that he was discharged in violation of the terms of the collective bargaining agreement; and any and all rights...