178 S.W.2d 729 | Tex. App. | 1944
This is a suit brought by appellant, J. R. McCombs, against appellee, Texas and New Orleans Railroad Company, for $2566.71, alleged to be due appellant as compensation for 2166 hours of overtime which appellant alleged he worked in the service of appellee and for which he had not been paid.
Appellant alleged that he was employed by, and worked for, appellee as agent and telegraph operator at appellee's station in Woodville, Tyler County, Texas, from May 1921 to May 6, 1940; that during the time of his employment there was in effect a general contract, known as the "Telegraphers' Agreement" between the Order of Railroad Telegraphers and the appellee, relating to this type of employment. Appellant alleged that he was, at all times material to the suit, a member of the Order of Railroad Telegraphers and worked under, and subject to, the terms of this general labor contract. Appellant alleged that during the time of his employment he worked all regular hours of eight hours per day and some overtime hours for which he had been paid, but that in addition to the time for which he had received payment he had also worked additional overtime to the extent of 2166 hours for which he was entitled to payment at the rate of $1.185 per hour.
Appellee interposed a plea in abatement, alleging in substance that under the terms of the general contract referred to by appellant, it was the duty of appellant, in the event he was aggrieved at appellee relative to his working condition or rate of pay, to pursue the method stipulated in the agreement for adjustment of his grievances; that he had wholly failed to pursue such method of adjustment of his grievances and that until he had done so he had no right to institute proceedings in a court of law.
Appellant specially pleaded that this is not a grievance case and not a suit for wrongful discharge, but is an action for wages under an employment contract. *730
A hearing was had on the plea in abatement, evidence was presented, whereupon the trial court sustained the plea in abatement and ordered the case abated and dismissed. The appeal, perfected to the Court of Civil Appeals for the Ninth Supreme Judicial District, has been transferred to this Court by the Supreme Court for determination.
The record reveals that appellant was employed by appellee in 1916, commenced working as agent for appellee in Woodville in 1921, and was relieved from service in 1940. By stipulation of counsel, only a part of the general agreement referred to is brought up in the record. The term "employee" is defined, the scope of the agreement is set out, the hours of service are designated, that is, regular time and overtime, and particular provisions in connection therewith as they apply to telegraphers are set forth. The part of the contract which is material to the disposition of this case, and on which appellee relies in support of the judgment sustaining the plea in abatement, is as follows:
"Article XI.
"Section 1. An employee disciplined, or who considers himself unjustly treated, shall have a fair and impartial hearing, provided, written request is presented to his immediate superior within five (5) days of the date of the advice of discipline and the hearing shall be granted within five (5) days thereafter.
"Section 2. A decision will be rendered within seven (7) days after completion of hearing. If an appeal is taken, it must be filed with the next higher official and a copy furnished the official whose decision is appealed, within five (5) days after date of decision. The hearing and decision on appeal shall be governed by the time limits of the preceding section.
"Section 3. At the hearing, or on the appeal, the employee may be assisted by a committee of employees, or by one or more duly accredited representatives.
"Section 4. The right of appeal by employees or representatives in regular order of succession and in the manner prescribed up to and inclusive of the highest official designated by the Company to whom appeals may be made, is hereby established.
"Section 5. An employee on request will be given a letter stating the cause of discipline. A transcript of the evidence taken at the investigation or on the appeal will be furnished on request to the employee or representative.
"Section 6. If the final decision decrees that charge against employee was not sustained, the record shall be cleared of the charge; if suspended or dismissed, employee will be returned to former position and compensated for the wage loss, if any is suffered.
"Section 7. Employees dissatisfied with the results of the investigation, as covered by this article, have the right, without prejudice, to appeal successively to the highest officer of the Company, vested with authority for handling such matter either in person or through the Order of Railroad Telegraphers."
Appellant contends that he was not obliged to seek relief under the method set up in the Labor Contract as a prerequisite to a suit in court for overtime pay for actual work performed as agent for appellee. We are of the opinion that this contention must be sustained.
It will be noted that appellant does not seek damages for wrongful discharge; that he does not seek reinstatement to his former position and compensation for wage loss as a result of suspension or discharge; that he does not seek restorement of any seniority rights; that he does not seek pay for time which he was not permitted to work; that he does not seek redress for any grievance concerning working conditions or alleged unjust discipline. He merely seeks payment for overtime which he alleges he has worked and for which he has not been paid.
With these observations in mind, we have reached the conclusion that the authorities cited by appellee do not sustain its position in this case on this point. At first blush, it would seem that the judgment of the trial court is squarely supported by the decision of the Court of Civil Appeals for the Sixth Supreme Judicial District of Texas in the case of Wyatt v. Kansas City Southern R. Co.,
In the case of Swilley v. Galveston, H. S. A. R. Co., Tex. Civ. App.
"In the Cousins Case, supra, which is directly in point on thequestions involved in this appeal, it is said by the court: `The doctrine is well settled that where the contract of employment provides, as in the instant case, that a discharged employee may appeal to designated tribunals, he is bound to pursue the contract remedy and cannot properly complain to a court for redress, unless and until he exhausts that remedy, and shows an effective appeal, entitling him toreinstatement and compensation for wages lost.'" (All emphasis is ours.)
Likewise, in St. Louis, B. M. R. Co. v. Booker, Tex. Civ. App.
The case of San Antonio A. P. R. Co. v. Collins, Tex.Com.App.,
But even if it be admitted that no such distinction exists, yet, in our opinion, the Supreme Court of the United States, in the case of Moore v. Illinois Central Railroad Company,
"But respondent says that there is another reason why the judgment in its favor should be sustained. This reason, according to respondent, is that both the District Court and the Circuit Court of Appeals erred in failing to hold that Moore's suit was prematurely brought because of his failure to exhaust the administrative remedies granted him by the Railway Labor Act (May 20, 1926)
The case went up from the Fifth Circuit. That the private collective agreement, as well as the Railway Labor Act, as amended,
"The provision in the collective agreement for a hearing before the carrier's officers, with appeal to the highest, is in line with the requirements of the statute, but neither it nor the statute intends to make the employer's adverse decision binding on the employee. The requirement that relief be sought up through the highest operating officer seems to be a prerequisite to an appeal to the Adjustment Board, but not to a suit in court."
See, also, Adams v. New York, C. St. L. R. Co., 7 Cir.,
If that be the rule in a case where wrongful discharge is alleged and damages or lost pay sought by reason thereof, then we can find no reason for a more stringent rule establishing a condition precedent to suit in the instant case where the action is only for pay alleged to be due for time actually worked, particularly where the contract in question does not expressly establish such procedure as a condition precedent to suit. As pointed out at the beginning, appellant is not seeking reinstatement in employment; he is not seeking pay for time he did not work; he is not seeking restorement of seniority rights; he is not seeking damages for wrongful discharge; he is seeking only one thing — pay for the overtime which he alleges he has served his employer and for which he has not been paid. We find nothing in the parts of the general contract before us that requires the employee to seek administrative remedial relief as a condition precedent to his suit in court for wages. Absent such prerequisite, the employee has the right in the first instance to lodge and prosecute in court his claim for alleged earned wages.
The right of any citizen to seek establishment and enforcement of his legal rights in a court of competent jurisdiction is both valuable and fundamental. Any private arrangement tending to abolish, limit, or even delay such a right will be carefully scrutinized, and unless there exists a definite agreement setting up a *733 condition precedent to his suit, the citizen will not be denied an early day in court.
The trial court undoubtedly concluded that the Wyatt case, supra, was controlling, and under its authority sustained the plea in abatement. We are of the opinion that in so doing, the trial court fell into error.
The second point raised by appellant is to the effect that inasmuch as appellant had already been discharged from his employer's service he could not have sought administrative relief as permitted by the contract and therefore was relieved of the necessity of so doing. In other words, if he was required to seek administrative relief he should have been given the opportunity of an appeal to the company officials before being discharged. We are not impressed with this contention. While it does not affect our determination of the case, we dispose of appellant's second point by overruling it.
It being our opinion that the trial court erred in sustaining appellee's plea in abatement, the case will be reversed and the cause remanded for trial on its merits.
Reversed and remanded.