54 So. 2d 308 | Ala. | 1951
The original complaint filed in this cause consisted of one count, designated count one. The appellees separately demurred to this count. The demurrers were sustained by the court and thereafter from time to time the appellant added to his complaint additional counts designated respectively as counts A, B, C, D, E, and F. Count C was stricken on appellant's own motion. Demurrers were filed separately by the appellees to the other foregoing additional counts of the complaint. Demurrers were sustained to all of these counts and thereupon the plaintiff declined to plead further and took a nonsuit on account of adverse rulings on the pleadings. This appeal followed.
It appears from the allegations of each count that the plaintiff was employed by the Southern Railway Company, a corp., as clerk in Birmingham, Alabama, and there was in force and effect at the time an agreement between the defendant Southern Railway Company, a corporation, and the defendant Brotherhood of Railway Clerks, an unincorporated association, as bargaining agent for the clerical employees of the railroad company, under which said *204 contract the plaintiff had seniority rights with respect to his employment and was entitled to seniority over a number of employees of the railroad. It is alleged that the defendants combined, conspired, confederated and agreed together to cause the plaintiff to lose his seniority rights with the railroad and in the execution of the conspiracy the defendants wrongfully and maliciously caused the plaintiff to lose his seniority rights with the railroad with resulting damage, etc. While there is some variation in the allegations of the counts and greater detail is set forth in some counts than others, for the purposes of this appeal it can be understood that the gist of all counts is the allegation that the defendants conspired to deprive plaintiff of seniority rights to which he was allegedly entitled under a collective bargaining agreement between the appellees. An interpretation of the contract between the appellees is obviously necessary to determine whether or not plaintiff had and was actually deprived of seniority rights. The plaintiff made the contract a part, respectively, of all counts of the complaint except two and in those two counts reference is made to the provisions of the contract. However nowhere in any count is it alleged that appellant is no longer in the employment of the railroad. In no count is it alleged that appellant has exhausted the administrative remedies provided by the Railway Labor Act. Accordingly construing the pleading most strongly against the pleader, it must be assumed for the purpose of this appeal that the appellant is still in the employment of the Southern Railway Company and has not pursued the administrative remedies provided by the Railway Labor Act, 45 U.S.C.A. §§ 151-163.
There is, therefore, presented on this appeal the question of whether or not appellant, who is presently an employee of the railroad, can maintain an action in the courts for damages for loss of seniority rights, involving the interpretation of a bargaining agreement covering the future relations of appellant and the Southern Railway Company, until appellant has exhausted the administrative remedies provided by the Railway Labor Act. This question is presented by appropriate grounds of demurrer assigned separately and severally to all counts of the complaint.
The history and purposes of the Railway Labor Act have been recently reviewed and considered by the Supreme Court of the United States in the case of Slocum v. Delaware, L. W. R. Co.,
"The paramount importance of having these chosen representatives of railroads and unions adjust grievances and disputes was emphasized by our opinion in Order of R[y.] Conductors v. Pitney [
"Our holding here is not inconsistent with our holding in Moore v. Illinois Central R. Co.,
"We hold that the jurisdiction of the Board to adjust grievances and disputes of the type here involved is exclusive."
The same question was before the Supreme Court of the United States in Order of Railway Conductors of America v. Southern Railway Co.,
Courts other than the Supreme Court of the United States have recently had occasion to consider the question under discussion. We cite these decisions as follows: Brotherhood of Railroad Trainmen v. Texas P. Ry. Co., Tex.Civ.App.,
The case at bar clearly falls within the rule established in the Slocum and Southern Railway Company cases, supra. The appellant in this case while seeking damages only is still in the employment of the railroad and before damages can be awarded to him the existing bargaining agreement governing the class to which appellant belongs must be interpreted.
The authorities cited by the appellant are not in conflict with the view here expressed. In Moore v. Illinois Central R. Co.,
In Steele v. Louisville N. R. R. Co.,
It is suggested that appellant has no administrative remedies because the union neither would or could present the appellant's case before the National Railway Adjustment Board. There is no merit in the suggestion because the appellant could have pursued the administrative remedies either in person or by his attorney. "An extraneous matter not shown by the complaint upon which plaintiff places much reliance is his statement that his grievance over the course of the years had been frequently brought to the attention of the officers of his bargaining representative and because of their refusal to act in his behalf he was cut off from access to the Railroad Adjustment Board. This assertion, however, if it had been alleged would not have strengthened plaintiff's cause for the reason that his remedy was not dependent upon action by the agency which represented the employees but he was entitled either personally or by attorney to present his grievance to the Adjustment Board where all the parties interested in the dispute are entitled to notice, hearing and to participate. See Elgin, Joliet Eastern Railway Co., [Elgin, J. E. R. Co. v. Burley], supra, 325 U.S. [711] at pages 727 and 732,
The court acted correctly in sustaining the demurrers to the various counts of the complaint.
Affirmed.
LIVINGSTON, C. J., and BROWN and LAWSON, JJ., concur.