Evans v. Louisville Nashville R. Co. , 191 Ga. 395 ( 1940 )

1. The Federal railway-labor act does not vest in the National Railroad Adjustment Board exclusive jurisdiction to determine seniority rights of employees of a railroad under a collective-bargaining contract, or provide such administrative remedies as must be exhausted by the complaining employees before bringing action in the courts to enforce their rights thereunder.

2. Seniority rights provided for under a collective-bargaining agreement between a railroad and its employees will in proper case be protected by injunction in a court of equity.

3. A suit by engineers of a railroad against railroad and another engineer, to enjoin the railroad from according to a defendant engineer seniority rights prior to those of plaintiffs, stated no cause of action, and was properly dismissed on demurrer.

No. 13279. DECEMBER 5, 1940. Four employees of the Georgia Railroad brought a petition against the lessee railroads operating it, their agents in charge, and West, an engineer employee. One of the plaintiffs, on his motion since the case appeared here, and by consent of all parties, has been stricken as a party. The plaintiffs prayed for an injunction against carrying the name of West on the engineers' working board ahead of the names of plaintiffs, from publishing his name on the seniority roster ahead of their names, and against the operation of an engine by West, as an engineer, ahead of such right of operation by the plaintiffs. The court dismissed the action on general and special demurrers, and the plaintiffs excepted.

The plaintiffs made substantially the following allegations: On August 15, 1920, West was hired as a locomotive engineer, and served until December of that year, when he was laid off or furloughed in a reduction of the number of engineers because of a decrease in railroad traffic. The employment of West was under a collective-bargaining agreement between the railroad and by or for its engineers and firemen, known as a schedule, and controlling the employment, classification, seniority, furlough, promotion, and working conditions of these employees. The rights of the parties depend upon a construction of certain provisions of this contract. The railroad published, by posting, lists or rosters of its engineers and firemen, on which the positions of these employees determined their priority as to certain privileges of employment and operation of runs or engines. The name of West, as a hired locomotive engineer, thus appeared on a posted engineers' roster with his seniority fixed as of August 15, 1920, the date of his employment; his name was carried on this roster until sometime in 1923, when it was omitted; and West was not again employed until May, 1937. The traffic of the railroad increased to such an extent that in 1924 the services of additional locomotive engineers and firemen were required. When West did not "return to work during or about May, 1924, and on several occasions thereafter when his services were required, and his services were so required in May, June, and July, 1924, and in the same months of each year thereafter through 1936, the defendant company proceeded to promote your petitioners and others as . . senior qualified firemen to the status of engineers . . in accordance with the aforesaid agreement;" such promotions of two of the plaintiffs being in 1936 and of the other plaintiff in 1938, and being posted; their respective seniorities being fixed according to those dates. West did not protest the omission of his name from the engineers' rosters since 1923, or challenge the promotions of the plaintiffs or the positions of seniority to which they were assigned on the engineers' roster; and by reason of such omission and failures by West to present himself for re-employment when "required" as stated, and to protest or challenge the actions and rosters of the railroad company with respect to the plaintiffs, he lost his seniority rights so far as their rights were concerned, and therefore, when he was again employed in May, 1937, his rights were subordinate to theirs, and the company violated the rights of plaintiffs under the collective-bargaining contract in placing him again on the engineers' seniority list or roster as of the date of his 1920 employment, ahead of their names and with priority privileges ahead of their own.

Pertinent portions of the contract or schedule are as follows:

"Article XXII . . (j) . . When, from any cause, it becomes necessary to reduce the number of engineers on the engineers' working lists on any seniority district, those taken off, if they so elect, displace any fireman their junior on that seniority district, under the following conditions: 1st. That no reductions will be made so long as those in assigned or extra passenger service are earning the equivalent of 4000 miles per month; in assigned pool or chain gang freight or other service paying freight rates, are averaging the equivalent of 3200 miles per month; on the road extra list are averaging the equivalent of 2600 miles per month, or those on the extra list in switching service are averaging 26 days per month. 2nd. That when reductions are made, they shall be in reverse order of seniority. When hired engineers are laid off on account of reduction in service, they will retain seniority rights; provided they return to actual service within 30 days from the date their services are required. This rule also applies to firemen. Engineers taken off under this rule shall be returned to service as engineers in the order of their seniority as engineers, and as soon as it can be shown that engineers in assigned or extra passenger service can earn equivalent to 4800 miles per month; in assigned, pooled, chain gang or other regular service paying freight rates, the equivalent of 3800 miles per month, or in extra service the equivalent of 3800 miles per month. In the regulation of passenger or other assigned service, sufficient men will be assigned to keep the mileage, or equivalent thereof, within the limitation of 4000 and 4800 miles for passenger service, and 3200 and 3800 miles for other regular service as provided herein. If, in any service, additional assignments would reduce earnings below these limits, regulations will be effected by requiring the regular assigned man, or men, to pay off when the equivalent of 4800 miles in passenger, or 3800 miles in other regular service, has been reached. Under this rule, it is understood that after all engineers who have been taken off have been returned to service as engineers, this rule shall not apply with respect to further additions. . . (k) When vacancies occur, or new runs are inaugurated, they shall be bulletined on all boards for a period of 6 days. The oldest engineer and fireman in point of service will be entitled to go on such runs. (1) An engineer or fireman deprived of his regular run, for any cause, shall take a run within 15 days, if entitled to one, or remain on the extra board until another run of his choice is open. . .

"Article XXIII. . . (a) Preference in assignment shall be given to engineers, firemen, and hostlers who have been longest in the service, provided they are, in the judgment of the proper officers of the railroad, equal in merit, capacity, and qualification to other men in the service. . . (e) 1. Firemen shall rank on the firemen's roster from the date of their first service as firemen when called for such service except as provided in section 11, and, when qualified, shall be promoted to positions as engineers in accordance with the following rules:

"2. Firemen shall be examined for promotion according to seniority on the firemen's roster, and those passing the required examination shall be given certificates of qualification, and, when promoted, shall hold their same relative standing in the service to which assigned. . .

"4. As soon as a fireman is promoted, he will be notified in writing by the proper official of the company of the date of his promotion; and unless he files a written protest within 60 days against such date, he can not thereafter have it changed. When a date of promotion has been established in accordance with regulations, such date shall be posted; and if not challenged in writing within 60 days after such posting, no protest against such date shall afterwards be heard. . .

"6. The posting of notice of seniority rank, as per section 4, shall be done within 10 days after following date of promotion, and such notice shall be posted on every bulletin board of the seniority district on which the man holds rank.

"7. Firemen having successfully passed qualifying examination shall be eligible as engineers. Promotion and the establishment of a date of seniority as engineer, as provided herein, shall date from the first service as engineer when called for such service, provided there are no demoted engineers back firing. No demoted engineer will be permitted to hold a run as fireman on any seniority district while a junior engineer is working on the engineers' extra list, or holding a regular assignment as engineer on such seniority district. . .

"9. If the engineer to be hired is not available when needed, and the senior qualified fireman is promoted, the date of seniority thus established shall fix the standing of the hired engineer, who, if available and qualified within 30 days from date senior qualified fireman is promoted, will rank immediately ahead of the promoted fireman. The promoted fireman will retain his date of seniority as engineer, and will be counted in proportion of promotions. . .

"11. The seniority date of the hired engineer shall be the date of his first service, except as provided in sections 3, 9, and 10 of this article. . .

"Article XXVIII. . . The right of any engineer, fireman, or hostler to have the regularly constituted committee of his organization represent him in the handling of his grievances, under the recognized interpretation placed upon the schedule involved by the officials of the company and the general committee making the same, is conceded; provided, when a member of either organization has a grievance, which the local committee of his organization is unable to adjust with the local officers of the company, the matter shall be handled by the two general chairmen, who shall work jointly in handling such grievance to its final conclusion."

In sustaining the demurrers to the petition, the judge of the superior court held, in substance, that unless West lost his seniority in one of the ways provided in the contract, he was senior to the plaintiffs, because his seniority date, fixed as of the time of his employment, August 15, 1930, was earlier than that of any plaintiff, fixed as of the date of promotion from fireman to engineer; that under the terms of the contract, hired engineers, when laid off or furloughed, retained their seniority, and West retained such seniority, provided he returned to work within thirty days after the railroad company notified him that it had need of his services, and the petition did not allege such notice and failure to return. As to the alleged acquisition of superior seniority by the plaintiffs from the posting of seniority lists following their promotions, and from the omission of West's name from seniority lists, the court held that when West was hired, his name and seniority date was posted as provided by the contract and were not modified by the subsequent promotions and postings of the plaintiffs or by his failure to challenge such promotions and seniority; that the contract did not require a continuous posting of the seniority dates of hired or employed engineers, which were fixed by the date of their first run; that there was nothing for him to protest in the hiring or promotion of other persons to engineers, because he had no control of the number of engineers who might be hired or promoted, and had no ground for complaint unless an attempt had been made to give these men a seniority date earlier than his own; that West was on furlough when the plaintiffs were promoted and their names posted, and it was not alleged that he had any notice thereof, and he was under no city to act, both because the contract provided that he retain his seniority rights and because he had no form of notice. 1. One of the points presented by counsel for defendants in error in support of the judgment is that the superior court has no jurisdiction to determine the relative seniority rights of contesting engineers of a railroad company, under a collective-bargaining contract between engineers and firemen and such company, by virtue of the provisions of the Federal railway-labor act as amended. 45 U.S.C.A. § 153 et seq. This act established a board to be known as the National Railroad Adjustment Board, and provided that one of the divisions of this board should have jurisdiction over disputes involving engineers, firemen, hostlers, etc. It was further provided that "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 be handled in the usual manner up 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 parties, or by either party, to the appropriate division of the adjustment board, with a full statement of the facts and all supporting data bearing upon the disputes." It is contended, under this provision, that the National Railroad Adjustment Board is vested with exclusive jurisdiction of disputes between employees and the carrier as to seniority rights, or at least that the complaining employee or employees must, before resorting to the courts, first exhaust the remedies afforded by this provision. This contention is untenable. The present action is one to enforce certain alleged rights under a contract, and does not involve or arise out of any order of the National Railroad Adjustment Board, and the above provision does not purport in such case to prevent recourse to the courts in the first instance. In Illinois Central R. Co. v. Moore (C.C.A.), 112 F.2d 959 (12, 13), 965, 966, Judge Sibley in delivering the opinion said, on this point: "The plea that suit may not be filed without recourse to the adjustment board is without merit. The adjustment board may settle the disputes of the individual employee as well as those of the group, 45 U.S.C.A. § 153 (i): as may the mediation board, 45 U.S.C.A. § 155 (1). The section first cited says that a dispute `shall be handled in the usual manner up to and including the chief operating officer of the carrier,' and then it `may be referred' to the adjustment board. The permission to go to the adjustment board does not exclude direct recourse to the courts." See Bell v. Western Railway of Alabama, 228 Ala. 328 (153 So. 434). Decisions to the effect that a failure to invoke administrative remedies before the Interstate Commerce Commission or other Federal administrative boards precluded or rendered premature a resort to the courts were based upon statutes which by express terms or necessary implication gave to the administrative board exclusive jurisdiction or made the exhaustion of administrative remedies a condition precedent to judicial action. See U.S. v. Illinois Central R. Co., 291 U.S. 457 (54 Sup. Ct. 471, 78 L. ed. 909); Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41 (58 Sup. Ct. 459, 82 L. ed. 638). 51 Harvard Law Review, 1254, 1260, where many of the cases on the subject are discussed.

2. Rights of seniority, given under a collective-bargaining contract between a railroad company and its employees, are such property rights as will, in a proper case, be protected by injunctive relief in a court of equity (O'Jay Spread Co. v.Hicks, 185 Ga. 507, 512, 195 S.E. 564; Gregg v. Starks,188 Ky. 834, 224 S.W. 459; Gleason v. Thomas, 117 W. Va. 550,186 S.E. 304; Grand International Brotherhood of Locomotive Engineers v. Mills, 43 Ariz. 379, 31 P.2d 971); and where one is employed by a railroad company under a collective-bargaining contract made by the company and representatives of its employees in behalf of all, and alleged seniority rights of the person thus employed are antagonistic to those claimed by other employees, the latter have such an interest in the contract as will authorize a suit thereon, if in fact their rights under the contract have been infringed. O'JaySpread Co. v. Hicks, supra. See also Carruth v. AEtna LifeInsurance Co., 157 Ga. 608 (122 S.E. 226).

3. We come now to what appears to be the controlling point in the case, that is, the proper construction of the terms of the contract. By the express terms of the collective-bargaining contract, under which the defendant was employed by the railroad company as an engineer in August, 1920, furloughed in December, 1920, and returned to service in May, 1937, his seniority was fixed as of the date of first employment, and preceded the seniorities of the plaintiffs, whose promotions from firemen to engineers occurred at later dates. The defendant did not lose his seniority and right of working thereunder by furlough or otherwise, unless it has been forfeited under other provisions of the contract. The contract provided that "when hired engineers are laid off on account of reduction in service [as the defendant was], they will retain seniority rights, provided they return to actual service within 30 days from the date their services arerequired;" and that "engineers taken off under this rule shallbe returned to service as engineers in the order of their seniority as engineers, and as soon as it can be shown that engineers in assigned or extra passenger service can earn equivalent to 4800 miles per month," or stated lesser mileages in two other kinds of service. The petition alleged that on many dates since the defendant West was furloughed in 1920 the business of the railroad has been such as to require his services, and that he did not return to service within thirty days from such dates. It is contended that, this being true, his original seniority date became forfeited as against these plaintiffs under the terms of the provision of the contract first above quoted. These provisions as to the return of the engineer to work when his services were required and when the traffic conditions improved, as stated, properly construed, were not in our opinion automatic or self-executing, so as to require him constantly to familiarize himself with the records and situation of the railroad, and without any notice from the railroad company, or even actual knowledge on his part of changed traffic conditions, to present himself at any and all times to the company for reemployment, assume the burden of showing that the changed conditions would permit him to earn mileages as stated, and be ready for duty within thirty days thereafter, even though the improved traffic conditions might meanwhile decline. Such a strained construction of the contract is obviated by the express language, "be returned to service . . in the order of their seniority," as well as by the words "as soon as it can beshown" that the particular stated traffic improvements have occurred, with which no furloughed employee could reasonably be bound to keep familiar. The provision in question is one providing for a forfeiture of the vested right of a hired engineer who has been furloughed to his seniority date and all rights accruing thereunder, and it should be construed strictly in his favor and against those who assert thereunder that as to them a forfeiture of the right to work under his original seniority date has occurred. Accordingly, under the views expressed, the mere facts alleged, that the defendant engineer did not so present himself for service, even though conditions might have so improved, as alleged, as to render his return to service proper, and even though he was not re-employed until many years later, did not cause a loss of his seniority, which was fixed by the contract as of the date of original employment, where upon the first notice or order from the company to report for work as engineer he complied therewith. Nor do we think that the contract makes a retention of his seniority dependent on the continued publication of his name and date of employment on the engineers' seniority lists or rosters on bulletin boards of the company, after their first publication and throughout his furlough.

While it appears that the plaintiffs had been promoted from firemen to engineers and their seniority dates fixed by the dates of their promotion as provided in the contract, and that the defendant did not challenge the engineers' seniority lists or rosters in which their names and such dates appeared, and from which his name and prior seniority date were omitted, this did not cause the defendant to lose his seniority as against the seniorities of the plaintiffs. This is true for the reason that, the defendant's prior seniority having become fixed unless lost under the express provisions of the contract as stated, no duty was imposed upon him to follow the postings of subsequent lists or rosters containing other names and dates, even though his own might have been omitted; and for the additional reason that no notice or knowledge on the part of the defendant as to such postings of the seniorities of the plaintiffs and of the omission of his own seniority from such lists, at a time when he was on furlough, is shown. Under the views expressed the court properly held that the seniority of the defendant engineer preceded the seniorities of the plaintiffs, and should not be disturbed by injunction; and properly dismissed the action on general demurrer.

Judgment affirmed. All the Justices concur.