Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


February 28, 1961


The opinion of the court was delivered by: Robson, District Judge.

This cause was remanded for further proceedings consistent with the opinion of the Court of Appeals (Ellerd v. Southern Pacific Railroad Co., 7th Cir., 1957, 241 F.2d 541), which was decided on an appeal by plaintiff from a summary judgment for the defendant Southern Pacific Railroad Co., hereinafter referred to as the Railroad, to review and set aside an award of the First Division of the National Railroad Adjustment Board, hereinafter referred to as the Board.

In the decision of the Court of Appeals, it is stated at page 545:

    "* * * [T]he crucial issue is whether plaintiff had
  authorized the brotherhood in any legally sufficient
  manner to represent him individually in the board's
  proceeding. Had the record here disclosed without
  controversy that the union had authority to represent
  plaintiff and did actually represent him in good
  faith, there would be no question of the propriety of
  the board's order and the court would have been fully
  justified in entering judgment for defendants. But,
  in view of the dispute, the court had no right to
  enter any judgment until that decisive issue had been
    "* * * The question here presented of whether
  plaintiff had received due process of law was not
  before the court. Hence, that issue has not been
  adjudicated. It has been presented to the trial court
  in this case and can be decided only upon hearing
  evidence. In this situation, we can conceive of no
  recourse except to reverse the judgment, so that the
  court may determine the essential question of whether
  plaintiff has been deprived of a constitutional
  hearing in such manner as to lodge in the district
  court jurisdiction to review the order of the board."
  (Emphasis ours.)

The Court of Appeals had theretofore stated at page 544:

    "* * * [T]here is injected into this case a serious
  question as to the validity of the proceeding before
  the board. As we have observed, plaintiff avers that
  the union had no right to represent him in presenting
  the claim purported to be made in his behalf, and
  that he had no personal notice of such proceedings
  and is not bound thereby. The union, on the other
  hand, asserts that it had full authority to represent
  plaintiff; that it did represent him in good faith,
  and that the proceedings before the board were
  regular and valid. Thus there is a contested question
  upon the only issue affirmative decision upon which
  would give the court the right to review the
  proceeding before the board."

After remandment, a pre-trial conference was held which resulted in a pretrial order composed of a stipulation of facts and a statement of the respective contentions of the parties and of the issues of law here involved.

A full trial was then had at which both plaintiff and David Carr, the Local Chairman of the Brotherhood of Locomotive Firemen and Enginemen, hereinafter referred to as the Brotherhood, who handled plaintiff's claim initially, and others, testified.

On the basis of that testimony and the stipulation of facts, the Court resolves the critical factual issue against the plaintiff. It finds that plaintiff authorized the Brotherhood to represent him in the presentation of his claim to the Railroad, and before the Board.

The stipulation discloses that at all times material to this action an "applicable" agreement existed between the Brotherhood (of which plaintiff had been a member since employment by the Railroad in 1943) and the Railroad. Plaintiff's name was placed on the seniority roster of firemen of the Tucson Division on February 21, 1943, and was not included on said roster prepared on or about January 3, 1950, nor has it appeared thereon since that time.

Plaintiff was injured on January 7, 1949. The next month he brought a Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., action in a California state court, claiming permanent injuries. On July 14, 1949, he petitioned to have the trial advanced, declaring inter alia, that he had been informed that there was no chance he would ever be able to return to railroad work. In November, 1949, a $70,000 verdict was returned in his favor against the Railroad, which verdict he settled for $65,000 on December 12, 1949, executing a written release.*fn1

The stipulation further reveals that plaintiff was advised by David Carr that his name had been omitted from the roster. Acting in his capacity as such Local Chairman of the Brotherhood, Carr, on or about February 11, 1950, transmitted a letter to the superintendent of the Railroad's Tucson Division, asserting that by removing plaintiff's name from the seniority roster the Railroad had discharged plaintiff from its employment, and that said discharge was unlawful and in violation of the applicable agreement, and demanded that his name be restored to said seniority roster. The demand was declined in writing by the superintendent. Carr, in collaboration with C.W. Moffitt,*fn2 the General Chairman of the Brotherhood, appealed the claim and demand on behalf of the plaintiff to the Railroad's General Manager. After a conference between Moffitt, acting as said General Chairman, and the representative of the Railroad's General Manager, the claim of plaintiff was again declined by the Railroad.

Thereafter, Moffitt filed with the Board a claim and demand for restoration of plaintiff to the roster. The claim contended that plaintiff had been removed and discharged without notice, hearing or representation, all in violation of the applicable collective bargaining agreement and particularly in violation of Article 51 of said agreement.

The Railroad also filed a "submission" with the Board, claiming that plaintiff had voluntarily relinquished his seniority rights by claiming permanent and total disability in the prior personal injury suit, and that since there was a voluntary retirement no agreement provision was involved and no hearing required such as where discipline is to be imposed. Thereafter, following due handling of the demand by the Board, including an opportunity to both the Brotherhood and the Railroad to be heard, the Board entered an Award on June 27, 1952, deciding that plaintiff was not entitled under the applicable agreement to be retained on the roster and denied his claim to be restored. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.