16 So. 2d 416 | Ala. | 1944
Complainant Steele filed this bill against the Louisville Nashville Railroad Company, a corporation, the Brotherhood of Locomotive Firemen and Enginemen, an unincorporated association, and named individuals connected with the latter association. To the bill as last amended, which in fact is a substitute for the original bill, demurrers of the several defendants were sustained and the bill dismissed. From this decree the complainant prosecutes this appeal.
The argument of counsel for the respective parties has assumed a rather wide range, but we think the discussion here may be brought within a narrow compass. Omitting any detailed recital of the bill's averments, the salient facts are as follows:
Complainant is a Negro fireman, in the employ of the Louisville Nashville Railroad since 1910, competent and rendering satisfactory service. Prior to the passage of the Railway Labor Act, and down to April 8, 1941, he had been serving as a fireman on a passenger train, assigned to what is known as the "South End Passenger Pool." This was a highly preferable job for a fireman. On April 1, 1941, the jobs of this particular pool were bulletined for "bidding in" because the number of firemen in the pool had to be reduced due to reduction in mileage, but by virtue of a contract entered into between the defendant Railroad and the Brotherhood of Locomotive Firemen and Enginemen in February, 1941, subsequently modified in May, 1941, complainant was thrown out of work for a period of sixteen days (April 8 to April 24, 1941), and firemen who were members of the Brotherhood given the preference. On April 25, 1941, he was given a job on a local freight run, less desirable as to the character of work and less remunerative. In December following, he was placed as fireman on a switch engine, and worked in that capacity until January *117 3, 1942, when he was re-assigned to his original place in the South End Passenger Pool.
Negro firemen are ineligible to membership in the defendant Brotherhood. Negroes are not employed on railroads as locomotive firemen except in the South. On the defendant Railroad there are four seniority districts, known as the South and North Alabama Division, the Montgomery and Mobile Division, the Mobile and New Orleans Division, and the Pensacola Division. On these four divisions Negro firemen are in the majority, but constitute a minority of the total number of firemen employed by the defendant Road. The Negro firemen and the Brotherhood firemen together comprise the entire craft or class of firemen employed by the Railroad. The defendant Brotherhood is the representative of the entire craft or class of firemen with the defendant Road, and is so accepted by complainant and the other Negro firemen. Complainant's employment is individual, and he asserts no seniority rights by virtue of any individual contract with the defendant Road.
As we understand the bill, with its exhibits, complainant's claim for seniority rights arose out of the agreement entered into between the defendant Road and the Locomotive Firemen and Hostlers on March 1, 1929. This agreement contains express stipulation that "the rates, rules, and working conditions as provided herein, shall be continued in effect, subject to 30 days' written notice by either party." Subsequently, as above noted, the defendant Brotherhood, under the Railway Labor Act, 45 U.S.C.A. §§ 151-188, became the representative for the entire craft of firemen, and entered into an agreement with the defendant Road which considerably curtailed seniority rights of complainant, and which gave ground for the selection of others, members of the Brotherhood, in his stead.
It further appears from the bill that locomotive engineers are obtained by promotion of selected white locomotive firemen. This is the existing railroad practice in the United States. To quote from the bill: "By traditional and universal railroad practice in the United States Negro firemen arbitrarily are never promoted to engineers regardless of knowledge, experience, competency, and worth." The bill further shows, to distinguish between white firemen as a class and Negro firemen as a class, the white firemen are known under standard railroad practice as "promotable men" while the Negro firemen are known as "non-promotable men."
On March 28, 1940, the defendant Brotherhood gave due notice to the various railroads involved, including this defendant Road, of a request for the establishment of rules governing the employment and assignment of locomotive firemen and helpers. This change in the previous agreement brought about the restrictions to non-promotable firemen and privileges to promotable firemen which worked to complainant's disadvantage as indicated. This was in March, 1940, and the formal agreement was entered into nearly a year thereafter in February, 1941.
The bill seeks injunctive relief against the enforcement of this agreement, which, as we view it, is in effect a bill for the specific performance of the agreement of March, 1929. Hewitt v. Magic City Furniture Mfg. Co.,
In substance and effect the present bill appears to be the same as that presented by counsel for complainant here to the District Court of the United States for the Western District of Tennessee, which was disposed of upon the theory that no Federal question was properly presented. Teague v. Brotherhood of Locomotive Firemen and Enginemen, 6 Cir.,
The recent cases of Switchmen's Union v. National Mediation Board,
Reverting to Teague v. Brotherhood of Locomotive Firemen and Enginemen, supra, we may add that the court in its opinion refers to the fact that in the last analysis complainant's seniority rights must rest upon contract, and that so far as the Fifth Amendment is concerned, it relates only to governmental action and not to action by private persons. This observation should suffice, without further elaboration, *118 as an answer to the constitutional question argued in brief.
So far as concerns the defendant Railroad, it has been definitely determined that the Railway Labor Act, 45 U.S.C.A. §§ 151-188, placed a mandatory duty upon the Railroad to treat with the representative of the employees and with that representative only. Virginian R. Co. v. System Federation,
In Shaup v. Grand International Brotherhood of Locomotive Engineers,
As we have observed, the bill admits that complainant recognizes the defendant Brotherhood as its representative for collective bargaining with the Railroad. The Brotherhood, therefore, had a right to enter into the agreement of February, 1941, which modified to complainant's detriment the agreement of 1929. In Hartley v. Brotherhood of Ry. and S. S. Clerks, etc.,
A like line of reasoning was followed by the North Carolina court in Coley v. Atlantic Coast Line R. R.,
In referring to the Brotherhood as complainant's representative, we mean to indicate a representative in a limited sense only. Indeed, the Massachusetts court in Donovan v. Travers, supra, reached the conclusion that in no correct sense was the union an agent, but a principal. However that may be, to our mind it seems entirely clear that Congress, in providing for collective bargaining by representative of a craft or class, had no intention of creating a confidential relationship of principal and agent, such as would place a duty upon the agent to give notice to every employee of any action which might unfavorably affect him, and to make a due account for his actions, and be subject to liability for failing to so account.
Complainant appears to rest his case largely upon the doctrine of such confidential relationship; citing Brasher v. First Nat. Bank,
As to the Railroad Company, the complaint rests upon a charge of conspiracy between the Road and the Brotherhood to defraud complainant of his seniority rights. Of course, the charge of conspiracy or fraud in general terms is insufficient. Facts must be alleged which would justify the legal conclusion of an unlawful conspiracy. "The illegal purpose or means, which the conspirators meant to accomplish or to resort to must be described accurately, for unless the object is illegal, or the means agreed upon illegal, there is no actionable wrong." National Park Bank v. Louisville N. R. Co.,
When the facts alleged are considered, we think it clear enough no unlawful conspiracy is charged against the Railroad. As we have previously observed, the Road was under statutory duty, mandatory in character, to deal with the representative of the craft. True, the complainant, as a Negro fireman, is ineligible to membership in the defendant Brotherhood, but as observed by the New Jersey court in Cameron v. International Alliance, supra [
This principle was likewise recognized by this court in the recent case of Chapman v. American Legion,
Like thought was expressed in the separate concurring opinion to be found in Brotherhood of Railway and S. S. Clerks v. United Transport S.E. A., App.D.C.,
As we gather from the opinion of the Court of Appeals, the Mediation Board had held that these employees were in fact *120
merely a minority group of an established craft or class that did have representation. This opinion of the Court of Appeals was reversed by the Supreme Court of the United States without opinion. Brotherhood of Railway, etc., Employees v. United Transport Service Employees,
In any event, the instant case is much stronger for the defendants. Here there is no question of representation. The bill discloses upon its face that the Brotherhood has been delegated under the Railway Labor Act as representative of the craft or class to which complainant belongs, and has been so acting and so recognized as the representative for many years.
In Washington Terminal Co. v. Boswell, 75 U.S.App.D.C. 1,
Considering, therefore, the situation as thus presented to the Railroad, the question at once occurs to a practical mind: What step was the Road to take? The representative of the craft, the Brotherhood, had made a request for a modification of the existing contract concerning seniority rights. Was it the duty of the Road to combat the representative and enter into an argument as to its resultant effect upon employees who were in the minority? The operation of a railroad presents many complex problems. Among the most serious are those involving its relationship with its employees, as well as with the public at large, and their responsibilities as to the safety of the travelling public. It requires not only skill in management and in the actual operation by the employees, but it requires cooperation among the employees, as well as with the management. There was nothing hasty in the acceptance of the Brotherhood's proposal. Nearly a year had passed from the time the request was made until its final acceptance.
The Railway Labor Act was careful to preserve to the individual employee the right of conference with the management, either individually or through a local representative of the employees. Sec. 152, 45 U.S.C.A., supra. There was no requirement, either in the Act or in the rules or regulations of the Brotherhood, which called for notice to the individual employee of a change in the contract.
The defendant Road had all these complex matters for consideration. As we have previously noted, the bill discloses a traditional policy of the railroads throughout the country to promote to the position of engineer white firemen only. This means, of course, that such course had been considered by the management as wise and proper throughout the history of the railroads in America. Complainant has long been in the service, and knew of this unbroken custom. He therefore knew that he would not be eligible for promotion to the position of engineer. So uniform a custom, therefore, recognized in the practical construction of his contract of employment, must be considered as a part thereof. City of Greenville v. Greenville Water Works,
It is, of course, necessary that the engineer be promoted from his position of fireman; but practical considerations also require he likewise have had, as fireman, experience over the run to which he is likely *121 to be promoted to engineer. This modified contract of which complainant complains was in harmony with the Railroad's policy, and lends support to its theory of operating successfully a great transportation system. As was said in Washington Terminal Co. v. Boswell, supra, the railroad still "has the power of management." Freedom of individual enterprise is regarded as one of the cornerstones of our form of government. This freedom, under the police power, is subject to many restrictions for the public good, recognized in innumerable decisions following legislation to that end. Such freedom of enterprise is restricted as to the railroads in instances too numerous to mention, among them the Railway Labor Act. But no act of Congress has yet been enacted which interferes with the management of the Road in so far as the question of the selection of its individual employees is concerned. If the Road considers it wiser to continue the policy of having only white engineers, there is no more a law standing in the way of the exercise of this freedom of choice than there is in the choice of the Brotherhood of its membership. And it is clear enough the courts have no power to declare otherwise or to dictate a different policy.
In Plessy v. Ferguson,
Considering, therefore, the averments of fact, the bill merely discloses that the Road has signed an agreement with the Brotherhood, the representative of the entire craft, which in fact is in harmony with its traditional policy. The Railroad, in entering into this agreement, did nothing illegal and pursued no illegal means. As a consequence, it was guilty of no actionable wrong. National Park Bank v. Louisville N. R. Co., supra. This conclusion makes it clear the complainant is entitled to no specific performance of the contract of 1929 by mandatory injunction against the agreement of 1941.
The same rule of law concerning the necessity for charging facts to show a conspiracy is applicable to the charge of fraud, as against the Brotherhood and the individual defendants. Fraud is never presumed, and the facts upon which the charge is based must be clearly stated. Winn v. Winn,
Certainly the management of the Railroad has as much right to take into consideration this delicate problem as does the law-making body of any state in passing laws looking to the peace and good order of society. The very object of the Railway Labor Act was to provide for the public safety an uninterrupted transportation system.
We think a consideration of the facts alleged as to the Brotherhood leads to the same conclusion we have arrived at concerning the defendant Railroad. In substance and effect complainant's case is rested against the Brotherhood upon the theory that it was under a duty to give the minority employees, non-members of the Brotherhood, notice of any action to be taken which would in any manner detrimentally affect their seniority rights. We have expressed our view that no such duty rested upon it. So considered, therefore, the charge of fraud amounts largely merely to an accusation that the Brotherhood is looking largely to the interests of its own membership to the detriment of complainant. Even should this be conceded, yet at the *122
same time the action of the Brotherhood looks to the welfare of the majority of the craft, and has the same basic foundation that underlies the Road management. It looks to a compliance with the traditional custom of the Road to have only white engineers. There is no charge of bad faith or malice against the complainant or any of his class. O'Keefe v. Local 463,
There are numerous instances where individual hardships have been suffered for the good of the whole. The New York court in O'Keefe v. Local 463,
Another illustration is to be found in the Massachusetts case of Minasian v. Osborne,
Congress has made no effort to control the matter of seniority rights. It has left that to contract between the parties. That contract has been entered into which detrimentally affects complainant's seniority rights, but it was made by his representative, and it is in conformity with the uniform and traditional practice of the Road. It is a lawful contract entered into in a lawful manner, and the facts alleged fail to show any conduct on the part of the Brotherhood that creates in complainant an actionable wrong.
In the discussion of this case we have left to one side many questions presented by the demurrer and argued by counsel for defendants, some of which may give rise to serious consideration.
The Shaup case, supra, involved no attempt to charge fraud or bad faith, and the weight of authority decidedly supports the view there taken. Grand Int. Brotherhood of Locomotive Engineers v. Mills,
We are at the conclusion, therefore, that the demurrer was properly sustained and the decree appealed from is due to be affirmed. It is so ordered.
Affirmed.
All the Justices concur. *123