171 F.2d 961 | 5th Cir. | 1949
This appeal has to do with the proper parties and practice in a proceeding under Section 8 of the Selective Training and Service Act, 50 U.S.C.A.Appendix, § '308, /to compel recognition of seniority due a returned veteran.who when taken into the military service had a position with a railroad company as a fireman. The complaint was dismissed because the plaintiff refused, after an order so requiring, to join as defendants with the employing Railroad Company the other firemen who would be affected by giving the veteran the seniority status which he claims.
The complaint is in the name of the United States, ex rel. Jewell G. Deavers, and signed by the United States Attorney. It sets forth that Deavers, who had been a student fireman with the Missouri, Kan
The Railroad Company moved to dismiss for -lack of a claim on which -relief can be granted; and because it appears that Pen-ton is a necessary and -indispensable party in that Deavers cannot be given what he asks without depriving Penton of it, Penton’s address being -stated; and -because 92 other firemen whose home addresses are furnished who now have seniority ahead of Deavers would -have to be similarly -displaced if he were -ahead of Penton, and they too a-re substantially involved; and because the seniority -of all of them rests, on an agreement between the Railroad Company and Brotherhood of Locomotive Firemen and Enginemen^ and its local -lodge -at Smithv-ille, Texas, and these are also necessary and indispensable parties; and because the complaint was not filed within a year from the discharge from military service and the refusal to give the -desired seniority; -and because the court is without jurisdiction o-f the subject matter. This pleading i-s not sworn to. It seems however to have been regarded as true in a written argument submitted by plaintiff, and the court so treated it in disposing of the motion. It was held that the individual firemen named are necessary parties, hut the named unions are not; that the failure to sue within a year is no bar; and -that the court has jurisdiction. Th-e motion to dismiss was overruled provided the persons held to be necessary were made parties. Two months later, the pl-aintiff having refused to -make them parties, the complaint was for this reason dismissed. The questions argued here are whether the absent parties are either indispensable or necessary parties; and if either, whether it was not the duty of the court rather than the plaintiff to have them brought in.
In t-hi-s court, no point has -been raised as -to th-e United States being a proper plaintiff and we make no ruling on it, but we call attention to the language -of Section 8(e), 50 U.S.C.A.Appendix, § 308 (e), which gives the court jurisdiction: “The district -court * * * -shall -have power, upon the filing of a motion, petition, or other appropriate pleading by the person entitled to the benefits of such provisions, to specifically require such employer to comply with such provisions * * *. Upon application to the United States district attorney or comparable official * * * by any person claiming to be entitled to the benefits of such provisions, such United States district attorney or 'official * * * shall appear and act as attorney for such person in the amicable adjustment -of the -claim or in the filing of any motion, petition, or other appropriate pleading * * (Emphasis added.) We have no doubt that if under Federal Rules of Civil Procedure, Rule 17(a) 28 U.S.C.A., the proceeding should properly be in the name of Deavers, the United States -can by amendment be stricken out, so that the -complaint will stand .in th-e name o-f the real party in interest.
As to parties defendant, the -case has been argued and authorities ci-ted as though a piece of property or ordinary ■contractual right was in controversy. This -is to lose sight of the unique subject matter which makes this controversy sui generis. The subject^ matter is solely seniority under a collective bargain between a railroad company and its employees, evidently made pursuant to the Railway Labor Act, 45 U.S.C.A. § 151 and ff. This might
It follows that the Union and fellow employees, if not made parties will not be bound as to their particular interests, which belong primarily bo the jurisdiction of -the Adjustment Board, and they may be heard there. In the present case, the employer may, on the facts proven, be required to put Deaver’s name on the Firemen’s Board ahead of Penton, but the requirement ought to be without prejudice to the Board’s authority to make decisions on resulting grievances if any are presented .to it.
If in a, seniority case such as this all the employees who may -be affected are either necessary or indispensable parties, the burden and cost of serving them might ■be intolerable. There would be 93 such services in this case. There might be 1,000 in another. Section 8(e) declares that no costs shall be taxed against the veteran plaintiff. Who is to pay this cost ? The Section requires a veteran’s case to be given a speedy hearing and to be advanced on the calendar. The remedy was intended to be simple and prompt. I-t could not be either, if expanded as was ordered in this case. We conclude that the case i-s betwe-en the veteran and his employer alone, and -that no one else need be made a party for the limited relief the section provides.
The judgment of -dismissal -is reversed, and the cause remanded for further proceedings consistent with this opinion.
Reversed and remanded.