The opinion
RUTLEDGE, Associate Justice
(dissenting).
I dissent. The majority rightly conclude, I think, that the New York Central Railroad Company should be considered a single carrier for purposes of collective bargaining under the National Railway Labor Act. But I do not think it follows from that fact or the statute’s provisions that the Board was required to find, as a matter of law, that all yardmen employed by the company constitute a single unit for *797 this purpose. The important issue, as I view the case, is, how shall it be determined, under the Act, what is a “craft or class” of a carrier’s employees for collective bargaining.
Broadly stated, there are three possible answers: (1) That the Act had effect to “freeze” railway labor in bargaining units existing, under contract or agreement, when.it became effective; (2) that it had the opposite effect, that is, to throw out all existing units less than carrier-wide in scope and require substitution in all cases of carrier-wide craft units; and (3) that the Mediation Board was empowered, when a representation dispute arises, to determine by election or other appropriate means not only who shall be the representative, but also by what units the employees shall be represented if that likewise is in dispute. 1
In effect, though not in exact form of statement, the first is what the Switchmen advocate. The second is urged by the Brotherhood and accepted by the Board, the District Court and the majority here. In my view, neither is consistent with the terms, purposes and policies of the statute. The consequences, in each case, forbid its acceptance.
The first is too static; the second, too violently disruptive of existing arrangements. The former freezes railway labor in the contractual mold of 1934. The latter disrupts all such arrangements as a matter of law, except as carrier-wide crafts already had been established or in other cases where all of a carrier’s employees doing similar work agree to representation by lesser units. I agree with the majority’s rejection of the first view and their reasons for doing so, except in so far as they' require acceptance of the second. But I think Congress was as far from commanding that all less than carrier-wide units be ousted as it was from concreting all units in the contract mold of 1934.
The view that ouster is required would go far to destroy, rather than to promote, the peace in labor relations and the uninterrupted service of the carriers which were the statute’s declared and primary objects. Section 2. It makes the Act an invitation and an instrument for creating labor strife especially in stirring up jurisdictional disputes. It gives this weapon to, and throws the whole weight of the legislation in favor of, the big unions as against the smaller ones. All that is needed for ouster of the latter is to cause some employee to question or “dispute” their right to act as representative, which a large union can always do. From that point on the ouster is almost automatic. The result of the election is, in these circumstances, a foregone conclusion. The Board becomes merely an election judge, having in effect a ministerial and often only a perfunctory function. This is but a policy of compulsory liquidation of the smaller bargaining units. I do not believe Congress intended to adopt it. Nor do the terms of the statute comport with such an intention.
The majority reach the opposite view largely on two bases. The first is by reading into the statute a definition df “craft or class” as meaning “carrier-wide craft.” This is chiefly by inference from Section 2, Fourth, and Section 2, Ninth. The second basis is support for this inference found in the legislative history, particularly in the testimony of Joseph B. Eastman, then Federal Coordinator of Transportation and reputedly author of the 1934 amendments. Section 2, Fourth, quoted in the majority’s opinion, with its use of the singular number in the last quoted sentence, is regarded as importing into the statute the geographic definition of “craft or class” as being “carrier-wide craft.” One sentence of Section 2, Ninth, lends itself to similar grammatical emphasis: “Upon receipt of such certification the carrier shall treat with the representative so certified as 'the representative of the craft or class for the purposes of this act [chapter]” (Italics supplied).
The difficulty with this view is that neither Section 2, Fourth, nor the quoted sentence from Section 2, Ninth, purports or was intended to define “craft or class” in any way, functionally or geographically. Neither provides for, but each assumes a previous, determination of the craft or class. Given that, Section 2, Fourth, confers on the majority the right to choose the representative, which of necessity must be singular, while the quoted sentence of Section 2, Ninth, requires the carrier to treat with the representative so chosen.
*798 That the statute contemplated treating with only one representative for one unit is clear. And this sufficiently explains the use of the singular number both in Section 2, Fourth, and in the sentence quoted from Section 2, Ninth. But that either contemplated only one unit for all of a carrier’s employees doing the same kind of work does not follow from the language of either section.
Thus, with reference to the sentence quoted above, the preceding and more important sentence is cast in the singular as to the carrier but uses the plural in referring to “representatives,” “certify * * * the name or names of the individuals or organisations that have been designated and authorized to represent the employees involved in the dispute.” (N. B., not “disputes.” Italics added) By giving this sentence a corresponding emphasis upon the plural number, the conclusion could be drawn that the statute requires less than carrier-wide units to be designated in all cases. So also the succeeding sentences in Section 2, Ninth, as will appear, rebut both this and the contrary inference of the majority.
Apart from grammar, -neither Section 2, Fourth, nor Section 2, Ninth, was intended to supply a definition of “craft or class.” They do not purport to do so. Nor does the Act. Its language may be searched from beginning to end without discovery of such a definition. This is significant in view of two facts. One is that the statute is not lacking in definition of terms Congress intended to define. “Carrier,” “representative,” and other basic terms are defined specifically. The other is that “craft or class” is no less basic or important. It is one of the fundamental conceptions used throughout the Act. Yet there is no semblance of specific definition. Had Congress intended to define the term, and to do so as the majority say was implied, it had only to use the simple and obvious language “carrier-wide craft.” It used neither these nor any comparable words. On the contrary, it avoided making any definition of the voting or bargaining unit, and did so intentionally, deliberately and as a matter of policy. The omission was not by oversight or inadvertence. There were reasons, and compelling ones, for making it. This appears, not only from the total absence of specific definitive terms in the Act, but also from the legislative history and especially from the testimony given by Mr. Eastman, set forth in the margin. 2
The avowed obj ect, in his» view, was to leave out any definition of craft or class, and for two reasons. The first was because, generally speaking, such a definition *799 was regarded as unnecessary. This, in turn, was for the reason that crafts or classes had become widely and definitely crystallized in railroad labor. Hence, in Mr. Eastman’s words, “I think there would be no difficulty in determining what is a craft or class of employees.” In other words, there was no general necessity for defining craft or class because that term had been defined already by the employees through self-organization. The existing class structure, not one revolutionized by liquidating it and substituting carrier-wide units, supplied the definition and part of the reason for refusing to make an attempt at specific definition in the Act itself. No doubt also the very difficulty of framing a definition which would reflect the existing structure or be acceptable to the forces whose support was essential to the statute’s enactment furnished additional and powerful reason for not making the effort. The. matter was one better for letting sleeping dogs lie than for stirring them up. The uncontradicted intention to refrain from defining the term is a complete contradiction of the purpose to include, either specifically or by inference from other terms, a definition which would make “craft or class” mean for all cases “carrier-wide craft.”
However, there was one outstanding situation, among others, in which the problem of defining the craft or class could not be ignored completely or left to be determined by reference to the existing structure of labor organization. That was the case -of the jurisdictional dispute, characterized by Mr. Eastman as “one of the curses of the labor world.” 3 The statute anticipated the difficulty. Provision was made in Section 2, Ninth, for taking care of it. At the House Committee hearings Representative Huddleston inquired of Mr. Eastman: “That issue then would be decided by the Board of Mediation?” The witness replied: “That is the intent * * * that is what it was designed to do.” 4 In other words, in cases of jurisdictional disputes, as in others wherein the scope of the “craft or class” might be in issue, the Board, not the statute, was to decide upon or define the unit. Mr. Eastman’s reference, in this portion of his testimony, obviously was not to Section 2, Fourth, nor to the sentence above quoted from Section 2, Ninth. It was rather to the specific provision of the latter section which empowers the Board to “designate who may participate in the election” or delegate this function to “a committee of three neutral persons.” This is the only provision in the entire statute which specifically approaches the problem of defining the voting, and thus the bargaining unit. Consistently with the statute’s avowed purpose to leave to *800 the employees the matter of their own organization as far as possible, and with the corresponding omission to define voting or bargaining units, the provision itself makes no such definition but refers that matter to the Board’s judgment whenever it must be faced to avoid a breakdown in. the functioning of the Act.
Considering the provisions of Section 2, Ninth, in conjunction with this portion of Mr. Eastman’s testimony, it seems clear the statutory purpose was: (1) not to define, but rather deliberately to omit definition of “craft or class,” since generally the crystallized status of labor organization would furnish this definition; (2) that, in the exceptional cases in which the issue might arise, the Mediation Board would determine the voting, and thus the bargaining, unit under the power conferred by Section 2, Ninth, and as its judgment based upon the evidence in the particular case, rather than any mandate in the statute itself, might require.
This view derives added strength from the provision authorizing the Board to delegate the functions of holding the election and designating who may participate to a neutral committee. Testimony at the Congressional hearings discloses the reason and purpose of the delegation. 5 These were to enable the Board to escape the onus which might attach to its own discharging of these functions. This arises primarily, if at all, not from merely conducting an election for a predetermined unit, but from determining who may participate. That was the rub which Congress intended the Board to avoid, if it should so desire. In other words, it was clearly contemplated that the Board would be confronted with a highly delicate decision in designating who might vote, which comes down in practical effect to defining the units to be represented, whenever the representation dispute involves this factor.
How this could be true, and why it was necessary to make provision for the Board to relieve itself by delegating the function to others, are difficult to understand, if Section 2, Ninth, already had relieved it as a matter of law by requiring it to designate carrier-wide crafts in all cases. Obviously Mr. Eastman reconciled this inconsistency, as do the majority, by differentiating functional conflicts and geographic or regional conflicts. Only by resort to this distinction can his testimony be regarded as not involving fundamental inconsistency. If the distinction is accepted, the conflict dissolves. In other words, he thought that the statute designedly omitted to make functional definition of “craft or class” along craft lines, but embodied a uniform and invariable definition along geographical or regional lines.
This is the crux of the matter. Clearly the statute left the matter of functional definition, along craft lines, to the Board (or, in its stead, to a neutral committee), when that issue arises in a representation dispute. That seems to be admitted by all. But I cannot agree that it made different provision for definition along geographic lines. This seems clear both from the terms of the Act and from the reasons which required reference of the matter of defining the voting units to the Board. There was no more reason for empowering the Board to determine a functional jurisdictional dispute than a geographic or regional one. There is nothing in the language of the statute which indicates either intent or reason to withdraw one more than the other from the Board’s authority. The absence of definitive provision is both geographic and functional — it is total. The language of the Act places no geographic or regional requirement or limitation upon the Board’s power, except that the unit must be confined to a carrier’s employees. It cannot be greater than that, so as to include others. The reasons applying in the one case, to support the omission, apply equally in the other. If the existing structure of railway labor organization made such definition generally unnecessary in the case of overlapping craft lines, it had like effect as to overlapping geographic lines. The one offers as much possibility for stirring up jurisdictional disputes as the other. The one was as widely and definitely crystal *801 lized as the other. Neither would bring more onus to the Board from deciding the issue than the other. Every reason which dictated definition of the one, or omission to define it, did so as to the other. In short, the distinction, considered in the light of the statute’s total omission of definitive terms, functional and geographic, and of the equality of application of the reasons, for making the omission to both types of issue, is untenable, notwithstanding its distinguished sponsorship. In that view, it is impossible to reconcile the admitted purpose to omit definition of “craft or class” from the statute’s terms and the power it confers on the Board to make this definition when confronted with the necessity, on the one hand, with the view, on the other, that the Act itself defines the voting unit and does so for all cases as a “carrier-wide craft.” The situation is one in which the silence of the statute not only is eloquent, but is compelling.
Finally, this view of the Board’s function is supported by the declared policy of the Act, set forth in other provisions, which furnishes not an ironclad mold but the necessary standard to guide its administrative discretion or judgment. This policy is to leave to the employees themselves, so far as is possible, the formation of their own units. It is declared in the proviso to Section 1, Fifth, 6 and in my opinion this was not repealed by implication through adoption of the 1934 amendments. It is built upon the history of railway labor organization in the nation. It is reflected in the intentional omission to define “craft or class.” It was, without doubt, an essential condition for securing the support necessary for enactment of the legislation. It has been recognized judicially by this court 7 and by others. 8 The administrative practice of the Board has followed it, both in designating representatives for less than carrier-wide units when there has been no disagreement as to this 9 and in using its powers of persuasion and influence to secure agreement among the disputing employees concerning the unit, whether carrier-wide or less extensive. 10 In other words, as appellants say in their brief, the underlying principle written into the Act was the right of self-organization. I think that was just as true regionally as it was with reference to the fixing of craft lines.
But it does not follow that this principle is unlimited. Self-organization does not work, at any rate consistently with the basic purposes of the legislation, when two groups lock horns in death struggle over a no man’s land or one invades and seeks to conquer the territory of another. When self-organization leads to war, the limit of the right has been passed. So long as the employees can organize themselves and do so, without entrenching upon each other’s or the public domain, the Act preserves their right and the Board has respected it. That it has done so, in my opinion, is not because it has closed its eyes to the policy of the Act for the reason that its juris *802 diction has not been invoked, as would be true if the statute requires carrier-wide units as a matter of law; but is rather because, to this extent, it has observed and followed both the letter and the policy of the law. 11 The statute obviously was not intended to prescribe two conflicting policies, one for application when the persons affected agree, the other to be applied when they disagree. So to construe it would turn the policy to be applied upon the factor of agreement alone, which of course only would invite disagreement.
But when the limit has been reached, and the employees cannot agree, some power must provide the decision as to the appropriate unit, unless the Act is to break down and its purposes be defeated. Those consequences cannot be avoided by leaving things forever as they have been set by the arrangements, contractual or otherwise, made in and for another day long gone. There must be some room for change and adjustment, but it need not be, and the law does not require it to be, in all cases a total disruption of existing arrangements.
Between these two extremes the statute has drawn a compromise and, in my opinion, the only workable one. This is, in effect, that the Board must decide, when a dispute concerning representation presents the issue, “who may participate in the election,” that is, what is the appropriate or proper unit of which the sense is to be taken by the majority vote (or other means) the Act requires. That decision is not to be made arbitrarily, or uniformly in all cases without regard to the varying conditions presented. It is to be made in the light of various factors, as shown by the evidence presented to the Board, including the size of the carrier, the nature of the preexisting or prevailing arrangements, the disruption of harmonious relations with the employer which the proposed change, or the failure to make it, might bring. Approached in this manner, the Board’s decision might be for a carrier-wide craft or class or for one less extensive, depending upon the case made. Conceivably in some cases decision either way might be sustained. But at all events it is one which should be made by an exercise of the Board's judgment, not as an automatic reflection of a statutory requirement of carrier-wide crafts.
Enough has been said, I think, to show the fallacy as well as the dangers of accepting either of the two extreme views which have been put forward in this case. Because each seems to me to involve dangers as great as the other and like misconceptions of the statute’s language and policy, I have been unable to accept the one or the other. In my opinion the Board, when it decided as a matter of law that the statute requires carrier-wide crafts as the voting unit, whenever the dispute raises that question, failed to exercise the judgment which the statute calls into play.
For this reason the judgment should be reversed and the cause remanded to the District Court, with instructions to vacate the Board’s order.
A fourth alternative, somewhat akin to the first, is hardly plausible, that the purpose was to leave entirely to the employees, to work out wholly through exercise of their economic sanctions, the definition or constitution of the voting unit.
“Commissioner Eastman * * * Now, it is one of the curses of the labor world at the present time that there are so many of these unfortunate jurisdictional questions. They cause trouble all along the line, and unnecessary trouble, and it seems to me that it is highly desirable to have some neutral agency, tribunal, which is impartial and which can settle these questions, and that is what is undertaken to be done here.
sj* sjt & s|c :Ji
“Mr. Wolverton. I desire to know whether your amendment includes a definition of craft or class?
“Commissioner Eastman. No. We thought of that, as to whether or not it was necessary to define craft or class, but those are words which have been used in labor parlance for a very long time, and I think there would be no difficulty in determining what is a craft or class of employees.
“Mr Wolverton. You do not think that without definition they might create disputes between the different classes of employees as to the jurisdiction of each?
“Commissioner E'astman. No; and if there are any disputes I think that that matter is sufficiently covered by the provisions of the ninth paragraph, which provides for the settlement of such disputes, or rather, provides the tribunal which shall have power to consider and determine such disputes.
“Mr. Wolverton. You do not think it is necessary then to define the craft in any specific way?
“Commissioner Eastman. No; I do not think it is necessary.
% * * * * * *
“Mr. Huddleston. How would we resolve an issue where there was a conflict of jurisdiction as to classes and crafts, such, for illustration, as comes up in the classification of employees. We have had some pretty bitter disputes, we will say, between the carpenters and the sheet-metal workers over who should put in metal window frames. That is just an illustration of what sometimes happens, and the trouble has been that nobody could say whether the man doing that work was a carpenter or a sheet-metal worker. What would you do with a situation such as that under this bill?
“Commissioner Eastman. It is the intent that that would be handled under *799 the paragraph ninth that I have discussed.
“Mr. Huddleston. That issue then would bo decided by the Board of Mediation?
“Commissioner Eastman. That is the intent; whether or not it does provide for every possible contingency, I am not sure but that is what it was designed to do.” Hearings before Committee on Interstate and Foreign Commerce on H.R. 7650, 73d Cong., 2d Sess. (1934) 41, 45, 57-8.
Mr. M. W. Clement, chairman of the committee of the railroads designated to deal with the proposed 'amendments (of 1934), testified at the House hearings:
“Section one, paragraph 5, of the bill distinctly states that neither the provisions of this bill nor any occupational classifications made by the Interstate Commerce Commission shall be construed in any way to define crafts, yet section 9 of this bill puts the problem of jurisdiction of crafts up to the Mediation Board, and places upon them the responsibility of determining those eligible to vote in case of disputed representations, and brings about a complication that neither railroad nor employees know where they are.” Hearings before Committee on Interstate and Foreign Commerce on H.R. 7650, 73d Cong., 2d Sess. (1934) 131.
Rejection of the amendment proposed in 1934 by Mr. Clement to remove any doubt concerning the matter was not, in the face of all this evidence that the omission to define “craft or class” was intentional, a backhanded adoption of such a definition. It merely reflected the continued unwillingness of the parties to insert such a definition or their inability to agree upon one mutually satisfactory. It seems fair to assume that if any such definition had been included, the Act would have failed of passage. It was fear that the language might lend itself to Mr. Eastman’s stated construction which prompted the tendering of the amendment. Its rejection was not an adoption of the construction. It was rather a retention of the original and intended omission to make any sort of definition.
See the preceding note.
Ibid.
Tire Senate Committee report states: “This determination of what employees shall be allowed to vote is one of the most controversial subjects in the settlement of disputes. Your committee amended the bill so that if the Mediation Board found it might arouse antipathy on the part of the carriers or the employees in deciding questions of this kind, it could create a neutral committee to do that work, so its own usefulness of settling disputes that might arise thereafter might not he impaired.” Hearings before the Senate Committee on Interstate Commerce on S. 3266, 73d Cong., 2d Sess. (1934) 3.
“Provided, however, That no occupational classification made by order of the Interstate Commerce Commission shall be construed to define the crafts according to which railway employees may be organized by their voluntary action, nor shall the jurisdiction or powers of such employee organizations be regarded as in any way limited or defined by the provisions of this Act [chapter] or by the orders of the Commission.”
Cf. Brotherhood of Railroad Trainmen v. National Mediation Board, 1936, 66 App.D.C. 375 , 88 F.2d 757 ; Order of Railway Conductors v. National Mediation Board, 1940, 72 App.D.C. 299 , 113 F.2d 531 .
Brotherhood of Railway and Steamship Clerks v. Nashville, C. & St. L. Ry., 6 Cir., 1937, 94 F.2d 97 .
It appears to be conceded that the Board’s uniform practice is to certify less than carrier-wide unit representatives when the dispute presents no issue as to the regional or geographic scope of the unit, and the Board’s findings in this case set forth five such certifications. On the other hand, when the dispute presents such an issue, the uniform practice has been to regard the unit as carrier-wide, pursuant to the position taken by the Board in its First Annual Report. Thus, it seems the Board has followed two diametrically opposite policies in administration of the Act, one effective when there is no issue presented as to the area of the craft, the other when such an issue is made. If the Act, as is contended, requires a uniform designation of carrier-wide units as a matter of law, when there is a representation dispute, it is difficult to understand how the so-called “agreement” of the parties, or their failure to raise this phase of the issue, can confer upon the Board authority to certify a representative for a unit not contemplated by its terms or policy. Cf. text, infra, at note 11.
As the record shows is the Board’s usual practice, followed in this case.
Cf., however, note 9, supra.