Opinion
16254
August 15, 1949.
Messrs. Mitchell Horlbeck, of Charleston, and Elliott, Shuttleworth Ingersoll, and V.C. Shuttleworth, of Cedar Rapids, Iowa, for Appellant, cite: As to the Federal Railway Labor Act governing all railway labor disputes: 327 U.S. 661, 676; 281 U.S. 548; 300 U.S. 515; 330 U.S. 767; 167 F.2d 183; 77 F. Supp. 656; 77 F. Supp. 659; 357 Pa. 379, 54 A.2d 891. As to the Federal Railway Labor Act precluding judicial intervention in labor controversies of interstate railroads: 327 U.S. 540; 320 U.S. 323; 320 U.S. 297; 320 U.S. 338; 321 U.S. 50; 323 U.S. 192; 326 U.S. 561, 66 S.Ct. 322; 327 U.S. 661, 676; 326 U.S. 561; 156 F.2d 1; 159 F.2d 822; 164 F.2d 4; 323 U.S. 192. As to specialized administrative tribunals having primary jurisdiction in railroad labor disputes: 326 U.S. 561; 204 U.S. 426; 284 U.S. 474; 314 U.S. 402; 5 F. Supp. 612; 329 U.S. 287, 67 S.Ct. 207; 105 F.2d 1; 308 U.S. 522; 303 U.S. 41; 19 F. Supp. 607; 259 U.S. 285; 299 U.S. 393, 396; 284 U.S. 474. As to the National Railroad Adjustment Board having exclusive primary jurisdiction of the instant dispute: 327 U.S. 661; 326 U.S. 561, 66 S.Ct. 322; 230 U.S. 247, 267, 33 S.Ct. 916, 924; 326 U.S. 565, 566, 568; 164 F.2d 4. As to the Federal decisions being decisive: 66 S.Ct. 322, 326 U.S. 561; 169 F.2d 557; 136 F.2d 412; 321 U.S. 342; 35 Am. Jur. 485, Sec. 54 et seq.; 320 U.S. 323, 332, 337; 321 U.S. 50; 323 U.S. 192, 205; 280 U.S. 83; 300 U.S. 98; 14 Am. Jur. 291, Sec. 79; 230 U.S. 247; 218 U.S. 205; 327 U.S. 540, 544; 156 F.2d 1. As to the limits to the jurisdiction and power of the court to bar or foreclose rights of individual conductors through their collective bargaining agent: 325 U.S. 711; 169 F.2d 557, 559, 560; 300 U.S. 515, 545, 553, 554. As to error of trial judge in ruling that no other remedy existed: 330 U.S. 767; 101 F.2d 426. As to Congress creating the Adjustment Board as an inclusive plan to achieve uniformity and specialization of decision and eliminate accumulation of unsettled disputes: 325 U.S. 711, 726; 325 U.S. 711, 727, 728; 327 U.S. 661, 663, 664.
Messrs. Barnwell Whaley, of Charleston, Frank G. Tompkins, of Columbia, and Henry L. Walker, W.S. Macgill, and Sidney S. Alderman, of Washington, D.C., for Respondent, cite: As to an affidavit not being admissible in evidence: 126 S.C. 1, 119 S.E. 776; Wigmore on Evidence, 3rd Ed., Sec. 1709, 1636, 1678. As to the Court having jurisdiction to render a declaratory judgment in this case: 210 S.C. 121, 41 S.E.2d 774. As to decision on former appeal being the "law of the case" and the questions then decided being res adjudicate: 65 S.C. 410, 43 S.E. 884, 887; 164 S.C. 2, 161 S.E. 769, 774; 196 S.C. 51, 12 S.E.2d 545; 78 S.C. 105, 58 S.E. 955; 92 S.C. 354; 75 S.E. 542; 84 S.C. 193, 65 S.E. 1050; 128 S.C. 478, 123 S.E. 100; 93 S.C. 148, 76 S.E. 117; 201 S.C. 447, 23 S.E.2d 362; 210 S.C. 440, 43 S.E.2d 143; 203 S.C. 263, 17 S.E.2d 230; 171 S.C. 301, 172 S.E. 135; 118 S.C. 81, 109 S.E. 799; 171 S.C. 221, 171 S.E. 42; 111 S.C. 400, 98 S.E. 144. As to the state court having power to make a declaration of rights of the parties under a railroad collective bargaining contract: 191 P.2d 882. As to the Railway Labor Act providing an alternative and cumulative remedy: 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089; 263 Ky. 578, 92 S.W.2d 2d 749; 198 Minn. 203, 269 N.W. 407; 101 S.W.2d 114 (Mo.App.); 232 Mo. App. 639, 110 S.W.2d 389; 191 Ga. 395, 12 S.E.2d 611; 130 N.J. Eq. 75, 21 A.2d 334; 154 S.W.2d 417; 86 F.2d 481, 300 U.S. 673, 57 S.Ct. 612, 81 L.Ed. 879. As to the Railway Labor Act not ousting the jurisdiction of the courts to interpret and enforce an agreement between a carrier and its employees: 312 U.S. 630, 61 S. Ct. 754, 85 L.Ed. 1089; 124 F.2d 235, 249; 319 U.S. 732, 63 S.Ct. 1430, 87 L.Ed. 1694; 121 F.2d 808; 146 F.2d 62, 324 U.S. 872, 65 S.Ct. 1017, 325 U.S. 893, 65 S.Ct. 1183; 50 C.S.2d 292, 123 P.2d 39; (Tex.Civ.App.) 173 S.W.2d 357; (Tex.) 183 S.W.2d 716; 191 Ga. 395, 12 S.E.2d 611; (N.Y. Sup. Ct.) 183 Misc. 454, 50 N.Y.S.2d 313, 269 App. Div. 467, 57 N.Y.S.2d 65, 83 N.Y.S.2d 513; 56 F. Supp. 634; 191 P.2d 882; 169 F.2d 557; 63 F. Supp. 306, 308. As to the Railway Adjustment Board not being a specialized administrative tribunal having primary jurisdiction: 210 S.C. 121, 41 S.E.2d 774; 183 Misc. 454, 50 N.Y.S.2d 313; 83 N.Y.S.2d 513. As to the court's refusal to grant leave to amend the answer a second time being proper: 170 S.C. 86, 169 S.E. 843; 174 S.C. 537, 178 S.E. 139. As to the trial judge properly exercising his discretion in granting the declaratory judgment: 138 F.2d 121; Borchard, Declaratory Judgments (2nd Ed.) 499; 162 A.L.R. 756, 781, 782, Anno.; 191 P.2d 882.
Messrs. Mulholland, Robie McEwen, and Willard H. McEwen, of Toledo, Ohio, for Railway Labor Executives' Association, Amicus Curiae, cite: As to no decisions of the Supreme Court of the United States hold that a railroad carrier company may seek an initial interpretation of a collective bargaining contract in the Courts: 312 U.S. 630; 323 U.S. 192; 124 F.2d 235; 319 U.S. 733; 326 U.S. 561. As to the nature and reasons for the rule of prior resort: 204 U.S. 426; 259 U.S. 285; 281 U.S. 412; 284 U.S. 478; 307 U.S. 125; Stason, "Timing of Judicial Redress from Erroneous Administrative Action", 25 Minn. Law Rev. 560; 42 Am. Jur. 698; 303 U.S. 41; 28 F. Supp. 613; 106 N Y L.J. 1483; 182 Tenn. 236, 185 S.W.2d 525; 63 F. Supp. 411; 132 N.J. Eq. 210, 28 A.2d 41; (Calif. App.) 15 L.R.R.J. 915; 146 F.2d 62, 324 U.S. 872. As to the reason for applying the rule of prior resort to the Railway Adjustment Board: 300 U.S. 515; 46 Yale L.J. 567.
Messrs Mitchell Horlbeck, of Charleston, and Elliott, Shuttleworth Ingersoll and V.C. Shuttleworth, of Cedar Rapids, Iowa, for Appellant, in reply.
Opinion and Decree of Judge William H. Grimball follows:
This action was instituted against the defendant by Southern Railway Company in July, 1945, under the declaratory judgment Act of this state, Code, Section 660, for the purpose of obtaining a construction of a written contract between the plaintiff and the defendant, Order of Railway Conductors of America. The question presented by the complaint is whether certain industrial switching movements to the plant of the Ancor Corporation at Pregnall, South Carolina, an intermediate point on plaintiff's railroad line between Charleston and Branchville, are part of the service trips of conductors in charge of local freight trains between Charleston and Branchville; or whether such conductors are entitled to an additional day's pay for performing switching operations to the plant of the Ancor Corporation, separate and apart from and in addition to the pay for their service between Charleston and Branchville.
When this case first came on for hearing in this court, a demurrer to the complaint was sustained on the grounds that the court did not have jurisdiction, and the court in the exercise of its discretion refused to take jurisdiction. The plaintiff appealed this ruling to the Supreme Court of South Carolina which reversed the judgment, holding that "the complaint alleged a cause of action for declaratory relief" and saying: "In this case, after a hearing upon the merits, the court will exercise its discretion as to whether or not it will make a binding declaration." 41 S.E.2d 774, 779.
Following that decision the case came on for trial on the merits in this court. Upon the proof adduced at that trial I find that the following facts have been established.
The defendant is an unincorporated association engaged in union activities in Charleston County and is the duly authorized representative of and bargaining agent for the conductors employed by the plaintiff in the operation of the local freight trains on the line of railroad between Charleston and Branchville in all matters involved in and arising under a written contract dated May 16, 1940, between the plaintiff and the defendant entitled "Schedule of Wages and Rules and Regulations for Conductors". There exists an actual and continuing controversy as to the proper construction of this contract, with reference to service performed at Pregnall, South Carolina, by conductors on local freight trains on said line of railroad.
The distance from Charleston to Branchville is 63 miles; the average time consumed on the "straight-away" run of these local freight trains is approximately 6 1/2 hours; the average time on duty of the conductors each day is approximately 8 1/2 hours, the conductors going on duty at Charleston or Branchville as the case may be and being released from duty at the end of the run at the opposite terminal.
As a part of the regular service trips, the conductors in charge of the freight trains on the run perform such switching as is necessary over the industrial tracks of the various industries served by plaintiff along this line of railroad, and have been doing so continuously for many years, without demanding or being paid extra compensation. Conductors in charge of local freight trains have been instructed to perform such industry switching at Pregnall, South Carolina, as may be necessary at the plant of the Ancor Corporation over the privately owned industry tracks ever since their construction in 1943. These tracks connect with the plaintiff's railroad within the yard limits at Pregnall and extend some 6 miles to the plant of the Corporation. This industry switching consists of the local freight trains taking cars the destination of which is the plant of the Ancor Corporation, to the plant, placing the cars on the designated track or tracks, and then picking up and hauling from the plant to the plaintiff's main line any cars destined to other points.
The testimony further establishes that those movements are similar to those performed on innumerable other industry tracks which join plaintiff's railroad line and have always been accepted and agreed to in practice by the conductors of plaintiff's local freight trains as a part of their service trips and have been performed pursuant to the terms of the said contract.
The basic rate of pay for these conductors in effect at the time of the commencement of the suit (the distance run being less than one hundred miles) was $9.10 per day for eight hours service or less, and if service exceeded eight hours they were entitled to additional pay or overtime on a minute basis at the rate of $1.71 an hour. The basic day rate has now been increased to $10.58, and the overtime rate to $1.98 1/2 an hour.
The defendant as the duly authorized representative and bargaining agent of the conductors of plaintiff demanded that plaintiff pay additional compensation to the conductors under the contract here involved at the rate of a minimum day's pay, or $9,10 per day, separate and apart from and in addition to their regular pay of $9.10 plus overtime for the local freight service each time industry switching service is performed at Pregnall.
The defendant handled these claims beginning shortly after the filing of the first claim on September 9, 1944, claiming that the performance of the industry switching at the plant of the Ancor Corporation entitled the conductors to an additional day's pay, separate and apart from, and in addition to their pay for the local freight service trip between Charleston and Branchville, which claims the plaintiff contends are a violation of the articles of the contract referred to above. The claims were appealed by defendant to the highest officer of the plaintiff authorized to handle such claims and were formally rejected.
The defendant has continued to assert such claims which the conductors have been filing continuously down to the present date so that as a result of the continuing accrual of these claims the plaintiff is faced with a growing potential liability in the event the defendant's claims are justified. For the period September 7, 1944, to July 14, 1945, alone there were filed some 40 claims for an additional day's pay by conductors. The testimony also shows that if this service were performed on each working day by conductors during a year's period the liability would amount to $2,848.00 at the rate of pay then effective, or $3,311.00 at the current rate of pay. It further appears that if the conductors should ultimately prevail, the plaintiff would also be liable for large sums to other members of those local freight train crews whose contracts have provisions similar to those of the conductors' agreement here involved. It is thus clear that unless this controversy is settled the plaintiff will be subjected to substantial injury and damage.
Articles 5, 6 and 7 of the contract here under consideration establish the basis of the compensation to be paid to conductors in this local freight service and are as follows:
"Article 5 "Basic Day"(a) In all road service, except passenger, 100 miles or less, 8 hours or less (straightaway or turn-around), shall constitute a day's work; miles in excess of 100 will be paid for at the mileage rates provided, except as provided for in Article 28.
"(b) In through freight or mixed train service, a straightaway run is a run from one terminal to another terminal; and not less than one hundred miles will be allowed for each such run, except as provided for in Article 28.
"Article 6 "Beginning and Ending of Day"In all classes of service, other than passenger, conductors' time will commence at the time they are required to report for duty and shall continue until the time they are relieved from duty at end of run.
"Article 7 "Overtime"In all service, except passenger, runs of 100 miles or less, overtime will begin at the expiration of 8 hours; on runs of over 100 miles overtime will begin when the time on duty exceeds the miles run divided by 12 1/2. Overtime shall be paid for on the minute basis, at a rate per hour of three-sixteenth of the daily rate, as shown in Article 4, Sections (a), (b) and (c)."
Article 5 (a) merely provides that a conductor going on duty and performing service must be paid for a minimum day's pay of "100 miles or less, 8 hours or less."
Article 6 provides that his day begins from the time he goes on duty at the initial terminal and continues until he goes off duty at the final terminal. In other words, he is to be paid for all time on duty on a continuous time basis. There is no provision for interrupting the time under any circumstances.
Article 7 awards the conductors pay at time and one-half rates for all time on duty in excess of 8 hours on runs of less than 100 miles which is the case on the Charleston-Branchville run. This article, as shown by the testimony, was placed in the contracts by the Director General of Railroads in 1919 as a means of adjusting the pay of men in local freight service, and providing time and one-half rates for hours of service performed in excess of 8 hours. The article was granted by him on the specific condition that any and all arbitraries and special allowances (extra pay) including those for any work performed en route by a crew, would be abolished. According to the testimony, the only way these extra "arbitraries" or payments for work en route were authorized thereafter was by the negotiation and execution of special agreements.
There is no provision in the contract for extra compensation in the case of industrial switching.
In Article 28 of the contract we find a general rule providing for "Exceptions". These exceptions provide for special arrangements for the basis of compensating crews on "circus trains", "good roads, agricultural cars, etc.", and certain specified "excepted runs", that would otherwise be governed by general provisions of the contract including Articles 5, 6 and 7. There is no testimony and it is not claimed that any of these named exceptions in Article 28 provide for extra compensation over and above the regular day's pay for local freight conductors required to perform industrial switching on the track serving the Ancor Corporation at Pregnall, S.C.
Another provision of the contract which appears to be involved is in the next to last paragraph of the contract (page 67) under the heading "Terms of Agreement", as follows: "This agreement supersedes and cancels all former agreements but does not, except where rules are changed, alter former accepted and agreed to practices, working conditions or interpretations."
There has been no showing whatsoever by the defendant of any "former accepted and agreed to practices, work conditions or interpretations" to support their claim that Article 5 (a) of the contract provides for additional compensation over and above that or the service trip when a crew performs industrial switching or service on a track such as that at Pregnall, S.C. On the other hand, the evidence is clear that industrial switching has been performed over a long period of time by local freight crews as part of their regular work, and has never been the basis for extra compensation except in a few cases where the parties have negotiated a special agreement providing for such payment.
The contract further provides the proper procedure for making a change or amendment to its terms as follows: "This agreement is effective as of May 16, 1940, and cancels all other rules in conflict herewith and is to remain in effect until revised or abrogated by thirty (30) days written notice from either party to the other, and in accordance with provisions of the amended Railway Labor Act."
For the service trips made by the local freight trains in question, it has been established that the conductors were paid for all time on duty continuously from the time they went on duty at their initial terminal until the time they went off duty at their final terminal, including the time spent at Pregnall and on the tracks serving the Ancor Corporation. The conductors were paid for each such service trip at least a minimum day's pay ($9.10) for 100 miles or 8 hours and in addition thereto time and one-half pay or any time spent on duty over and above 8 hours.
Defendant contends that the service performed on the private track at Pregnall for the Ancor Corporation was outside the assignment of the conductors on the local freight trains in question and constituted "side trips" or "lap back trips" for which they were entitled to an extra and additional day's pay under the provisions of Article 5(a) of the contract quoted above.
It has been clearly established that the conductors on the runs in question were on local freight service assignments running between Charleston and Branchville, the terminals of the run, with Pregnall as an intermediate non-agency station. Even the defendant's witnesses corroborated plaintiff's evidence that part of the assignment of a local freight train is the switching of industrial tracks en route between the terminals.
The evidence clearly showed that the track serving the Ancor Corporation has all the characteristics of an industrial track. It is used only for the purpose of serving a private industry (or industries, the plant of the Volunteer Cement Company being served thereon since the suit was filed); it is not open for the use of the public; it has no stations on it; no telegraph service; no regular trains; no mail or express service; and none of the other attributes of main or branch line tracks of a railroad company. It was also shown that there is nothing exceptional about the length of the track, in that there are other acknowledged industrial tracks on the carrier's railroad of comparable length. Likewise it was proven that the movements on the industrial track were substantially the same as switching service performed on other industrial tracks recognized as a regular part of a local freight run's assignment.
Defendant's witnesses testified to three types of cases to show that the service on the track at Pregnall was a "side trip", "lap back trip", or "turnaround" for which an additional day's pay accrued because the crew was taken outside its assignment.
As to the cases involving a "lap back trip", no such item appears in the contract and the testimony showed clearly that it had never been recognized by plaintiff that such a movement entitled a conductor to extra pay until an agreement known as the "lap back agreement of July 30, 1945" was negotiated and executed in 1945. The definition of that term agreed to in 1945 did not cover such service as was performed on the tracks at Pregnall, South Carolina.
Another class of examples relied on by defendant were situations where the conductors had been required to perform service beyond and after reaching the terminal of their assignment. Typical of such examples was a hypothetical one where the crew on the Charleston-Branchville local freight run was required to go several miles beyond the terminal at Branchville to perform some service. Such cases would apparently constitute a violation of Article 5 because by its very terms a straightaway run is a run from one terminal to another and the crew would have completed its run on reaching the terminal at Branchville. The evidence, however, establishes the fact that Pregnall is not a terminal and the service on the industrial track of the Ancor Corporation could not be beyond a terminal.
The third class of cases testified to by defendant's witnesses were those of situations where special agreements had been negotiated. Typical of these was an agreement to make an extra payment to crews serving the yard tracks at Blair, Tennessee, which serve the government atomic bomb plant. Such special agreements cannot, however, affect the questions under consideration here. The parties are, of course, free to negotiate special agreements to provide special payments to cover specific cases, but by doing so the general provisions of the basic contract are in no way changed in their application to other cases.
Defendant thus has not shown that the industry switching over the industrial track at Pregnall was any different from that of industrial switching that has always been considered a part of a local freight crew's assignment, to be paid for as part of the regular service trip.
Based on the facts reviewed above, it is clear that the plaintiff has made out a case for declaratory relief. The proof supports all the allegations of the complaint, concerning which the Supreme Court said in its opinion on the earlier appeal in this case that "the complaint alleged a cause of action for declaratory relief". Southern Ry. Co. v. Order of Railway Conductors of America, 210 S.C. 121, 41 S.E.2d 774, 779.
In its answer the defendant alleges that this court does not have jurisdiction or at least should not take jurisdiction of this case because there is available the remedy provided by the Railway Labor Act, 45 U.S.C.A. § 151 et seq.
The effect of the Railway Labor Act and of the remedy afforded thereunder before the National Railroad Adjustment Board on this matter of jurisdiction has already been decided by the Supreme Court which said in part after reviewing the pertinent decisions: "In view of these decisions, it is our opinion that the Congress intended that controversies of the character set forth in this case may be adjusted in either of two ways: First, under the authority of the Act by submitting the dispute to the National Railroad Adjustment Board; or, second, by exercising the common law rights of any party to bring an action to construe a contract and have his rights declared. There is a concurrent jurisdiction of the subject-matter of a suit of this kind, either by a court of competent jurisdiction or by the National Railroad Adjustment Board." 41 S.E.2d 744, 778.
And then, after quoting the South Carolina declaratory judgment Act, 1942 Code, Sec. 660, the Supreme Court said: "As a sanction for the maintenance of this action and for the relief demanded, the appellant comes squarely within the provisions of this section of the Code." 41 S.E.2d 779.
It is therefore the law of this case that this court has jurisdiction notwithstanding the remedy provided by the Railway Labor Act. It may be noted in passing that the same conclusion was reached by the Federal Court, when this case was remanded to the State Court. Southern Railway Co. v. Order of Railway Conductors, D.C., 63 F. Supp. 306. This leaves only the question of whether the court will in the exercise of its discretion make a binding declaration, which the Supreme Court specifically left open for decision by the Trial Court after a hearing on the merits.
As has already been pointed out by the Supreme Court, all the necessary parties are before the court, the situation giving rise to the controversy is local to South Carolina, and all necessary witnesses were available to the parties at the trial. Moreover, under the facts of this case, no other remedy exists under the laws of this State except that which is now claimed by the plaintiff. This leaves only for consideration the existence of the remedy before the National Railroad Adjustment Board as it might effect the exercise of this court's discretion. As to this the Supreme Court has provided a guide. It said: "That another remedy may exist, and that other relief may be available to the plaintiff, are factors to be considered by the court. However, before declaratory relief may be denied, in the discretion of the court, on the ground of the existence of other remedies, it must clearly appear that the asserted cumulative remedies are not only available to the plaintiff, but that they are speedy and adequate, or as well suited to the plaintiff's needs as declaratory relief." 41 S.E.2d 774, 779.
Statistics from the annual reports of the National Railroad Adjustment Board to Congress for the years 1944, 1945 and 1946 introduced by plaintiff show that that Board has a very large backlog of cases and that it would take several years to secure a decision or award, which would still be subject to a court review entailing a trial de novo. It thus appears that that administrative remedy is not speedy and adequate. On the other hand, this court is in a position now to make a finding and final declaration that will settle the controversy between plaintiff and defendant.
The character and inadequacy of the procedure of the National Railroad Adjustment Board are likewise shown in the following excerpt from the opinion of the Third Circuit Court of Appeals in the case of Dahlberg v. Pittsburgh L.E.R. Co. et al., 138 F.2d 121, 122:
"The appellants now argue (although the point was not raised before the District Court) that under the Railway Labor Act of 1934, 45 U.S.C.A. § 151 et seq., the Court was without jurisdiction to review the award on its merits, its function being merely to decide the single question whether the award was within the statutory or constitutional authority of the Board. Their contention is based exclusively upon a provision of Sec. 3 (m) of the Act, that the awards of the Board `shall be final and binding upon both parties to the dispute.'
"In construing a statute, words may not be taken out of their context and endowed with an absolute quality nor may the plan of the entire statute be disregarded in interpreting any single provision. Obviously the expression 'final and binding' has its limitations. Even the appellants concede that the award is neither so final that it may not be set aside by the Court if the Board acted beyond its statutory authority nor so binding that the carrier can be compelled to obey it without the aid of the Court in enforcement proceedings. We think that the general plan of the statute clearly discloses an intention to use the words in the sense that the award is the definitive act of a mediative agency, binding until and unless it is set aside in the manner prescribed, and that it was intended that the Court should exercise broader powers than merely directing coercive process to issue if satisfied that the proceeding was authorized by law."
Then it was said: "If it could be assumed that the Adjustment Board was a governmental agency still other doubts as to the Act's constitutionality would be present, for example, the question whether there is such a lack of safeguards in the procedure before the Board as to amount to a denial of due process, there being no Court review of the merits. This point was dealt with by Justice Rutledge in the Washing ton Terminal Company v. Boswell, supra, [75 U.S. App. D.C. 1, 124 F.2d 235], as follows: `Much of the argument has been built around the alleged inadequacy of the administrative proceeding as complying with the requirements of due process, particularly in the absence of formal pleadings, opportunity for examining witnesses and cross examining them, opportunity for representation by counsel and for oral argument. These things would be important, if the Board's decisions were final in the legal sense and for purposes of enforcement, as to either facts or law. But, as has been shown, they have no such quality.'"
In conclusion: " The Washington Terminal case, supra, did not, it is true, directly involve this question, the point decided by it being that the employer might not, prior to enforcement proceedings by the employees, review an adverse award by means of an action for a declaratory judgment. However, the majority opinion said, and reiterated, that the enforcement proceeding was a suit de novo in which the employer was not limited in its defenses to matters stated in the award and that the findings of the Board did not have finality as to either facts or law. It is evident that a vast deal of careful study and elaborate attention was devoted to the writing of the opinion. Its dicta are persuasive and leave no doubt that it was indeed the considered opinion of the majority that awards are not final and binding to the extent which the appellants here contend." (Emphasis added.)
An analogous case to that now under consideration is Delaware, Lackawanna Western R. Co. v. Slocum, 183 Misc. 454, 50 N.Y.S.2d 313, 269 App. Div. 467, 57 N.Y.S.2d 65, and D.C., 56 F. Supp. 634, which was mentioned by the South Carolina Supreme Court in its earlier opinion in this case. In the Slocum case the New York Court exercised its discretion in favor of grating declaratory relief in a controversy between a railroad and its employees over the interpretation of a collective bargaining contract.
It is not considered necessary to review here the federal decisions on the effect of the remedy provided by the Railway Labor Act inasmuch as the Supreme Court has already considered them fully in its opinion which established the law of this case.
The court is of the opinion that the remedy provided by the Railway Labor Act is not such as would require it to deny a declaration of the rights of the parties in this case, in the exercise of its discretion, and that the plaintiff is entitled to the relief prayed for in its complaint. Of course, if the defendant is not satisfied with the present provisions of the agreement, it is free to initiate amendments or changes by following the procedure provided in the last paragraph of the contract, and undertake to secure the desired relief by the normal processes of collective bargaining.
It Is Therefore Ordered, Adjudged and Decreed that:
1. Under the terms of the contract of May 16, 1940, between the plaintiff and defendant:
(a) The movements on the private track serving the plant of the Ancor Corporation at Pregnall, South Carolina, are industrial switching and constitute a part of the service trips of the conductors of the local trains between Charleston and Branchville.
(b) Plaintiff is obligated to pay conductors for the service trips of local freight trains between Charleston and Branchville, including the work on the track serving the Ancor Corporation at Pregnall, South Carolina, the applicable and governing compensation specified in the provisions of Articles 4, 5, 6 and 7.
(c) Conductors are not entitled to an additional day's pay or any other additional compensation separate and apart from the pay for their service trip from Charleston to Branchville for performing switching on the track at Pregnall, South Carolina.
2. Plaintiff has fully paid the local freight conductors for their services while operating the local freight trains which performed services at Pregnall, South Carolina, that resulted in the controversy between plaintiff and defendant over the construction of the contract of May 16, 1940.
3. Plaintiff is under no legal liability to satisfy the claims or any similar claims which have been made or may be made by defendant for extra compensation for conductors of local freight trains for performing industrial switching on the tracks serving the Ancor Corporation at Pregnall, South Carolina.
August 15, 1949.
The well considered decree of the Court below, which will be reported, is affirmed for the reasons therein stated. It is only necessary, therefore, to discuss certain minor questions raised by the exceptions but not referred to or disposed of in this decree.
The Court below denied a motion by appellant to amend its answer by alleging that subsequent to the commencement of this action, this dispute was submitted by appellant to the National Railroad Adjustment Board where it is now pending. Appellant also offered in evidence, and the Court excluded, a certified copy of the file of the First Division of the National Railroad Adjustment Board relating to the claims of the conductors involved in this action which showed that these claims had been submitted to and were still pending before that body. It was held that the same controversy was pending before the National Railroad Adjustment Board constituted no defense to this action. Appellant challenges this ruling and further contends that this was a circumstance to be considered in determining whether the Court should enter a decree on the merits. It was held by this Court on the first appeal, 210 S.C. 121, 41 S.E.2d 774, that the courts had jurisdiction to determine this controversy and that the remedies provided by the Railroad Labor Act, 45 U.S.C.A. § 151 et seq., were not exclusive. The fact that this dispute had been submitted by appellant to said Board was shown by other testimony in the case and was no doubt considered by the Court below in determining whether it would enter a declaratory judgment. It has also been given due consideration by this Court. The error, if any, in refusing to allow the amendment and in excluding the testimony mentioned was, for the reasons stated, not prejudicial.
Appellant claims that the Court erred in excluding an affidavit by the Executive Secretary of the First Division of the National Railroad Adjustment Board which was offered for the purpose of showing the number of cases filed with that Division on behalf of the employees of the Southern Railway Company from December 9, 1935, to June 12, 1947, the number disposed of, either by awards entered or cases withdrawn, and the number still pending. This affidavit, and the number still pending. This affidavit does not purport to be a certified copy of the docket on the First Division of the National Railroad Adjustment Board. It is a mere tabulation made by the affiant as a result of the examinations of the records in his custody. It was clearly inadmissible. It may not be amiss to state that it is apparently conceded that one statement contained therein is incorrect.
Finally, it is contended that the Court below erred in admitting certain testimony offered by respondent tending to show the interpretations placed upon various provisions of the contract by the parties and the usages and practices which had prevailed over a number of years, it being contended that this testimony tended to vary or add to the terms of the contract. We think the testimony was competent. Indeed, without reservation of objection, testimony along the same line was offered by appellant. The exceptions relating to this question are overruled.
Appellant has argued against our holding in the former opinion that the courts of this State had jurisdiction of the subject-matter. It is earnestly contended that the action should be dismissed for lack of jurisdiction. This question was fully considered on the first appeal and that decision is the "law of the case". We are now not at liberty to review it even if we desired to do so. Jones v. Charleston W.C.R. Co., 65 S.C. 410, 43 S.E. 884; Jenkins v. Southern Railway Co. et al., 145 S.C. 161, 143 S.E. 13; National Bank of Newberry v. Livingston et al., 164 S.C. 2, 161 S.E. 769; Cohen v. Standard Accident Insurance Co., 203 S.C. 263, 17 S.E.2d 230.
All exceptions are overruled and judgment affirmed.
BAKER, C.J., and FISHBURNE, STUKES, TAYLOR and OXNER, JJ., concur.