Burger v. McCarthy

84 W. Va. 697 | W. Va. | 1919

■Williams, Judge:

■ This suit was brought in the circuit court of Summers -county by W. F. Burger, E. T. Miles and R. F. Beasley, railroad conductors residing in the City of Hinton, West Virginia, and employed by the Chesapeake & Ohio Railway Company, against T. J. McCarthy and thirteen others, constituting the General Grievance Committee of the Brotherhood of Bail-road Trainmen of the said Chesapeake & Ohio Bailway, for-the purpose of enjoining said General Grievance Committee from putting into operation by agreement with said Bail-way Company a new regulation affecting the right of preference acquired by plaintiffs under an old regulation respecting the same matter which had existed for a number of years, thus taking away from them a preference iff making runs - of passenger trains over certain districts or divisions of the railroad, acquired by them under the former regulation based on seniority of service.

The General Grievance Committee is the legislative body for the organization known as the Brotherhood of Bailroad Trainmen, and its jurisdiction extends throughout the length of the Chesapeake & Ohio Bailway Company’s lines. It is; made up from one member selected from the local committees of the several Brotherhood lodges, located at different places along the lines of the railroad, and is given power and authority by the constitution and by-laws of the Brotherhood to-make rules and regulations governing the members of the Brotherhood, and to contract with the Bailway Company in respect thereto. A temporary injunction was awarded, but on final hearing on the 14th of October, 1918, was dissolved, and plaintiffs’ bill dismissed, and from that decree plaintiffs have taken this appeal.

The new rule modifying the old one, the operation of which the bill seeks to enjoin, reads as follows:

“Paragraph 7. In Passenger Service — All Passenger trains that run over more than one freight district will be manned by the oldest man from either district oyer which the train runs; passenger trains that are confined to one freight district, .or run over a part or all of only one district ; shall be manned by men of that district; Branch lines will be manned by men from the freight district with, which they intersect, except Piney Creek, Loup Creek, Hawks Nest,. Powelton, Paint Creek, Cabin Creek, Laurel Creek, Keeney’s Creek and South Side Branches, which will be manned from New Biver and Kanawha Coa.1 District crews, this to mean all service performed on these branches. The forgoing not. to be operated west of Huntington. Crews, Baggagemen, Brakemen and Flagmen will not be run from one passenger division to another; nor will they be run through terminals,, where it is now being done. This agreement provides for further vacancies. Men now assigned' to passenger runs not. to be disturbed.”

The old rule on the same subject read as follows:

“Paragraph 7. Trainmen who have served the longest on any division or district of the road, shall if other things are equal be given preference to runs on that division or district; except that men assigned to any division prior to' July 1st, 1892, shall not be affected. •

The bill avers that plaintiffs have been in the railroad service from fifteen to eighteen years, having commenced as brakemen ,and worked up to the position of conductors, and have been members of the Brotherhood of Railroad Trainmen for thirteen years or more, and have thereby acquired property rights under the old rule or regulation, a right growing out of contract between themselves and their employer and, therefore, a sacred property right which the new rule, if put into operation, would destroy. It is seriously contended in brief of counsel that this right of seniority is a thing of value, that it is one of the cherished rights of railroad men, gained only by long and arduous years of service.

It is established by the evidence that the new regulation was adopted in the manner and by the body of representatives provided for by the constitution and by-laws of the Brotherhood of Railroad Trainmen. It was adopted by the General Grievance Committee at a meeting held in Cincinnati in September, 1917, by a vote of seven for, to 'six against it, after it had been submitted to, and approved by a vote of the members' of a majority of the local lodges of which", at the time the rule was submitted to them, to-wit, in 1914, there were ten, seven of said lodges voting for and two of them against said rule, one lodge not voting. Ten local lodges existed in 1917, and were represented on the General Grievance Committee which then consisted of thirteen members. After it had been adopted by the General Grievance Committee, Lodge No. 232, at Hinton, West Virginia, of which, plaintiffs are members, and Lodge No. 389, at Richmond, Virginia, applied to the Board of Directors of the Grand Lodge, located at Cleveland, Ohio, for an appeal from the action of the General Grievance Committee, according to the provisions of the constitution and by-laws of the order. After hearing and considering the complaint of said local lodges, the Board of Directors denied the appeal, and notified the lodges of its action. The constitution and by-laws of the order also provides for a further appeal to the Grand Lodge of the order, but no further appeal was taken. It appears that the action of any subordinate committee or board in the organization-, upon a matter over which it has jurisdiction, is conclusive upon all members of the Brotherhood until it is reversed by some higher authority within the order having appellate jurisdiction. Plaintiffs have not, therefore, pursued their remedies within the order to the full extent provided by its constitution and by-laws. They had a right to appeal from the Board of Directors to the Grand Lodge, but failed to do so. Plaintiffs should have exhausted the remedies provided in the constitution and by-laws of the Brotherhood before applying to a court for relief. Robinson v. Brotherhood of Railroad Trainmen, 80 W. Va. 567; and Simpson v. Grand International Brotherhood of Railroad Engineers, 98 S. E. 580, 83 W. Va. 355.

Presumably the action of the General Grievance Committee was for the general good of the Brotherhood, nothing ap* pears to the contrary. We are, furthermore, of the opinion that the old rule, giving preference in making runs of trains according to seniority, did not create a property right in plaintiffs such as to justify the interference by a court of equity to prevent the operation of the rule.

We affirm the decree of the circuit court.

Affirmed.