Petition — Brotherhood of Railway, Airline & Steamship Clerks v. Russell

83-1414

No. 83-__ ALEXANDER L. STEVAS.

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1983

BROTHERHOOD OF RAILWAY, AIRLINE

AND STEAMSHIP CLERKS, FREIGHT

HANDLERS, EXPRESS AND STATION EMPLOYES,

Petitioner,

Vv.

LAURENCE G. RUSSELL, WILLIAM L. HANNA,

AND EppiE D. LANGWELL,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JaMEs L. HIGHSAW, JR.

(Counsel of Record)

JOSEPH GUERRIERI, JR.

HicHsaw & Manoney, P.C.

Suite 210

Airline and Steamship Clerks,

Freight Handlers, Express and

Station Employes

PRESS OF BYRON 8. ADAMS PRINTING, INC., WASHINGTON, D.C. (282) 347-6203

-_:

i

ISSUE PRESENTED

This petition presents the following issue:

1. Does a decision of the National Mediation Board dis-

missing, after investigation, a representation application filed

by an individual pursuant to Section 2, Ninth of the Railway

Labor Act, upon the basis of the uncontested fact that the

individual seeks certification by the Board as a representative

of an already represented craft or class of employees of a

carrier subject to the Act, solely for the purpose of terminating

the collective bargaining agreement governing such employ-

ees and their status as represented employees, constitute a

gross violation of a specific statutory command of that Act so as

to subject the Board’s action to judicial review?

2 2? eee

TABLE OF CONTENTS

Page

eG TINIE ooo ccc ctvcccccnsccscdvciesee iv

ET oc ct ca Ue bacncbescuttegeand eaenneie 2

ree CUE Mw nd ke vba t'pst ons eiatded ednoas 2

STATUTORY PROVISIONS INVOLVED .............0+00- 2

I ad oe Ue ae ekeceeee 4

REASONS FOR GRANTING THE WRIT ..............-006: 8

I. The Court Of Appeals Decision Reversing The Dis-

trict Court Raises Issues Of Substantial Importance

In The Administration Of The Railway Labor Act

Which Should Be Reviewed By This Court ...... 8

II. The Decision Below Conflicts With Established

ee oe ar ee Oe oe

ith Respect To The Exclusive Jurisdiction

i" Mediation Board In Representation Proceed- si

cused pededaegetes ee ceseaveverescccsvecnesos 17

APPENDICES:

for the Fifth Circuit, decided

APPENDIX C: Unived States Court of Appeals forthe

November 28, 1983) .............05- 34a

APPENDIX D: Applicable Provisions of the Constitu-

tion of the United States and the

Lae et GS Gein ie Sn Say

of the petition)

AppEenpix E: Application to the National Mediation

of Representa-

APPENDIX E-1: Decision of the National Mediation

Board dated May 21, 1981

APPENDIX F:

APPENDIX G:

APPENDIX H:

APPENDIX I:

APPENDIX J:

iii

Table of Contents Continued

Page

Russell v. National Mediation Board

Amended Compliant for Declaratory

Injunctive Relief and Petition For Re-

view and For Extraordinary Relief

CUBA TA) Sab edine cnsvcess 48a

Russell v. National Mediation Board,

Defendant National Mediation Board’s

RED. oon OR A cc a ee cas 02 57a

Russell v. National Mediation Board

BRAC’s Answer to the Complaint and

Cross Claim

Russell v. National Mediation Board,

— of Appeal filed, September 7,

iv

TABLE OF AUTHORITIES

Cases RELIED UPON: Page

Boire v. Greyhound Corp., 376 U.S. 478 (1964) ...... 13

Brotherhood of Railway Clerks v. Association for the

i of Non-Contract Employees, 380 U.S. 650

ee a. tin See So ae Pee cae 12, 13, 16

General Committee v. Missouri-Kansas-Texas Railroad

Company, 320 U.S. 323 (1943) ...........0eees ll

General Committee v. Southern Pacific Company, 320

Oe WMD kt sc cs eeri..: AERIS

Y Association of Machinists v. Street, 367

Se RIN gb onc KikteUeaeddc eackus 6Uaace ces 17

International Brotherhood of Teamsters v. BRAC, 402

F.2d 196 (D.C. Cir.), cert. denied sub nom. BRAC v.

National Mediation Board, 398 U.S. 848 (1968) .. 13

Inthe Matter of the Application of Laurence G. Russell, 8

BOE PE ON COTE 60 thine 00st sascccsdbecsic 14

Laurence G. Russell, William L. Hanna and Eddie D.

Langwell v. National Mediation Board, the Atchi-

son, T and Santa Fe Railway Company, et al.,

110 L DEED Cis bd wisi eb dco cankes xe 2

Leedom v. Kyne, 358 U.S. 184 (1958) ............. s 12, 13

Philbrook v. Glodett, 421 U.S. 707 (1975) ............ 15

Railway E Department v. Hanson, 351 U.S.

aoe (1966) ....... se i6 shite Case ¥ bts cle’ aabrwrk te 17

’s Union of North America v. NMB, 320 U.S.

STM ss occbabdcchhdenamnss eerantnens 11, 12, 15

vere: Co. v. System Federation, 300 U.S. 515

eee eee eee eee eee eee eee eee ee eee eee eee

STATUTES AND OTHER MATERIALS RELIED UPon:

Railway Labor Act, 45 U.S.C. § 151, et seg.

Section la, 45 U.S.C. § 15a 22... .eecceeeeeneeees 3, 9

Section 1, Sixth, 45 U.S.C. § 151, Sixth ........ passim

Section 2, First, 45 U.S.C. § 152, First ........ 3, 9, 10

Section 2, Second, 45 U.S.C. § 152, Second ........ 3, 10

Section 2, Third, 45 U.S.C. § 152, Third ........... 9, 10

’

Vv

Table of Authorities Continued

Page

Section 2, Fourth, 45 U.S.C. § 152, Fourth .... 3, 9, 10

Section 2, Sixth, 45 U.S.C. § 152, Sixth ........... 10

Section 2, Seventh, 45 U.S.C. § 152, Seventh ...... 10

Section 2, Ninth, 45 U.S.C. § 152, Ninth ........ passim

Te 5 Cot > * eer me cores 4

ORT i Sie: IED bg sti cends vereandccdunn 3, 10

Rule oe), Revised Rules of the Supreme Court of the

SE wn ot cain cbiwend sabdiiccd uveusweunn

SEND i. a:c soba c Gund Wesei pun dkehs awe 2

ED bv be bene bdcvecednuccentbastga 2

a SE LE cance s taste conseseceys 3, 6, 17

ae SES CEN, Wt vnc ceacededb's cocecaeghhe 3, 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-___

BROTHERHOOD OF RAILWAY, AIRLINE

AND STEAMSHIP CLERKS, FREIGHT

HANDLERS, EXPRESS AND STATION EMPLOYES,

Petitioner,

Vv.

LAURENCE G. RUSSELL, WILLIAM L. HANNA,

AND EppiE D. LANGWELL,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner, Brotherhood of Railway, Airline and

Steamship Clerks, Freight Handlers, Express and Station

Employes (hereinafter, “BRAC”], respectfully prays that a

writ of certiorari issue to review the final judgment and decree

of the United States Court of Appeals for the Fifth Circuit

reversing a decision of the United States District Court for the

Northern District of Texas, Amarillo Division, granting the

National Mediation Board (hereinafter, “Mediation Board”)

summary judgment on the complaint of respondents Laurence

G. Russell, et al., and dismissing said complaint, which sought

to invalidate the action of the Mediation Board in dismissing a

representation application of respondent Russell filed with the

Board pursuant to Section 2, Ninth of the Railway Labor Act

(45 U.S.C. § 152, Ninth) to certify respondent Russell as the

representative of the craft or class of certain Police Officer

2

employees of the Atchison, Topeka and Santa Fe Railway

Company (hereinafter, “Santa Fe”], so that he could then

terminate such representation and the collective bargaining

agreement governing the rates of pay, rules, and working

conditions of said employees.

OPINIONS BELOW

The opinion of the Court of Appeals, reproduced as Appen-

dix A hereto,’ is reported at 714 F.2d 1332 and styled Laurence

G. Russell, William L. Hanna and Eddie D. Langwell v.

National Mediation Board, the Atchison, Topeka and Santa

Fe Railway Company, et al. The decision of the District

Court, (App. B hereto) is reported only in 110 LRRM 2167.

JURISDICTION

The decision of the Court of Appeals was entered on Septem-

ber 22, 1983 (App. A hereto). A petition of the petitioner

BRAC for rehearing and the suggestion of petitioner for

Rehearing En Banc were denied by the Court of Appeals on

November 28, 1983 (App. C hereto). This petition is governed

by the provisions of Title 28, Sections 1254(1) and 2101(c) of the

United States Code and Rule 20(2) of the Revised Rules of this

Court which require the petition to be filed within ninety (90)

days after the entry of the final judgment or decree of the

Court of Appeals.

STATUTORY PROVISIONS INVOLVED

This case primarily involves the provisions of Section 2,

Ninth of the Railway Labor Act (45 U.S.C. § 152, Ninth)

providing for the resolution by the Mediation Board of disputes

among the employees of a carrier subject to the Act as to who

‘The Appendix is hereinafter referred to as “App.”.

Pe Lane, .

3

are the representatives of such employees. The section reads

as follows:

Ifany dispute shall arise among a carrier’s employees as to

who are the representatives of such employees designated

and authorized in accordance with the requirements of

this Act, it shall be the duty of the Mediation Board, upon

request of either party to the dispute, to investigate such

rvs taagchesanl agin lh se! sexy hy no , within

thirty days after the receipt of the invocation of its serv-

ices, the name or names of the individuals or organizations

that have been designated and authorized to represent the

employees involved in the dispute, and certify the same to

the carrier. Upon receipt of such certification the carrier

shall treat with the representative of the craft or class for

the of this Act. In such an investigation, the

M ion Board shall be authorized to take a secret ballot

of the employees involved, or to utilize any other appropri-

ate method ascertaining the names of their duly desig-

nated and authorized representatives in such manner as

shall insure the choice i any by the employ-

ees without interference, influence, or’coercion ex

by the carrier. In the conduct of any election for the

herein indicated the Board designate who

may — in the election, or we appoint a commit-

7 aah br naar wage Abantannr bgp BS og

n days designate the emp who may parti in

the election. The Board have access to pin corto

power to make copies of the books and records of the

carriers to obtain and utilize such information as may be

deemed necessary by it to carry out the purposes and

provisions of this paragraph.

The case also involves Sections 1, Sixth, la, 2, First, Second,

Fourth, and 6 of the Railway Labor Act (45 U.S.C. §§ 151,

Sixth, 151a, 152, First, Second, Third, Fourth and 156). These

provisions are quoted in full in App. D hereto and pertinent

portions thereof are also quoted at appropriate places in this

petition. The complaint also alleged that the Mediation Board

action violated the rights of respondents to freedom of associa-

tion under the First Amendment to the United States Con-

stitution as well as their Fifth Amendment rights. The provi-

ee ee ee

to.

4d

STATEMENT OF THE CASE

This case began on March 23, 1981, when Laurence G. Rus-

sell filed an application with the Mediation Board pursuant to

Section 2, Ninth of the Railway Labor Act (45 U.S.C. § 152,

Ninth) alleging the existence of a representation dispute in-

volving special agents and security guards employed by the

Santa Fe, a railroad subject to the provisions of the Act (App.

E hereto). Such employees generally constitute the craft or

class of Police Officers below the rank of Captain. Such employ-

ees were represented by petitioner BRAC.

Section 2, Ninth of the Railway Labor Act, quoted in full,

supra, page 3, provides that upon the request of either party to

a dispute among employees of a carrier subject to the Act, “as

to who are the representatives of such employees designated

and authorized in accordance with the requirements of the

Act,” the Mediation Board, a Federal agency created by Sec-

tion 4 (45 U.S.C. § 154) of the statute, shall investigate and

certify the name or names of the individuals or organizations

designated or authorized to represent the employees involved

in the dispute. The section authorizes the Board to conduct an

election or “to utilize any other appropriate method” of

ascertaining the employee representative to be certified. Upon

certification of an employee representative by the Mediation

Board, the employer railroad is required to “treat” with such

representative. This requirement constitutes a command to

the employer to act affirmatively to bargain exclusively with

the certified representative with respect to rates of pay, rules,

and working conditions of the employees involved. Virginian

Ry. Co. v. System Federation, 300 U.S. 515 (1937).

The Mediation Board conducted the investigation of the

dispute alleged in Mr. Russell’s application as required by

Section 2, Ninth, in which BRAC participated as the duly

certified representative of the employees involved, and on May

21, 1981, issued its “Findings Upon Investigation, Dismissal”

of the application (App. E-1 hereto). This decision is reported

5

at 8 NMB No. 135 (1981). The dismissal was based upon two

basic findings.

First: the Mediation Board found that an application for

certification as an employee representative is void ab initio

where the applicant lacks the intent to represent the craft or

class, if certified. This finding reads as follows:

The Railway Labor Act, unlike the National Labor

Relations Act, contains no statutory provision for

decertification of a ining representative. Atchison,

ag and Santa Fe Railway Company, 8 NMB No. 18

(1980). See also, Manufacturers Railway Company, 7

NMB Nos. 233 and 250 (1980). The Board will not progress

an application for investigation of a representation dispute

where the applicant lacks the intent to represent the craft

or class, if certified. Chicago Union Station, 8 NMB No.

45 (1980), and will dismiss such an application because it is

void ab initio.

(App. E-1 at 46a).

Second: The Mediation Board found that applicant Russell

lacked the intent to represent the class or craft of employees

involved. This finding reads as follows:

The Board finds that Laurence G. Russell lacks an in-

leaving the employees ge Bog in

effect, notwithstanding the ification the obliga-

(App. E-1 at 47a). The Board also found that respondent Rus-

sell’s objective of achieving “exempt” status for the employees

involved as set forth in cited documents was erroneous because

there was no such status under the statute, and thus simply

meant decertification. This factual finding was supported by

documents, including letters signed by Mr. Russell, and a

statement of counsel for the applicant to the Mediation Board’s

Chief Hearing Officer. Among the cited documents were let-

ters from the applicant Russell to United States Senators and a

Member of the House of Representatives advising that Mr.

Russell’s objective was “to negotiate an agreement to termi-

6

nate the collective bargaining agreement then in effect and

thereafter to refrain from engaging in further representation

of the employees.”

Mr. Russell has not contested the factual accuracy of the

Mediation Board’s findings in the subsequent litigation with

respect to its decision.

On July 7, 1981, Mr. Russell, along with Messrs. William L.

Hanna and Eddie D. Langwell, two other Santa Fe employees,

filed a two count complaint in the District Court against the

Mediation Board, the Santa Fe, and petitioner BRAC. OnJuly

23, 1981, the plaintiffs filed an amended complaint (App. F

hereto). The first cause of action in the amended complaint

alleged that the Mediation Board action in dismissing the rep-

resentation application was unlawful, arbitrary, capricious, an

abuse of discretion in excess of its statutory jurisdiction, and

violative of the First and Fifth Amendment rights of plaintiffs

under the United States Constitution. The amended complaint

also alleged that the Railway Labor Act was unconstitutional

as applied to plaintiffs. The complaint prayed that the District

Court order a representation election or utilize another appro-

priate method of ascertaining the duly authorized representa-

tive of the employees involved.

The second count of the complaint repeated the allegations of

the first count and added a claim that the union security provi-

sions of the collective bargaining agreement between the San- —

ta Fe and BRAC was violative of plaintiffs’ rights of freedom of

association guaranteed by the First Amendment to the United

States Constitution and prayed for a court order to enjoin the

enforcement of the union security agreement.’

The defendants Mediation Board and BRAC filed answers to

the amended complaint alleging that it did not state a cause of

action upon which relief could be granted; that the District

2 A copy of the amended complaint is attached as App. F.

7

Court lacked jurisdiction over the subject matter of the

amended complaint; and denying any unlawful action. (App. G

and H). The Santa Fe filed an answer denying any illegal

activity. The amended complaint against the Santa Fe was

dismissed by the District Court on August 20, 1982. (App. B

hereto).’

The National Mediation Board filed a motion for summary

judgment with the District Court, which was granted by that

Court on March 17, 1982, on the ground that the District Court

had no jurisdiction to review and set aside the Board’s order

dismissing the representation application (App. B hereto). The

District Court’s decision found that: (1) it is well established

law that Mediation Board representation decisions under Sec-

tion 2, Ninth are not subject to judicial review with two limited

exceptions not here applicable i.e., (a) where the Board has

acted in excess of its power or contrary to statutory provisions,

and (b) where there are constitutional grounds therefore; (2)

the Mediation Board’s investigation as to whether a represen-

tation dispute existed in the present case was sufficient and

within its scope of authority; and (3) the Mediation Board’s

investigation met all due process requirements.

BRAC also filed with the District Court on March 18, 1982, a

motion to dismiss the complaint or to grant BRAC summary

eS ae, a ee

22, 1982.

On September 7, 1982, respondents Russell, et al., filed

their notice of appeal of the District Court’s order granting the

motion of the Mediation Board for summary judgment. The

notice of appeal did not include the District Court’s order of

August 22, 1982, dismissing the amended complaint as to

BRAC (App. J hereto).

3 BRAC and the Santa Fe also filed cross claims and counterclaims

against each other which were dismissed by agreement.

am o AD

8

The Court of Appeals issued its decision reversing the Dis-

trict Court judgment on September 22, 1983. This decision

found that the Mediation Board violated the statutory mandate

of Section 2, Ninth of the Railway Labor Act by refusing to

further progress respondent Russeil’s representation applica-

tion because he was a “representative” within the meaning of

Section 1, Sixth of the Railway Labor Act even though he

sought certification as a representative in order to terminate

the collective bargaining agreement governing the employees

involved and end representation of such employees. The Court

did not address respondents constitutional claim in light of its

conclusion of a statutory violation. (App. A hereto)

BRAC filed with the Court of Appeals a timely petition for

rehearing and a suggestion of rehearing en banc which were

denied by the Court on November 28, 1983 (App. C hereto).‘

The Court of Appeals also denied the BRAC motion for a

stay of mandate.

REASONS FOR GRANTING THE WRIT

I. The Court Of Appeals Decision Reversing The District

Court Raises Issues Of Substantial Importance In The

Administration Of The Railway Labor Act Which Should

Be Reviewed By This Court

The decision below held that the Mediation Board violated

the mandate of Section 2, Ninth of the Railway Labor Act that

it investigate representation applications and certify a “repre-

sentative” thereunder by dismissing the Russell application

‘On October 10, 1983, the plaintiffs-respondents filed a motion

with the Court of Appeals challenging the extension of time granted

by the Court to BRAC to petition for rehearifig and to file a sugges-

tion of rehearing en banc on that ground. The challenge was based on

a claim that BRAC, which had been a party in interest before the

NMB, a defendant before the District Court, and fully participated as

an appellee before the Court of Appeals, had no standing because

did not desire to appeal the District Court’s

grant of summary judgment to BRAC. That motion was denied.

9

after the Board’s investigation thereof revealed that it was the

intent of the applicant to use certification to terminate repre-

sentation of the employees involved in favor of an “exempt

status” and to terminate the applicable collective bargaining

agreement. The decision rests such conclusion on the ground

that Mr. Russell was a “representative” of the employees

involved within the meaning of Section 1, Sixth of the Railway

Labor Act even though his clearly established intent was to

terminate representation under the statute.

This conclusion is rendered within the context of a statute

which, unlike the National Labor Relations Act, contains no

provision for decertification of a statutory representative,

which was passed by Congress for the stated purpose of

providing, inter alia, for the prompt and orderly settlement of

all disputes concerning grievances and rates of pay, rules, and

working conditions (45 U.S.C. § 15la) and which provides for

the implementation of such purpose by:

(a) requiring employees and carriers to make’ every

reasonable effort to make and maintain agreements and settle

all disputes between them (45 U.S.C. § 152, First);

(b) providing employees with the right “to organize and

bargain collectively through “representatives” of their own

choosing (45 U.S.C. § 152, Fourth);

(c) providing that the majority of a craft or.class shall have

the right to determine who shall be the “representative” of the

craft of class “for the purposes of this Act” (45 U.S.C. § 152,

Fourth) (Emphasis supplied);

(d) providing for the designation of “Representatives, for

the purpose of this Act” without interference, coercion, or

interference (45 U.S.C. § 152, Third) (Emphasis supplied);

(e) imposing a duty on the “representatives” thus chosen a

duty of deciding, in conference with carrier representatives,

all disputes between the parties (45 U.S.C. § 152, Fourth);

A,

Be ,

i ae dé

10

(f) by imposing a duty on the employee “representatives”

in case of a dispute concerning grievances or interpretation or

application of agreements (“minor disputes”) to comply with

specified requirements for conference with carrier representa-

tives with respect thereto (45 U.S.C. § 152, Sixth);

(g) by imposing a duty in Section 6 (45 U.S.C. § 156) upon

employee representatives to give written notice in accordance

with statutory requirements of intended changes in agree-

ments and confer with carrier representatives with respect

thereto as the first step in the mandatory Railway Labor Act

procedures of conference, and mediation by the Mediation

Board under Section 5 during which periods the status quo

must be maintained to prevent disruptions of commerce lead-

ing up to, where necessary, the appointment of a Presidential

Emergency Board and/or efforts by the Mediation Board to

obtain voluntary arbitration of the dispute pursuant to Section

2, Seventh. (45 U.S.C. § 152, Seventh)

Thus, when the Court below concludes that respondent Rus-

sell “intended to represent” tic employees involved within the

meaning of the Railway Labor Act since there are no qualifiers

attached to the Act’s simple definition of “representative” in

Section 1, Sixth of that statute, the Court gives no significance

to the provisions of Section 2, First, Second, Third, Fourth and

Sixth which require a Railway Labor Act “representative” to

be a person or organization designated “for the purposes of this

Act,” who must comply with the statutory duties imposed upon

such an employee “representative,” including the duty of mak-

ing, maintaining and amending agreements, and handling dis-

putes with respect thereto. In short, the decision below reads

out of the Railway Labor Act all of the statutory duties of a

“representative” of employees, which for some 60 years have

been the heart of a statute passed to bring order out of chaos in

labor relations in the railroad industry (subsequently extended

to air transportation) in the public interest.

A decision which can have such a dramatic effect upon labor

relations in rail and air transportation based on grounds which

;

%

"4

11

conflict with all of the statutory purposes, which reverses the

Mediation Board practices with respect to representation and

which reads into the Railway Labor Act provisions of the

National Labor Relations Act not included in the rail statute,

should not be permitted to become the law of the land without

review by this Court.

II. The Decision Below Conflicts With Established Princi-

ples Of Law Set Forth In Decisions Of This Court With

Respect To The Exclusive Jurisdiction Of The Mediation

Board In Representation Proceedings

It has been a settled principle of law established by decisions

of this court for at least the past forty (40) years that the

Congress in enacting and amending the Railway Labor Act

gave the National Mediation Board the exclusive power and

responsibility to determine matters arising out of the adminis-

tration of Section 2, Ninth of the Railway Labor Act. Switch-

men’s Union of North America v. NMB, 320 U.S. 297 (1943);

General Committee v. Missouri-Kansas-Texas Railroad

Company, 320 U.S. 323 (1943); General Committee v. South-

ern Pacific Company, 320 U.S. 338 (1943). In the Switchmen’s

Union case, which first articulated the extremely narrow and

limited area of judicial review of Mediation Board determina-

tions in representation proceedings, this Court stated:

The act in Section 2, Fourth writes into law the ‘right’ of

the or of any craft or class of employees” to deter-

mine who shall be the representative of the craft or class

rig oo gt ge te t’ is protected by Section

2, Ninth, which gives the Mediation the power to

resolve controversies concerning it and as an incident

thereto to determine what is the riate craft or class

in which the election should be held (citations omitted). A

review by the Federal courts of the National Mediation

Board’s n is not necessary to e or

which it created. It selected the precise machinery and

fashioned the tool which it deemed suited to that end.

Id. at 300-301.

12

This Court further stated that Congress in giving the Na-

tional Mediation Board the exclusive right to enforce the

“rights” created by the Railway Labor Act intended that “the

dispute was to reach its last terminal point when the adminis-

trative finding was made. There was to be no dragging out the

controversy into other tribunals of law.” Jd. at 305. (Emphasis

supplied).

While the bar to judicial review of National Mediation Board

determinations in representation disputes enunciated by the

Supreme Court in Switchmen’s Union. id., has remained

firm,’ this Court subsequently recognized an extremely nar-

row limitation thereto. In Leedom v. Kyne, 358 U.S. 184

(1968), this Court upheld a District Court injunction setting

aside a National Labor Relations Board (NLRB) election and

certification where the NLRB had clearly acted “in excess of

its delegated powers and contrary to a specific prohibition in

the act.” Jd. at 184. The limitation of the Leedom v. Kyne,

supra, “exception” to the bar of review of Mediation Board

representation announced by this Court in Switchmen’s

Union, is set forth in it’s decision in Brotherhood of Railway

Clerks v. Association for the Benefit of Noncontract Employ-

ees (ABNE), 380 U.S. 650 (1965). In its decision in ABNE,

supra, the Court reiterated the principle of the exclusive

jurisdiction of the Mediation Board in representation matters,

stating:

That Leedom v. Kyne was no exception to Switchmen’s

Union. Rather the Court was careful to note that “this

5See also e.g., Sedalia-Marshall-Boonville Stage Line, Inc. v.

N.M.B., 574 F.2d 394 (8th Cir. 1978), cert. denied, 439 U.S. 882

(1979); Machinists v. N.M.B., 426 F.2d 527 (D.C. Cir.), cert. denied,

889 U.S. 912 (1967); BRAC v. N.M.B., 374 F.2d 269(D.C. Cir. 1966);

Teamsters v. N.M.B., 363 F.2d 311 (5th Cir.), cert. denied, 389 U.S.

920 (1966); Ruby v. American Airlines, Inc., 323 F.2d 248 (2nd Cir.

1963), cert. denied, 376 U.S. 918 (1964).

13

suit is not one to ‘review,’ in the sense that the term is used

in the act, a decision of the Board made within its jurisdic-

tion, rather it is one to strike down an order of the Board

made in excess of its delegated powers and rt to

: : gecatatng in the act” Leedom v. Kyne, 358 U.S.

Id. at 659-660. See also Boire v. Greyhound Corp., 376 U.S.

473 (1964). The Court, at page 660, also referred to the “narrow

limits” and the “painstakingly delineated procedural bound-

aries of Kyne.” The Court of Appeals for the District of Col-

umbia Circuit in /nternational Brotherhood of Teamsters v.

BRAC, 402 F.2d 196 (D.C. Cir.), cert. denied, 393 U.S. 768

(1968), stated that the Congressional purpose of ending repre-

sentation matters with a Mediation Board finding may be

fulfilled only if the courts are extremely chary of involving

themsevies.in NMB determinations and then went on to ex-

plain the narrow limits of judicial intervention in the following

terms:

The narrow exceptions to the “jurisdictional” bar created

Leedom v. Kyne, and similar cases must be instances

f) pee eh at racy ened Avrahen

ute. The exception inevitably e len Ny

of a lack of , it a peek at

merits. The reco not in

=

-

Ei 5

14

ceived extensive position statements and numerous support-

ing documents from the respondents, petitioner BRAC and the

Santa Fe, the employing carrier. The Board also received

copies of letters sent by the respondents to their congressional

representatives and the Board’s chief hearing officer had a

discussion with counsel for the Mediation Board regarding Mr.

Russell’s intentions. On the basis of this investigation the

NMB made a finding, which was not challenged by the respon-

dents, that Mr. Russell intended to “negotiate an agreement to

terminate the collective-bargaining agreement then in effect,

and to thereafter refrain from engaging in further representa-

tion of the employees.” Jn the Matter of the Application of

Lawrence G. Russell, 8 NMB No. 135, p. 472 (1981) (App. E-1

hereto). In light of this finding, the Board concluded that the

applicant lacked the intent to represent the employees in-

volved if elected and certified by the Board and intended to

pursue a path of conduct resulting in these employees being

unrepresented notwithstanding the certification and obliga-

tions which attached thereto, Jd., at 475. The District Court

properly declined respondent’s invitation to substitute its

judgment for that of the Board either in the conduct of that

investigaton, or in the Board’s ultimate findings.

In summary, the District Court guided by the overwhelming

case authority on the subject found that the Mediation Board’s

actions regarding representation applications under Section 2,

Ninth of the Railway Labor Act are reviewable by the Federal

courts only where there has been a substantial showing by the

plaintiff that: (1) the Mediation Board’s actions are contrary to

specific prohibitions in the Railway Labor Act; or (2) that the

constitutional rights of the applicant have been violated. The

court correctly found based on the undisputed facts of record

that neither exception was present in the case at bar.

The Court of Appeals recognized that there are narrow

limits to any judicial review of Mediation Board decisions in

representation cases which it characterized as permitting such

review only in a case of “egregious errors.” However, when

that Court applied such principle to the instant case, it found

15

such error in the Board’s interpretation of its duty under

Section 2, Ninth of the Railway Labor Act on the basis of what

the Court below described as a clear statutory mandate to the

Board derived from the Court’s interpretation of the word

“representative” in Section 1, Sixth of the Statute. In so doing,

the Court below, as pointed out in Section I above, ignored the

fact that the statute always speaks of “representative” only as

a person so designated for purposes of the Act and as the

bearer of numerous duties, including that of making and

maintaining agreements, processing grievances, and settling

disputes in accordance with mandatory requirements of the

statute. Thus, respondent Russell’s application amounted to a

request that the Board certify him as a representative so he

could disregard all of the statutory requirements. The defini-

tion of a “representative” relied upon by the Court below as

determinative of the reviewability of and reversal of the

Mediation Board’s decision dismissing the Russell application

is that an employee “representative” under the Railway Labor

Act is a person designated to act upon behalf of employees to

accomplish anything they want to accomplish regardless of

whether such desire serves the purposes and requirements of

the Railway Labor Act or not. The decision below thus brings

itself within the narrow confines established by this Court with

respect to judicial review of Mediation Board representation

decisions only by ignoring the purposes of the statute as

enunciated by Congress as well as the purposes of representa-

tion specifically set forth in the cited statutory provisions.

Such a decision also violates the clear principle of statutory

interpretation established by this Court which requires that an

interpreting Court not be guided by a single sentence or mem-

ber of a sentence, but that a statute be read so as to give effect

to the whoie law and to its object and policy. Philbrook v.

Glodett, 121 U.S. 707, 713 (1975). The conclusion of the Court

below that the decision of the Mediation Board constitutes a

gross or egregious violation of a statutory mandate opens wide

the door to the destruction of the principles long ago estab-

lished by this Court in Switchmen’s Union, supra, 12.

16

The emphasis of the decision below on a right of the employ-

ees involved not to be represented for collective bargaining

suggests that the Court of Appeals was lead into its untenable

position by such consideration. However, given the absence of

any statutory provision for decertification and the specific

statutory provisions discussed above which negate the validity

of the application of respondent Russell, the result produced

by the Court below does violence to the statutory purposes of

such provisions. Such a result is not necessary in light of this

Court’s decision in ABNE, supra, 13, in which the Court was

faced with a claim for a “no union” place on a representation

ballot to permit a no certification vote. The Mediation Board

rejected such a claim and this Court reversed the decision of a

lower court interfering with the Board’s determination. In so

doing this Court stated:

The legislative history supports the view that the em-

, ployees are to have the option of rejecting collective repre-

, ~ sentation. The ballot that the Board proposed to use in

future elections fully —_ with this conception of the

Act. Using the Board’s ballot an employee may refrain

from joining a union and refuse to — collectively. All

wekeecsndnr frag eos igy shee ne alah ponte 0 2

representation er Board’s practice of requiring

that a majority of the eligible voters in a craft or class

actually vote for some representative before the election

is valid. The practicalities of voting—the fact that many

who favor some representation will not vote—are in favor

of the employee who wants “no union.” Indeed, the

mothe’ peseenes og ge i ee ee

ve viding a union” box, since, if one were

added. 0 telage 06 Vole watld thaw ba'taleea chi eee

— the choice of a majority of those voting. This is

of the National Labor Relations Board.

Id. at 669 n.5.

There thus exists an avenue under the statute to terminate

representation not involving applications such as the Board

dismissed.

Rejection of the Court of Appeals decision does not give rise

to any substantial constitutional issue to be decided. Union

membership in a union certified to represent Railway Labor

17

Act employees does not violate any First Amendment rights.

See Railway Employees Department v. Hansen, 361 U.S. 225

(1956). Similarly, this Court has interpreted the Act to issue

the protection of First Amendment rights of union members.

International Association of Machinists v. Street, 367 U.S.

740 (1961). The relationship between a railroad employee and

the union representing him does not involve or affect any

association right cognizable under the First Amendment. The

District Court properly dismissed the constitutional claims of

respondent.

CONCLUSION

The petitioner BRAC respectfully submits that this Court

should, upon the basis of the points and authorities set forth

above, grant the petition for certiorari to review the judgment

of the Court of Appeals for the Fifth Circuit here involved so as

to correct the violence done to the administration of the repre-

sentation provisions of the Railway Labor Act by that judg-

ment and to restore the long established principles of the

exclusive jurisdiction over representation proceedings of the

Mediation Board with only limited and narrow judicial review

. ¢

is

re *. °

42! h(a inn" Se ane

to eliminate gross violations of specific statutory commands,

18

also violated by that judgment.

February 24, 1984

Respectfully submitted,

JAMES L. HIGHSAW, JR.

(Counsel of Record)

JOSEPH GUERRIERI, JR.

HicHSAW & MAHONEY, P.C.

Suite 210

1050 - 17th Street, N.W.

Washington, D.C. 20036

(202) 296-8500

Attorneys for Petitioner

Brotherhood of Railway,

Airline and Steamship Clerks,

Freight Handlers, Express and

Station Employes

APPENDIX

No. 83-___

IN THE

Supreme Court of the Anited States

OcTOBER TERM, 1983

BROTHERHOOD OF RAILWAY, AIRLINE

AND STEAMSHIP CLERKS, FREIGHT

HANDLERS, EXPRESS AND STATION EMPLOYES,

Petitioner,

Vv.

LAURENCE G. RUSSELL, WILLIAM L. HANNA

AND EppIE D. LANGWELL,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JAMES L. HIGHSAW, JR.

(Counsel of Record)

JOSEPH GUERRIERI, JR.

HicHsaw & MAHONEY, P.C.

Suite 210

1050 -.17th Street, N.W.

Washington, D.C. 20036

(202) 296-8500

Attorneys for Petitioner

Brotherhood of Railway,

Airline and Steamship Clerks,

Freight Handlers, Express and

Station Employes

February 24, 1984

TE ae ee eS GE RS EY AR AT

PRESS OF BYRON 8. ADAMS PRINTING, INC., WASHINGTON, D.C. (202) 347-6203

gail

la

APPENDIX A

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

No. 82-1466

LAURENCE G. RUSSELL, WILLIAM L. HANNA

and Eppie D. LANGWELL,

Plaintiffs-Appellants,

Vv.

NATIONAL MEDIATION BOARD, the Atchison,

Topeka and Santa Fe Railway Company, et al.,

Defendants-Appellees.

Sept. 22, 1983

OPINION

E. Grapy Joy, Circuit Judge:

This case, one of first impression, involves the question of

whether jurisdiction exists under the Railway Labor Act, 45

U.S.C. §§ 151-188, to review refusal by the National Mediation

Board to process an employee’s application to hold an election

among a class of employees after the Board determined that

those employees apparently desired to terminate collective

representation. We find that while judicial review of Board

actions is limited, jurisdiction does exist to compel compliance

with the Act. We find further that the Board has here failed to

fulfill its statutory duty to investigate a representational dis-

pute so as to allow full and free expression of employee desires

with regard to collective representation. Jurisdiction exists,

therefore, and we reverse the lower court and remand this case

for disposition consistent herewith.

In June 1943 the police officers and special agents below the

rank of captain on the Atchison, Topeka and Santa Fe Railroad

2a

elected to be represented under the Railway Labor Act by the

National Council of Railway Patrolmen’s Union, AFL. This

selection was certified by the Board in Case R-1091 (1943).

As revealed by the record, the employees in the bargaining

unit over the years apparently considered the union a good

representative. No attempt was made, prior to the events

involved here, either to oust the union or to replace it with

another union. No subsequent ratification of the union’s repre-

sentation has ever been made, even when the Railway Patrol-

men’s Union was replaced as the collective bargaining repre-

sentative by its successor in interest, the Brotherhood of Rail-

way, Airline and Steamship Clerks, Freight Handlers, Ex-

press and Station Employees (“BRAC”).

For whatever reason. however, this era of good feelings

between BRAC and the Santa Fe police officers became incle-

ment in 1980. In the wake of similar efforts by other Santa Fe

employee groups, some of the officers formed an “Association

of Santa Fe Railway Police Officers.” On January 4, 1981, the

Association mailed a letter to members of the bargaining unit

soliciting their support in the attempt to “discertify” BRAC as

the collective bargaining representative. According to the let-

ter, the Association “will have its own representation, with

collective bargaining rights, to bargain for our own needs, not

those of the clerks.” A follow-up letter on February 22, 1981,

from two of the plaintiffs and a third bargaining unit

indicated that response to the January 14 letter had been

favorable and proposed selection of “a rank and file employee,”

Larry Russeil, as the unit’s representative “for purposes of

getting us placed in the ‘exempt employees’ category.” The

letter indicated that such “exemption” should “result in im-

proved benefits and conditions. . . .” The letter included a

detailed list of proposed salary terms and conditions of employ-

ment. The last “proposal” stated that “(all agreements, rules,

practices, interpretations, and/or understandings, however

established, shall be abrogated. . . .” Also included with the

letter was an authorization card designating Larry Russell as

representative “for all purposes under the Railway Labor

3a

Act.” According to the plaintiffs brief, BRAC responded to

the February 22 letter with two letters in opposition to the

proposed rejection of BRAC as collective bargaining agent.

These letters, however, are not included in the record.

In response to the second letter, 113 cards were returned

“authorizing” Larry Russell to serve as “representative” for

the employee unit. According to the plaintiffs, the unit com-

prised 210 employees and, thus, also according to the plaintiffs,

a majority of the employees desired to be “exempt,” i.e.,

desired no permanent collective bargaining representative.

Armed with the authorization cards, on March 21, 1981,

Russell filed an “Application for Investigation of Representa-

tional Dispute” with the Board. The application stated that “a

‘ dispute has arisen among the employees of (Santa Fe] as to who

are the representatives ... designated and authorized in

accordance with the requirements of the Railway Labor Act.”

Russell requested that the Board “investigate this dispute and

certify the name or names of the individuals or organizations

authorized to represent the employees involved in accordance

with Section 2, Ninth, of the Act.”

The Board requested responses to Russell’s application from

Santa Fe and BRAC. BRAC filed a Statement of Position,

opposing the application on the grounds that “(1) Russell’s

application in effect constitutes a petition for decertification,”

not authorized by the Act; “(2) Russell lacks any intention to

act as the ‘representative’ of employees, as that term is used in

the Railway Labor Act;” and (3) Santa Fe had “assisted and

encouraged, if not initiated and orchestrated,” Russell’s appli-

cation.

In a significant portion of its statement, BRAC discussed

three previous Board cases in which a Santa Fe employee,

acting on behalf of his craft or class of employees, had sought to

oust the incumbent union, abrogate the collective bargaining

4a

agreement, and then have the Board revoke the certification,

thereby leaving the employees unrepresented. '

The Board received the statements and evidence from

BRAC and Santa Fe, as well as a statement from the plaintiffs

in response to BRAC’s statement. The Board also considered a

documented telephone conversation between the chief hearing

officer for the Board and Russell’s attorney. According to the

' As indicated in BRAC’s Statement of Position, in Case No. R-

5039, an individual, J. J. McDaniel, acting on behalf of Santa Fe’s

yardmasters, had been certified by the Board after a Board election

as the bargaining representative on March 31, 1980, to replace the

Railroad Yardmasters of America. McDaniel abrogated the collec-

tive bargaining agreement with Santa Fe. On July 1, 1980, at McDa-

niel’s request, the Board revoked McDaniel’s certification, thereby

leaving the employees unrepresented.

In Case No. R-5123, Raul Herrera was elected to represent the

yardmasters employed by a Santa Fe subsidiary, Los Angeles Junc-

tion Railway Co. Herrera was certified as the representative on

September 22, 1980. After abrogating the collective bargaining

agreement, Herrera requested revocation of his certification. That

request remains pending.

In the Matter of the Application of J. D. Blankenship, 8 NMB No.

18 (Oct. 20, 1980), involved an attempt by Blankenship to be certified

as the representative for the class or craft of Santa Fe’s dispatchers.

The authorization cards distributed by Blankenship provided that he

was to undertake “whatever processes are necessary to discertify

{sic} my current application with the American Train Dispatchers

Association and to pursue whatever course of action is necessary to

become an exempt employee of the Santa Fe. . . .” The Board dis-

missed the application on the grounds that the Act does not provide

for “decertification” of a union.

On October 28, 1980, the Board issued a Notice of Hearing to

determine whether there was any impropriety “on the part of the

employee representatives and the carriers” involved in the McDa-

niel, Herrera and Blankenship cases. Insofar as the record reveals,

that inquiry is pending.

ix

ant

ms : S 3

A y > et)

Fa ah eat

5a

officer’s report, dated April 13, 1981, the attorney indicated

that Russell intended “to do what McDaniel did with the Yard-

masters . . ., namely, win, negotiate an ‘exempt’ status and

walk away from his status as a representative.” Among other

things, the hearing officer told Russell’s attorney that “the

Board could dismiss an application any time it found a lack of

intent to represent employees.”

The other items of information considered by the Board in its

investigation were three letters, verbatim copies each of the

others, dated April 17, 1981, from Russell to his congressman,

Representative Hightower, and to his two senators, Senator

Tower and Senator Bentsen. These letters, consistent with the

representation made by Russell’s attorney to the Board’s chief

hearing officer, complained that the Board’s officer had in-

dicated that Russell could not be elected despite the employ-

ees’ desire to elect him.

Consideration of these items was the extent of the Board’s

investigation. On May 21, 1981, the Board issued an order

dismissing Russell’s application. In pertinent part, that order

stated:

treme get ne yal Russell lacks an in-

ment, pom

tions which attach + Bw

The order declared that, absent intent to represent, certifica-

tion was not appropriate under the Act:

The Railway Labor Act, unlike the National Labor

Relations Act, contains no statutory provision for

decertification of a as e. [ATSF), 8

NMB No. 18 (1980) [the case]. See also, Man-

R Company, 7? 03. 233 and 250

f

~

Ww <r.

6a

and will dismiss such an application because it is void ab

initio. Id.

Russell et al. filed this suit in July 1981 alleging two causes of

action. The plaintiffs sought a declaratory judgment under 28

U.S.C. § 2201 and 2202 that the Board’s actions were unlawful,

arbitrary and capricious, an abuse of discretion, in excess of

statutory authority and violative of the plaintiffs’ first amend-

ment right to freedom of association. Also, a writ of mandamus

was sought to compel the Board to hold a representational

election.

The second cause of action sought an injunction directed to

BRAC and Santa Fe to invalidate the union security agree-

ment, at least until a representational election were held,

requiring membership in BRAC as a condition of employment

with Santa Fe.

The Board filed a Motion for Summary Judgment urging

that the district court lacked jurisdiction to review its action.

The district court granted that motion, holding that “(i]t is well

established that [the Board’s] decisions regarding representa-

tional disputes, made pursuant to Section 2, Ninth, of the

Railway Labor Act, are not subject to judicial review.” The

lower court found “two limited exceptions” to this judicial bar:

where the Board’s action violates a party’s constitutional

rights and where it acts “ ‘in excess of its powers or contrary to

a statutory mandate.’” (Citations omitted.) The court found

that neither exception was present, holding that the Board’s

investigation was “sufficient and within its scope of authority,”

and that the investigation met the constitutional due process

requirements.

The plaintiffs filed a timely appeal, challenging only the

grant of the Board’s motion for summary judgment.’

? Subsequent to granting (ne Board’s summary judgment motion,

the lower court granted BRAC’s unopposed motion for summary

judgment and Santa Fe’s unopposed motion to dismiss.

7a

Ul.

The Board’s :fusal to “progress” Russell’s Application for

Investigation vu: Representational Dispute was based on the

Board’s determination that Russell was seeking a back door

method of decertification, for which the Act does not provide.

Collective representation is necessary, the Board argues, to

assure the avoidance of strikes and transportation stoppages.

Such avoidance is the “heart” of the Act. If the employees are

not collectively represented, according to the Board, their only

resort in the event of a dispute with management is to strike.

The Board argues, therefore, that its policy in this case of

precluding nonrepresentation of these employees falls square-

ly within its statutory mandate and is therefore outside our

jurisdiction. As to the plaintiffs’ constitutional argument, the

Board simply argues that the provisions of the Act have been

held constitutional, that the Board is acting consistently with

those provisions, and therefore no constitutional rights have

been violated.

The plaintiffs argue that the Board’s policy violates the

employees’ statutory right to choose whether or not they wish

to be collectively represented.’ They point out that none of the

current members of the craft was a member in 1943 when

unionization was initially chosen. According to the plaintiffs,

the language of the Act, its legislative history and judicial

precedent all provide employees a right to have or not to have

* The plaintiffs point out that the Board has, prior to 1980, allowed

employees to opt-out of collective representation by the “straw man”

procedure sought to be used here. The plaintiffs cite eight Board

cases in which this method was successful, including the J. J. McDa-

niel case, Case R-5089 (1980), discussed supra at note 1. The Board

argues that it has never authorized “straw man” un certification, but

rather considered that the persons seeking certification in those

cases intended to remain as bona fide bargaining representatives.

The plaintiffs point out that the “straw man” procedure is well known

among Board pundits, citing GOHMANN, ARBITRATION AND

ip ns ae Dea

8a

collective representation. The plaintiffs argue that the Board’s

refusal to allow them their right to choose whether or not they

are to be collectively represented violates the Board’s statuto-

ry mandate. Also, the plaintiffs argue that the Board’s policy

violates their first amendment right to freedom to associate or

not to associate.

IV.

Three principal issues are presented for our consideration:

whether jurisdiction exists for review of the Board’s action ina

representational dispute; whether the Act requires a repre-

sentational election even when that election might result in the

selection of nonrepresentation; and whether the Board here,

by refusing to “progress” Russell’s application, violated its

statutory mandate.

Vv.

We must first determine the extent, if any, to which this

court may review the Board’s actions here.

The starting point in considering the proper scope of this

court’s jurisdiction is the Railway Labor Act trilogy of Switch-

men’s Union v NMB, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61

(1943); General Committee of Adjustment of Brotherhood of

Locomotive Engineers v. Missouri-K.T.R.R., 320 U.S. 323, 64

S.Ct. 146, 88 L.Ed. 76 (1943); and General Committee of Ad-

justment of Brotherhood of Locomotive Engineers v. Southern

REPRESENTATION: APPLICATIONS IN AIR AND RAIL |

LABOR RELATIONS 29 (1981) (outlining “awkward” method of

decertification by individual employee standing for election).

Regardless of whether true precedent exists, however, the Board

has clear authority to change its own procedures, so long as such

changes comply with the requirements of the Act. Brotherhood of

Locomotive Firemen and Enginemen v. Kenan, 87 F.2d 651, 654

(Sth Cir.), cert. denied, 301 U.S. 687, 57 S.Ct. 790, 81 L.Ed. 1344

(1987).

9a

Pacific Co., 320 U.S. 338, 64S.Ct. 142, 88 L.Ed. 85 (1943). In

Switchmen’s Union the union opposed the Board’s determina-

tion as to which yardmen should vote in a representation

election. The union brought suit to have the certification of the

collective bargaining representative set aside. The district

court upheld the Board’s decision and was upheld by the court

of appeals. The Supreme Court held that the district court did

not have jurisdiction to review the Board’s action.

Reviewing the legislative history of the Railway Wabor Act,

the Court held that Congress clearly intended that the Board

would be the final arbiter of representational disputes. Noting

the’background of arbitration and mediation which existed for

r¢solution of railway labor problems, the Court in Switchmen’s

Afound “highly relevant” the legislative history of section 2,

/ Ninth, of the Act.‘ 320 U.S. at 302, 64 S.Ct. at 98.

The Court found that the legislative history of the Act and

the specific language of section 2, Ninth, demonstrated con-

445 U.S.C. § 152, Ninth, reads as follows:

Ninth. If any dispute shall arise among a carrier’s employees as to

who are the representatives of such employees designated and autho-

rized in accordance with the requirements of this chapter, it shall be

the duty of the Mediation Board, upon request of either party to the

dispute, to investigate such dispute and to certify to both parties, in

writing, within thirty days after the receipt of the invocation of its

services, the name or names of the individuals or organizations that

have been designated and authorized to represent the employees

involved in the dispute, and certify the same to the carrier. Upon

receipt of such certification the carrier shall treat with the represent-

ative so certified as the representative of the craft or class for the

purposes of this chapter. In such an investigation, the Mediation

Board shall be authorized to take a secret ballot of the employees

involved, or to utilize any other appropriate method of ascertaining

the names of their duly designated and authorized representatives in

such manner as shall insure the choice of representatives by the

without interfefence, influence, or coercion exercised by

the carrier. In the conduct of any election for the purposes herein

10a

vincingly that the Board was to be “ ‘a neutral tribunal which

can make the decision [as to the proper representative of an

employee group] and get the matter settled.’ ” Jd. at 303, 64

S.Ct. at 98 (quoting Commissioner Joseph B. Eastman, Feder-

al Coordinator of Transportation and principal draftsman of

the 1934 amendments to the Act). The Court noted that the

provision whereby the Board could appoint a three-person

committee to designate which employees should participate in

a representation election was included “so that the Board’s.

‘own usefulness of settling disputes that might arise thereafter

might not be impaired.’ S.Rep. No. 1065, 73d Cong., 2d Sess.,

p. 3.” Id.

Where Congress took such great pains to protect the

Mediation Board in its handling of an explosive problem,

we cannot help but believe that if Congress had desired to

implicate the federal vor vont 8 and to place on the federal

courts the burden of having the final say on any aspect of

the problem, it would have made its desire plain.

Id. The Court went on to find that, having no subpoena or

enforcement power, the Board’s function “under § 2, Ninth, is

more the function of a referee.” Jd. at 304, 64 S.Ct. at 98.

In the present case the authority of the Board in election

disputes to interpret the meaning of “craft” as used in the

statuteis. ..clearand. . . essential to the performance of

its duty. The statutory command that the decision of the

Board shall be obeyed is ... explicit. Under this Act

Cneres did not give the discretion to take or

withhold action, to grant or deny relief. It gave it no

enforcement functions. It was to find the facts and then

indicated the Board shall designate who may participate in the elec-

tion and establish the rules to govern the election, or may appoint a

committee of three neutral persons who after hearing shall within ten

days designate the employees who may participate in the election.

The Board shall have access to and have power to make copies of the

books and records of the carriers to obtain and utilize such informa-

tion as may be deemed necessary by it to carry out the purposes and

provisions of this paragraph.

lla

cease. . . . [T]he intent seems plain—the dispute was to

reach its last terminal point when the administrative find-

ing was made. There was to be no dragging out of the

controversy into other tribunals of law.

Id, at 305, 64 S.Ct. at 99.°

Consistent with Switchmen’s Union, the courts have uni-

versally agreed that the details and procedures of representa-

tional disputes are committed solely to the Board’s discretion.

British Airways Bd. v. NMB, 685 F.2d 52, 56 (2d Cir. 1982);

Brotherhood of Locomotive Firemen & Enginemen v. Sea-

board Coast Line R.R., 413 F.2d 19 (5th Cir.), cert. denied, 396

U.S. 963, 90 S.Ct. 482, 24 L.Ed.2d 426 (1969); Teamsters v.

BRAC, 402 F.2d 196, 205 (D.C. Cir.), cert. denied, 393 U.S.

848, 89 S.Ct. 135, 21 L.Ed.2d 119 (1968). Courts are not to

substitute their judgment for the Board’s or “otherwise in-

terfere with its legal function,” Aircraft Mechanics Fraternal

Assn. v. United Airlines, 406 F.Supp. 492, 500 (N.D.Cal.

1976), and only the Board can certify or “decertify” a union.

Texidor v. Ceresa, 590 F.2d 357, 359 (1st Cir. 1978). Soit is that

judicial review of the Board has correctly been analyzed as

“sparing.” Sedalia-Marshall-Booneville v. NMB, 574 F.2d

394, 397 (8th Cir. 1978). “Sparing,” of course, is not an abso-

lute.

To return for a moment to Switchmen’s Union, we note that

despite the Court’s certainty that the Board determinations

under section 2, Ninth, were not judicially reviewable, the

Court did hint at one notable exception to an almost absolute

5 Perhaps the most persuasive evidence of lack of judicial review

over section 2, Ninth, determinations by the Board noted in Switch-

men’s Union is the provision for judicial review in section 3, First, of

the Act (suits based on awards by the National Railroad Adjustment

Board) and in section 9, Third, of the Act (suits based on awards by a

board of arbitration). “When Congress in § 3 and in § 9 provided for

judicial review ... and in § 2 of the same Act omitted any such

provision . . . it drew a plain line of distinction.” 320 U.S. at 306, 64

S.Ct. at 99.

12a

judicial bar when it stated, “/a/jll constitutional questions

aside, it is for Congress to determine how the rights which it

creates shall be enforced.” Jd. 320 U.S. at 301, 64 S.Ct. at 97.

As discussed below, this door left ajar has subsequently been

pushed open.

Another opening to the preclusion of judicial review of sec-

tion 2, Ninth, decisions by the Board was provided in Switch-

men’s Union’s companion case, General Committee of Adjust-

ment of Brotherhood of Locomotive Engineers v. Missouri-

K.T.R.R. Similar to Switchmen’s Union, the dispute in this

case involved which of two unions was appropriate to repre-

sent a craft of employees in grievance proceedings. The Court

again upheld the determination made by the Board, stating

that Congress had “fashioned an administrative remedy and

left that group of disputes [between unions or between groups

of employees] to the Board. If the present dispute falls within

$ 2, Ninth, the administrative remedy is exclusive.” 320 U.S.

at 336, 64 S.Ct. at 152. In the footnote to that last passage,

however, the Court stated significantly, “[wJhether judicial

power may ever be exerted to require the Mediation Board to

exercise the ‘duty’ imposed upon it under § 2, Ninth, and, if so,

the type or types of situations in which it may be invoked

present questions not involved here.” Jd. at 336 n. 12, 64 S.Ct.

at 152.

These two apertures for a judicial “peek at the merits” have

been consistently used in the wake of the Switchmen’s Union

trilogy.’

* Teamsters v: BRAC, 402 F.2d at 205.

"In Jaffe, The Right to Judicial Review, 71 HARV.L.REV. 401,

430 (1958), Switchmen’s Union's temerity is ascribed to “the mood of

judicial self-deprecation and abdication into which the Court of that

period had fallen.” The article goes on to state that “Switchmen’s

Union has borne little fruit.” But see 4 K. DAVIS, ADMINISTRA-

TIVE LAW TREATISE 42 (1958), which characterizes Switchmen’s

Union as “(mjuch the most important case holding that a statute

inexplicitly precluded judicial review.”

13a

The key case on point in this circuit is United States v.

Feaster, 410 F.2d 1354 (5th Cir.), cert. denied, 396 U.S. 962, 90

S.Ct. 427, 24 L.Ed.2d 426 (1969). At issue in Feaster was

whether the Board erred in making a unit determination. After

a thorough analysis of the Act and Switchmen’s Union, Feas-

ter enumerated the limited instances in which judicial review of

section 2, Ninth, disputes are allowed. First, judicial interdic-

tion will be permitted where a complaining party makes a

“substantial showing” of a violation of that party’s con-

stitutional rights as a result of the Board’s action. 410 F.2d at

1366, quoting Boire v. Miami Herald Publishing Co., 343 F.2d

17, 21 (5th Cir.), cert. denied, 382 U.S. 824, 86 S.Ct. 56, 15

L.Ed.2d 70 (1965). Second, courts may intervene with Board

actions which are “‘in excess of its delegated powers and

contrary to a specific prohibition in the Act.’ ” 410 F.2d at 1367,

quoting Leedom v. Kyne, 358 U.S. 184, 188, 79S.Ct. 180, 184,3

L.Ed.2d 210 (1958). Leedom involved certification by the Na-

tional Labor Relations Board of a unit of both professional and

nonprofessional employees in contravention of the express

provision of 29 U.S.C. § 159(b)(1).* In holding that the district

court had jurisdiction, the Court in Leedom stated:

This suit is not one to “review,” in the sense of that term as

used in the Act, a decision of the Board made within its

thoes mene Rather it is one to strike down an order of the

made in excess of its delegated powers and contrary

to a specific prohibition in the Act. ... [The Board’s

action] was an attempted exercise of power that had been

specifically withheld. It deprived the annoy =

ees of a “right” assured to them by Congress. Surely, in

these circumstances, a Federal District Court has

jurisdiction of an original suit to prevent deprivation of a

right so given.

358 U.S. at 188-89, 79 S.Ct. at 184.

* Despite the fact that Leedozn involved a dispute under the Na-

tional Labor Relations Act, Feaster characterized it as “the only

undisputed exception to Switchmen’s doctrine that Mediacion Board

decisions in representation matters are unreviewable.” 410 F.2d at

1366 n. 11.

F

Ee

l4a

After analyzing this language, Leedom’s analysis of Switch-

men’s Union, and Leedom’s progeny, Feaster summed up the

' Leedom exception as follows:

Under this exception access to the courts is accorded onl

if the Mediation Board’s determination is infused with

error which is of a summa or magna quality as con-

traposed to decisions which are ay cum error. Only

the Fag pe error melds the s decision into justi-

- ty. Lesser malignancies thwart the jurisdiction of

e courts.

410 F.2d at 1368. Using this “narrow and rarely successfully

invoked” standard, id., Feaster went on to determine that the

Board had not so clearly and egregiously violated a specific

prohibition of the Act, by determining that the facility involved

was a “carrier” within the meaning of the Act, as to vest

jurisdiction.’

Numerous court decisions have elaborated on judicial in-

terdiction in Railway Labor Act cases. See BRAC v. Associa-

tion for Benefit of Non-Contract Employees, 380 U.S. 650,

661, 85 S.Ct. 1192, 1998, 14 L. Ed.2d 133 (1965) (judicial review

allowed where the Board acts in excess of statutory authority

or where review necessary to compel performance by the

Board of statutorily mandated duties); British Airways, 685

F.2d at 56 (judicial review allowed where the Board con-

travenes statutory policy); Teamsters v. BRAC, 402 F.2d at

205 (jurisdiction present where the Board’s action is “ ‘so plain-

ly beyond the bounds of the Act, or. . . so clearly in defiance of

it, as to warrant the immediate intervention of an equity

court,’” quoting Local 130, International Union of Electric,

Radio & Machine Workers v. McCulloch, 345 F.2d 90, 95

(D.C.Cir. 1965)); Air Canada v. NMB, 478 F.Supp. 615, 616

*Feaster briefly discussed a third exception to Switchmen’s

Union’s bar, that is, where the issue involves a question of “interna-

tional urgency.” 410 F.2d at 1365. Our review of the applicable case

law indicates that this exception has received scant attention. It

clearly does not weigh on the instant controversy.

l5a

(S.D.N.Y. 1980), affd., 107 L.R.R.M. 2049 (2d Cir.), cert.

denied, 454 U.S. 965, 102 S.Ct. 506, 70 L.Ed.2d 381 (1981)

(determination by the Board in representation dispute final

unless in gross violation of statutory policy); Railway Employ-

ees Co-operative Ass'n. v. Atlanta B & C. R.R., 22 F.Supp.

510, 514 (D.Ga. 1938) (court without jurisdiction to review

decision “unless it should become absolutely necessary to pro-

tect complainants’ rights. . . .”).

As a rule, we are not to look over the Board’s shoulder in

representational disputes. These matters are, apart from ex-

ceptional cases, solely the Board’s concern. As discussed in

Switchmen’s Union, Congress intended that the Board have

the final word in such matters. But where Congress has cre-

ated a right, the Board cannot destroy that right without

intervention by the judiciary. To hold otherwise would rob the

Act of its vitality and thwart its purpose. 320 U.S. at 300, 64

S.Ct. at 97.

VI.

In this case, the plaintiffs argue that the Board has violated

its own statutory mandate to allow employees their right to full

and free expression of their choice regarding collective repre-

sentation, including the right to reject collective representa-

tion. They argue further that the Board’s action violates their

constitutional right to freedom of association, including the

right not to associate. Because we find that the Board has

violated its statutory mandate, we need not address the con-

stitutional issue."

” When the validity of an act of the Congress is drawn into ques-

tion, and even if a serious doubt of constitutionality is raised, it is a

cardinal principle that this Court will first ascertain whether a con-

struction of the statute is fairly possib}e by which the question may be

avoided.

Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598

(1981), quoted in /nternational Association of Machinists v. Street,

367 U.S. 740, 749, 81 S.Ct. 1784, 1790, 6 L.Ed.2d 1141 (1961).

lé6a

VII.

We believe that the Board breached its clear statutory man-

date by not “progressing” Russell’s application for investiga-

tion into the representational dispute. The process for such

“progress” is set forth in 29 C.F.R. § 1206.2(a):

[WJhere the employees involved in a representation dis-

pute are represented by an individual or labor organiza-

tion ... and are covered by a valid existing contract

between such representative and the carrier a showing of

proved authorizations (checked and verified as to date,

signature, and employment status) from at least a major-

ity of the craft or must be made before the Board will

authorize an election or otherwise determine the repre-

sentation desires of the employees under the provision of

section 2, Ninth, of the Railway Labor Act.

The Board refused to move forward with Russell’s applica-

tion for essentially two reasons. First, the Board determined

that Russell did not intend to“represent” the unit employees

within the meaning of the Act. Second, to allow the sought

election, certification of Russell as the elected collective repre-

sentative, abrogation of the contract and achievement of non-

represented status for the craft or class would, according to the

Board, violate its statutory duty to achieve the basic purpose

of the Act. That purpose, the Board argues, is the avoidance of

work stoppages resulting from labor/management disputes.

And, in order to avoid those stoppages, collective representa-

tion is necessary.

In its first argument the Board defines “intent to represent”

as the intent to represent in contract negotiations, contract

disputes, grievance procedures, and in all other matters where

a labor-management go-between might be effective. Because

Russell did not “intend to represent” for all of those purposes

and in fact intended ultimately not to represent the employees

at all, the Board found that he could not have been a represent-

ative and, thus, there existed no “representational dispute.”

No doubt, the above-listed functions are the usual, ordinary

and anticipated functions of a “representative” under the Act.

17a

That Russell did not “intend to represent” his fellow employees

in the accustomed fashion, however, does not mean that he did

not “intend to represent” them within the meaning of the Act.

Section 1, Sixth, defines “representative” as “any person or

persons, labor union, organization, or corporation designated

either by a carrier. . . or by its. . . employees, to act for it or

them.” There are no qualifiers attached to the Act’s simple

definition of “representative.” The “representative” of a craft

of employees is, simply, a person or union designated to act on

their behalf, to accomplish what they seek to accomplish, and is

not necessarily a man for all seasons. As discussed at length

below, the Act nowhere requires collective representation. To

accépt the Board’s definition of “intent to represent” would be

to impose such a requirement. A claimed majority of the craft

here wanted Russell, apparently, to terminate collective

bargaining. Torturous interpretations of “representation”

aside, Russell fits the bill."

At oral argument the Board’s attorney, in arguing that the

Board determined correctly that no representational dispute

existed because Russell did not intend to “represent” the craft

employees, suggested that the appropriate course of action

here would have been for the employees to have petitioned the

Board “to hold an election to either vote for the current union

representative, BRAC, or, no union.” This, of course, is exact-

ly what Russell was requesting, and the Board very well

knows it now and knew it at the time Russell applied. In our

view, this suggestion is nothing more than playing games with

the plaintiffs and with this court.” We do not see why the

suggested course of action is any more or less objectionable

"The Board would say that the employees are “represented” by

someone who does not represent their wishes, and are not “repre-

sented” by someone who does represent their wishes. Orwell would

understand this perfectly.

‘2 Equally disturbing is the Board’s response, when asked why

Russell had not been informed of the “preferred” method of petition-

ing, that they had never been asked. Mr. Orwell, meet Mr. Kafka.

18a

than the action taken by Russell. In fact, the Board’s sug-

gested procedure is almost identical to the decertification vote

under the National Labor Relations Act, which the Board has

stated time and time again is not allowed by the Act.

The second, more substantive argument forwarded by the

Board requires more attention. The Board correctly notes that

the basic purpose of the Railway Labor Act is

to exert every reasonable effort to make and maintain

agreements concerning rates of pay, rules, and workin

conditions, and to settle all disputes. . . in order to avoi

any interruption to commerce or to the operation of any

carrier growing out of any dispute between the carrier and

the employees thereof.

45 U.S.C. § 152, First. This has been called the “heart” of the

Act. Brotherhood of Railroad Trainmen v. Jacksonville Ter-

minal Co., 394 U.S. 369, 377-78, 89 S.Ct. 1109, 1114-15, 22

L.Ed.2d 344 (1969). See also California v. Taylor, 853 U.S.

553, 565-66, 77 S.Ct. 1087, 1044, 1 L.Ed.2d 1034 (1957) (pur-

pose of Act is to provide for industry-wide government to avoid

interruption of national transportation system); Slocum v.

Delaware, L & W R.R., 339 U.S. 239, 242-43, 70S.Ct. 577, 579,

94 L. Ed. 795 (1950) (Act represents a “considered effort on the

part of Congress to provide effective and desirable administra-

tive remedies for adjustment of railroad-employee disputes”);

Pan Am World Airways v. Carpenters and Joiners, 324 F.2d

217, 220 (9th Cir. 1963), cert. denied, 376 U.S. 964, 84 S.Ct.

1123, 11 L.Ed.2d 982 (1964) (purpose of Act is to keep transpor-

tation moving); Estes, et al. v. Union Terminal Co., 89 F.2d

768, 770 (5th Cir. 1937) (purpose of Act is “to facilitate peaceful,

orderly adjustment of disputes between railroads and their

employees, to prevent strikes and other disturbances.”).

It cannot be gainsaid that the Act does in fact encourage

collective bargaining as the mode by which disputes are to be

settled and work stoppages avoided. Detroit & Toledo

S.L.R.R. v. United Transportation Union, 396 U.S. 142, 148,

90 S.Ct. 294, 298, 24 L.Ed.2d 325 (1969). Under the Act,

Congress gave unions “a clearly defined and delineated role to

19a

play in effectuating the basic congressional policy of stabilizing

labor relations in the industry.” /nternational Association of

Machinists v. Street, 367 U.S. 740, 760, 81 S.Ct. 1784, 1795, 6

L.Ed.2d 1141 (1961). When the Act was initially passed in

1926, company-dominated unions were the rule, and, in its

early years, the Act was not deemed effective. Thus, in 1934,

the Act was amended, with a primary purpose being the

strengthening of labor organizations vis-a-vis the carriers.” As

stated in Aircraft Mechanics Fraternal Ass’n., 406 F.Supp. at

497, the Board was created because, under the United States

Board of Arbitration “[c)lompany unionism . . . continued to

present a problem. A means was required by which the will of

the employees, uninfluenced by the employer, could be ascer-

tained.” This is consistent with the second “general purpose” of

the Act found at 45 U.S.C. § 15la, namely, “to forbid any

limitation upon freedom of association among employees or any

denial of the right of employees to join a labor organization”; it

is consistent as well with the third general purpose stated in

section 15la, to provide “complete independence . . . of em-

ployees in the matter of self-organization. . . .” Similarly, sec-

tion 2, Third, provides for designation of representatives

“without interference, influence, or coercion” and section 2,

Fourth, provides that “[e}Jmployees shall have the right to

organize and bargain collectively through representatives of

3S H.R.Rep. No. 1944 to accompany H.R.Rep. No. 9861, Commit-

tee on Interstate and Foreign Commerce, 73rd Cong., 2d Sess. 3

(1934) (1934 amendments “in the interest of industrial peace and of

uninterrupted transportation service.”). The 1984 amendments cre-

ated the Board out of the old United States Board of Mediation,

which, in 1926, at the passage of the Act, had in turn replaced the

Railroad Labor Board created by the Transportation Act of 1920. 41

Stat. 456 (1920). The Board was given significantly increased pow-

ers, especially in representation disputes. For an overview of the

history of the Act, see Ruby v. American Airlines, 323 F.2d 248, 256

(2d Cir. 1963), cert. denied, 376 U.S. 913, 84 S.Ct. 658 (1964); and

Aircraft Mechanics Fraternal Ass'n. v. United Airlines, 406

F.Supp. 492, 497 (N.D.Cal. 1976).

20a

their own choosing. The majority of any craft or class shall have

. the right to determine who shall be the representative of the

craft or class for the purposes of this chapter.” The Board is

therefore correct when it argues that the Act supports collec-

tive bargaining and when it argues that one of the Board’s

purposes is to support collective bargaining.

This in no way, however, takes away from the fact that

employees were given the right under the Act not only to opt

for collective bargaining, but to reject it as well. The language

of the Act, quoted above, clearly stands for this proposition.

The employees “shall have the right”—not the duty—to select

a collective bargaining representative. They shall have “com-

plete independence” to organize ... or not organize. And

while the “heart” of the Act directs that “every reasonable

effort” be made “to make and maintain” collective bargaining

agreements, it is only every reasonable effort which is re-

quired. The Act supports but does not require collective

bargaining, and in our view, the implicit message throughout

the Act is that the “complete independence” of the employees

necessarily includes the right to reject collective

representation. Indeed, the concept of “complete indepen-

dence” is inconsistent with forced representation, most espe-

cially when that forced representation is at odds with employ-

ees’ will and desires.

4 The statement in Virginian Ry. v. System Federation, 300 U.S.

515, 548, 57S.Ct. 592, 599, 81 L. Ed. 789 (1937) (emphasis added) that

the aim of the Act is to “secur{e] settlement of labor disputes by

inducing collective bargaining with the true representative of the

employees and by preventing such bargaining with any who do not

represent them,” is consistent without holding here. The Act in-

duces, it does not force, and that inducement applies only to the true

representacive. Likewise, in Order of Railroad Telegraphers v. Chi-

cago & Northwestern Ry., 362 U.S. 330, 387, 80 S.Ct. 761, 765, 4

L.Ed.2d 774 (1960) (emphasis added), the Court stated that “(the

Railway Labor Act safeguards an opportunity for employees to

obtain a contract through collective rather than individualistic

2la

The legislative history of the Act expressly supports this

view. In the official House committee report on the proposed

amendments, the analysis of section 2 states that “the employ-

ees shall be free to join any labor union of their choice and

likewise to be free to refrain from joining any union if that be

their desire. ...” H.R. Rep. No. 1944 to accompany H.R.

9861, Committee on Interstate and Foreign Commerce, 73d

Cong., 2d Sess. 2 (1934). In hearings on H.R. 7650, House

Committee on Interstate and Foreign Commerce, 73d Cong.,

2d Sess. 57 (1934), Commissioner Eastman stated that the

legislation “does not require collective bargaining on the part

of the employees. If the employees do not wish to organize,

prefer to deal individually with the management with regard to

these matters, why, that course, is left open to them, or it

should be.” Commissioner Eastman also testified before the

Senate that “genuine freedom of choice [is] . . . the basis of

labor relations under the Railway Labor Act. . . .” Hearings

on S. 3266, Senate Committee on Interstate Commerce, 73d

Cong., 2d Sess. 157 (1934). Senator Wagner, later to be the

chief architect of the National Labor Relations Act of 1935,

stated in hearings on S. 3266 before the Senate, 73d Cong. , 2d

Sess. 76 (1934), that his understanding of the Act was not that

it compelled an employee to join any particular union, but that

its purpose “was just the opposite, to see that men have abso-

lute liberty to join or not to join any union or to remain unorga-

nized.” And during the relatively brief debate in the House on

H.R. 9861, Congressman Crosser, the primary sponsor and

floor leader of the bill, stated that “[mJen may organize as they

see fit... . [The Act] gives employees the absolute freedom to

establish unions of employees of a company if they so desire.

..-” 73 CONG.REC. 11,713-14 (1984) (emphasis added).

bargaining.” See also International Association of Machinists v.

Northwest Airlines, 673 F.2d 700, 707 (3rd Cir. 1981) (to further goal

of ensuring that designation of bargaining representation be free

from employer coercion, the Board was “empowered to resolve rep-

resentational disputes by investigation and certification of the repre-

sentative that reflected the unfettered choice of the employees.”).

22a |

The courts which have examined the issue of employees’

rights to reject collective representation are in unanimous

agreement that the Act provides such a right. The principal

case on point is BRAC v. Association for Benefit of Non-

Contract Employees, 380 U.S. 650, 85 S.Ct. 1192, 14 L.Ed.2d

133 (1965). In that case, involving two unions competing to

represent a craft of employees, the Court considered the nar-

row question of whether the Board’s ballot conflicted with the

employees’ right to vote against representation by either

union. The Court had no trouble in determining that the

“legislative history supports the view that the employees are

to have the option of rejecting collective representation,” 380

U.S. at 669 n. 5, 85 S.Ct. at 1202. Although the Court upheld

the ballot form, it had no doubt about the right of employees,

although then represented, to opt-out from under representa-

tion altogether. In dissent, Justice Stewart objected to the

ballot form, which did not contain a “no union” box."

This ballot form is directly attributable to the Board’s

view of what the bargaining pattern should be in the

airline industry. The Board has stated that “the Act does

not contemplate that its purposes shall be achieved, nor is

it clear that they can be achieved, without ecaplayee re _—_

resentation. ...”... I believe both the

Act and its ew history belie aoe ie ent and, he! that

reget deg I would order the Board to reconsider the form of

its

380 U.S. at 673, 85 S.Ct. at 1204. Justice Stewart goes on to

state that the Act

furnish[es] the opportunity - wey oir determination

within employee group of what the nature of bargain-

ing shall be. But the Act is not compulsory. Employees are

not required to organize, nor are they required to select

labor unions or anyone else as their representatives. It has

‘6 To indicate opposition to representation by any union, an em-

ployee has to withhold casting his or her ballot.

23a

always been recognized that under the law the employees

have € the option of rejecting collective representation.

Id. at 674, 85 S.Ct. at 1205. In closing, Justice Stewart noted

that the Board had “hewn to its mistaken belief that its duty is

to encourage collective representation in the airline industry.”

Id. at 677, 85 S.Ct. at 1206.

In Teamsters v. BRAC, 402 F.2d 196 (D.C.Cir.), cert. de-

nied, 393 U.S. 848, 89S.Ct. 135, 21 L.Ed.2d 119 (1968), BRAC

was the certified bargaining representative for Pan American

clerks and office employees. BRAC sought to enjoin the Board

from holding an election which would have determined

whether the employees desired to be represented by BRAC or

by the Teamsters. Two invalid elections were held and a third

election scheduled, which BRAC opposed, arguing that “the

Board has no power whatever to decertify a union; all it may do

is certify some new representative.” Because BRAC was to

appear on the ballot, and because it was possible that fewer

than half of the eligible voters might vote, it was possible that

there might be a vote in favor of neither union, thereby reject-

ing collective representation. BRAC sought to enjoin the bal-

lot, arguing, as the Board argues here, that no procedure for

decertification was contained in the Act; therefore, BRAC

argued, the ballot was by definition improper. The court cited

BRAC v. Association for Benefit of Non-Contract Employees

as support for the employees’ right to reject any collective

representation.

It is true ... that that case involved an attempt to

—- e emplo oyees not then collectively represented,

ee ee ee

another. Wi We ag agree with counsel a Be Board, however,

that it is inconceivable that the [the employee tence spate

f collective representa-

Pag nobody gm be Coke +’. Asoteiition tie

24a

B of Non-Contract Employees], yields as a corollary

the ’s implied power to certify to the carrier that in a

particular unit the employees have in fact rejected such

representation. . . The Betwd tes tn the peat relened to

certify a representative, when an election unorga-

nized employees failed to elicit the votes of of the

employees, without any hue and cry that employees must

be represented so that the negotiation contemplated by

the Act may go on. The Board may not only decline to

certify a representative, but may go further and certify

that there is no representative.

402 F.2d at 202-03 (emphasis added).

In Elgin, J. & E. Ry. v. Burley, 325 U.S. 711, 65 S.Ct. 1282,

89 L.Ed. 1886 (1945), modified upon rehearing, 327 U.S. 661,

66 S.Ct. 721, 90 L.Ed. 928 (1946), the employees asserted a

back-pay claim under the collective bargaining agreement.

The union grievance committee handled the claim and settled

with the employer. The employees were not satisfied with the

settlement and pursued the matter. The Railroad Adjustment

Board approved the settlement as conclusive on the grounds

that the union, as the bargaining agent for the employees, had

absolute control over such matters. The employees brought

suit in federal court under 45 U.S.C. § 153, First (m), which

allows suits from Railway Adjustment Board determinations

involving money awards.

The Supreme Court held, inter alia, that because the em-

ployees had been denied any participation in the settlement

and in the action before the Board, their rights under the Act

individually to express their grievances had been denied.

It would be difficult to believe that Congress intended,

by the 1934 amendments, to submerge wholly the individ-

ual and minority interests, with all power to act concern-

ing them, in the collective interest ay oy: EEA Gem

ex-

ceptance of such a view would

had ail in

yeletion to thelr engliament .. as the collective

25a

could be accepted only if it were clear that no other con-

struction would achieve the statutory aims.

325 U.S. at 733-34, 65 S. Ct. at 1295 (emphasis added)."*

Burley has been cited as “teach{ing] that individual rights of

employees ... cannot be nullified unless Congress clearly

intended such consequences.” McElroy v. Terminal Railroad

Ass’n., 392 F.2d 966, 969 (7th Cir. 1968). We do not believethat

Congress by the passage of the Act intended to take away

existing rights of employees, e.g., the right not to be repre-

sented, but rather that it intended to grant additional rights.

No intention to deprive employees of existing rights is con-

tained in or can even be inferred from the Act. To the contrary,

the obvious intent of the Act, as indicated by the language of

the statute itself and the underlying legislative history, is that

the goals of collective bargaining and employee freedom of

choice are consonant and concurrent. The latter goal clearly is

not subsumed by the former."

‘6 Tt should be noted that in reasoning thus, the Court stated that

“(ijn this connection” it was significant that the Act did not provide

for closed shops and that, accordingly, workers in minority unions

and unorganized workers were implicated in the issue. The Act was

amended in 1951 (64 Stat. 1238) to allow such closed shops, under 45

U.S.C. § 152, Eleventh. So some question exists about whether the

result, ifreached by the Court today, would be the same. See Burley,

827 U.S. at 667, 66 S.Ct. at 724 (Frankfurter, J., dissenting from

modified opinion). We do not think, however, that this in any way

diminishes the applicability of the quoted language to the decision

here.

The history of union security in the railway industry is marked

first, by a strong and longstanding tradition of voluntary unionism on

the part of the standard rail unions, second, by the declarations in

1934 of a congressional policy of complete freedom of choice of em-

ployers to join or not to join a union.

International Association of Machinists v. Street, 367 U.S. at 750,

81 S.Ct. at 1790.

a 2 _

26a

Vil.

Having determined that the plaintiffs and their fellow em-

ployees have the clear right under the Act to opt for

nonrepresentation, we turn to the key question in this case of

whether the Board violated a clear statutory duty in refusing

to go forward with Russell’s particular application. It is undis-

puted that once the Board had determined that Russell in-

tended to terminate collective representation in favor of “ex-

empt” status, the Board refused further to investigate his

application and the subject representational dispute.

This court has the power to order the Board to investigate,

to investigate fully and completely and properly, and to certify

the representative chosen by the craft of employees. Flight

Engineers International Ass’n v. Eastern Airlines, Inc., 359

F.2d 308, 308 (2d Cir. 1966). As noted earlier, the question of

whether judicial review could be exercised to command the

Board to “do what Congress commanded, namely, to in-

vestigate and certify,” had been reserved in General Comm. v.

Missouri-K.T. R.R., 320 U.S. at 336 n. 12, 64 S.Ct. at 152.

Eliminating any reservation that existed, the Court in

BRAC v. Association for Benefit of Non-Contract Employees,

stated that in reviewing the Board’s actions in a section 2,

Ninth, representation dispute, a court’s review extends only to

determine whether the Board did in fact conduct the investiga-

tion. 380 U.S. at 661, 85 S.Ct. at 1198. The Act does not

prescribe any set forms for such investigation and leaves that

largely to the Board’s discretion. Jd. at 662, 85 S.Ct. at 1198.

The Court did note, however, that despite that “broad and

sweeping” command, “the Board’s duty to investigate is a duty

to make such investigation as the nature of the case requires.”

Id. (Emphasis added.)

In International In-Flight Catering Co. v. NMB, 55 F.2d

712 (9th Cir. 1977), the Board had determined in 1974 that,

based on authorization cards indicating a desire that the Team-

sters be certified as the bargaining representative, a represen-

tational dispute existed. An election was held. The Teamsters

27a

lost the election and the Board certified that there was no

bargaining representative for IICC’s employees. In 1975, after

authorization cards requesting an election had again been

signed, the Board determined that a representational dispute

again existed. This time, however, the Board, without holding

any election, certified the union as the collective bargaining

representative.” IICC filed suit seeking a declaratory judg-

ment, and the district court enjoined enforcement of the

Board’s certification.

On appeal, the Board contended that under the Act its

actions regarding a representational dispute were not judicial-

ly reviewable, relying, as here, on Switchmen’s Union. The

Board stated that it had fulfilled its statutory duty to in-

vestigate in that it had compared the signatures on the

authorization cards with those on IICC’s payroll. The Board

argued that the scope and form of its investigation, and its

decision based thereon, were within its statutory discretion

and as such were beyond the court’s jurisdiction. The court

disagreed.

This position advanced by the NMB disregards the im-

rt of §2, Ninth, of the RLA, and Railway Clerks v.

on-Contract ——. Both state that the NMB has a

duty to investigate the dispute. The dispute, in this case,

advanced by the IICC was that the cards signed by the

employees only called for an election and were not votes

for representation without an election. The actual in-

vestigation undertaken by the NMB in merely comparing

the signatures assumes the disputed point, that the cards

represented votes... .

It is a perversion of the search for truth and the policy of

the RLA for the NMB to continue to insist, in these

8 Upon IICC’s ignoring the Board’s certification, the Board autho-

rized the union to commence unilateral action against IICC, including

strikes and picketing, thereby running directly counter to what it so

persistently espouses as its sole duty under the Act, the prev

of work stoppages. ;

28a

circumstances, that it conducted an investigation and dis-

charged its duty under the RLA.

555 F.2d at 718-19.

Judge Friendly in Ruby v. American Airlines, 323 F.2d at

255, stated succinctly that “(t]he Board’s duty to investigate is

a duty to make such investigation as the nature of the case

demands.” As indicated previously, the nature of the instant

case is that the plaintiffs and their fellow employees dispute

the incumbent union’s representative status and have an ap-

parent desire not to bargain collectively. When the Board’s

investigation reached the point of determining the intent of the

employees, the Board refused further “to progress” Russell’s

application, refused further to investigate the legitimate dis-

pute among the employees as to whether the union was their

representative, and thereby denied the employees their rights

under the Act. When the Board balked, it crossed over from

being a disinterested “referee” to being a participant. To re-

peat, “(uJnder this Act Congress did not give the Board discre-

tion to take or withhold action, to grant or deny relief. It gave it

no enforcement functions. It was to find the facts and then

cease. . . .” Switchmen’s Union, 320 U.S. at 305, 64 S.Ct. at

99. The Board failed here to find the fact in dispute: who is the

true representative of the employees? It is, therefore, a “per-

version of truth” for the Board to insist that it conducted the

investigation and discharged its duty under the Act.

IX.

This case is therefore reversed and remanded to the district

court. The court shall remand this case to the Board and direct

it to proceed with its investigation into the application filed by

Russell as it would any other application for investigation of a

representational dispute, and not inconsistent with this

opinion.

REVERSED and REMANDED.

29a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82-1466

LAURENCE G. RUSSELL, WILLIAM L. HANNA

and Eppieé D. LANGWELL,

Plaintiffs-Appellants,

Vv.

NATIONAL MEDIATION BOARD,

Defendant-Appellee

THE ATCHISON, TOPEKA AND

SANTA Fe RaILway CoMPANY,

and

BROTHERHOOD OF RAILWAY, AIRLINE AND

STEAMSHIP CLERKS, FREIGHT HANDLERS,

EXPRESS AND STATION EMPLOYEES,

Defendants Below and Parties in Interest.

Appeal From The United States District Court

For The Northern District Of Texas Amarillo Division

RECORD EXCERPTS

30a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

CIVIL ACTION NO. CA-2-81-138

LAURENCE G. RUSSELL, et al.,

Plaintiffs,

a

NATIONAL MEDIATION BOARD, et al.,

Defendants.

PARTIAL SUMMARY JUDGMENT

On this day came on for consideration the Motion for Sum-

mary Judgment filed by the Defendant National Mediation

Board. After considering the motion, the briefs filed in support ,

thereof and in opposition thereto, the Court has entered an

order granting the motion.

It is ORDERED that the above cause is DISMISSED on the

merits as to Defendant National Mediation Board only.

ENTERED this 17th day of March, 1982.

/s/ Mary Lou Robinson

Mary Lou RoBINson

United States District Judge

$la

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

CIVIL ACTION NO. CA-2-81-138

LAURENCE G. RUSSELL, et al.,

Plaintiffs,

We

NATIONAL MEDIATION BOARD, et al.,

Defendants.

ORDER

The Court has received and considered the Motion for Sum-

mary Judgment filed by the Defendant National Mediation

Board and the briefs filed in support thereof and in opposition

thereto.

The Plaintiffs brought this action to challenge a decision

made by the National Mediation Board regarding an alleged

employee representation dispute in the railway industry. The

only issue before this Court is whether the Court has subject

matter jurisdiction to review the representation decision made

by the National Mediation Board. After considering all the

evidence, the Court is of the opinion that the representation

decision is a matter within the exclusive jurisdicton of the

National Mediation Board pursuant to the Railway Labor Act,

45 U.S.C. § 151, et. seq. Accordingly, the Motion for Summary

judgment should be granted.

Plaintiff, Laurence G. Russell, filed an application for In-

vestigation of Representation Dispute with the National

Mediation Board, asking the Board to investigate an alleged

representation dispute between himself and the incumbent

union, Brotherhood of Railway, Airline and Steamship Clerks,

Freight Handlers, Express and Station Employees (BRAC).

Following an investigation, the Board determined that a rep-

32a

resentation dispute had not, in fact, arisen between Russell

and BRAC, since it found that Russell lacked the intent to

represent the subject craft or class of employees if elected.

Hence, the Board dismissed Russell’s application.

Plaintiffs challenge the Board’s dismissal of Russell’s appli-

cation by alleging that the action was unlawful, arbitrary,

capricious, an abuse of discretion, in excess of the Board’s

statutory authority, in violation of plaintiffs constitutional

rights under the First, and Fifth Amendments to the Constitu-

tion, and contrary to the Board decisions and policy. Further,

Plaintiffs allege that the Railway Labor Act, as interpreted by

the Board and as applied to Plaintiffs, is unconstitutional be-

cause it denies Plaintiffs equal protection under the law and

due process of law and violates Plaintiffs’ rights of association

and expression. Plaintiffs ask this Court for declaratory relief

and for an order requiring the Board to conduct an election or

to utilize another appropriate method of ascertaining the duly

authorized representative of the majority of the employees.

It is well established that the National Mediation Board’s

decisions regarding representation disputes; made pursuant to

Section 2, Ninth of the Railway Labor Act, are not subject to

judicial review. Brotherhood of Railway and Steamship

Clerks v. Association for the Benefit of Non-Contract Employ-

ees, 380 U.S. 650 (1965); Switchmen’s Union v. National

Mediation Board, 320 U.S. 297 (1943). There are two limited

exceptions to this doctrine of judicial non-review. The first

situation allowing review is one in which there are con-

stitutional questions regarding the Board’s actions. Switch-

men’s Union, supra, 320 U.S. at 301; International Brother-

hood of Teamsters v. Brotherhood of Railway, Airline and

Steamship Clerks, 402 F.2d 196, 206 (D.C. Cir. 1968). The

second situation is one in which the Board has acted “in excess

of its powers or contrary to a statutory provision.” Sedalia-

Marshall-Boonsville Stage Line, Inc. v. National Mediation

Board, 574 F.2d 394, 398 (8th Cir. 1978); Brotherhood of Rail-

way, Airline and Steamship Clerks, supra, 280 U.S. at 669.

Sh | ae 7, et

. . . 2 : %& Se ane A Saas

ry tn ee a ei " *

aie Be See ae ee ee a vy

33a

The summary judgment evidence establishes that the Board

investigated the question of whether a representation dispute

had arisen in this case. The Board’s investigation was sufficient

and within its scope of authority. Plaintiffs’ complaint address-

es not the adequacy of the information before the Board, but

the Board’s conclusion that Mr. Russell lacked the intent to

represent the employees. Such a complaint cannot serve as a

basis for judicial interference with Board action. Ruby v.

American Airlines, Inc., 323 F.2d 248, 255 (2nd Cir. 1963).

The Board’s investigation met constitutional due process

requirements. The Board gave every interested party the

opportunity to present its arguments to the Board. Plaintiffs

have not claimed that further opportunity was necessary for

presentation of additional facts to the Board. The Board made

“ipiaadinahesiih upenitethenadlliniiein Gvery parte tavedeed

in this action. Such a procedure meets due process require-

ments. Ruby, supra, 323 F.2d at 2544, 255.

Because the Board met its statutory obligation to in-

vestigate this matter and did so in a manner that net con-

stitutional due process requirements, this Court has no

jurisdiction to review the Board’s decision in this matter. Sum-

mary judgment should be, and is hereby, GRANTED in favor

of National Mediation Board.

It is so ORDERED.

ENTERED this 17th day of March, 1982.

/s/ Mary Lou Robinson

Mary Lou RosInson

United States District Judge

me.

34a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82-1466

LAURENCE G. RUSSELL, WILLIAM L. HANNA

and Eppie D. LANGWELL,

Plaintiffs-Appellants,

versus

NATIONAL MEDIATION BOARD, THE ATCHISON,

TOPEKA AND SANTA FE RaILway ComPANY, et al.,

Defendants-Appellees.

Appeal From The United States District Court

For The Northern District Of Texas

ON SUGGESTION FOR REHEARING EN BANC

U.S. COURT OF APPEALS

FILED

Nov. 28, 1983

GILBERT F. GANUCHEAU

Cierk

(Opinion 09/22/83, 5 Cir., 198, ____ F.2d —__)

(November 28, 1983)

Before RuBIN and JoL_y, Circuit Judges, and PuTNAM*, Dis-

trict Judge.

PER CURIAM:

(/) Treating the suggestion for rehearing en banc as a peti-

tion for panel rehearing, it is ordered that the petition for panel

rehearing is DENIED. No member of the panel nor Judge in

regular active service of this Court having requested that the

35a

Court be polled on rehearing en banc (Federal Rules of Appel-

late Procedure and Local Rule 35), the suggestion for Rehear-

ing En Banc is DENIED.

DENIED. The judges in regular active service of this Court

having been polled at the request of one of said judges and a

mea Pune ty oma then Matar hhc

Procedure and Local Rule 35), the sugges-

tion ter RamearloaOe bane b DENIED.

ENTERED FOR THE COURT:

/s/ E. Grady Jolly

E. Grapy JoLLy

United States Circuit Judge

*District Judge of the Western District of Louisiana, sitting by

36a

APPENDIX D

Applicable Provisions of the Constitution of the

United States of America and the Railway Labor Act

45 U.S.C. § 151, et seq.

(not quoted in full in the body of the petition)

First Amendment

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging

the freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the government for a

redress of grievances.

Fifth Amendment

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service of time of War or public

danger; nor shall any person be subject for the same offence to

be twice put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process of law;

nor shall private property be taken for public use, without just

compensation.

The Railway Labor Act

§ 151

Sixth. The term “representative” means any person or per-

sons, labor union, organization, or corporation designated

either by a carrier or group of carriers or by its or their

employees, to act for it or them.

§15la. GENERAL PURPOSES

The purposes of the Act are: (1) To avoid any interruption to

commerce or to the operation of any carrier engaged therein;

(2) to forbid any limitation upon freedom of association among

37a

employees or any denial as a condition of employment or other-

wise, of the right of employees to join a labor organization; (3)

to provide for the complete independence of carriers and of

employees in the matter of self-organization to carry out the

purposes of this Act; (4) to provide for the prompt and orderly

settlement of all disputes concerning rates of pay, rules, or

working conditions; (5) to provide 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.

$152. GENERAL DUTIES

First. Duty Of Carriers And Employees To Settle Disputes.

It shall be the duty of all carriers, their officers, agents, and

employees to exert every reasonable effort to make and main-

tain agreements concerning rates of pay, rules, and working

conditions, and to settle all disputes, whether arising out of the

application of such agreements or otherwise, in order to avoid

any interruption to commerce or to the operation of any carrier

growing out of any dispute between the carrier and the em-

ployees thereof.

Second. Consideration Of Disputes By Representatives.

All disputes between a carrier or carriers and its or their

employees shall be considered, and, if possible, decided, with

all expedition, in conference between representatives desig-

nated and authorized so to confer, respectively, by the carrier

or carriers and by the employees thereof interested in the

dispute.

Third. Designation of Representatives.

Representatives, for the purposes of this Act shall be desig-

nated by the respective parties without interference, in-

fluence, or coercion by either party over the designation of

representatives by the other; and neither party shall in any

way interfere with, influence, or coerce the other in its choice

38a

of representatives. Representatives of employees for the pur-

poses of this Act need not be persons in the employ of the

carrier, and no carrier shall, by interference, influence, or

coercion seek in any manner to prevent the designation by its

employees as their representatives of those who or which are

not employees of the carrier.

Fourth. Organization And Collective Bargaining; Freedom

From Interference By Carrier; Assistance In Organizing Or

Maintaining Organization By Carrier Forbidden; Deduction Of

Dues From Wages Forbidden.

Employees shall have the right to organize and bargain collec-

tively through representatives of their own choosing. The

majority of any craft or class of employees shall have the right

to determine who shall be the representative of the craft or

class for the purposes of this Act. No carrier, its officers or

agents, shall deny or in any way question the right of its

employees to join, organize, or assist in organizing the labor

organization of their choice, and it shall be unlawful for any

carrier to interfere in any way with the organization of its

employees, or to use the funds of the carrier in maintaining or

assisting or contributing to any labor organization, labor rep-

resentative, or other agency of collective bargaining, or in

performing any work therefor, or to influence or coerce em-

ployees in an effort to induce them to join or remain or not to

join or remain members of any labor organization, or to deduct

from the wages of employees any dues, fees, assessments, or

other contributions payable to iabor organizations, or to collect

or to assist in the collection of any such dues, fees, assess-

ments, or other contributions: Provided, That nothing in this

Act shall be construed to prohibit a carrier from permitting an

employee, individually, or local representatives of employees

from conferring with management during working hours with-

out loss of time, or to prohibit a carrier from furnishing free

transportation to its employees while engaged in the business

of a labor organization.

39a

§ 156

Procedure in changing rates of pay, rules, and working

conditions.

Carriers and representatives of the employees shall give at

least thirty days’ written notice of an intended change in agree-

ments affecting rates of pay, rules, or working conditions, and

the time and place for the beginning of conference between the

representatives of the parties interested in such intended

changes shall be agreed upon within ten days after the receipt

of said notice, and said time shall be within the thirty days

provided in the notice. In every case where such notice of

intended change has been given, or conferences are being held

with reference thereto, or the services of the Mediation Board

have been requested by either party, or said Board has prof-

fered its services, rates of pay, rules, or working conditions

shall not be altered by the carrier until the controversy has

been finally acted upon as required by section 5 of this Act, by

the Mediation Board, unless a period of ten days has elapsed

after termination of conferences without request for or proffer

of the services of the Mediation Board.

40a

APPENDIX E

NATIONAL MEDIATION BOARD

APPLICATION FOR INVESTIGATION

OF REPRESENTATION DISPUTE

TO THE NATIONAL MEDIATION BOARD,

Washington, D.C. 20572

A dispute has arisen among the employees of The Atchison,

Topeka and Santa Fe Railway Company as to who are the

representatives of these employees designated and authorized

in accordance with the requirements of the Railway Labor Act.

The undersigned, one of the parties to the dispute, hereby

requests the National Mediation Board to investigate this dis-

pute, and to certify the name or names of the individuals or

organizations authorized to represent the employees involved

in accordance with Section 2, Ninth, of the Act.

Parties To Dispute

Petitioning organization or representative, Laurence G.

(Larry) Russell, (An Individual); Organization holding ezist-

ing agreement, if any, and date therof, Allied Services Divi-

sion (See “A” attached hereto) Date: December 1, 1973; Other

organizations or representatives involved in dispute, NONE.

Craft Or Class Of Employees Involved

PATROLMEN: (a) Special Agents—203; (b) Security

Guards—7; Total—210.

Evidence Of Representation

This application is supported by at least a majority, if the

employees are represented.

Signed at Amarillo, Texas this 23rd day of March, 1981

Name Laurence G. (Larry) Russell

LAURENCE G. (LARRY) RUSSELL

Title: An Individual

4la

APPENDIX E-1

NATIONAL MEDIATION BOARD

WASHINGTON, D.C. 20572

CASE NO. R-5198

8 NMB No. 135

In the Matter of the Application of

LAURENCE G. RUSSELL, an individual

alleging a representation dispute pursuant to

Section 2, Ninth, of the Railway Labor Act

involving employees of

ATCHISON ToPEKA & SANTA FE RAILWay COMPANY

May 21, 1981

FINDINGS UPON INVESTIGATION, DISMISSAL

On March 23, 1981, Laurence G. Russell, an individual, filed

an application pursuant to Section 2, Ninth, of the Railway

Labor Act, as amended, 45 U.S.C. § 152, Ninth, alleging the

existence of a representation dispute involving special agents

and security guards employed by the Atchison, Topeka, and

Santa Fe Railway Company (Santa Fe). Said employees gener-

ally constitute the craft or class of Police Officers below the

rank of Captain. The application has been docketed as NMB

Case No. R-5198.

At the time the application was filed, these employees were

represented by the Brotherhood of Railway, Airline &

Steamship Clerks, Freight Handlers, Express & Station Em-

ployes (BRAC) pursuant to the Board’s certification in Case

No. R-1091 (1943).

During the course of the Board’s investigation, issues arose

concerning the applicant’s intent to represent the subject craft

or class.

42a

Written submissions were received from BRAC, Russell,

and the Santa Fe, with respect to the issues presented.

ISSUES

The issue in this case is whether Laurence G. Russell intends

to represent the craft or class, if certified, within the meaning

of the Act.

CONTENTIONS

Russell contends that he will represent the craft or class if

certified, and that the Board cannot inquire into the manner in

which such representation will be carried out. Russell further

contends that the Board must conduct an election and certify

him as the representative, without regard to his intent, if he

presents authorization cards from a majority of the eligible

employees.

BRAC contends that Russell is attempting to decertify it,

and that he has no intention of serving as collective bargaining

representative of the craft or class. BRAC further contends

that Russell will return the employees to an unrepresented

status in violation of the Act. BRAC urges that the application

be dismissed.

FINDINGS OF LAW

Determination of the issues here involved is governed by

Sections 1 and 2, Title I of the Railway Labor Act, as amended,

45 U.S.C. §§ 151, 152. In this connection, the Board finds as

follows:

The Atchison, Topeka, and Santa Fe Railway Company is a

carrier as defined by Section 1, First of the Railway Labor Act,

as amended, 45 U.S.C. § 151, First.

Il.

The subject personnel are employees as defined by Section

1, Fifth of the Act, 45 U.S.C. § 151, Fifth.

43a

Ill.

BRAC is a labor organization and representative as defined

by Section 1, Sixth, 45 U.S.C § 151, Sixth, and Section 2,

Ninth, of the Act.

IV.

Section 2, Fourth, of the Act 45 U.S.C. § 152, Fourth, pro-

vides employees subject to its provisions “. . . the right to

organize and bargain collectively through representatives of

their own choosing. The majority of any craft or class of em-

ployees shall have the right to determine who shall be the

representative of the craft or class for the purposes of this

Act.”

V.

Section 2, Ninth, of the Act requires the National Mediation

Board to investigate disputes which arise among a Carrier's

employees over representation, and to certify the duly autho-

rized representatives of such employees. In determining the

choice of the majority of employees under this section, the

Board is authorized to designate who may participate as eligi-

ble voters in the event an election is required.

FINDINGS OF FACT

I.

On January 14, 1981, the “Association of Santa Fe Railway

Police Officers” sent a letter to the subject employees stating:

As you may know, or at least be aware of, a move has been

started to discertify [sic] from B.R.A.C., Allied Services

The letter proceeded to outline a proposal for forming a new

organization, using an individual applicant to request an elec-

tion. In addition, the letter contained a reference to NMB Case

No. R-5039, involving the application of J.J. McDaniel, an

individual, to represent Yardmasters on the Santa Fe. See, 7

NMB Nos. 149 and 190 (1980); See also, File No. C-5062, 8

NMB No. 24 (1980).

dda

On February 22, 1981, the “Association” sent a second letter

indicating that Russell had been designated to be the repre-

sentative who would file the application for investigation of a

representation dispute with the Board. The letter went on to

describe how the police officers could, like the yardmasters,

attain an “exempt employees status.” The proposed benefit

package is almost verbatim that of the Yardmasters under

McDaniel.

On March 30, 1981, a third letter was sent reaffirming the

desire to become exempt employees. Russell was one of the

signatories to this letter. The letter again discussed the Yard-

masters, and went on to refer to the Dismissal of an application

filed by J. D. Blankenship, an individual, to represent Dis-

patchers on the Santa Fe. NMB Case No. R-5150, 8 NMB No.

18 (1980). Blankenship’s application was dismissed because his

authorization cards sought to “decertify” the incumbent union,

and were thus invalid. The letter states that Blankenship’s

cards would have been used to place the dispatchers in an -

exempt status.

The March 30 letter continues: —

Some seem to think once we are exempt we must forever

remain exempt. To set the record straight, we can go back

On April 13, 1981, Chief Hearing Officer David M. Cohen

had a discussion with John Cosmic, counsel for Russell in this

case. In the course of the discussion, Cosmic indicated that

Russell intended to do the same thing that McDaniel did in the

case of the Yardmasters, namely, the negotiate an agreement

to terminate the collective bargaining agreement then in ef-

fect, and to thereafter refrain from engaging in further repre-

sentation of the employees.

45a

The Chief Hearing Officer advised Cosmic that the Board

had stated that the Railway Labor Act, unlike the National

Labor Relations Act, does not provide a statutory procedure

for decertification of labor organizations, and that the Board

was presently investigating three other applicants who had

filed on the Santa Fe or its subsidiaries (File No. C-5062). He

further stated that the Board might find that Russell’s an-

nounced intention amounted to a lack of intent to represent the

employees, which would be grounds for dismissing the applica-

tion.

ITI.

On April 17, 1981, Russell contacted his two U.S. Senators

and his Congressman with respect to the converstation be-

tween Chief Hearing Officer Cohen and Cosmic, described in

Part II, above. Copies of these letters were provided to each

member of this Board by Russell.

In his letters, Russell states:

My campaign has been openly, fairly and legally con-

ducted with thew ling from our group, if elected,

e express is to negotiate my em an

sovcnatent tite will catene tao chetes and teneidet oun.

union employees which are substantially than

those which we believe cannot be achieved by BRAC.

Most recently my attorney has been advised by the

Mediation Board's Hanting Othoer tune say totem

46a

DISCUSSION

I.

The Railway Labor Act, unlike the National Labor Rela-

tions Act, contains no statutory provision for decertification of

a bargaining representative. Atchison, Topeka and Santa Fe

Railway Company, 8 NMB No. 18 (1980). See also, Manufac-

turers Railway Company, 7 NMB Nos. 233 and 250 (1980).

The Board will not progress an application for investigation of

a representation dispute where the applicant lacks the intent

to represent the craft or class, if certified. Chicago Union

Station, 8 NMB No. 45 (1980), and will dismiss such an applica-

tion because it is void ab initio, Id.

Lack of intent to represent the craft or class may be estab-

lished in many ways. In the case of J. D. Blankenship, use of

the word “discertify” on the cards submitted by the applicant

clearly established the true aim of the applicant.

But in other cases, lack of intent may be more subtle.

Negotiation of an agreement to abrogate all existing collective

bargaining agreements, followed by inaction on the part of the

representative, may be evidence of lack of intent. Such an

action would leave the employees wages and working condi-

tions subject to the unilateral control of the carrier—the very

antithesis of collective bargaining. Failure to provide a griev-

ance procedure under Section 3 of the Act is another indicium

of lack of intent.

The Board need not wait to take appropriate action until an

applicant has been certified, ifthe applicant clearly manifests a

lack of intent to represent the craft or class at the time the

application is filed.

Ill.

There is no such status as “exempt” under the Railway

Labor Act. Personnel of a carrier either are “employees or

subordinate officials” or are management officials. “Negotia-

47a

tion” of an exempt status is no more binding upon the Board

than any voluntary recognition agreement, and would not con-

stitute a bar to a representation election in a subsequently —

filed case. The exempt status sought here is nothing more than

a non-union status, which would mean decertification of

BRAC.

It is elementary that rank-and-file police officers or guards

can never be management officials. Only the highest ranking

police officers have been excluded from the craft or class on

that basis. For at least forty years, the Board has included

sergeants and lieutenants in the craft or class of police officers.

See, e.g., Chicago, Milwaukee, St. Paul & Pacific RR Co., 6

NMB No. 1008 (1978); Belt Railway Co., 6 NMB NO. 1198

(1979). Therefore, the subject employees are “employees or

subordinate officials” subject to the Act.

IV.

The Board finds that Laurence G. Russell lacks an intent to

represent the subject craft or class if elected and certified, as

evidenced by his announced and undisputed plan to abrogate

all existing collective bargaining agreements, thereby leaving

the employees unrepresented in effect, notwithstanding the

certification and the obligations which attach thereto.

CONCLUSION

On the basis of the findings above, the application of Laur-

ence G. Russell is hereby dismissed, subject to Part 1206.4 of

the NMB Rules.

By direction of the NATIONAL MEDIATION BOARD.

/s/ Rowland K. Quinn, Jr.

ROWLAND K. QUINN, JR.

Executive Secretary

48a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION

LAURENCE G. RUSSELL, WILLIAM L. HANNA,

and Eppie D. LANGWELL,

Plaintiffs,

Vv.

NATIONAL MEDIATION BOARD, ATCHISON; TOPEKA AND

SANTA FE RaILway CoMPANY, and BROTHERHOOD OF RAILWay,

AIRLINE AND STEAMSHIP CLERKS, FREIGHTHANDLERS,

EXPRESS AND STATION EMPLOYES,

Defendants.

AMENDED COMPLAINT FOR DECLARATORY AND

INJUNCTIVE RELIEF AND PETITION FOR

REVIEW AND FOR EXTRAORDINARY RELIEF

Plaintiffs, complaining of the Defendants above-named,

allege and say as follows:

Introduction

1. This is an action for declaratory and injunctive relief,

and for mandamus. The Plaintiffs seek an order requiring the

Defendant National Mediation Board to conduct an election to

determine the representative authorized by those employees

of Defendant Atchison, Topeka and Santa Fe Railway Com-

pany who constitute the class or craft generally known as

Police Officers below the rank of Captain and to certify the

winner of such election as the authorized representative of said

employees under the Railway Labor Act, 45 U.S.C. § 151 et

seq. The Plaintiffs further seek an order enjoining the enforce-

ment of a union shop agreement between the Brotherhood of

Railway, Airline and Steamship Clerks, Freighthandlers, Ex-

press and Station Employes and the Santa Fe which requires

49a

Plaintiffs to remain members of Defendant BRAC as a condi-

tion of their continued employment with the Santa Fe.

Jurisdiction

2. Jurisdiction is conferred by 28 U.S.C. § 1331 which pro-

vides for original jurisdiction of all actions arising under the

Constitution, laws, or treaties of the United States; 28 U.S.C.

§ 1837 which provides for original jurisdiction of any civil ac-

tion or proceeding arising under any Act of Congress regulat-

ing commerce; 28 U.S.C. § 1361 which provides for original

jurisdiction of any action in the nature of mandamus to compel

an officer or employee of the United States or any agency

thereof to perform a duty owed to the Plaintiff. The Plaintiff

seeks declaratory relief pursuant to 28 U.S.C. $§ 2201 and

2202, and review of an action of an agency of the United States,

pursuant to 5 U.S.C. §§ 702, 706, and 706, and other injunctive

relief.

Parties

3. Plaintiff Laurene G. Russell is a resident of the State of

Texas who has been authorized by a majority of those employ-

ees of the Defendant Atchison, Topeka and Santa Fe Railway

Company who constitute the class or craft of Police Officers

below the rank of Captain to represent their interests under

the Railway Labor Act, as amended, 45 U.S.C. § 151 et seq.

4. Plaintiffs William L. Hanna and Eddie D. Langwell,

together with Plaintiff Russell, are employees of the Defend-

ant Atchison Topeka and Santa Fe Railway Company in Amar-

illo, Texas, and are members of that craft or class of employees

known as Police Officers below the rank of Captain. Plaintiffs

Hanna and Langwell have signed cards authorizing Plaintiff

Russell to represent them.

5. Defendant National Mediation Board (hereinafter “the

board”) is an agency of the United States entrusted with

administering certain portions of the Railway Labor Act, 45

U.S.C. § 151 et seq. and is specifically required, pursuant to 45

50a

U.S.C. § 152 Ninth, to investigate any dispute arising among a

carrier’s employees as to who are the representatives of such

employees designated and authorized in accordance with the

requirement of the Railway Labor Act, to certify to the parties

to the dispute the name or names of the individuals or organiza-

tions that have been designated and authorized to represent

the employees involved in the dispute, and to certify the same

to the carrier.

6. Defendant Brotherhood of Railway, Airline and

Steamship Clerks, Freight Handlers, Express and Station

Employes (hereinafter “BRAC”) is a labor organization and

tative as defined by § 1, Sixth of the Railway Labor

Act, 45 U.S.C. § 151 Sixth, and currently claims to be the

representative of the employees in question pursuant to the

Board’s certification in NMB Case No. R-1091 (1943).

7. Defendant Atchison, Topeka and Santa Fe Railway

Company (hereinafter “Santa Fe”) is a carrier as defined by

§ 1, First of the Railway Labor Act, as amended, 45 U.S.C.

151, First, and is the employer of the employees in question.

First Cause Of Action

8. On March 23, 1981, Plaintiff Russell filed with the Board

substantial majority of the craft or class in question. Pursuant

to the Board’s request, Plaintiff Russell supplemented his

application by letter dated March 27, 1981 and an attachment

_ thereto listing additional employees who had provided him

7 .

~~... rss

ie fee ae tes be

. a =

5la

hereto, labeled exhibit A-2, and incorporated herein by refer-

ence. The foregoing is in compliance with the Board’s Rules for

Handling Representation Disputes Under the Railway Labor

coer rm 2 dae sedge 29 C.F.R. § 1206.2(a), which

by the Board under authority of 45 U.S.C.

$ 151 of vee and which read, in part, as follows:

2(a) Where the eeivest ons popesnentation

are by an individual or

10. The craft or class of Police Officers on the Santa Fe is

composed of approximately 210 special agents and security

guards. The craft or class of Police Officers, at the time Plain-

tiff Russell’s application was filed, was represented by BRAC

to the Board’s certification in Case No. R-91 (1943).

To the best of the Plaintiffs’ knowledge and belief, no current

in the craft or class of Police Officers participated in

the election which resulted in the Board's certification. The

employees, including the Plaintiffs herein, are also required by

an agreement between the Santa Fe and BRAC, authorized by

Section 2, Eleventh, 15 of the Railway Labor Act, 45 U.S.C.

§ 152, Eleventh, to become members of BRAC asa condition of

their continued employment with the Santa Fe.

11. The majority of the employees constituting the craft or

class of Police Officers no longer authorizes BRAC to repre-

sent those employees concerning their affairs with the Santa

Fe.

12. Plaintiff Russell has demanded that Defendant Santa

Fe recognize him as the representative of the employees in

question and that all rights under the existing agreement

between the Defendants Santa Fe and BRAC, including dues

deducted from the paychecks of the employees in question, be

transferred to Plaintiff Russell.

58a

concerned, while other employees similarly situated are not so

required.

16. The Railway Labor Act, 45 U.S.C. § 151 et seq., as

interpreted by the Board and as applied to the Plaintiffs, is

unconstitutional in that it violates Plaintiffs’ rights of associa-

tion and expression protected under the First Amendment of

the Constitution by requiring them to associate with a repre-

sentative in perpetuity although the majority of the craft or

class no longer authorizes an individual or organization to be its

representative.

Second Cause Of Action

17. Paragraphs 1 through 16 of the Complaint are real-

leged as if fully set forth herein. ‘

18. The Union Security Clause in effect between Defend-

ant Santa Fe and the Defendant BRAC violates the Plaintiffs’

rights of freedom of association and expression guaranteed

* under the First Amendment of the Constitution in that they

are required as a condition of continued employment with the

Santa Fe to remain members of BRAC and make financial

contributions towards BRAC although BRAC is no longer

authorized by the majority of the employees of the craft orclass

to be their representative.

WHEREFORE, Plaintiffs pray as follows:

A. That this Honorable Court issue its order declaring that

the action of the National Mediation Board is unlawful,

of the Plaintiffs guaranteed by the First and Fifth Amend-

ments of the Constitution, and that the Railway Labor Act 45

U.S.C. § 151 et seq. is unconstitutional as applied to the Plain-

tiffs.

B. Issue its Writ of Mandamus or other appropriate order

requiring the National Mediation Board to conduct an election

or to utilize another appropriate method of ascertaining the

5da

duly authorized representative of the majority of the employ-

ees of the Defendant Santa Fe who constitute the class or craft

of Police Officers and to certify the same to the plaintiff and the

Defendant BRAC, and the Defendant Santa Fe in accordance

to the Railway Labor Act, as amended, 45 U.S.C. § 151 et seq.

C. Issue its order declaring that the Union Shop Clause

currently existing between the Defendant Santa Fe and the

Defendant BRAC violates rights guaranteed to the Plaintiffs

by the First and Fifth Amendments of the United States

Constitution, and is therefore null and void.

D. Issue its order enjoining the Defendant Santa Fe and

the Defendant BRAC, their agents and employees, and all

other persons acting in concert with them, from enforcing the

Union Shop Clause against the Plaintiffs, or otherwise depriv-

ing them of their rights guaranteed them under the First

Amendment.

E. Award the Plaintiffs reasonable attorney’s fees and the

costs of this action.

F. Grant such other and further relief as to this Court may

seem equitable and proper.

/s/ John Cosmic

JoHN CosMICc

910 Barfield Building

Amarillo, Texas 79101

(806) 373-0711

Dannigz B. FoGLEMAN

National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

(703) 321-8510

July 22, 1981

Ore eT, FA 4a a ty SS a) oe ; ,- y, ee es

. 7 2-4

‘

.

Exhibit A-1*

NATIONAL MEDIATION BOARD

APPLICATION FOR INVESTIGATION OF

REPRESENTATION DISPUTE

To THE NATIONAL MEDIATION BoarD,

Washington, D.C. 20572

A dispute has arisen among the employees of The Atchison,

Topeka and Santa Fe Railway Company as to who are the

representatives of these employees designated and authorized

in accordance with the requirements of the Railway Labor Act.

The undersigned, one of the parties to the dispute, hereby

requests the National Mediation Board to investigate this dis-

pute, and to certify the name or names of the individuals or

authorized to represent the employees involved

in accordance with Section 2, Ninth, of the Act.

Parties To Dispute

Petitioning organization or representative, Laurence G.

(Larry) Russell, (An Individual); Organization holding exist-

ing agreement, if any, and date thereof, Allied Services Divi-

sion (Bee “A” attached hereto) Date: December 1, 1973; Other

organizations or representatives involved in dispute, NONE.

Craft Or Class Of Employees Involved

PATROLMEN: (a) Special Agents—203; (b) Security

Guards—7; Total—210.

*The list of applicable employees attached hereto has been omitted

for reasons of space.

J —_ >. —~ CS Spat al p Re ’ ny at 5; ox A a, | Me | Set & | sory, mo .

me . ; ? 1) oe

:

56a

Evidence Of Representation

This application is supported by at least a majority, if the

employees are represented.

Signed at Amarillo, Texas this 23rd day of March, 1981

/s/ Laurence G. (Larry) Russell

LAURENCE G. (LARRY) RUSSELL

Title: An Individual**

**Plaintiff's Exhibit A-2, containing a letter and an additional list of

applicable has also been omitted for this reason. And

Exhibit B to the Amended Complaint has been omitted as it is

reproduced herein as Exhibit E-1.

57a

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

Civil Action No. 2-81-138

LAURENCE G. RUSSELL, et al.,

Plaintiffs,

v.

NATIONAL MEDIATION Boar, et al.,

Defendants.

DEFENDANT NATIONAL MEDIATION

BOARD’S ANSWER

Defendant National Mediation Board, by its undersigned

attorneys, answers the Amended Complaint as follows:

First Defense

The Court lacks jurisdiction over the subject matter of this

case.

Second Defense

The Amended Complaint fails to state a claim upon which

relief can be granted.

Third Defense

In answer to the numbered paragraphs of the Amended

Complaint, defendant National Mediation Board hereby

admits, denies, and alleges as follows:

1. This paragraph contains plaintiffs’ introductory re-

marks and not allegations of fact to which an answer is re-

quired, but insofar as an answer may be iequired, denied.

58a

2. This paragraph contains plaintiffs’ jurisdictional allega-

tions and not allegations of fact to which an answer is required,

but insofar as an answer may be required, denied.

3. Denied, except to state that defendant National Media-

tion Board is without knowledge or information sufficient to

form a belief as to the truth of the allegations concerning

plaintiff Russell’s residency.

4. Defendant National Mediation Board is without knowl-

edge or information sufficient to form a belief as to the truth of

the allegations in the first sentence of this paragraph. The

second sentence is denied, except to admit that defendant

National Mediation Board has authorization cards purportedly

signed by plaintiffs Hanna and Langwell but that it has not

verified these signatures.

5. Denied, except to admit that defendant National Media-

tion Board is the federal labor relations agency which adminis-

ters the Railway Labor Act, 45 U.S.C. § 151 et seq., and is

charged with certain responsibilities concerning disputes as to

employee representation under Section 2, Ninth of the Act. 45

U.S.C. § 152, Ninth. The Court is referred to the Railway

Labor Act for a full and complete statement of its contents.

6. Admitted.

7. Admitted.

First Cause Of Action

8. Sentences one, two, three, four, and seven of this para-

graph are admitted. All other allegations in this paragraph are

denied.

9. Denied.

10. The second sentence of this paragraph is admitted,

to state that the Board’s certification occurred in Case

Ne. R-1081. Defendant National Mediation Board is without

knowledge or information sufficient to form a belief as to the

truth of the first, third, and fourth sentences.

59a

11. Defendant National Mediation Board is without knowl-

edge or information sufficient to form a belief as to the truth of

the allegations in this paragraph.

12. Admitted, upon information submitted to this Court by

defendant Santa Fe in its Motion for Leave to Deposit Funds

with the Court.

13. Admitted.

14. Denied.

15. Denied.

16. Denied.

Second Cause Of Action

17. The answers to paragraphs 1 through 16 of the Com-

plaint are incorporated herein as if fully set forth.

18. Defendant National Mediation Board is without knowl-

edge or information sufficient to form a belief as to the truth of

the allegations in this paragraph, except to state that BRAC is

the certified representative of these employees.

The National Mediation Board hereby specifically denies all

the allegations of the Amended Complaint not herein before

otherwise admitted.

60a

WHEREFORE, defendant National Mediation Board, hav-

ing fully answered, prays that this action be dismissed with

prejudice and that it be granted its costs and attorney’s fees.

Respectfully submitted,

J. PauL McGRATH

Assistant Attorney General

JAMES A. ROLFE

United States Attorney

/s/ Sandra M. Schraibman

SANDRA M. SCHRAIBMAN

/s/ Ann M. Sheadel

ANN M. SHEADEL

Attorneys, Department of Justice

10th & Pennsylvania Avenue, N.W.

Washington, D.C. 20530

Tel: (202) 633-4102

Attorneys for Defendant National

Mediation Board

OF COUNSEL:

RONALD M. ETTERS

General Counsel

Davip M. CoHEN

6la

APPENDIX H

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

NO. CA 2-81-138

LAURENCE G. RUSSELL, et al.,

Plaintiffs,

Ve

NATIONAL MEDIATION BoarbD, et al.,

Defendants.

BRAC’S ANSWER TO THE

COMPLAINT AND CROSSCLAIM

The defendant, Brotherhood of Railway, Airline and

Steamship Clerks, Freight Handlers, Express and Station

Employees (herein BRAC), by its attorneys, in answer to the

complaint states as follows:

FIRST DEFENSE

The Court lacks subject matter jurisdiction to entertain this

action.

SECOND DEFENSE

The complaint fails to state a claim upon which relief can be

granted.

THIRD DEFENSE

BRAC answers the enumerated paragraphs of the complaint

as follows:

1. The first paragraph of the complaint contains conclusory

and argumentative allegations and therefore no responsive

pleading on BRAC’s part is required.

62a

2. BRAC denies the allegations of paragraph 2 of the com-

plaint and further answering BRAC states that judicial review

of a National Mediation Board (NMB) representation decision

under Section 2, Ninth of the Railway Labor Act, 45 U.S.C.

§ 152, Ninth, is precluded.

8. BRAC is without knowledge or information sufficient to

form a belief as to plaintiff Russell’s residency and BRAC

denies the remaining allegations of paragraph 3 of the com-

plaint. Further answering BRAC states that at all times mate-

rial it is, has been and continues to serve as the certified

bargaining representative for the craft or class of patrolmen

employed by the Atchison, Topeka and Santa Fe Railway Co.

(Santa Fe).

9. BRAC denies the allegations of paragraph 9.

10. BRAC admits the first two sentences of paragraph 10

and is without knowledge or information sufficient to form a

belief as to the truth of the allegations of the third sentence

thereof. BRAC admits the allegations of the last sentence of

paragraph 10, and further answering states that the mem-

a ee ee

satisfies constitutional and statutory requirements.

1. ‘BRAC denies the allegations of paragraph 11 of the

Pond

12. Upon information and belief, BRAC admits the allega-

tions of paragraph 12 of the complaint but further answering

states that any demands by Russell for recognition and for

deducted dues were made as a result of illegal assistance,

inducement, coercion and interference by Santa Fe in violation

of Sections 2, Third, Fourth, Ninth and Eleventh of the Rail-

way Labor Act.

13. BRAC admits the allegations of paragraph 13 of the

complaint.

14.-16. BRAC denies the allegations and each of them of

paragraphs 14, 15 and 16 of the complaint.

17. Pee: pedro oe he eey mra-nddy 80 hos

to paragraphs 1 through 16, inclusive, in answer to

cosdelaas ef Ga deaiahes.

18. BRAC denies the allegations of paragraph 18 of the

complaint.

Se

64a

WHEREFORE, the complaint should be dismissed with

prejudice and costs taxed against plaintiffs. °

Robert S. Sugarman

Ropert S. SUGARMAN

Stephen B. Horwitz

STEPHEN B. Horwitz

Attorneys for BRAC

Jacoss, Burns, SUGARMAN & ORLOVE

201 North Wells Street, Suite 1900

Chicago, Illinois 60606

312/872-1646

*BRAC’s pleadings on Santa Fe’s Crossclaim for interpleader have

been omitted as well as BRAC’s Exhibit A to its Answer for reasons

of space.

65a

APPENDIX I

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

CIVIL ACTION NO.

CA-2-81-138

LAURENCE G. RUSSELL, WILLIAM L. HANNA,

and Eppie D. LANGWELL,

Plaintiffs,

vs.

NATIONAL MEDIATION BoarD, THE ATCHISON, TOPEKA

AND SANTA FE Raitway Company, and

BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS,

FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES,

Defendants.

ORDER OF DISMISSAL

IT IS ORDERED that the claim of Plaintiffs LAURENCE

G. RUSSELL, WILLIAM L. HANNA and EDDIE D.

LANGWELL against Defendant THE ATCHISON, TOPE-

KA AND SANTA FE RAILWAY COMPANY be, and the

same is, hereby dismissed.

DATED This 20th day of August, 1982.

/s/ Mary Lou Thompson

Mary Lou THompson

UNITED STATES DISTRICT JUDGE PRESIDING

66a

APPENDIX J

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

CIVIL ACTION NO.

CA-2-81-138

LAURENCE G. RUSSELL, WILLIAM L. HANNA,

and Eppie D. LANGWELL,

Plaintiffs,

vs.

NATIONAL MEDIATION BoarD, THE ATCHISON, TOPEKA

AND SANTA FE RaILway ComPANy, and

BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS,

FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES,

Defendants.

NOTICE OF APPEAL

Notice is hereby given that plaintiffs Laurence G. Russell,

William L. Hanna and Eddie D. Langwell hereby appeal to the

United States Court of Appeals for the Fifth Circuit from the

March 17, 1982 order granting defendant National Mediation

This order became final and appealabie upon the subsequent

final orders of this Court dismissing the defendant Atchison

Topeka and Santa Fe Railway Company (Santa Fe) on August

20, 1982, and the Brotherhood of Railway, Airline and Steam-

ship Clerks, Freight Handlers, Express and State Employees

(BRAC), on August 27, 1982. The dismissal of the Second

67a

Cause of Action against defendants Santa Fe and BRAC is not

being appealed.

Respectfully submitted this 2nd day of September, 1982.

/s/ Robert F. Gore

Rospert F.. Gore

National Right To Work Legal

Defense Foundation, Inc.

8001 Braddock Road

Springfield, VA 22160

(708) 321-8510

JoHN CosMICc

910 Barfield Building

Amarillo, TX 79101

(806) 373-0711

Attorneys for the Plaintiffs