Before MAJOR, Chief Judge, SPARKS, Circuit Judge, and LINDLEY, District Judge.
This is an appeal from a temporary injunction issued February 6, 1948, enjoining and restraining the defendants from enforcement and execution of the provisions of an Order and Award entered April 20, 1942 by the National Railroad Adjustment Board (herein referred to as the Board), First Division, Award No. 6640, by removing and displacing the plaintiffs or members of the class or craft to which they belong from their positions as porter brakemen on trains of the defendant, The Atchison, Topeka and Santa Fe Railway Company, (herein referred to as the Santa Fe), which positions the plaintiffs then held and occupied.
The plaintiffs are a group of train porters employed by the Santa Fe, and the defendants are the Board, its members and secretary, the Santa Fe, which operates its railroad through a number of states, F. W. Coyle, vice-president of the Brotherhood of Railroad Trainmen (herein called the Brotherhood) and nine individual brakemen, employees of the Santa Fe and members of the Brotherhood, to whom the disputed work was awarded by the Award under attack.
Plaintiffs in their complaint allege that the Board's Award is void for the reason that they had no notice of the proceeding and consequently no opportunity to be heard. The court premised the injunction order appealed from upon certain factual findings which included a finding that no notice of said proceeding was given to the plaintiffs or to any member of the class or craft to which they belong, and that such proceeding was carried on in their absence. The court found that the Santa Fe on demand of the brakemen notified plaintiffs that the Board's Award would be immediately enforced against them by their removal from their regular runs, and that they would be replaced by members of the class or craft to which the brakemen belonged. Further, it was found that the individual brakemen through the Brotherhood are continuing to insist that the Santa Fe comply with the terms of the Award and that Santa Fe will do so unless enjoined by order of the Court, and that such compliance will result in immediate and irreparable injury, loss and damage to the plaintiffs.
The court concluded as a matter of law that the Order and Award of the Board was void because rendered without notice to the plaintiffs within the terms of the Railway Labor Act, § 3 First (j), 45 U.S.C.A. § 153 First (j), and that the enforcement of such void Award deprives plaintiffs of their property rights without due process of law.
Performance of braking duties on the forward part or "head end" of Santa Fe passenger trains constitutes the work in dispute. Such work relates to the actual operation of trains and includes such duties as inspecting cars, testing brakes, opening and closing switches, and giving and receiving signals for train movements. Thus the work in dispute does not include what might be called the regular duties of porters, such as assisting the passengers and keeping the cars clean.
Plaintiffs as porters have performed this disputed work continuously since 1899, and while they have never made a collective bargaining agreement with the Santa Fe, urge that a provision in the Santa Fe's operating rules, promulgated in 1904, requires porters to perform the disputed work, and they claim that by virtue of this and through custom and practice of over forty years duration, they have acquired a contract right to perform such services. Plaintiffs also claim that through custom and usage the Santa Fe has established seniority rights among porters to job assignments as such. Santa Fe states and plaintiffs admit that the latters' duties are performed "at the will of the former."
The brakemen have contended that since 1892 and continuously up to the present time, they have held a contract, made by the Brotherhood as their collective bargaining representative, covering all braking service on the Santa Fe. Their position has been that by such contract the Santa Fe promised to give them the exclusive right, on the basis of relative seniority among them in their respective seniority districts, assignments to all braking work wherever it occurs on Santa Fe trains, passenger or freight, whether on the head end or rear end, and that assignment of personnel not holding seniority as brakemen to do this work violates their collective bargaining agreement or "schedule." During all the years this disputed work has been in controversy the Santa Fe has contended that the brakemen's schedule did not include braking on the head end of passenger trains and that assignment of this work to porters or others was not violative of the brakemen's schedule. Also during these years, the brakemen were unsuccessful in this controversy with the Santa Fe until they won the Board's Award now under attack, which resulted in the Santa Fe assigning to the brakemen the head end braking duties on passenger trains.
The defendant brakemen raise and discuss many issues which we think are beside the point. They argue, for instance, that the dispute is jurisdictional, determinable only by negotiation, mediation or arbitration, as provided by the Railway Labor Act, and that the court was without authority to issue the injunction because of a failure on the part of the plaintiffs to comply with the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq. We are of the view that such issues are not before us. They are raised, as we understand, on the theory that a labor dispute is involved and that by the order appealed from the court below has awarded the disputed work to the porters.Such is not the case. The only issue below, as well as here, is whether the Order of the Board is void for failure to give plaintiffs notice of the proceeding, as alleged in their complaint and as found by the court. And a holding in favor of the plaintiffs means nothing more than that the porters and the brakemen are relegated to the same position they occupied before such Award was made. In such case the parties and the carrier are again free to attempt to settle the dispute by collective bargaining or an appropriate proceeding under the Railway Labor Act. As was said in Missouri-Kansas-Texas R. Co. et al. v. Randolph et al., 8 Cir., 164 F.2d 4, 8, so much relied upon by the brakemen: "Insofar as the railroads propose to terminate the existing contract with the porters and to change their working conditions, the statute gives the porters the right to resort to the Mediation Board, 45 U.S.C.A. § 155, and that Board is required to use its best efforts to bring about an amicable settlement, 45 U.S.C.A. § 152."
Paragraph First (j) of § 3 of the Railway Labor Act, 45 U.S.C.A. § 153 First (j) provides: "The several divisions of the Adjustment Board shall give due notice of all hearings to the employee or employees and the carrier or carriers involved in any disputes submitted to them."
The court below, in holding the Award void in the absence of notice to the porters, relied heavily upon the decision of this court in Nord et al. v. Griffin, 7 Cir., 86 F.2d 481, where the question for decision was quite similar to that of the instant case. The rationale of the decision is that an interested party in the absence of notice was deprived of a constitutional right. The court in Estes et al. v. Union Terminal Co., 5 Cir., 89 F.2d 768, at page 770, placed a similar construction upon the notice requirement and stated: "But in justice and fairness every person who may be adversely affected by an order entered by the Board should be given reasonable notice of the hearing.* * * No man should be deprived of his means of livelihood without a fair opportunity to defend himself. Plainly, that is the intent of the law."
True, the court there found that the aggrieved employee had actual notice and that formal notice was not required. And the brakemen in the instant case, while conceding that the porters did not have formal notice, urge that they had actual notice, which was sufficient under the holding in the Estes case. The fallacy of this contention lies in the fact that the record does not disclose that the porters had notice of any kind prior to the entry of the Award. There is some meager evidence that they became aware of the Award subsequent to its entry and while the proceeding was pending upon a petition for rehearing filed by the Santa Fe. Even so, and assuming that they might have been heard on the petition for rehearing, we are of the view that this dubious privilege cannot be relied upon to remedy the Board's failure to give them "notice of all hearings."
The brakemen attempt to distinguish our holding in the Nord case mostly on the ground that the porters in the instant case were not parties to the contract between the brakemen and the Santa Fe, and they, having no contractual relation with the carrier, are not "involved" in the dispute in issue. It is true, of course, that the porters had no contract with the Santa Fe and that they were employees' at will. At the same time, they had performed the disputed work without interruption for almost a half century.If long custom and practice means anything, and we think it does, they had a claim on the disputed work superior to the brakemen or any other class. Their employment, even though at will, was at the will of the carrier and not that of the brakemen. As was said in Truax v. Raich, 239 U.S. 33, 38, 36 S. Ct. 7, 9, 60 L. Ed. 131, L.R.A.1916D, 545, Ann.Cas.1917B, 283: "The fact that the employment is at the will of the parties, respectively, does not make it one at the will of others. The ...