Webb v. Chicago, R. I. & G. Ry. Co., 5094.

• Decision Date: 02 January 1940
• Docket Number: No. 5094.,5094.
• Citation: 136 S.W.2d 245
• Court: Texas Court of Appeals
• Parties: WEBB v. CHICAGO, R. I. & G. RY. CO. et al.

Page 245

136 S.W.2d 245

WEBB v. CHICAGO, R. I. & G. RY. CO. et al.

No. 5094.

Court of Civil Appeals of Texas. Amarillo.

January 2, 1940.

Rehearing Denied January 29, 1940.

Appeal from District Court, Potter County; E. C. Nelson, Jr., Judge.

Suit by J. S. Webb against the Chicago, Rock Island & Gulf Railway Company and others to enforce certain alleged seniority rights and for an injunction. From a judgment dismissing the suit, plaintiff appeals.

Affirmed.

H. H. Cooper and E. O. Northcutt, both of Amarillo, for appellant.

Stone & Stone, of Amarillo, Tatum & Tatum, of Dalhart, Harold C. Heiss and Horn, Weisell, McLaughlin & Lybarger, all of Cleveland, Ohio, and Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellees.

JACKSON, Chief Justice.

This suit was instituted by the appellant, J. S. Webb, in the District Court of Potter County, Texas, against the Chicago, Rock Island & Gulf Railway Company, their receivers and trustees, hereinafter called the railroads, and Albert E. McCanless, Edward G. Bertrand, William B. Foltz, Louis T. Williams and Ralph Hill, hereinafter called the individual appellees.

The purpose of the suit by appellant was to have adjudged to him and a decree to enforce certain alleged seniority rights in the Amarillo Seniority District of the C. R. I. & G. Ry. Co., which, he asserts, includes the new railroad—the American Canadian River Line—hereinafter called the A. C. R. Line, and have the railroads enjoined from transferring to said Amarillo Seniority District employees from the West El Paso Seniority District or any other division of the Rock Island Lines and from granting to them seniority over appellant and that such railroads be compelled to remove any such employees now working upon said Amarillo Division whose seniority is not equal to that of appellant or others working or entitled to work on said Division and to restrain any employee from the West El Paso Seniority District or other divisions, including the individual appellees, from working on the A. C. R. Line so long as appellant and others are available whose seniority entitles them to work on such line and that the injunction be made perpetual.

There is no finding of fact by the court on file but as we shall set out in the opinion the material facts on which the determination of the legal questions presented depend, we deem it only necessary to make a brief statement of the pleadings which contain fifty-eight pages.

Appellant contended that he was entitled to the relief sought by virtue of an agreement dated August 15, 1926, which will later appear herein but which we here designate as the McMullen agreement; also because of the usages and customs of the railroads relative to the construction of a new line; but if mistaken as to his rights to recover upon such grounds then he says he is and was a locomotive fireman and a locomotive engineer and claims seniority by virtue of a contract made between the C. R. I. & G. Ry. Co. and the Brotherhood of Locomotive Firemen and Enginemen of which he is a member and the Brotherhood of Locomotive Engineers; that by virtue of the terms of the last contract the railroad was obligated and bound to recognize the seniority of employees engaged on the A. C. R. Line which has always been a part of the Amarillo Seniority District of the C. R. I. & G. Ry. Co.

The railroads presented pleas in abatement in which it is stated that appellant is a member of the Brotherhood of Locomotive Firemen and Enginemen, a railroad organization with a constitution, laws, rules and regulations and officers who possess authority to represent the members of the organization when disputes arise between such members or such members and the organization, or between the railroads and such organization or the members thereof; that the constitution of the organization, among other things, provides for grievance committees and other tribunals which have been created by the Brotherhood to adjust differences and establish and interpret rules of seniority; that each member agrees to abide by the constitution and laws and interpretations and decisions of such committees and tribunals when against him unless an appeal is prosecuted from such decision to the appellate tribunal of last resort, all of which, together with the procedure therefor, is set out in detail and each member when he joins the organization is inhibited from resorting to the civil courts of the country until the grievance alleged is finally determined by the appellate tribunal having final jurisdiction of the complaint. The railroads also alleged that on May 1, 1925, a schedule of rules and rates for firemen and enginemen were adopted and which are still in effect and disclose that the rights of any engineer or fireman are to be determined by the regularly constituted committees of his organization; that appellant failed to comply with the provisions of such contract and have his alleged grievances so decided, and article 23, section E of such schedule, says: "No consideration will be given to grievances not presented in writing within thirty days of the occurrence." The railroads also contend that appellant failed to join in his suit some parties indispensable to the litigation.

The individual appellees filed their pleas in abatement urging misjoinder of causes of action in that some of them were members of the Brotherhood of Locomotive Engineers and others were members of the Brotherhood of Locomotive Firemen and Enginemen. They also presented a plea of misjoinder of indispensable parties for the reason that other members of the Brotherhoods not parties would be affected by the decision in this case. They pleaded the failure of appellant either as an individual or through the Brotherhoods to exhaust the remedies available to him in the constitution, laws and regulations of such Brotherhoods for the determination of the seniority rights he urges in this suit. These appellees further assert that appellant as a member of the public, independent of his relationship to such Brotherhoods, is not authorized to maintain this suit.

To the pleas in abatement the appellant filed a supplemental pleading stating that since the Brotherhoods are not parties the constitution and laws thereof are immaterial; that he is not bound by the constitution of the Brotherhood of Locomotive Engineers because not a member thereof and that the Brotherhood of Locomotive Firemen and Enginemen of which he is a member had obtained a final decision from the general grievance committee in his behalf from which there is no appeal and appellant was thereby, together with other employees so situated, entitled to enforce his seniority rights in the courts.

On a hearing had on December 22, 1938, at a regular term of the District Court of Potter County the pleas in abatement urged by the railroads and the pleas of the individual appellees were sustained, the appellant refused to amend and his suit was dismissed, from which judgment this appeal is prosecuted.

The appellant admitted in oral argument before the court that if he had not obtained a decision from the tribunal of last resort finally concluding the controversy that the pleas of abatement should be sustained by the court; however, his position is that the record shows without dispute that the general grievance committee of the Brotherhood of Locomotive Firemen and Enginemen is the highest appellate authority on the question of his seniority and said committee had determined that the members of the local lodge at Amarillo, which we shall hereafter designate as Lodge No. 325, was entitled to perform 100% of the work on the A. C. R. Line by virtue of their seniority rights. He bases this contention on the language in a section of the constitution which creates the authority and jurisdiction of the general grievance committee of such Brotherhood. The provisions of the constitution and laws of the Brotherhood of Locomotive Firemen and Enginemen herein quoted are from the constitution and laws dated 1938 but are also contained in all the preceding constitutions and laws covering the time involved in this controversy. Subdivisions (a) and (b) of section 8, article 14, found on page 193 of the 1938 constitution, read as follows:

"Sec. 8 (a) General grievance committees shall have authority to make and interpret agreements with representatives of railway companies concerning rates of wages, rules respecting seniority rights, adjustments of grievances and other matters necessary in the interest of the members they represent. When the general grievance committee is not in session, the general chairman has authority to interpret the schedule.

"(b) General grievance committees shall have authority on their respective lines to regulate mileage in accordance with the policies of the organization for all employes in the class, or classes, of service over which they have jurisdiction. They shall also have complete jurisdiction over all matters of seniority and assignment to runs."

The appellees contend that the decision of the general grievance committee is not final and rely on other provisions of the same constitution to show that the right of appeal exists.

Determination of appellant's contention as to the final jurisdiction of the grievance committee should be approached and considered in connection with the following provisions of the constitution. Under the title "Appeals" article 18, page 258, et seq., and the subdivision designated "From Decisions on Grievances" are the following provisions:

"Sec. 4. (a) A member may appeal from a decision by the local grievance committee or its chairman, to his lodge. * * *

"(b) A member may appeal * * * from the decisions of his lodge to the chairman of the general grievance committee.

* * * * * *

"(d) A member may appeal from the decision of the chairman of the general grievance committee to the executive committee or to the general grievance committee, and may appeal from...