Wilburn v. Missouri-Kansas-Texas R. Co. of Tex.

• Decision Date: 22 January 1954
• Docket Number: MISSOURI-KANSAS-TEXAS,No. 14754,14754
• Citation: 268 S.W.2d 726
• Parties: WILBURN v.R. CO. OF TEXAS.
• Court: Texas Court of Appeals

Page 726

268 S.W.2d 726

WILBURN v. MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS.

No. 14754.

Court of Civil Appeals of Texas, Dallas.

Jan. 22, 1954.

On Rehearing May 14, 1954.

Johannes & Kelsoe and Paul M. Thorp, Dallas, for appellant.

G. H. Penland, M. E. Clinton and Touchstone, Watson & Watson and O. O. Touchstone, Dallas, for appellee.

YOUNG, Justice.

The suit in trial court was for damages following an alleged wrongful discharge by his former employer, a railroad company referred to herein as defendant or appellee; the latter contending by plea in abatement that the matters in controversy involved solely a construction or interpretation of the Collective Bargaining Agreement in existence at all material dates between plaintiff through his Labor Union and defendant Railway, over which the National Railroad Adjustment Board had exclusive jurisdiction, 45 U.S.C.A. § 153. After argument on the pleading, defendant's said plea was sustained by the court and cause accordingly dismissed for want of jurisdiction, with this appeal in consequence.

In so far as possible, the facts reflected in pleading of the respective parties will be summarized. Plaintiff first alleged that: 'Plaintiff would show that on or about August 11, 1951, he reported to the roundhouse of Defendant in Dallas, Texas, to resume his duties as a Fireman for Defendant. There he was told it would be necessary for him to obtain a physical examination and was told to see Dr. Mark Welsh to get his examination. Plaintiff shows the Court that on or after August 11, 1951, and before August 16, 1951, he reported to Dr. Welsh at his office in Dallas, Texas, and that Dr. Welsh then and there told Plaintiff that he would not allow Plaintiff to go back to work in any capacity whatsoever for the said Defendant.' Continuing, plaintiff alleged that in accordance with the Collective Bargaining Agreement between the railroad and his former Union, he requested in writing through his Union representative that a further examination be given him, to which procedure he was entitled as a matter of right from the adverse finding of Dr. Welsh; such re-examination as contained in the Bargaining Agreement providing for a Board of Doctors comprised of his own representative, a doctor selected by the Railroad, and in case no agreement be reached by the two, a neutral doctor of recognized standing was to be agreed upon by the partisan doctors; the Board then proceeding to affirm or disaffirm the original finding of disqualification for physical disability; and if the initial disqualification be found improper, a re-instatement would follow with back pay. Plaintiff then alleged a fulfillment of all requirements of the Agreement entitling him to the further examination, his willingness to abide by and perform the contract, and tender of performance; that at such point defendant had wrongfully and unqualifiedly refused to comply with its part of the bargaining contract, or to be a party to the mentioned examination; that is, to appoint a member of the Board of Doctors or do anything further in ascertainment of plaintiff's true physical condition; this wrongful and arbitrary conduct constituting a breach of the agreement and resulting in his wrongful discharge on or about August 15, 1951.

Plaintiff alleged alternatively that defendant's said refusal to provide a re-examination was also a breach of the Agreement, Rule 81(a), which reads: '(a) No fireman or hostler will be suspended or discharged or unfavorable entries made against his record without just and sufficient cause and without being given an investigation; and in case a fireman or hostler is taken off his engine or run, he shall be given a hearing within five days from the time he is taken off. * * *' Plaintiff's suit was for damages assertedly arising from a breach of the employment contract as distinguished from an action for specific performance; his petition refuting any assumption or theory of an existent employer-employee relationship.

Defendant's amended plea in abatement alleged in part that: 'Plaintiff, H. I. Wilburn, entered the service of the defendant, Missouri-Kansas-Texas Railroad Company of Texas, as a fireman, on March 17, 1945, after passing a physical examination on February 12, 1945. He was removed from service on August 30, 1945, due to reduction in force. He was re-employed as a fireman on June 10, 1948, after passing a physical examination on June 9, 1948. He was relieved from active duty in October, 1949, at his request, on account of illness. He received medical treatment in November and December, 1949, and in January, 1950. He was re-examined in January, 1950, under said defendant's regulations and requirements governing physical examinations, Form 296, of July 1, 1944, and, as a result of such re-examination was disqualified and removed from service as a fireman in February, 1950. Notice of such disqualification and removal was given plaintiff, H. I. Wilburn, in February, 1950.' As in denial of plaintiff's charges of breach of the bargaining contract, defendant's affirmative allegations appear to be: (1) That the agreement providing for appeal to a medical Board from an adverse physical examination by the Company doctor did not apply to plaintiff, said agreement becoming effective April 1, 1950, whereas the disqualification of plaintiff because of physical disability and consequent removal from service occurred in February, 1950; furthermore, that plaintiff was not entitled to the benefits of said agreement because no request for further examination, as provided therein, was made in writing by plaintiff or his representative within thirty days after notice of said disqualification and removal; and (2) that the regulations of defendant Company governing physical examination, Form 296, of July 1, 1944, were in effect, and applicable to plaintiff, at time he was disqualified for service, same providing in part: 'Where an employe feels that he has been unjustly denied return to service on account of physical examination he will have the right to another examination with his representative and physician of his choice present'; that plaintiff had never protested his disqualification and removal from service in February 1950, and has never requested the additional examination provided for in the regulation just quoted; the whole effect of defensive allegations being that, if the Company be mistaken in the foregoing procedure, the National Railroad Adjustment Board, First Division, is the only body authorized to determine whether plaintiff was entitled to a Board re-examination, and to issue the 'proper directive in regard thereto in the event it is determined that a re-examination has been unjustifiably refused by the defendant.' Appellee also pled that Rule 81(a) interposed by plaintiff related solely to disciplinary measures involving violation of railroad regulations and was never intended to apply to a removal from service for physical disability. Plaintiff answered defendant's plea in abatement in supplemental pleading consisting of exceptions, denials, and further matters of fact. Here it should be noted that after judgment dismissing the cause, each party filed a motion for findings and conclusions of law; defendant's findings being approved except that the court refused to find as a matter of law 'that plaintiff's cause of action is not one for wrongful discharge.'

Appellant's points of appeal are sufficiently reflected in the following: The court's error (point 2) 'in refusing to conclude that appellant's original petition on its face showed as a matter of law that it was an action for wrongful discharge' (point 3) 'in concluding as a matter of law that appellant's petition on its face required such construction, interpretation and application of the Collective Bargaining Agreement between the Railroad and appellant's former Union so as to deprive the District Court of jurisdiction to hear such cause', perforce of the Railway Labor Act, Title 45 U.S.C.A. § 151 et seq. In answer thereto, defensive counter points 1 and 2 may be stated: (1) 'Plaintiff's pleading asserted a grievance or complaint over which the National Railroad Labor Adjustment Board has exclusive original jurisdiction; therefore, the action of the trial court in dismissing plaintiff's cause for want of jurisdiction was proper. (2) Plaintiff's pleading reflecting on its face that the alleged grievance or cause was not one for wrongful discharge, the trial court was correct in refusing to sustain plaintiff's contention that such action was one for wrongful discharge.'

It is well settled that the Railway Labor Act, 45 U.S.C.A. § 151 et seq., was passed by Congress for the express purpose of preempting the filed in the settlement of constant and recurring disputes or grievances arising between employees and railroads over the rights of workers; expressed in section 151a subd. (5), as follows: 'To provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions. May 20, 1926, c. 347, § 2, as added June 21, 1934, c. 691, § 2, 48 Stat. 1186.' To effectuate such purpose and vest exclusive jurisliction in a proper tribunal, Congress proceeded to create the National Railroad Adjustment Board for settlement of these disputes and grievances; 45 U.S.C.A. § 153(i), First Division, reading: '(i) The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on June 21, 1934, shall behandled in the usual manner upon to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the...