418 P.2d 498 | Or. | 1966
Lead Opinion
These actions, consolidated for trial, were brought by employees of Southern Pacific Company against a union official to recover compensatory and punitive damages for the alleged violation of their right under
Defendant is the local chairman of Lodge No. 542 of the Brotherhood of Locomotive Firemen and Enginemen (BLF & E) which is the bargaining agent for all firemen employed by the Southern Pacific Company. Plaintiffs, seven in number, are veteran firemen assigned to a labor pool under the jurisdiction of Lodge No. 542. Some of the plaintiffs are members of the BLF & E; some are not.
The alleged discrimination arises out of the enforcement of one of the provisions of an agreement between Lodge No. 542 and Southern Pacific Company which states, in essence, that a fireman accumulating 3,800 miles of work in any monthly period shall be relieved for the remainder of the period. The pertinent part of the agreement is set out in the margin.
The evidence is sufficient to support the charge of malicious discrimination. The principal question is whether such discrimination will give rise to a cause of action for damages under the circumstances of this case.
It was the duty of defendant as the agent of BLP & E not to discriminate unfairly against any member of the unit for which it was the bargaining agent.
This is not like the cases relied upon by plaintiffs where the union or bargaining agent, in the discriminatory enforcement of a rule or other administrative preferment, deprives the complaining employee of a work opportunity to which he would otherwise be entitled.
"We recognize that unless money damages are recoverable employees are not likely to seek relief in the courts against discriminatory action by union officials, but it is not our duty to allow an indefensible measure of damages in order to provide a workable sanction. If a money recovery is desirable in a case such as this, the Bailway Labor Act should make provision for it.
The judgment is reversed.
Paragraph 11 of the agreement provides as follows:
“No individual engineer or fireman * * * shall he privileged to start a trip or day’s work out of his home terminal after having earned 3,800 miles or the equivalent thereof in any month or checking period applicable to such individual, in service paying freight rates of pay. Should an engineer or fireman be required by the Company to start such trip or day’s work out of his home terminal because relief engineers or firemen were not available, or should a trip of day’s work that an engineer and/or fireman was privileged to start out of his home terminal result in earnings in excess of 3,800 miles or the equivalent thereof, such earnings in excess of 3,800 miles for the month or checking period shall be carried forward to the credit of and registered by said engineer or fireman as part of his mileage earnings in the next succeeding month or checking period.
J*S * * # ❖
“An engineer or fireman failing to request relief in writing to avoid starting a trip or day’s work out of his home terminal after having earned 3,800 miles or the equivalent thereof for the month or checking period; or who exceeds such earnings except when privileged to start a trip or day’s work out of*23 his home terminal resulting in exceeding such earnings; or when required by the Company to continue in service; or who fails to register his correct current mileage earnings; shall, upon a written request for such action, addressed to the Superintendent by the local chairman having jurisdiction, be held off the working list of engineers or firemen two calendar days for each 100 miles or fraction thereof earned in excess of 3,800 miles during the month or checking period, or until he correctly registers his current mileage earnings.”
Humphrey v. Moore, 375 US 335, 84 S Ct 363, 11 L Ed2d 370 (1964); Conley v. Gibson, 355 US 41, 78 S Ct 99, 2 LEd2d 80 (1957); Tunstall v. Brotherhood, 323 US 210, 65 S Ct 235, 89
Plaintiffs would have the burden of proving that there were no junior firemen on the waiting list.
See cases cited supra at note 2.
Rehearing
ON REHEARING
Plaintiffs have filed a petition for rehearing contending that our opinion and decision is erroneous in two respects.
It is first asserted that we misconstrued the pleadings and the record as to the basis upon which compensatory damages were claimed by plaintiffs and awarded by the jury. Plaintiffs sought compensation for the loss of wages during the periods of their suspension. In our opinion we referred to the alleged damages “on the basis of lost wages resulting from time lost on the job after plaintiffs had completed the maximum mileage under the 3,800 mile rule.” We noted that plaintiffs “rest their claim upon the deprivation of working time which would be made available to them only as a result of their violation of the agreement.” We intended to say, and thought we said clearly enough, that since the 3,800 mile provision was enforceable, there was no right to mileage overages and therefore no right to wages lost during suspension for mileage overages.
The modification relied upon is found in an exchange of letters between defendant and the Southern Pacific Company. Defendant’s letter, dated March 13,
1960, is in substance a request for the company’s concurrence in the decision of Lodge 542 to discontinue the registration requirement for firemen in the Klamath Falls-Crescent Lake freight pool. In a letter dated March 25, 1960, the company concurred in this proposal. In a letter dated December 15, 1961, the company informed defendant that the request and concurrence referred to above “were in violation of the Firemen’s Agreement.” Plaintiffs contend that the registration requirement was modified from March 25, 1960 to December 15, 1961. Plaintiffs fail to mention that in February, March, and May, 1961, Lodge 542 sent to each member of the lodge bulletins making it clear that the registration requirement was to be observed.
It will be recalled that the alleged violations of the agreement occurred in April, May, and June of 1961. From the evidence taken as a whole it is ap
The petition for rehearing is .denied.
February bulletin: “We presently still have Firemen cut oif the working list. Therefore, we ask that each individual respect Article 43 of the agreement in an attempt to restore these men as soon as practical. Your cooperation concerning this matter will be greatly appreciated.”
March bulletin: “Business has recently improved, and as a result some of the furloughed Firemen have been restored to the working list. However, until such a time as all of these men are restored the miles will continue to be enforced.”
May bulletin: “The miles are still being enforced as in accordance with Article 43 of the agreement covering Firemen.”
The procedure prescribed by Article 37, section 19 is that before a proposed rule is submitted to the General Manager of the Company and the General Chairman of the Firemen, it must be a special rule “made by Local Officials of the Company and the Local Grievance Committee of the Firemen.” The “agreement” in the present case does not meet this requirement.