HUTCHESON, Circuit Judge.
Plaintiff, a federation of craft unions, members of which are shop craft employees, is the duly and legally selected representative of all the members of defendant's shop craft employees. As such, it brought this suit in behalf of its members named in the petition. Brought by authority of the National Railway Labor Act, Subdivision 1(p),
The defense to the suit, viewed either as one to enforce the order of the Board or as an independent suit, was that the petition stated no cause or right of action. To the suit viewed as one to enforce the order of the Board, the defense was that upon the petition and the Board's order attached, the Board was without jurisdiction of the claim, because they show that within the meaning of the act there was no case pending
The District Judge agreed with defendant that no cause of action was stated either as a suit on the award or as an independent suit, and, in a careful opinion, D. C., 30 F.Supp. 909, fully setting out his reasons for the decision, sustained the motion to dismiss, and gave judgment accordingly. Plaintiff is here insisting that the judgment was wrong and should be reversed.
Because the matter comes up on the pleadings and the correctness of the judgment must be tested by the material allegations of the petition, we here set them out.
Stripped of the redundancies, prolixities and inconsistencies with which its many pages abound, the confused and confusing allegations of fact and law, come down at last to this; that the 95 persons named in paragraph 4 of the petition were in the service of defendant when the August 1, 1929, contract was made; that on the dates shown in that paragraph
There was a further claim that if the 1929 contract was at all abrogated or at all affected by the 1931 rules, it was only partially abrogated to the extent that the contract conflicted with those rules; that the 1931 rules as to seniority were the same as those of the 1929 contract, the provisions of the contract being continued and carried forward into and by the rules; and that plaintiff's rights continued to be governed by the 1929 contract as so carried forward, unaffected by the September 1 rule. The date, the time, the occasion on which each made his demand for reinstatement is not set out or shown, except inferentially by the allegation that the company uniformly gave as its reason for declining to recognize their seniority rights that they had lost them under the 12 months rule of September 1, 1931; nor is there any claim that prior to the making of the contract of 1937, any action or proceeding was taken by plaintiff or any of its members, to present, make or maintain, a case involving these so-called seniority disputes. There is only the general allegation that those furloughed did not recognize the legality of the September 1, 1931 rule, requested the defendant to reinstate them to service according to their seniority rights under the agreement of August 1, 1929, as confirmed or carried forward in the purported rules of February 9, 1931, and that these requests were uniformly refused. Indeed, so far from alleging that there was any case pending and unadjusted involving the seniority rights in question, the petition alleged that there were no agreements or negotiations between defendant and plaintiff; that the purported rules of February 9, 1931, and of September 1, 1931, were applied by the defendant from February 9, 1931, until October 20, 1937, when another agreement, covering the rules and working conditions of the shop craft employees, was entered into between defendant and its shop craft
In its petition to the Board, plaintiff's claim was roundly based on a claimed breach of the 1929 contract.
As the basis of its order, it found that Rule 9 of the agreement of August 1, 1929, was in effect, "either by agreement" or by Rule 9 of the February 9, 1931 rules, posted by the carrier, which was identical with Rule 9 of the 1929 agreement, and that the September 1, 1931, amendment to these rules was without force or effect. Further finding that it was unable to determine who upon the list submitted, was entitled to relief, it yet found generally that many of the employees had been furloughed and not re-employed in violation of the rules and were therefore entitled to relief. Its findings of fact therefore, and its award, instead of being and containing the definite determinations of fact, as to the persons entitled to relief, and the relief to which they are entitled, contemplated and required by the act, consisted of merely general statements, that some of the employees were entitled to some relief, and that those so entitled should be awarded such relief as they were entitled to. The act contemplates not merely general conclusions, but precise and definite findings of fact and final and definite awards, capable of enforcement, not vague general outlines which must be filled in by the courts.
Considering the suit then as purely a statutory suit upon the award, we think it clear that it contains neither definite findings of fact entitled to have the effect of prima facie evidence, nor an award capable of enforcement. If then, the petition had stated facts showing a cause of action, within the jurisdiction of the Board, and that plaintiff was entitled to have a Board award on it, the suit should have been either dismissed, without prejudice to plaintiff's right to apply to the Board for
Putting aside the conclusion of the pleader, that the 1929 contract had not been abrogated, and it must be put aside for it is quite clear from the facts pleaded, that it was abrogated in accordance with the 30-day provision in it, and that plaintiff has recognized that this is so, the theory of the suit boils down to this; that by the 1929 contract, plaintiff and its members acquired indefinitely continuing rights, which could not be affected by the abrogation of the old agreement, the institution of rules in lieu thereof, or the making of a new agreement, on the theory that once an employee, always an employee, once a senior, always a senior. The result of this theory is the claim, that though most of those named have not worked for the company during the past ten years, they must not only be now paid for all of that time as though they had, but must be permitted to displace others who have been and were working, as employees of the company under the 1931 rules and amendments, when the 1937 contract was signed, and whose seniority, as established and fixed by those rules, was settled and confirmed by the contract. This will not at all do.
Out of the confusion and uncertainty, which has surrounded the germination and growth of the body of law, which has grown up around collective bargaining contracts and relations, certain general principles have emerged and become settled in this and in most jurisdictions. The application of these principles requires the rejection of plaintiff's theory and the affirmance of the judgment against it. These principles are; that under a contract like that of August 1, 1929, containing provisions, as in Rule 15,
Differences of opinion do still exist in different jurisdictions, as to the relations of the union and its members, to the contract, as between themselves. Some courts say the union is "not the agent of the member for the purpose of waiving any personal right he may have, but is only his representative for the limited purpose of securing for him, together with all other members, fair and just wages and good working conditions."
Others, as in Donovan v. Travers, supra, hold the union to be the principal and not the agent, and that such rights as the employees have, will depend upon the contract as made, altered, and abrogated by the union.
The only question with which we are here concerned is whether the seniority rights claimed, arise out, and exist, because of, the 1929 contract, and persist during and only during its term, or whether they indefinitely continue to exist after it has been abrogated, and the relations of employer and employee are no longer fixed and being carried on, under that contract, but for many years under rules, promulgated by the company, and later under a contract between the company and the union which affirms that it "covers all understandings now in effect."
On this point the authorities are uniform. They settle it that collective bargaining agreements do not create a permanent status, give an indefinite tenure, or extend rights created and arising under the contract, beyond its life, when it has been terminated in accordance with its provisions. Authorities, supra. The rights of the parties to work under the contract are fixed by the contract. They persist during, they end with, its term. After the termination of the 1929 contract, those who remained in the employ of the defendant, or came into it afterwards, held their tenure and such rights as they had, not under the 1929 contract, but at first under the company rules and later under the 1937 contract, and none of them can claim rights contrary thereto.
The rights accorded plaintiff and its members under the 1929 contract are clear. Under it, any of the persons named who were furloughed during its continuance had a right, during the life of the contract, to apply for reinstatement under its terms. After its abrogation that right was lost and reinstatement could not be claimed under its terms, but only under the terms of the company rules until 1937, and after 1937, under the terms of the 1937 contract.
If, on February 7, 1931, when the 1929 contract was abrogated, any of those furloughed before that date, had decided not to return to work, they could have stood upon their claim, that they had been furloughed contrary to the terms of their contract, and sought reparation for the time lost while the contract was still in force. They could not, because the contract had been breached as to them, claim that the breach had extended its life, so as to entitle them to time lost, and to reinstatement, after its abrogation. No claim ever has been made for damages up to the time of the contract's abrogation. No such claim is made now. The claim as made before and now is not for loss of wages up to the abrogation of the 1929 contract. It is for loss of wages up to the present time, together with the right to displace and take the place of those who working for the company, under the 1931 rules, were working for it when the 1937 contract was
As to the employees furloughed after the termination of the 1929 contract and under the 1931 rules, they could, of course, claim no rights under contract. The 1929 contract was no longer in effect, and it is not claimed in the petition that any of the persons named in it had any personal or individual contract of their own with the company. Cf. Boucher v. Godfrey, supra.
The judgment is affirmed.
"This Agreement becomes effective August 1, 1929, and it is mutually agreed that all former Rules, Rates and Regulations are void and that the provisions of this agreement will not be retroactive, nor will they be changed by either party without thirty days' notice in writing."
"Seniority of former employees, who have not worked under the classification for which they held seniority during any twelve (12) months period, will be dropped from the seniority list."
It was further alleged that though the purported rules of February 9, 1931 were ineffective to change the rights granted to employees by the agreement of August 1, 1929, and did not purport to do so but confirmed those rights and the purported rule of September 1, 1931, was also ineffective to change them because not properly adopted, "The purported rules of February 9, 1931 and of September 1, 1931, however, were applied by the defendant until October 20, 1937, when another agreement was entered into."
Questions of seniority are set out in Rules 25 to 28.
Rule 25. Reduction of Forces. When reducing expenses, the hours may be reduced to forty (40) per week before reducing the force. When the force is reduced, seniority as per Rule 28 will govern, the men affected to take the rate of the job to which they are assigned.
Forty-eight (48) hours' notice will be given before hours are reduced. If the force is to be reduced seventy-two (72) hours' notice will be given the men affected before reduction is made, and lists will be furnished the Local Committee.
In the restoration of forces, senior laid-off men will be given preference in returning to service, if available within twenty (20) days, and shall be returned to their former position, if possible. Regular hours to be re-established prior to any increase in force under this rule. The Local Committee will be furnished a list of men to be restored to service.
In the reduction of forces the ratio of apprentices shall be maintained.
Rule 26. Employees laid off, account reduction in force, who desire to seek employment elsewhere, will, upon application, be furnished with transportation to any point desired, on the system when not contrary to National or State laws.
Rule 27. When reducing forces, if men are needed at other points, they will be given preference to transfer, with privilege of returning to home station when force is increased, such transfer to be made without expense to the Company; seniority to govern.
Rule 28. Seniority. Seniority of employees in each craft covered by this Agreement shall be confined to the point where employed, in each of the following Departments; Maintenance of Equipment, Two subdivisions of the Carmen, as follows: Painters, Other Carmen. The seniority lists will be open to inspection and copy will be furnished the Committee.
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"(o) In case of an award by any division of the Adjustment Board in favor of petitioner, the division of the Board shall make an order, directed to the carrier, to make the award effective and, if the award includes a requirement for the payment of money, to pay to the employee the sum to which he is entitled under the award on or before a day named.
(p) Sec. (p) providing for a suit in the district court, provides "such suit * * * shall proceed in all respects as other civil suits, except that on the trial of such suit the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated."
Section A. No employee will be dismissed or suspended without just and sufficient cause. If after proper investigation it is found that a man has been unjustly discharged or suspended he will be reinstated and paid for all time lost.