Uрon a bill for discovery and accounting Epsie Webb obtained a decree against Ya-zoo & Mississippi Valley Railroad Company for a .balance claimed to be due him as wages under a written contract between that company and the Brotherhood of Railway Trainmen, of which organization he was not a member. The railroad company appeals, insisting mainly that Webb was no party to and not a beneficiary of the contract; that his employment was as a train porter and not covered by the contract, and that by the acceptance and collection each fortnight during the six years in dispute of a pay cheсk expressed to be “in full for services rendered” there had been a full settlement and payment.
Webb, a colored man, had worked for the railroad company for many years, first as a freight train brakeman and afterwards on the passenger train as a porter, but also assisting in duties which were usually performed on passenger trains by the flagman and baggage-man, such as giving signals, changing switches, assisting in testing airbrakes, and helping with baggage and express. He wore a uniform bought by himself, his cap displaying the word porter. During federal control of the railroad and afterwards until March, 1925, he was paid the same wages as a flagman. The evidence shows that a train porter is nоt required to stand examination on the transportation rules, but only a physical one; that he has no authority or responsibility, but acts under and on orders of the train conductor, but may by him be required to do any of the things which a flagman under the transportation rules does on his own judgment and initiative. The contract involved is headed:
We reject the contention that if Webb be under the wage agreement with the Brotherhood of Trainmen that it was abrogated as to him by its own terms thirty days alter noticе that his wages were changed. The provision for abrogation involves the agreement as a whole and not its application to the wages of some one employee. The agreement aims at uniformity of treatment and cannot bo dissipated by piecemeal. The notice contemplated by it is one in writing and posted in the bulletin board for the information of all, or at least one given to the brotherhood which signed the agreement. Webb’s rights are not to be disposed of on the basis of an abrogation of the wage agreement.
An agreement upon wages and working conditions between the managers of an industry and its employees, whether made in an atmosphere of peace or under the stress of strike or lockout resembles in many ways a treaty. As a safeguard of social peace it ought to bo construed not narrowly and technically but broadly and so as to accomplish its evident aims and ought on both sides to be kept faithfully and without subterfuge. In no othеr way can confidence and industrial harmony he sustained. But in itself it can rarely be a subject of court action because it is incomplete. It establishes no concrete contract between the employer and any employee. No one is hound thereby to serve, and the employer is not bound to hire any partiсular person. It is only an agreement as to the terms on which contracts of employment ma,y be satisfactorily made and carried out. It is a mutual general offer to bo closed by specific acceptances. When negotiated by representatives of an organization it is called collective bargaining, but ordinarily the laws of the organization, which constitute the authority of the representatives to act, do not require the individual members to serve under it, but only that if they serve they will do so under its terms and will join in maintaining them as applied to others. When the agreement is published by the managers, it becomes
The agreement here in question is orderly divided. Section 1, headed Passenger Service, fixes pay and conditions of service •of baggagemen and flagmen only, but refers frequently to trainmen. Porters are not men.tioned. Section 2, headed Freight Service, fixes pay for flagmen and brakemen only, and refers generally to conditions of service of trainmen. It is proven that there are no porters in that service. Article 5 off this section providing: “Road trainmen performing more than one class of road service in a day or trip will be paid for the entire service at the highest rate aрplicable to any class of service performed,” refers only to freight trainmen and can have no application to a passenger train porter. Section 3, headed Miscellaneous, contains among other things Supplement 12 to General Order 27 originally promulgated by the Director General of Railroads during federal control, which alone mentions porters. The agreement nowhere refers to members or nonmembers of the signing Brotherhood of Railways Trainmen, whose membership includes neither porters nor colored persons. There are several provisions indicating that no differences are to be made between whitе and colored trainmen. We have no doubt that the agreement by its terms covers all trainmen on the railroad of the classes dealt with, to wit, baggagemen and flagmen in passenger service and brakemen and flagmen in freight service, whether white or colored, union or nonunion, but that porters are not trainmen within its meaning nor covеred unless under Supplement 12. The position of a porter is affected by three of the supplement’s provisions: “1. Employees in a passenger train crew, except conductor, collector and baggageman, qualified and regularly required to perform the following essential duties will be designated as passenger brakeman or flagman, and paid accordingly.” The duties referred to all relate to train safety and include train inspection, signals, turning switches, coupling ears, and comparison of watches, things usually performed by the flagman or passenger brakeman. The evident purpose here is to prevent the degradation of a qualified trаinman to a porter’s or other employee’s place, while regularly requiring of him a trainman’s work'and responsibility. If such service is regularly required of such a man, his rank and pay are to be fixed by that service. “3. This order shall not curtail the duties of employees heretofore classed as train porters.” Again a porter is referred to not as a trainman but as an employee. His duties, though nowhere defined in the agreement, are eoneededly to do whatever the conductor requires about the train but under the conductor’s supervision and on his responsibility, the knowledge and judgment of a trainman not being required of a porter. Where the crew already contains its regular trainmen, this provision would not preclude a. qualified trainman from taking a porter’s
Applying all this to Webb, he is not excluded by being a colored or a nonunion man. The generality of the agreement published as the rule of the railroad enablеs him to adopt it by his continued employment so far as his employment comes under it. He had three months’ work in freight service, and according to his testimony, though he shows no such certificate, he had had a brakeman’s examination and was regularly required on the passenger train to do flagman’s or brakeman’s work in addition to things ordinarily requirеd only of porters, and on his own initiative and judgment. By his testimony ho might come under Supplement 12, 1. The company’s witnesses, however, say that when put on the passenger train he -was employed only as a porter, examined as such, clothed and given passes, and carried on the company’s records as such, and while before Mаrch, 1925, he was paid as a brakeman and might have been entitled to such pay under Supplement .12, that after that date he was made only a porter, put under the conductor as such, and on porter’s pay then fixed, and was no longer required to do flagman’s work on Ms own judgment, there being always a regular flagman in the crew; all of whiсh he well understood, and though at first protesting he at last agreed to. If this is true, his right to flagman’s pay was certainly disputable under all the provisions of Supplement 12. And being fairly disputable, we need not decide the dispute, because of what happened next.
Webb was notified that his pay would be on a basis of $90, and to report to the сonductor for Ms orders. While he disputed the company’s right to cut Ms pay and make a mere porter of him, he did not misunderstand the intention. He admits that then and at all times he understood that the company was treating him as a porter without right to flagman’s pay. When his first reduced pay check was given him, stating as always that it was in full for services rеndered, ho did not overlook that condition of the payment or fail to appreciate that his claim of right to more pay was disputed. After protesting, claimed them to be. After the second check there was no longer a protest, but an intermittent agitation for recognition of the rights he claimed under Supplement 12 was kept up for three years with absolutely no encouragement to think it would be recognized. One hundred and thirty-nine cheeks were thus cashed, half of them after all agitation had ceased. One cannot keep money offered as in full settlement of a disputed claim and reject the condition on which it is offered. The contеntion that the checks wore paid for the porter’s work but not for the flagman’s is not sound. There was but a single employment and one wage due. Its measure was in dispute. “The rule is well established that where the facts show clearly a certain sum to be due from one person to another, a release of the entire sum upon payment of a part is without consideration, and the creditor may still sue and recover the residue. I£ there be a bona fide dispute as to the amount due, such dispute may be the subject of a compromise and payment of a certain sum as a satisfaction of the entire claim, but where the larger sum is admitted to be due, or the сircumstances of the ease show that there was no good rca,son to doubt that it was due, the release of the whole upon payment of part will not be considered as a compromise, but will be treated as without consideration and void.” Chicago, Milwaukee, etc., Ry. v. Clark,