
    L. K. GIBBONS, Plaintiff-Appellant, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant-Appellee.
    No. 8739.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 30, 1957.
    On Rehearing Jan. 21, 1958.
    
      R. O. Hawthorne, Jr., Shreveport, Hobbs & Yeates, Minden, for appellant.
    Wilkinson, Lewis, Wilkinson & Madison, Shreveport, for appellee.
   AYRES, Judge.

Plaintiff instituted this action to recover of his former employer allowances provided as part of his wages under the provisions of an agreement, termed “Washington Agreement of 1936”, entered into by a majority of the railroad companies and labor organizations or brotherhoods representing railway employees, for the months of April, May and June, 1956, aggregating $285.11, together with a continuing monthly wage or stipend of $389.40, from demand for payment until payment made, and for a reasonable attorney’s fee and costs. The latter portion of plaintiff’s ■demands as to the continuing monthly wage and an attorney’s fee is predicated upon the provisions of LSA-R.S. 23:631, 632.

Defendant, in answering plaintiff’s demands, admitted owing plaintiff the amount -of the aforesaid allowances, which together with costs of court, it tendered to plaintiff and deposited in the registry of the court. Subsequently, however, defendant filed and urged a plea to the jurisdiction of the court ratione materiae and an exception of no cause and of no right of action. Both plea and exception were sustained and, accordingly, plaintiff’s action was dismissed. From the judgment thus rendered and signed, plaintiff has appealed.

Plaintiff was employed by defendant April 16, 1946, and continued in such employment until his resignation on June 21, 1956. He was, therefore, an employee of defendant prior to, at the time of and subsequent to defendant’s merger or consolidation with the Louisiana & Arkansas Railway Company. The position in which he was employed prior to the aforesaid merger, wherein his average monthly earnings were $389.40, was abolished, due to 'said merger, March 31, 1956, after which plaintiff was retained in the defendant’s employ but in a position of inferior grade and at a lower rate of pay. The difference in pay of the two positions constitutes the allowances provided for in the aforesaid and so-called “Washington Agreement of 1936”.

The gist of defendant’s plea to the jurisdiction of the court is (1) that as defendant is a common carrier engaged in interstate commerce and, therefore, subject to the Federal Fair Labor Standards Act of 1938 (29. U.S.C.A. § 201 et seq.), the State is without power or authority over matters of labor relations in interstate commerce and (2) that under the provisions of the Railway Labor Act (45 U.S.C.A. § 151 et seq.), the National Railroad Adjustment Board is given, and has, complete and exclusive jurisdiction over disputes growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions. 45 U. S.C.A. § 153.

Defendant’s exception of no cause and of no right of action is predicated upon the premises (1) that this is an action under the aforesaid Washington Agreement, which prescribes administrative procedure for the handling and settlement of claims and controversies arising thereunder, and that, finally, the decision of a referee in connection therewith is final and conclusive, and (2) that plaintiff failed to follow such administrative procedure, for which reason he is precluded from seeking judicial aid in the enforcement of his rights.

Defendant contends that the matters in dispute exist by virtue of the aforesaid Washington Agreement and that the courts, neither federal nor state, have power to adjudicate disputes involving the interpretation of agreements between carriers and their employees or to settle disputes arising out of the construction of such agreements as jurisdiction over such agreements and their interpretations concerning rates of pay, rules or working conditions was vested completely and exclusively in the National Railroad Adjustment Board created by Congress in the Railway Labor Act. Cited in support of this contention are—Slocum v. Delaware, Lackawanna & Western Railroad Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795, and Order of Railway Conductors of America v. Southern Railway Co., 339 U.S. 255, 70 S.Ct. 585, 94 L.Ed. 811. In both cases it was held that the National Railroad Adjustment Board has exclusive jurisdiction to adjudicate disputes between railroads and labor unions involving the interpretation of collective labor agreements. There the dispute concerned the interpretation of an existing bargaining agreement. Its settlement would have had prospective, as well as retrospective, importance to both the railroad and its employees since the interpretation would have governed future relations of those parties.

However, it was held in Moore v. Illinois Central Railroad Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, that a railway employee claiming that his discharge was in violation of an agreement between the defendant railroad company and a labor union could, in the first instance, institute his action in court for damages for such alleged wrongful discharge, and that the exhaustion of the administrative remedies granted by the Railway Labor Act, 45 U.S.C.A. § 151 et seq., is not a prerequisite to the bringing of a court action therefor.

In distinguishing its holding in the Slocum case from that in the Moore case, the court stated:

“Our holding here is not inconsistent with our holding in Moore v. Illinois Cent. R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089. Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad’s action in discharging him as final, thereby ceasing to be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide, and does not involve questions of future relations between the railroad and its other employees.” [339 U.S. 239, 70 S.Ct. 580.]

Also in point is the decision of the United States Court of Appeals for the First Circuit in Cepero v. Pan American Airways, Inc., 195 F.2d 453, 455, which was an appeal by one of numerous plaintiffs from a final judgment dismissing a complaint brought to recover wages allegedly due under a collective bargaining agreement entered into between the Transport Workers Union of America, representing a local union of which plaintiffs were members, and the employer, and, in the case of the appellant and a few of the other plaintiffs, to recover damages for their alleged lay-off without regard to their seniority standing, wherein the court appropriately stated:

“The next matter for consideration is the plaintiffs’ standing to sue in the absence of resort to the administrative procedures of the Railway Labor Act.
“The respective lines of distinction between cases wherein resort to the National Railroad Adjustment Board is a prerequisite to relief in the courts, Slocum v. Delaware, L. & W. R. Co., 1950, 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Order of Railway Conductors v. Southern R. Co., 339 U.S. 255, 70 S.Ct. 585, 94 L.Ed. 811, cases in which a court must stay its hand until the Adjustment Board has had a chance to act, Order of Railway Conductors v. Pitney, 1946, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318 and cases in which the right to sue in a court is not dependent upon prior exhaustion of the administrative remedies provided in the Act, Moore v. Illinois Central R. Co., supra, may not be easy to draw in every situation. But in this case we are not required to trace those lines of distinction nicely for our case on its facts is analogous to the one last cited, wherein in a suit by a member of the Brotherhood of Railroad Trainmen against a railroad company for damages for alleged discharge contrary to the terms of a contract between the Trainmen and the railroad, the Court said, 312 U.S., at page 634, 61 S.Ct. at page 756, that it found ‘nothing in that Act which purports to take away from the courts the jurisdiction to determine a controversy over a wrongful discharge or to make an administrative finding a prerequisite to filing a suit in court.’ See also Slocum v. Delaware, L. & W. R. Co., supra, 339 U.S. 244, 245, 70 S.Ct. 579, 580, wherein the Moore case is distinguished. We see no reason why a suit to recover wages allegedly due under a collective bargaining agreement should stand on any different footing from one to recover for discharge in violation of such a contract, so we conclude on the basis of the Moore case, supra, that the courts may proceed at once to adjudication not only of the issue of wrongful discharge but also of the issue of wages due.”

Where the employer suspended an employee for alleged misconduct in accordance with the grievance procedure of a contract between the employer and the appropriate labor union, followed by the employee’s discharge and his filing of a complaint with the National Railroad Adjustment Board, but subsequently withdrawn, after which he instituted an action for damages for wrongful discharge, it was held in Condol v. Baltimore & O. R. Co., 91 U.S.App.D.C. 255, 199 F.2d 400, 402:

“A railroad employee is not required to seek an adjustment of his controversy with the railroad company under the terms of the Railway Labor Act (45 U.S.C.A. § 151 et seq.) before suing for damages for wrongful discharge. Contrary to the usual rule, he need not first exhaust his administrative remedy. Slocum v. Delaware, L. & W. R. Co., 1950, 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Moore v. Illinois Central R. Co., 1941, 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089.”

We are in accord with defendant’s contention that the courts have no jurisdiction over disputes growing out of grievances or out of the interpretation or construction of agreements concerning rates of pay, rules or working conditions. However, we are not in agreement with the position taken that this action involves such a dispute or controversy. The dispute between plaintiff and defendant does not arise out of the terms of the aforesaid Washington Agreement nor do the issues presented require a construction or interpretation of the provisions of that agreement. The materiality of the aforesaid agreement is only incidental in fixing the amount due plaintiff under the terms of his former employment with defendant, about which there is no dispute or issue, as defendant, in answer and by its deposit made in the registry of the court, concedes the correctness of plaintiff’s wage fixed in accordance with that agreement. The sole issues are the applicability of the provisions of LSA-R.S. 23:631, 632 and whether or not plaintiff has complied with the prerequisites therein prescribed for the recovery of a continuing wage due under the terms of his employment from and after a demand for payment made subsequent to his resignation, and for the recovery of a reasonable attorney’s fee.

The provisions of the aforesaid sections of the statute read as follows:

“§ 631.
“It shall be the duty of every person, employing laborers or other employees of any kind whatever when discharging any laborer or other employee, or when any such laborer or employee has resigned, within twenty-four hours after such discharge or resignation, to pay the laborer or employee the amount due under the terms of employment whether the employment is by the day, week or month, upon demand being made upon the employer by the discharged or resigned laborer or employee at the place where the employee or laborer is usually paid.”
“§ 632.
“Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the laborer or other employee for his full wages from the time the demand for payment by the discharged or resigned laborer or employee was made, until the employer shall pay or tender payment of the amount due to such laborer or other employee. Reasonable attorneys’ fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a just suit be filed by the laborer or employee after twenty-four hours shall have elapsed from time of making the first demand following discharge or resignation.”

The conclusion is that this is not an action under the aforesaid Washington Agreement but under the above quoted sections of the statute and, therefore, the exhaustion of rights under the administrative procedure prescribed in the Washington Agreement is unnecessary and does not constitute a prerequisite to plaintiff’s institution and prosecution of this action in a court of competent jurisdiction for the recovery of wages due under the applicable laws of this State, nor is it a matter growing out of grievances arising out of agreements concerning rates of pay, rules or working conditions, the settlement of which is within the exclusive jurisdiction of the National Railroad Adjustment Board. Neither is the construction or interpretation of any such agreements required. Inasmuch as the trial court reached a contrary conclusion upon which the plea and exception were sustained, it follows, in our opinion, that the judgment was erroneous and should be reversed and set aside.

Therefore, the judgment appealed is annulled, avoided, reversed and set aside and it is now ordered that the plea to the jurisdiction of the court and the exception of no cause and of no right of action be and they are hereby overruled and, accordingly, this cause is remanded to The Honorable The First Judicial District Court in and for Caddo Parish, Louisiana, for further proceedings consistent with the views herein expressed and in accordance with law; the appellee to pay the costs of this appeal, all other costs to await final determination of the case.

Reversed and remanded.

On Rehearing

GLADNEY, Judge.

A rehearing was granted to review our action wherein we reversed the judgment of the trial court by overruling exceptions of no cause and no right of action and a plea to the jurisdiction of the court ratione materiae. Our further study of the issues so presented has only served to convince us of the correctness of our decision.

Appellee’s first contention is that we erred in holding plaintiff has a cause or right of action. As heretofore stated in our original opinion, petitioner alleged “allowances” totaling $285.11 unpaid but admitted by the defendant to be due under the “Washington Agreement of 1956.” He also claimed under LSA-R.S. 23:631-632 “continuing wages” and attorney’s fees on account of tire failure of his employer to promptly pay the “allowances” after demand.

The minutes of the trial court indicate all exceptions filed by the defendant were called for trial and recite: “Evidence adduced on said exceptions, exceptions submitted, and judgment 'rendered sustaining said exceptions”. It is elementary, of course, that judicial consideration of an exception of no cause of action is restricted to the well pleaded facts of the petition, whereas evidence may be adduced upon trial of an exception of no right of action for the purpose of disclosing interest or absence of interest of one or more of the parties to the lawsuit.

The well pleaded facts contained in plain-' tiff’s petition clearly assert a claim for an uncollected sum of money which although admittedly due petitioner was not paid upon demand, and that further compensation should be assessed in accordance with provisions of the Louisiana statute. It may not be seriously questioned, so we think, that the petition thus alleges a cause of action. We presume, however, exceptor’s main reliance is upon the exception of no right of action as its sustainment rests on evidence outside of the allegations of the petition, and especially is this true where it is argued plaintiff is without-a cause or right of action because of his failure to “follow the administrative remedies established by the Agreement, for resolving disputes and controversies”. Such evidence includes depositions and takes into consideration respondent’s answer. As noted in our former decree when the employer confessed by answer and tender the indebtedness of $285.11, certainly there no longer existed a “dispute or controversy” between the parties. From this it follows as surely as the day follows night, no further administrative procedure could be available to petitioner, and as a consequence the exception of no right of action is without legal foundation.

The plea to the jurisdiction of the court likewise may not be supported. The argument of the pleader asserts:

“The Court is without jurisdiction Ratione Materiae since this is an action under L.R.S. 23:632, which has no application to defendant, a common carrier engaged in the field of interstate commerce. The Railway Labor Act [45 U.S.C.A. § 151 et seq.] grants the National Railroad Adjustment Board complete and exclusive jurisdiction over disputes 'growing out of grievances or out of the interpretation or application of agreements concerning rates of pay.’ Plaintiff did not follow the grievance procedure established by the Act and hence may not resort to the courts.”

Strongly relied upon are two decisions of the United States District Court for the western district of Louisiana: Divine v. Levy; 36 F.Supp. 55, and Sirmon v. Cron & Gracey Drilling Corporation, 44 F.Supp. 29. The cited cases involved the Fair Labor Standards Act of 1938. 29 U.S.C.A. § 201 et seq. Divine and Sirmon, plaintiffs respectively in the two cases, were employees engaged in the production of petroleum products for shipment into interstate commerce. The demands of claimants were predicated upon an interpretation of the wage and hour provisions of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., and damages were sought as in the instant case under. LSA-R.S. 23 :632. The federal act, 29 U.S.C.A. § 216(b) prescribed :

“Any employee who violates the provisions of section 206 or section 207 of this title shall be. liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action. June 25, 1938, c. 676, § 16, 52 Stat. 1069.”

It was held in each of the cited cases plaintiff was exclusively relegated to relief in the nature of damages and for attorney’s fees as provided in the federal statute, and. that, therefore, relief under the Louisiana statute was not available. In so holding, the judges a quo merely followed the often enunciated legal principle that action predicated on a state statute, where its enactment was within the police power, is valid unless Congress has affirmatively excluded its exercise by acting directly and immediately upon the subject matter in question, so that the state action is repugnant to the federal action. Such power is not excluded merely because Congress has regulated a part of the field. Terminal Railroad Association v. Brotherhood of R. Trainmen, 318 U.S. 1, 63 S.Ct. 420, 87 L.Ed. 571; Missouri Pacific R. Co. v. Norwood, 283 U.S. 249, 51 S.Ct. 458, 75 L.Ed. 1010, 30 N.C.C.A. 639; Kelly v. Washington, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3; Northwestern Bell Tel. Co. v. Nebraska State R. Commission, 297 U.S. 471, 56 S.Ct. 536, 80 L.Ed. 810; H. P. Welch Co. v. New Hampshire, 306 U.S. 79, 59 S.Ct. 438, 83 L.Ed. 500.

But although LSA-R.S. 23:632 was found to be without application in Divine v. Levy and Sirmon v. Cron and Gracey Drilling Corporation, supra, we do not hold that plaintiff’s claim for allowances, damages and attorney’s fees is encompassed by the effective provisions of the- Fair Labor Standards Act. It is not. Nor does counsel for appellee so contend, for the act does not impose employment standards for railway employers when engaged in interstate commerce. 29 U.S.C.A. § 213 (b) (3).

Counsel does argue the jurisdictional plea should be sustained, stating “the Railway Labor Act grants the National Railroad Adjustment Board complete and exclusive jurisdiction over disputes growing out of grievances or out of the interpretation or application of agreements concerning rates of pay.”

Arguendo, and by no means conceding a dispute over allowances is herein involved, we opine this postulation is based on a misconception of the intent and effect of the federal statute. The following comment from Terminal Railroad Ass’n of St. Louis v. Brotherhood of Railway Trainmen, Ill. 1943, 318 U.S. 1, 63 S.Ct. 420, 422, 87 L.Ed. 571, observes that:

“The Railway Labor Act, also relied upon by appellant, remains for consideration and presents questions of a different order, not heretofore examined in any opinion of this Court. The purpose of this Act is declared to be to provide ‘for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions’ ; and ‘for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.’ It places upon carriers and employees the duty of exerting every reasonable effort to settle these disputes by agreement, and prohibits the carrier from altering agreed rates of pay, rules or working conditions except in the manner provided by the agreement or by the Act itself. Machinery is set up for the adjustment, mediation, and arbitration of disputes which the parties do not succeed in settling among themselves. The First Division of the National Railroad Adjustment Board has jurisdiction over disputes involving train and yard-service employees of carriers, which may be referred to it by agreement of both parties or by either party. Its awards are made ‘final and binding’ upon both parties to the dispute and the carrier may be required by the courts to comply, the Board’s findings being, in a proceeding for such purpose, prima facie evidence of the facts therein stated.”

The Louisiana statute herein resorted to by plaintiff does not conflict with the provisions of the Railway Labor Act, or with similar relief afforded plaintiff by other federal statutes, and accordingly, the state court is free to enforce the Louisiana statute is justified by the circumstances and evidence as may be developed in further proceedings.

It is well recognized that state courts, except where they are unauthorized under state law and except insofar as exclusive jurisdiction has been vested in the federal courts, have concurrent jurisdiction over cases pertaining to interstate commerce. 21 C.J.S. verbo Courts § 525, p. 796.

It follows from the reasons which formed the basis of our original opinion and the grounds herein stated, our original decision should be and is hereby reinstated and made the judgment of this court.  