*1 GRAND BROTHER INTERNATIONAL
HOOD OF ENGINEERS LOCOMOTIVE
et al. v. MARSHALL et al.
No. 2076. Appeals Texas. Waco.
Court Civil 9, 1938.
June
Rehearing July in Part 1938. Granted Sept.
Rehearing 29, 1938. Denied *2 tо seniority right in the acquired certain on the trains passenger engines man the company division between its of said on The evidence Teague. Waxahachie and Trinity- Brazos & further .shows into Valley Railway Company went was and in 1930 it of a receiver hands Burlington- merged into or absorbed plain- Railway Company and Island Rock com- thereby employeesof that tiffs pany. became Baker, .Harris & Thompson, Knight, thereafter, Chicago, Shortly Dallas, Willis, Wright and Hart J. Railway Company Rock Island & Gulf Ohio, Cleveland, Heiss, Harold C. and ran from Island), whose road (called Rock appellants. for who held Fort Worth to Dallas and Houston, L. W. and Golding, A. B. M. operate lease to trains Groesbeck, appellees. Shepperd, for to railway from K. & line Dallas T. Waxahachie, Is- Burlington-Rock and the ALEXANDER, Justice. Railway ran Company, whose road land brought Walter Mar- This suit was Hous- through Teague from to In- Strong against L. shall and R. joint agreement entered into a traffic ton of Locomotive ternational Brotherhood transportation freight over for . parties not Engineers and certain other through Worth said roads from Fort enjoin necessary to be here mentioned to Teague On Dallas and Houston. Jan- interfering with sаid plaintiffs’ uary 16, 1933, Brotherhood of Loco- seniority alleged rail- as conjunction Engineers, in motive way engineers engines passenger man’all and Firemen Brotherhood of Locomotive operating the line south Railway Enginemen, Con- the Order Railway Burlington-Rock Island Railway Train- and Brotherhood of ductors men, through Company applied as to certain agreement entered an for into lines being run over the passenger trains employees apportionment among the Burlington-Rock the Rock Island and of Island from Fort Worth said railroads the work involved through Dallas operation route. of the trains over said evi- Teague. of the the conclusion At tjme regular through was At that passenger there no permanent granted court dence the trial route. service over said Said prayed. defendants injunction appealed. as however, apportioned agreеment, work operation any special involved substantially passenger over said route on Briefly stated, traffic are employees basis of Strong and two-thirds to Marshall these: Railway Company Búrlington-Rock Island Brother- are and have been members of the employees of the Engineers and one-third to hood of Locomotive arrangement ac- This was years. Rock Island. number of Said brotherhood an companies railway involved unincorporated voluntary cepted association of subject railway put but was engineers. purpose into effect Its and locomotive upon thirty party by either provide, among things, other cancellation days is to Rock Island Late bargaining part on the of its notice. the collective Burlington-Rock Island entered secure, regulate and and and members protect arrangement for the railway employees. new trаffic rights as into a passenger service railway companies operation of with the It contracts question from Fort route in and for and behalf of its members re- over the on Teague to Houston. via Dallas serves itself exclusive to Worth dispute Thereupon, arose between railway companies’ a new determine employees the Fort & Den- Worth employees shall man the trains the various Railway Company, solely City the Rock Is- engineers within this ver and it seniority rights among land and the brotherhood that pas- employees man the railway engineers recognized, regulated whose should gen- many question. Local protected. years prior senger For from four orders above Strong committees Marshall and had been em- eral mentioned, representing the ployed engineers Trinity on the & involved, Railway were unable Valley Company, and, roads Brazos the various was rеferred to agree and the matter under the had to temporary enjoining president, restraining order Engineer, or the Grand Chief agree- putting said En- said brotherhood from Locomotive of the Brotherhood of gineers, requiring said three ment into effect and further heads of the plaintiffs’ ex- respeсt The brotherhood for decision. orders above mentioned heads of said orders *3 engines representa- passenger clusive appointed all through report said and over route from investigate the matter tives to recommendations, effect Teague. injunction had the Said facts, with their the ap- of and preventing further consideration Hedges was a pointed O. K. decision. One by brother- the president of the determination of said matter represent the hood, and, further consequence, no Engineers. as a Locomotive Brotherhood of time taken at the developed that the action had been therein Upon investigation, it herein. final was rendered question ran Fort Worth route in from Dallas, thirty-four miles a of distance to over undisputed plaintiffs It is the that which the line over Rock Island the con are members of and subscribers to the company superior had employees of that by-laws stitution and of said brotherhood Waxahachie, a rights, Dallas to from they seniority rights and that whatever thirty a line leased miles over distance of and enjoy brotherhood emanate said T. by Railway M. K. & Rock Island from the the exclusively by virtue secured them are of the portiоn Company, which of by membership and not their therein territory, as neutral route was treated any and virtue of between them contract Teague, a dis- and from railway any companies of the various Bur- sixty-seven over the miles tance railway employees mentioned. The various which and over lington-Rock Island line involved, by joining the brother here employees company had su- the of that thereof, accepting hood the benefits and employees Fort perior rights. of the The thereby subjected rea themselves to all City Railway Company Worth & Denver regulations and the sonablе rules that portion because a of the work claimed company jur brotherhood as within the to matters operated Rock thereof, by its isdiction and are bound Dallas under from Fort Worth Island long decisions therein so such decisions as proper hearing After a a contract. lease thereof, in are and not accordance with the them, report by by investigators and a said illegal. otherwise the Engineer of Brother- said Grand Chief provide, The rules the brotherhood Engineers, in con- hood of Locomotive part, as follows: the junction with the heads of three juris- question of 35(a) When a “Sec. mentioned, de- rendered a unions above seniority territory be- or arises diction 19, 1937, the May apportioning cision on or two the members themselves or tween said operation of work incident to amicably be cannot more Divisions that by allotting to through passenger service Divisions, question by adjusted shall, such one- Island employees Rock of the premises, with all Burling- employees of the third and to the Committee referred General be em- two-thirds. Island ton-Rock ployees on matter Adjustment who shall rule Denver & the Fort Worth law, sub- ruling shall as a such stand any Railway Company denied City appeal per ject to as 28 of Section ac- Said decision was portion thereof. Standing Rules. companies ques- cepted by the railroad by put any effect bulletin into tion and ordered But railroad or “(b) wherever one plaintiffs 26, August absorbed, diverted, 1937. portion of date is traffic cоn- decision, con- solidated, dissatisfied said merged, were tending or leased co-ordinated seniority rights railroad, of the engineers that or with another byv employees not any portion Island had there- road or roads'or on the They immediately properly preserved. thereby, of, shall beеn retain their affected protest heretofore, notified the seniority, on rights entered president, absorbed, diverted, Engineer, or con- Chief roads traffic leased, Engineers, solidated, merged, or co-ordinated Brotherhood of Locomotive the of rehearing necessary readjust thеreon. their desire when it becomes but the service of the affected, appointed representative roads the runs president Said matter, engineers of re- reinvestigate but before be manned shall proportion as near as spective roads investigation could be conducted or said mileage run determined, practicable on rehearing question of a road, policy territory being the of each it plaintiffs suit and secured instituted this
9H the the when, who were organization of the and those of Burlington-Rock railway leas- consolidation, merging, absorbing, involved, as to companies ing, the diversion or co-ordination por- engines engineers districts, should man railroads, or of or traffic tions route, newly was matter the well to runs established thereof, where the jurisdiction the brother- within affected, Com- engineers General May the hood. decision representing After the Adjustment mittеe indicated, thirty apportioning work above within engineers shall meet involved president agreed applied to days mutually unless further time sought upon the agree upon by .for Committees rehearing could question. relief in the before a proper courts adjustment connection, be In this *4 cоncluded. un- “(c) When General Committees K.O. their Hedges, the said contention that since ques- agree upon of able settlement to a by appointed the been who had they foregoing arising tions covered the matter, was president reinvestigate the to forth setting joint will submit a statement previously made the same had same, all regarding their with contentions forming basis of the investigation the the premises, the facts in the to the Grand necessarily 1937, appear- May decision in it making a Engineer, Chief who after thor- prejudiced ed was so therefrom that he authorized, ough investigation, con- in repоrt, fair that he could not made have a Board, junction Advisory to with the and, consequence, as a would have been it sub- which shall be final render a decision report We futile for a from him. to wait ject appeal to the International to Grand carefully very have record examined thе Division.” any indicate and do not to find evidence By standing 94 of the of section possessed was of Hedges that such the said brotherhood, provided the was that a prejudice ren- that he could not have member of the brotherhood should not report dered fair in the matter. a resort to the сourts for relief refer- with previous mere fact he had made the that any controversy arising within ence to report necessarily disqualify him did not organization previously the ex- without to even .reinvestigate the matter. But hausting his all of remedies within the if it should not be concluded that he was brotherhood. quаlified investiga- individual make the to tion, necessarily it does not result that the generally accepted It is a rule in president not of the brotherhood would this as in as well states of the reinvestigated have or ascer- the matter joins union that one who beneficial tained the true from other sources association, such here under con and have rendered fair decision therein. sideration, accepts the law assents to Moreover, plaintiffs, in the event the impliedly himself binds order and the matter, president reopen the had refused to in the determina to abide its decisions aрpeal would have had a to society, arising disputes within the tion of Division, the triennial Grand International provision is in con and where made its* union, provided in convention by-laws within or for review stitution they 35(c), section such failed exhaust society rulings judgments remedy resorting to the court. before lodges, such of inferior officers its Having exhaust failed to their thus relief be exhausted before remedies must may brotherhood, they within remedies 5 sought in a court. be Tex.Jur. not entitled resort the courts for 430; 1364; 142; 5 7 6 C.J. Tex.Jur. relief. 112; Benefit Ass'n Screwmen’s v. C.J. 379; 552, Benson, 13 Saw 76 Tex. S.W. if it should conceded be that But 960; Teser, Tex.Civ.App., 235 tell S.W. v. failing in were not at fаult Sanford, K. Lodge Colored P. v. to exhaust their remedies within the 456; Tex.Civ.App., 289 S.W. Fraser v. brotherhood, they necessarily were not en Tex.Civ.App., 679; Buck, 234 Cris S.W. the decision set aside in titled to have Crum, N.W. 366; 115 Neb. 213 ler v. courts, was no for there evidence Twitchell, Henry v. Mass. 189 fraud, faith, oppression bad or N.E. 593. complained аppear ruling does not plaintiffs, illegal. The under be Under the facts of the here otherwise case had consideration, adjust the rules of the under matter of seniority rights pre- preserved the ing dispute between members of to have they were cannot viously regulate them while the decision earned undertake to Valley Trinity general purpose & Brazos within matters They Railway Company. en- were not such as is under here seniority consideration, titled, however, destroy to have such do so would very rights preserved purpose in the exact status order. There is nothing inequities road in the event this to indicate such in same section joint say or a decision merger that section of road authorize us to that the but, road, arrangement illegal with same is traffic as another and void. The trial court quoted, 35(b) provided granting section above was therefore in error equitable adjust- injunction subject complained same of. was acquired Having run. ment over the new judgment trial court is re- pro- light of such a injunction is versed and dissolved. vision, subject thereto. rights were such Rehearing. On Motion for disputed appears tire matter The trial of hearing, On the original accordance we re have been conducted of, Under of the brotherhood. versed and rendered the the rules of, complained members trial appellees In the decision the motion court. Railway suggest Com- case has been not *5 plaintiffs belonged, fully developed say we pany, cannot group to which conclusively the record required surrender their exclusive shows the con circumstances, trary. be man the trains over the route Under the duty Teague, comes our reverse and remand the a distance Waxahachie miles, sixty-seven rendering were cause for a new instead of in return trial appellants. Smith, Lanford two-thirds of v. allowed 593; Tex. entire 99 S.W.2d route from Fort Williams Co., Safety Casualty 129 Tex. v. Worth Accordingly, the judgment Teague, a distance of 131 miles. The S.W.2d 178. to value of the seniority rights previously reversed of cause remanded for a trial court appear Appel new by plaintiffs trial. to have been earned preserved lees’ motion is in readjusted all other to them respects equitable new on an basis. The courts overruled. run