Skinner v. Lynch

418 P.2d 498, 245 Or. 20, 1966 Ore. LEXIS 347

Opinions

O’CONNELL, J.

These actions, consolidated for trial, were brought by employees of Southern Pacific Company against a union official to recover compensatory and punitive damages for the alleged violation of their right under the Railway Labor Act to fair representation in the application of union rules. Defendant appeals from a judgment in favor of plaintiffs.

Defendant is the local chairman of Lodge No. 542 of the Brotherhood of Locomotive Firemen and Enginemen (BLF & E) which is the bargaining agent for all firemen employed by the Southern Pacific Company. Plaintiffs, seven in number, are veteran firemen assigned to a labor pool under the jurisdiction of Lodge No. 542. Some of the plaintiffs are members of the BLF & E; some are not.

The alleged discrimination arises out of the enforcement of one of the provisions of an agreement between Lodge No. 542 and Southern Pacific Company which states, in essence, that a fireman accumulating 3,800 miles of work in any monthly period shall be relieved for the remainder of the period. The pertinent part of the agreement is set out in the margin.

Footnotes

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①

The purpose of this provision is to stabilize employment by preventing senior firemen from working more than the maximum mileage specified, thus making any excess mileage available to junior firemen. Plaintiffs allege that defendant “discriminatorily, arbitrarily, wilfully, maliciously and with intent to cause economic harm” to plaintiffs applied the rule to them but not to other firemen in their pool. Plaintiffs contend that the rule was first enforced against two of them who were not members of the BLP & E to force them to join that union and that the rule was later enforced against the other plaintiffs, two of whom were members of the union and four of whom were not, to make it appear that union recruitment was not defendant’s motivation for applying the rule.

The evidence is sufficient to support the charge of malicious discrimination. The principal question is whether such discrimination will give rise to a cause of action for damages under the circumstances of this case.

It was the duty of defendant as the agent of BLP & E not to discriminate unfairly against any member of the unit for which it was the bargaining agent.②

Plaintiffs, as members of the bargaining unit, were entitled to fair representation in the administration of the collective bargaining agreement. But it does not follow that plaintiffs are entitled to recover damages in the present case. Damages are recoverable only if plaintiffs can show a measurable pecuniary loss flowing from defendant’s conduct. The jury computed plaintiffs’ compensatory damages on the basis of lost wages resulting from time lost on the job after plaintiffs had completed the maximum mileage under the 3,800 mile rule. But under the agreement plaintiffs had no right to work in excess of the maximum mileage. The 3,800 mile rule was adopted to prevent firemen with seniority from working more than the maximum mileage so that there would be jobs for firemen who were juniors on the seniority scale. Therefore, if there were junior firemen waiting for employment (which appears to have been the situation in the present case), plaintiffs were not deprived by defendant’s conduct of anything to which they were entitled under the agreement.③ Since plaintiffs had no right to work in excess of 3,800 miles, it is difficult to see how the deprivation of the additional mileage, even if done with a malicious purpose, could constitute the measure of plaintiffs’ damage. To support such a measure of damages plaintiffs must, in effect, assert that the maximum mileage rule should be disregarded for the purpose of computing their loss. Since plaintiffs lost nothing to which they were entitled, they must rest their claim upon the deprivation of working time which would he made available to them only as a result of a violation of the agreement to which they subscribed — a violation in which they themselves participated.

This is not like the cases relied upon by plaintiffs where the union or bargaining agent, in the discriminatory enforcement of a rule or other administrative preferment, deprives the complaining employee of a work opportunity to which he would otherwise be entitled.④

"We recognize that unless money damages are recoverable employees are not likely to seek relief in the courts against discriminatory action by union officials, but it is not our duty to allow an indefensible measure of damages in order to provide a workable sanction. If a money recovery is desirable in a case such as this, the Bailway Labor Act should make provision for it.

The judgment is reversed.

Paragraph 11 of the agreement provides as follows:

“No individual engineer or fireman * * * shall he privileged to start a trip or day’s work out of his home terminal after having earned 3,800 miles or the equivalent thereof in any month or checking period applicable to such individual, in service paying freight rates of pay. Should an engineer or fireman be required by the Company to start such trip or day’s work out of his home terminal because relief engineers or firemen were not available, or should a trip of day’s work that an engineer and/or fireman was privileged to start out of his home terminal result in earnings in excess of 3,800 miles or the equivalent thereof, such earnings in excess of 3,800 miles for the month or checking period shall be carried forward to the credit of and registered by said engineer or fireman as part of his mileage earnings in the next succeeding month or checking period.

J*S * * # ❖

“An engineer or fireman failing to request relief in writing to avoid starting a trip or day’s work out of his home terminal after having earned 3,800 miles or the equivalent thereof for the month or checking period; or who exceeds such earnings except when privileged to start a trip or day’s work out of his home terminal resulting in exceeding such earnings; or when required by the Company to continue in service; or who fails to register his correct current mileage earnings; shall, upon a written request for such action, addressed to the Superintendent by the local chairman having jurisdiction, be held off the working list of engineers or firemen two calendar days for each 100 miles or fraction thereof earned in excess of 3,800 miles during the month or checking period, or until he correctly registers his current mileage earnings.”

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Humphrey v. Moore, 375 US 335, 84 S Ct 363, 11 L Ed2d 370 (1964); Conley v. Gibson, 355 US 41, 78 S Ct 99, 2 LEd2d 80 (1957); Tunstall v. Brotherhood, 323 US 210, 65 S Ct 235, 89 (1944); Steele v. L. & N. R. Co., 323 US 192, 65 S Ct 226, 89 LEd 173 (1944); Thompson v. Brotherhood of Sleeping Car Porters, 316 F2d 191 (4th Cir 1963); Ferro v. Railway Express Agency, 296 F2d 847 (2d Cir 1961); Nobile v. Woodward, 200 F Supp 785 (E.D. Pa 1962).

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Plaintiffs would have the burden of proving that there were no junior firemen on the waiting list.

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See cases cited supra at note 2.