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McElroy v. Terminal Railroad Association of St. Louis

February 28, 1968

JOHN P. MCELROY ET AL., PLAINTIFFS-APPELLANTS
v.
TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, DEFENDANT-APPELLEE. BROTHERHOOD OF LOCOMOTIVE ENGINEERS, INTERVENOR-APPELLEE



Hastings, Chief Judge, and Schnackenberg and Cummings, Circuit Judges.

Author: Cummings

CUMMINGS, C. J.:

Plaintiffs are 52 employees of the Terminal Railroad Association of St. Louis ("Terminal") and are members of the Brotherhood of Locomotive Firemen and Enginemen ("Firemen"). Terminal is a switching terminal serving 14 trunk-line railroads in the St. Louis area. It is a common carrier by railroad and subject to the Railway Labor Act (45 U.S.C. § 151 et seq.). The complaint alleges that Terminal violated the Railway Labor Act by entering into a November 15, 1965, agreement with the Brotherhood of Locomotive Engineers ("Engineers"), providing that employees working as locomotive engineers must be represented exclusively by the Engineers' union as to grievances processed on the Terminal Railroad, even though the particular employees are members only of the Firemen's union and wish to be represented by that union. Relying on certain provisions of the Railway Labor Act, plaintiffs in effect are seeking a judgment that would require Terminal to confer and negotiate with the Firemen, the representative designated by plaintiffs, in settling grievance and disciplinary matters.

Plaintiffs began their employment with Terminal as locomotive firemen, and their rates of pay, rules of employment and working conditions were established pursuant to collective bargaining agreements between the Firemen and Terminal. They were later promoted to locomotive engineers and have seniority status in both crafts. They shuttle back and forth between the two crafts, depending upon the needs of Terminal. When their seniority standings on the engineers' seniority roster are insufficient to permit their continuing work in that craft, they work in the craft of locomotive firemen. When they work as firemen, the collective bargaining contract between the Firemen and Terminal establishes the applicable rates of pay and working conditions; when they work as engineers, the bargaining contract between the Engineers and Terminal governs such matters.

While 17 of the plaintiffs were working as locomotive engineers, they filed time claims with Terminal. These claims were denied at the initial level on Terminal's property. Thereafter, the Firemen's union appealed the claims to Terminal's General Superintendent and then to its Manager of Labor Relations. These officials denied the appeals on the ground that the November 15, 1965, agreement between Terminal and the Engineers permits only the Engineers' union to represent locomotive engineers in the handling of time claims and grievances.

One of said 17 plaintiffs and another plaintiff were involved in accident investigations conducted by Terminal, and still another plaintiff was called as a witness in one of the investigations, but Terminal refused to permit them to be represented by the Firemen because of the November 15, 1965, agreement between Terminal and the Engineers.

These 19 plaintiffs were joined in the litigation by 33 other employees of Terminal who are also members of the Firemen and sometimes work as locomotive engineers. All 52 asked the District Court to void Articles 34 and 35 of the November 15, 1965, Terminal-Engineers' contract as violative of the Railway Labor Act.

Prior to the November 15, 1965, agreement between Terminal and the Engineers, the railroad had for many years permitted locomotive engineers who were members of the Firemen to be represented by that union for the purpose of settling their grievance or disciplinary problems on the property. Subsequently, Terminal has refused to permit the Firemen's union to handle such matters. The reason for this refusal is that Article 34 of the November 15, 1965, agreement between the Engineers and Terminal limits the representation of individual locomotive engineers in the handling of time claims or grievances to the Engineers' union, and Article 35 similarly permits only the Engineers' union to represent individual engineers during the investigation of cases involving their suspension or dismissal.

The District Court permitted the Engineers to intervene and subsequently dismissed the action, holding that the National Railroad Adjustment Board has exclusive jurisdiction over this type of controversy. Concluding that judicial relief is warranted under the Railway Labor Act, we reverse.

This case presents for decision the question left open in General Committee of Adjustment of the Brotherhood of Locomotive Engineers v. Southern Pacific Co., 320 U.S. 338, 344, 88 L. Ed. 85, 64 S. Ct. 142, namely, whether an employee's assertion of "the privilege of choosing his own representative for the prosecution of his claims" under the Railway Labor Act is justiciable. Two courts of appeals and then Attorney General Tom C. Clark have ruled that he has such a privilege,*fn1 and we agree with their conclusions. Because there is such a privilege, federal court jurisdiction follows.

Ever since Texas and New Orleans R. Co. v. Brotherhood of Railway and Steamship Clerks, 281 U.S. 548,*fn2 74 L. Ed. 1034, 50 S. Ct. 427, the federal courts have consistently held that Congress intended them to enforce the commands of the Railway Labor Act.*fn3 Therefore, if the Railway Labor Act accords these plaintiffs the right to designate the Firemen's union as their representative for settling grievances, the District Court did have jurisdiction to award appropriate relief unless jurisdiction over this dispute has been granted exclusively to the National Railroad Adjustment Board.

The Railway Labor Act has divided disputes between carriers and their employees into two classes. The major disputes concern the making and maintaining of collective bargaining agreements, whereas the minor disputes concern grievances and contract interpretation or application questions.*fn4 Of course, as to major disputes, it is unquestioned that the Engineers' union is exclusively entitled to represent the plaintiffs, when working as locomotive engineers, by virtue of Section 2 Ninth of the Railway Labor Act. See Virginian Railway v. System Federation No. 40, 300 U.S. 515, 81 L. Ed. 789, 57 S. Ct. 592.

Section 2 Second of the Railway Labor Act provides that all disputes shall be considered "in conference between representatives designated and authorized so to confer, respectively, by the carrier or carriers and by the employees thereof interested in the dispute" (45 U.S.C. § 152 Second; italics supplied). On its face, this provision guarantees an individual employee the right to prosecute his grievances through any representative he may designate. This reading of Section 2 Second is buttressed by the legislative history of the Railway Labor Act of 1934. In the House hearings, both Commissioner Eastman and George Harrison, the spokesman for the standard railroad labor unions, expressed the view that railroad employees have the right to be represented by minority unions in grievance matters.*fn5 This construction is consonant with other provisions of the Railway Labor Act. Thus Section 2 Third permits employees and carriers to designate representatives without interference from either side, and the representatives of the employees need not even be employees of the carrier. Section 2 Fourth permits individual employees or their local representatives to confer with management during working hours without loss of time.*fn6 As to minor disputes, Section 2 Sixth provides that the designated representatives of the employees and carriers have the duty to specify the time and place for a conference within ten days after receipt of notice. In Section 3 First (j), Congress concededly granted employees the right to choose any representatives to act on their behalf in handling minor disputes before the National Railroad Adjustment Board. This is also indicative of a similar Congressional intent as to the preliminary negotiations with the carrier.

The provisions in Section 3 First (i) that minor disputes "shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes" is pertinent too. Admittedly, it was the customary practice on the Terminal for a fireman working as a locomotive engineer to select the Firemen's union as his representative for grievance purposes. The Congressional approval of the "usual manner" of ...


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