Motion for Rehearing or to Transfer to Court en Banc Denied June 11, 1956.
The plaintiff, C. S. Donahoo, a conductor, instituted this action against his employer, the Missouri Pacific Railroad, to recover the sum of $67,500 damages for his alleged wrongful discharge in violation of his contract of employment. For his cause of action he, of necessity, relied upon the fact of his employment and the breach of two provisions, Articles 54 and 55, "Schedule
Throughout the trial of the cause and here the railroad has insisted that Mr. Donahoo was employed in Arkansas and that his cause of action is governed by the law of Arkansas. Under the law of Arkansas Mr. Donahoo would not be entitled to recover in this action, St. Louis, I. M. & S. Ry. Co. v. Matthews, 64 Ark. 398, 42 S.W. 902, 39 L.R.A. 467; Petty v. Missouri & Arkansas Ry. Co., 205 Ark. 990, 167 S.W.2d 895
The first difficulty with the respondent's basic position is that he does not point to any specific section of the Railway Labor Act, or to any other federal act concerning labor unions and union contracts, creating personal rights or personal causes of action. It is in this particular respect that the Railway Labor Act differs from the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Dice v. Akron, C. & Y. R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398, annotation 96 L.Ed. 408. This is not an action to enforce an award of the National Railroad Adjustment Board concerning a matter in which state courts have no jurisdiction or in which state law is wholly inapplicable. Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 64 S.Ct. 582, 88 L.Ed. 788; Amalgamated Association of Street Electric Railway & Motor Coach Employees v. Wisconsin Employment Relations Board, 340 U.S. 383, 71 S.Ct. 359, 95 L.Ed. 364; Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795. The second difficulty with the respondent's basic position is that the action he asserts is not one arising under or by reason of the National Railway Labor Act but is a staterecognized common law action which he may maintain "regardless of the Railway Labor Act." Oswald v. Chicago, B. & Q. R. Co., 8 Cir., 200 F.2d 549, 551; May field v. Thompson, Mo.App., 262 S.W.2d 157; Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089. In this connection it may be noted that Missouri, whatever the theory of the actions, annotation 18 A.L.R.2d 352; 3 Mo.L.R. 252, has recognized, perhaps to a greater extent than any other jurisdiction, the right of individual railroad employees to maintain actions for their wrongful discharge. Mayfield v. Thompson, supra; Johnson v. Thompson, Mo., 251 S.W.2d 645; Wilson v. St. Louis-San Francisco Ry. Co., 362 Mo.
The very point made here, that state law can have no application to an action for wrongful discharge because Congress has preempted the field and that such actions are governed by the Railway Labor Act, was made in Transcontinental & Western Air v. Koppal, 345 U.S. 653, 73 S.Ct. 906, 910, 97 L.Ed. 1325, and determined adversely to the respondent's contention. The respondent now says that the Koppal case "is not sound law and is squarely in the face of the Moore case" (supra). Nevertheless, the Supreme Court of the United States, after quoting from and explaining both the Moore and Slocum cases, said: "The result is that, whereas, under the Railway Labor Act, the Adjustment Board has exclusive jurisdiction to adjust grievances and jurisdictional disputes of the type involved in the Slocum case, that Board does not have like exclusive jurisdiction over the claim of an employee that he has been unlawfully discharged. Such employee may proceed either in accordance with the administrative procedures prescribed in his employment contract or he may resort to his action at law for alleged unlawful discharge if the state courts recognize such a claim. Where the applicable law permits his recovery of damages without showing his prior exhaustion of his administrative remedies, he may so recover, as he did in the Moore litigation, supra, under Mississippi law. On the other hand, if the applicable local law, as in Missouri, requires an employee to exhaust his administrative remedies under his employment contract in order to sustain his cause of action, he must show that he has done so."
Even though a collective bargaining agreement results in a contract for the benefit of individual employees, "The result is not, however, a contract of employment except in rare cases; no one has a job by reason of it and no obligation to any individual ordinarily comes into existence from it alone. * * * After the collective trade agreement is made, the individuals who shall benefit by it are identified by individual hirings. The employer, except as restricted by the collective agreement itself and except that he must engage in no unfair labor practice or discrimination, is free to select those he will employ or discharge. But the terms of the employment already have been traded out. There is little left to individual agreement except the act of hiring. This hiring may be by writing or by word of mouth or may be implied from conduct." J. I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 335, 64 S.Ct. 576, 579, 88 L.Ed. 762, 766; Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 3 Cir., 210 F.2d 623, 626. Here, as in Jenkins v. Thompson, 251 S.W.2d loc. cit. 326, Mr. Donahoo was not a party to the "Schedule of Wages Conductors" and the schedule did not employ him. It was necessary for him to establish, in addition to the schedule, his contract of employment and prove that he became an employee under circumstances making the terms of the collective bargaining agreement applicable to him. Mayfield v. Thompson, supra.
Mr. Donahoo was less than candid concerning the details of his employment. He objected to and the court excluded his original written application for employment
The respondent urges that the Arkansas cases are not sound and that the federal cases, Smithey v. St. Louis Southwestern Ry. Co. and Roberts v. Thompson, supra, were "poorly considered" but as Mr. Justice Black said of the refusal of the United States Circuit Court of Appeals to apply and follow the law of Mississippi: " * * * the Circuit Courts of Appeals do not have the same power to reconsider interpretations of state law by state courts as do the highest courts of the state in which a decision has been rendered. The Mississippi Supreme Court had the power to reconsider and overrule its former interpretation, but the court below did not." Moore v. Illinois Cent. R. Co., supra [312 U.S. 630, 61 S.Ct. 755]. Since, as indicated, the respondent could not recover in this action under the law of Arkansas the judgment is reversed.
BOHLING and STOCKARD, CC., concur.
The foregoing opinion by BARRETT, C. is adopted as the opinion of the Court.