# Transcript of Record — Railway Clerks v. Association for Benefit of Noncontract Employees > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0165%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1965 - **Citation:** 380 U.S. 650 ## Text - bell RY * : fe af 2 eae \ é s f ‘SOurr, u, S&S | UNITED AIR LINES, INC, PETITIONER; in 8. "NATIONAL MEDIATION BOARD, Er AL. °S oe he 4 ON WRIT OF CERTIORARI 70'THE UNTTED STATES COURT OF APPEALS FOR THE DOE OF COLUMBIA CIRCUIT “ad 4 is Oe “4 © _ PETITION POR CERTIORAILI FILED JUNE 1, 1964 cane CERTIORARI GRANTED OCTOBER 12, 1964 ; = : cee INDEX. ie Pe ee eer 5 8 ei’ a ae 4 =. a2 ; eC ni, _ “PaGE : Affidavit of C. P. Hutchens: biteweneuie eer eee ee _ Affidavit of Charles M. Mason:............. eens 14°" Exhibit A cee cece recce eee cccces ET SP Pecceee Pos 31. . Mabiblt Bs .... cst ys POM ae See $ SC aia pn iets 3g i—_— «ss cee evuwus ius Cwclan absent “41 SS Seep ee gulecisetubees ek 43 ree EE RPL FOO jee SERRE nen TER nae ea e- ? + B,C ED ee eee a Exhibit P ....... Age RI Re a se gies Soak ale ae dk SO ek. SOR eem . 82 NT ise 0% sce Ob ak ce as a a Or 85 RI isa son cadens cuter ccs; ahha a ru Exhibit T (etevuges write tees ences eeweewe 95 ey IPCs a eee pace esl, OO , Exhibit .V .:........:; AA as Dt AO 101, Affidavit of Francis A. O*NGIN, TE. vi vevececes. eeu 142 o ~ Affidavit of David 8. any hn 4 . - Affidavit of. Eugene C.. Thompson bur een ene ewan uaa 5111, A : 2 ke ee Rare eae. ‘s,. EPS eee ‘sg0- Unrrep States District CourT FoR THE : . District or CoLuMsia.— | United Air Lines,Inc. == =") vs. ’ - Nationa’ \ ediation, Board; Lever- ' ett Edwards, Individually and as Sremwy t 402-68, ‘Chairman of the National Media- Inj ti m tion Board; Francis A. O'Neill, (07° Jr., Individually and as ‘Member of the National en Board | Attorneys: ieee. Ges m * James Francis Reilly, 1625. K St., N. W. John W. Donglas, Donald B. MacGuineas, Harlan F. Leathers, Richard §. Beatty, Dept. of Justice. : 1963 y: bade Feb: 12 Complaint, appearance filed * Feb. 12 Summons, copies (5) ard copies (5) of Complaint Benn, issued D. A. Ser. 2-13-63 A. G. Ser. 2-14-63 - oe (#1, 2, 3 Ser. 2-13-63). | 25 Feb. 21 Motion of pltf for seidiadtones injunction; P&A; affidavits (3) ; ¢/m 2/21/63; MC 2/21/63. Ex- hibits A thru We . filed * Mar. 8 Opposition .of detts to motion for preliminary ~—injunction; P & A; c/m 3-8-63._ App. John W. Douglas, Donald -B. MacGuineas, Harlan F. Leathers and Richard S. Beatty. + filed s Mar. "Mar. ‘Mar. -.% > te ame z | Motion bf defts to dismiss or for summary judg. . ment: P & A; Statement; Exhibits 1-11; Affi- “davit ; ¢/m 3-5-63. M. C. : filed . 18. Supplemental affidavit of Charles M. Mason in support of pitf? s motion for preliminary in- . ’ junction ; exhibits A&B. « filed 18 Opposition of, pltf to motion to dismiss or fdr summary judgment; ¢/m. 3/18/63. : , filed f . 21 Reply memorandum of defts i in-support of motion -. to-dismiss. or for summary judgment ; affidavit; c/m 3/21/63. : filed 25 granting motion of: defts ‘for summary ‘judgment ; dismissing complaint with preju- dice ; and, dismissing motion for preliminary. . “jrijunetion as moot. (N) _ Matthews, J. ~: 27 Notice of appeal’ by pltf from order 3/25/63. — Deposit by Reilly cual Copy mailed 'to H. Leathers. Ae filed 2 Cost bond on appeal in sum of $250.00 with Hart-. : ford Accident & eeney Co., “Approved. - (fiat) ooo ae Jones, J. « - 12 Record on appeal delivered ies USCA forthwith. ' Deposit by Reilly $.95. . 12 Receipt from USCA for original papers. filed . 12 Order directing Clerk to transmit entire original — * file to USCA forthwith. (N) Micro 4/10/63 : ; | — “ . Matthews, J. ee af ~ & Ix THE Usrrep § Sains Disraict Court For: - District of Columbia ” \ United Air Lineé, Ene. O'Hare In-) ‘ternational Airport, P. O. Box ‘ 8800, ee 66, Illinois, - ~ . Plaintiff. | ‘ . SE ERA ee National Mediation Board; Lever- - ett Edwards, Individually and as | Civil Action, ~ Chairman of the National Media- [ No. 402-63. tion Board; Frantis A. O’Neill, A Individually and as Member _ of the National Mediation Board, 1230 Sixteenth, oe N. W., : bibs Dt. Delesidunte. bi Complaint for Injunction. Plaintiff, United Air Lines, Inc., by its attorneys, com- plains of defendants as follows: 1. ‘This action arises under the Constitution of ite. United States and the Railway Labor Act (the ‘‘Act’’), 45 U.S. C.,§ 151 et seq. Plaintiff seeks to enjoin de- . fendants from (1) proceeding with a representation elec- tion under that Act among certain-€mployees of plaintiff, » ¢ . or issuing any certification respect thereto, unless and until defendants accord plaintiff the right to be heard ~ as a party in interest on the appropriateness of the craft or class with respect to which such election will be held, and (2) conducting any ‘such election with a form of ballot : which does not allow an eligible employee to cast a vote against representation. | The matter in controversy ex- ceeds the sum of. $10,000, exclusive of interest and costs. ee jeriagietion is es on 28 U. 8. C. §§ 1331 and 2337. a oy 4 : -0 e : aan ach ee Count I... = 9 2. Plaintiff-is a corporation organized and existing | * under the laws of the State of Defaware and is a com carrier by air engaged in scheduled interstate air transpor- tation within the continental. limits of the United States, overseas to Hawaii, and internationally to Canada. a Defendant National Mediation Board (the “Board —— _ is an agency, gf the United States Government established — under the Act. . Defendants ‘Edwards and O’Neill are chairman and member, respectively, of the Board. All defendants are located within the District éf Columbia. 4. The Act, which is.applicabled¢o air and rail carriers, provides that employees.of a carrier shall have the right to organize and bargain collectively through ee of: their own choosing, and that the majority of — ~or class of employees shall have the right to d mine who shall be the representative of the craft or class. (Sec-. tion 2~Fourth; 45 U: S. C..§ 152, Fourth.) In the event of a dispute as to who are the representatives of the carrier’s employees, the Board has the duty to investigate such dispute upon the request. of either party to the dis- pute and to certify the names of the individuals or organi- zations authorized to represertt the employees ‘in e dis- - The carrier is then required to treat wi “such BN for the craft or class. (Section 2, “Ninth; C. § 152, Ninth.) {On or about. August 24, 1962, the Brotherhood of yay and ———— Clerks, Freight Handlers, Syotl dispute among a group of employees of plaintiff described - as the clerical, office, stores, fleet, and passenger service ¢ a) ganization within the meaning of the Act; bidet’: ices of the Board under the provisions of Section . 2, Ninth bf the Act to investigate an alleged ‘representation . 5 ee ~ ° , . ‘ * . * ~ . - » Hh ~! * an cece Pah 3 ‘ 5 my * s ° Pd ve - employees, cotisiling's certain stores and fleet cebviee omn- |. ployees now represented: by” another labor organization, ~ © the International Association of Machinists (the ‘‘IAM’’). The d docketed the case as R-3590, After the IAM ‘protes the grouping of em loyees. described by the Brotherhood, the. Bro ood amended its application to " deseribe the greup ) of employees as ‘ the clerical, office, stores, — digs -fleet--and-passenger sérvice employees, without any - ex- clusions, The IAM and Brotherhood arggrecognized ‘by ee Board as parties in interest in R-3599, _ 6. The composition of a eraft or class of eeapleyese © for. collective bargaining purposes affects valuable property rights of plaintiff in the onduct of its business. The craft or class the Brotherhood seeks to ‘represent in Case R-3590 73, numbers approximately. 12,700 employees i a a in many different and unrelated 8 classification’, such as-Glectronic computer operators, ticket agents, and cleaning women. The combining of these em- ployees in a single craft or class for collective bargain- ~ (img-purposes will have a substantial and adverse impact ' -*on the operations and cost of conducting plaintiff ’s busi- ness. Ga 7. Shortly (after plaintiff. was notified bythe Board of its intention to conduct an election among the cleri ce, stores,: fleet and passenger service ‘employees of a plaintiff, plaintiff requested the Board to conduct a hear- ing to determine the appropriateness of this grouping, and to permit plaintiff to participate in such hearing as a party in interest. This request was denied. The Board stated, in effect, that it would have conducted such a hearing if ‘Seither labor organization involved had so requested, but that plaintiff as a carrier, had no legal right to be heard or to demand a hearing on La craft or class‘questiaqn. Neither _ “gf, the | labor organizations involved requested such a hearing op and accordingly, the Board, unless enjoined, will pre: fy aan ° Ts _— “9 : ee oe * . - & —_— - c5ed with an . election among plaintiff 's ‘aaaleess in the _ grouping described in the Brotherhood’s spleen: as” * amended. i Se —— . 8 Plaintiff has’ a ‘constitutional right to a heating on - the’ ‘question of the composition of the craft or class of its " ebbneions with respect to which’ it ‘may. be required: to _ bargain collectively with a majority representative. The - action of the Board in denying plaintiff. this right, and in arbitrarily and capriciously accepting , the craft or class designation as agreed upon between the labor organizations involved without any hearing on or censideration of its ? effect upon plaintiff, constitutes a violation of plaintiff’s ; constitutional right to due process’ under the Fifth ee: _» ment to the United States Constitution. _- % 9. If the Board should proceed with an ‘election among | the gre ping of employees described in the application of ¢ ¢ Brother ‘hood, as amended, in Case R-3590, and if the Board ‘ should certify a representative for such grouping, plain- tiff will be, under a statutory duty to bargain collectively | with such representative, and may be subject to criminal penalties under the Act if ‘it refuses to do so.:There is no statutory procedure for judicial review of Board pro- ceedings.. Therefore, plaintiff has no. adequate remedy at . law to vindicate its constitutional right to due. process. Plaintiff will suffer-irreparable i injury to its business and property: cunless. the Board’ is’ restrained from holding such election, or certifying such represéntative, - - without - . first ‘according to Plaintiff the due pees: to which. it is entitled. NS oa v : Couns II. . 2 10. pesca, 2, 3, 4 and 5 of Count I of this ee ; eee are i ttn realleged and made a part of this Count: i. The Board intends to proceed with an lectin * among the ey 12,700 oe of plaintiff i in + ninsia 5 “ie grouping ininiPin. the a of t Brother. / / hood, as amended, in Case R-3590. : at 8 " "12. ‘The procedures which the Board has, stated it wit * ity of the 13 eligible employees, and the four votes for ' . —~ —ns & , , i — oy 7 ; a $ Ge oe follow in, such election contravene the requirement. ¢ “the _Act that the majority of the employees in the craft or class shall have’ the right to elect a a représentative for the eraft or class. The ballot which the B Board intends to use in such election does not allow an eligible employee td°cast a _ valid vote against representation, a righ provisions of. the Act\and: clearly inte Thus an employee who désires no re express his intention by refysing to sip sigue in’ the - d by Congress. | sentation. can only election. 13. The Board has stated that an election is vahd if — a majority of the eligible oters in the craft er class cast valid ballots. A majority. of ‘the’ valid ballots cast. nplicit in the ~ is deemed sufficient to ¢lect a representative. A ballot . _is considered valid ‘by: the Board only if cast for a ‘repre- ' sentative. -A ballot pon which is written ‘‘ng representa-.. tive’? or which i is €ast blank is not considered valid. 14. The Board. procedures thus make it possible for a minority of eligible employees to elect a representative for © _the entire craft or class, contrary to the’ desires of the majority. Hor example: if of 13° einployees eligible to . participate. ‘i’ an election, six desire * “no representation at ; ail, three desire Union A but no other union, and, four de- _ sire Union B, there 1 is no possible. way ander Board pro- cedures for the. six to cast’a valid ballot; the remaining seven voter will then determine the election, being a major- Union B will carry the election, being ‘a majority of the ‘seven. If the ballot included space for a vote against : representation, as does the ballot used by the. National, Labor Relations Board under its procedures, then under the © same example Union B would not have a majority and on a / f ff 4 f Pi 8 j vunidll the vote wut be Sasi wetne for — B and: nine vetes for no representation. | 15. Plaintiff has requested the Board to use a — of -ballot: which would permit:an employee to cast a valid ' vote for or against: representation :in order to ‘insure an ~ accurate expression of the employees’ desires, but the Board has refused to modify the form of ballot it intends to use. ° 16. The requirement that an employer bargain collec- : tively with its employees is a limitatioron its right: to other- ' wise conduct its business free of restraint; Tt “has ‘been judiéially, determined that it is not ot an tnreaconable: re-. straint eto legally require such bargainirig with the true representative ofa majority of employees:for all: employees in the bargaining group, including the dissenting or dis- _ interested minority. The. .Act imposes only this limited - duty. It is an unreasonable restraint On-such right to red quire an employer to bargain yith a representative on be- half of all employees in a bargaining group when the ma-. jority of employees in _ group do-not desire such i epresentation. . © hye election. sicdiakica ‘of the Boat enlargis upon the limited statutory ‘duty ‘Imposed on a carrier by the Act to treat with a representative determined by a majority of the employees in the craft or class and are therefore ‘beyond the scope of the Board’s statutory powers. The Board procedures impose an unreasonable restraint on the right of. plaintiff to conduct its business since. they do not _ insure that plaintiff will be required .to deal only with a true representative of the the majority of employees within the craft or class. Hence these procedures constitute a dep- rivation of plaintiff ’s property, rights without due process in contravention of the. Fifth Amendment to the United States Constitution. 18. Ifthe Board should proceed with an election “with . 8 the form of ballot it has stated it intends to-use and if'a ~ - : ; - we __ representative is certified as a-result of such election, it will bé impossible to determine after such election whether © the representative is the true representative of the major-. _ ity of employees ‘in the. craft or class ‘for- which ‘the elec- tion is held. If the representative receives a majority of the votes cast, but: less than a majority of the tetal number eligible to vote in the election, then it will be impossible to @etermine whether the employees not voting did not . vote hecause they desired no representative or whether they ‘ _were indifferent. If the representative receives a majority _ ,of the total number eligible to vote in the election, then it ° will be impossible to/determine what influence the form of ballot itself had on the voting of the employees who did. . participate and: found—thomselves: unable to vote pane representation. ~ 19. If the Board should proceed with an election i in Case ~ R-3590 with. the form of ballot it intends to use and should the Board certify a representative ‘as a result of such elec- tion, plaintiff will be under a statutory duty, to bargain col- lectively with such representative, and may. be subject to © ~ eriminal penalties undeg . the Act if it refuses: to do so. _ There is ‘no statutory procedure. for judicial review °of E ' Board proceedings. Therefore, plainti* has no adequate remedy at law to vindicate’ its constitutional right to due process’ or*to redress the unauthorized acts of the Board. ° . Plaintiff will suffer irreparable i injury .to its business -and - . property unless the Board i is testrained from holding such -élection without. using a form-of ballot which permits ar . employee to vote against representation. | q -Wuenerore, Plaintiff prays that the Court ‘i dssue a pre- liminary injunction to be made permanent upon final. hear- ing: es A, ~Sidtraieine defendants from conducting : any pic tion among plaintiff’s employees, or “certifying any repre- ‘sentative with respect thereto, pursuant to Board .Case _s J ‘s 10° i any other siiiiiie before the ndueting a hearing and according . | plaintiff an: opportunity to be heard as a. ‘party in interest on any question relating to the appropriateness of the craft . or lass of employees athong whom any such election. isto: : be held; - Magn : iB Restraining ‘defendants from covet. any. elec- tion ; among plaintiff’s employees in any craft or class in which the form: of ballot does ‘not: permit an. eligible em- ployee to cast a valid ballot against representation. | . Plaintiff further prays for-such other and further relief vas this Court shall deem just and proper. -- H. Tempieton Bapwn i Stuart BernsTern;*. - — -Epwarp R. Lev, | esos 231 South La Salle Street, ~ Chicago . 4, Illinois, | “ .ee3 Beene! Francis Remy, _ 1625 K Street, N W., Washington 6, D.C., 1 Attorneys. for bea United Air Lines, ane. = Mayen, FRIEDLICH, Symes, : JTrERNEY; Brown & Piatr, | 231 South La “Salle Street, ba Chtenge, 4, Illinois, ' Of Counsel. . AEA ie ee | oe pone . a i ‘ie oa | Ie THE Useme Srares Disraicr Court For The District of Columbia ; sie ; (Caption) cm b - Motion for ; Preliminary. Injunction. } Now Comes United Air Lines, Inc:, plaintiff herein, by: he attorneys, and pyr uant to Rule65 of the Federal Rules of Civil Procedure; moves the Court to enter a ‘preliminary injunction, and states in. support thereof as. follows: - 1. Plaintiff’s verified complaint for injunctive and other ~ relief, was filed-herein on February 12, 1963. 2. As more fully ; appears from the affidavits filed here- . with ‘of Charles M. Mason, C.. P: Hutche#®. and David S. . Ritner and said verified complaint, defendants will ‘proceed | to hold an election’ among a’ grbup of plaintiff 5 employees , before trial can be had, .ir violatién of plaintiff’s statutory - and constitutional rights, and to plaintiff ’s irreparable. in- jury. : ary injunction : : : A. : ‘Restraining defendants Peiei conducting any - tion among plaintiff’ s employees, or certifying any repre- sentative with respect theretd, pursuant to National Media- tion Board Case: R-3590, or pursuant to any other proceed- ing before the National Mediation Board, without first-con-' - _ ducting a hearing and’ according plaintiff an opportunity to be heard as a party in interest on any question relating to the appropriatess of the craft or class of employees among, whom any such election is to be held; __- re _B. Restraining: defendants from conducting any election . _ among plaintiff’s employees in any craft or elass in which ‘ the form of ballot does not permit an e ligible employee, to. qust a — anced vege representatip 7 ar es Wherefore plainitift moves the Court to enter a prelimin- * ° oe 12 ~ Pursuant to Rule 9(by-éf the Rules of this Court, lain ; “tiff requests oral ais ia on this motion.: - A. _ TEMPLETON iia "Sruarr BERNSTEIN, Epwarp R. Lev, . 231 South La Salle Street Chicago 4, Illinois, James Francis REILLY, 1625 K Street, N.W., Washington. 6, D. C., Attorneys fos all United Air Lines, Inc. ‘Maver, Nii’ Spirss, vA ce . ° Trmrney, Brown & PuatrT, ~ 231 South La Salle Street, v . Chicago 4,AMoinois, “| ey Of Counsel. / | . ae zs he | , =e d > —4 : “te ie 3 OE In Tue Unrrep Srartes District Covrr. Foryhe District of Columbia oes ec ae ee (Caption) / ‘Affidavits of Charles M.. Mason, - &: P. Hutchens and Davis §S. Ritner : In Support of Plaintist’s ’s Motion — '- For Preliminary Injunction _ H. Tempretonx Brown, " Stuart BERNSTEIN; Epwarp R: Lev, s ” . 231 South he Salle Street Chicago 4, IHinois. F tem - James Francis Remy, - 1625 K Street, N.Wi> Washington 6, D. C., _ Attorneys for. ; United Air times, Ine. Mayer, Frrepuicu, Spress, Tierney, Brown & Puart, - 931 South La Salle Street, _ Chicago 4, Illinois. ~ Of. Counsel. j ? a ‘ i Affidavit CHARLES M. MASONy being first daly sworn, on oath | deposes and says: 1. I am Senior Vice President, Sesciiih, United Air Lines, Inc. (‘‘United’’). 2. United is.a corporation organized and existing under the laws of the State of Delaware and is a common carrier by air engaged in scheduled air transportation within the « - _ continental limits of the United States, overseas to Hawaii, . _and internationally to Canada, and is: subject to the provi- sions. of the Railway Labor Act lea eal and the Federal Aviation obligation imposed upon it by Congress through the Federal Aviation Act -to provide.efficient and economical service at reason- _able charges to the public. In fact, my personal obser- vations of the operations and organization of Capital Air Lines before Capital had to be merged into United or face bankruptcy convinced.me that part of Capital’ ~ difficulties resulted from the Board’s action in 1947 - in foreing a vast and heterogeneous group of employees into a single craft or elass bécause that craft or class had been satisfactory on‘railroads m the past and the Board“hoped’ it would be in the future on airlines.’’ - o> _- an 20. A copy of this letter is , attached hefl&to as Exhibit. M. On February 4, 1963, the Boatd rejected my renewed request for a hearing. A copy of the Board’ s letter is attached ee | hereto as Exhibit N. 11. On January 18, 1963, I protested the form of ballot which the Board intended to use in the election among the’ c™ a United eniployees. A copy of this letter is atfached hereto . - - as Exhibit O. The Board form of ballot, a specimen of " which is attached at Exhibit P, contains no space to permit © an eligible employee to vote against representation, but on, the contrary requires the employee to select one of the’ - organizations listed on the ballot, except that a blark line -is provided for writing in any other organization or in- __ dividual desired by ‘the voter to represent him. Thus, the ballot requires the employee to select a representative de- sentation at all. I advised the Board that the applicable legislative history of the Railway Labor Act, as well as _ authority addressed to the specific question of .the pro- priety of this form of ballot, indicated that such form of ot was improper. I urged the Board to révise its elec- ‘ tion procedures ‘‘so that our employees and employees of other carriers in future elections will have.an opportunity to express their decision on.all of the choices that are avail- | able to them, ong: of which is to remain unrepresented.”’ On January 22, 1963, Mr. William A. Patterson, President ‘ of United, wrote to the Board urging a review of its elec- tion procedures: with respect to the form of ballot used. Mr. Patterson stated: _ « ” “As I. understand it, the ballot furnished to the em- _ ployees by the National Mediation Board plainly states that purpose of the election is for the employees to. designate a union to.represent them—not whether they want.a union and, if they do; which one: Also the ballot has on it only the name of the one or more unions . sie tg to eis sienna the a ads and a blank space _° spite the possibility that the voter may desire no repre- ~ . Er oS RARE IS PIS “21> . * for the employees to vote’ for some other organization or individual not nanied on the ballot. This certainly - Jeaves the employee. with the inferenve that he has no choice but to vote for some union to represent him. : Additionally, ‘the Mediation Board does not tell the _employee at any time hew to express his choice if he wishes to‘remain unrepresented by 8 union.”’ > | Atopy of this letter is attached hereto as Exhibit Q. | oe 12. On January 24, 1963, the Board replied to my letter which had objected to: the form of ballot. A copy of this. letter is attached hereto as Exhibit R: After stating that. the Board ‘‘has consistently held [,] a carrier is not a: party to'a representation dispute involving the selection °. of a representative of its employees,’’ the Board. sum- _ Marized its election practices as follows: . ‘‘As you state in your letter,.the form of ballot” - previously used was adopted by the Board in 1934 _- + and has been used since that time as the form-best de- signed to ascertain the representation desires of a carrier’s employees for the purpose of collective bar- gaining. The blank line appearing on the present form —of ballot affords an opportunity to the voter to. vote / for some organization or individual other than those named on the ballot, or he may refrain from voting at all if he so chooses. There.is no compulsion that he = vote for a contestant for representstion. Introduction of a ‘yes’ or ‘no’ ballot would contribute to, if it, did not actually encourage, an attempt to circumvent the mandate of Congress that-representatives be a nated by carriers and their employees for the purpos described in @ection 2, First and Second of the Railway Labor .ict,...’’. . EE a 13.. On February 1, 1963, 1 wrote in reply to the Board’s letter on January 24, 1963, and renewed my plea that the Board review its election procedures with reference to the form/of ballot. A-copy of this letter is attached hereto as_ Exhibit S. ‘The Board denied my request by letter dated. . 22, . ° » February 7, 1963, a ‘copy of which is attached hereto as- Exhibit T, and stated, ‘‘The Board will proceed with an election among the employees concerned in NMB Case No. R-3590 under the Board’s usual policies and precedures _ in-such eases.’? Pic en 14. On January 25, 1963, the Board iss a ‘‘State- _ ment”? in response to a ‘farge number: of 8 grams. and | letters from individuals and groups signing themselves as » a . f sj *e c Sever ; * employees of United’’ summarizing the Board’s reasons for denying a craft or class hearing requested by United, and for rejecting United’s request that the form of ballot | be altered. A copy of this statement is attached ‘hereto as Exhibit U. It states: - : : ‘*This craft or class was found-by this Board in Case _ No. R-1706 et al. to be the appropriate grouping of these _ employees for representation purposes.under Section 2, Ninth of the Railway Labor Act. Case No: R-3590 is béing investigated on that basis. The parties to this dispute are the Brotherhood of Railway & Steamship . Clerks, who invoked the Board’s services, and the In- ternational Association of Machinists, AFL-CIO, which _ organization now represents the Stores, Ramp and Fleet Service Employees of United, also a number of ethployees performing janitorial service. United Air. Lines, Inc. is not; and cannot be, a, party to this repre- sentation dispute. — ve Rohe: _‘*On September 7, 1962, and January 11, 1963, United Air Lines requested this Board to hold a hearing to establish the proper crafts or classes on United which are involved in this dispute. The Board, on January 17, 1963 replied to United, pointing out the fact that the carrier is not a party to this matter, and also point- ing out that neither of the organizations ‘who are parties to this case have made any request for a hear- ing on the question of craft or class. The Board, there- ' fore, denied the request of United for such’a hearing. ‘‘On January 18, 1963 United Air Lines protested the ° form of ballot customarily used by this Board, and re- o “ a FOR wrth n ea OM REFS 23 +, Sg quested that the Bdgrd revise its election procedures so that the ballot would contain a space for og ak no representation. The Board on January 24,"1 63 _ feplied to United calling attention to the fact that the’ Board’s present form of ballot, adopted in 1934, was designed to ascertain the representation desires of a carrier’s employees for collective bargaining under the _. Railway Labor Act. The Board’s standard form of ” ballot carries lines for voting for the-contesting parties, ~ and a blank line on which a voter may. vote for some | organization or individgal other than those named on the ballot... There is no compulsion that he vote for a. contestant for representation.’’ ey 5 15. In elections conducted under the Board’s auspices, outcome of the election. In order for an electian to be vali however, a majority of the eligible voters must participate. An eligible voter who refrains from voting in order to effec- ~ tuate a desire that he remain unrepresented disenfranchises himself to no purpose since a majority of those voting will determine the result. Only if a majority of the eligible voters do not cast votes will such disenfranchisement have any effect. A voter who marks ‘‘no union’” or ‘‘no represen- tation’’’on the ballot also disenfranchises himself to no . purpose for the reason that the Board considers such ballot: _ void and as though not cast. The Board’s ‘iistructions to _the employees at the-time of the election make no reference to these rules. : The employee is advised that the ballot: is being taken “in order to ascertain and to tertify’’ a rep- “resentative and is told only how. to vote for a representa- : ‘tive. See Exhibit P. he | } _ 16. Under the National ‘Labor — Relations. Act, as ‘ amended (NLRA), the practices with regard to representa; tion of employees differ from the practices followed by the Board both with respect to employer participation. in . of this Affidavit I hve set forth’ resulting from promotion, reassignment, lay-off or in-— a or Seen ‘ ‘ ‘ : ‘ ‘ ; ‘ if ee ee a . . a ° > Se . . ‘ E en Die ep organized for collective bargaining purposes at United. - “90. The Board often conducts hearings im its investiga-— tion of representation disputes, especially when craft. or class issues have been raised. The Board usually solicits . the views of the’carrier and asks the carrier to submit the data which the Bard deems pertinent under the criteria it - has established - o govern craft or class findings.” The Board has stated (R-1706): , ‘‘In these cases, as in all. others, where disputes ’ arise over the. question of craft or class the Board. gives considerations to all relevant elements most im- ~ portant of which is the intent of the Railway Labor Act in settling disputes and promoting stable labor relations. Individual cases requiré consideration of facts peculiar to particular situations, but, in addition, there are general factors to be considered. These in-. elude the. composition and relative: permanency of employee groupings along craft or class lines on ear- . - riers generally as well as on particular carriers. -The -- extent and effectiveness of past collective bargaining arrangements, the functions, duties and responsibil- ties of the employees, the general nature of their work and the community of interest existing between | jobs are other factors considered. Previous decisions . of the Board which bear upon the issues of the par- ticular dispute are also-taken into account,” The Board has not consistently adhered to its R-1706 find- ings but has departed from them when facts were devel-. oped which established inappropriateness of the craft or class at a particular carrier. Thus in the same year R-1706 "was decided. the Board denied a petition for reconsidera- : 46 . 29 tion thereon, stating, however, that its denial did not pre- vent a re-examination of craft or class as applied te these ~ categories of employees in any future airlin¢é representa- tion disputes. See Exhibit K, p. 2, This statement was - made by the Board ‘‘in recognition of the fact that the airline industry was still in a state of development”’ and for the further reason that ‘‘the clerical and related employees on many of the major air carriers were. then unrepre- ‘sented.’’. This attitude on the part of the Board resulted ~ in later decisions in which the Board departed from its — R-1706 finding and authorized elections among employees who constituted. but a part of the R-1706 eraft or class. Thus as early as 1949, United advised the Board that changes and developments in ‘operational organization at . United after R-1706 were such that the R-1706 determina- _ tion was impractical both from United’s and the employees’ point of view, and in 1953 (R-2357) the Board stated that because of the ‘‘expansion and growth in the airline in- . dustry, as well as the development of thie representation of airline employees, ”’ it was of, the opinion that upon” proper application, it would be advisable to. re- examine“the determination in R-1706, w ith a view to making such modifi- cations as might be found to be justified at the-time in question. In February, 1954 (R-2783) the Board did in fact’ re- examine the findings in R-1706 and concluded, after hearing that stores employees at No:thwest Airlines con- stituted a separate craft or class. The Board reaffirmed the separateness of the stores employees in 1956 (C-2252> and C-2389) stating that the representation of the entire ‘‘elerical’’ unit as authorized in R-1706: showed that this ‘‘craft or class’? was'represented as a single unit on only six carriers, only -three of which were trunk carriers. Despite these previous pronouncements, and without hear- ing the evidence, the Board has now reverted to the obso- lete findings of R-1706 in insisting thet, stores employees 30 - | shall be etiam with’ clerical, Office, fleet and passenger service employees. . 21. . The refusal of: the Board to conduct a hearing on the appropriateness of the craft or class vitally affects the business and property of. United and deprives. it of pro- fotyzal due process of law. ? ~ /s/ he ae M. Mason. - Subscribed ‘and Sworn To before me this me Schiele day of... — ae -_— ’ . Notary Public. , er ; ao re — - * a1. Exhibit A. .y- Grand Lodge © ‘BroTHERHOOD or RAILWAY AND STEAMSHIP CLERKS, FREIGHT Hanpiers, Express ann Station EMPLOYEES Brotherhood of Railway Clerks Building, - ~ + Cincinnati 2, , Ohio. ad o Geo. M. Harrison, Grand President. _ National Mediation Board File 230-449-7 Subject : Organization— | United. Air Lines, Inc. ee August 27, 1962 Air Mail ' | Mr. E..C. Thompson, —_" Secy. (2) National Mediation Board —* 25, D: C. . Dear Sir:. Please be referred to my lettin of heel 24, 1962, re- questing the services of the. National Mediation Board, under Section 2, Ninth, of the Railway Labor Act, as amended, for the purpose -of securing certification as to who is the’ representative designated and authorized, in _ accordance with the requirements of the Act, of the follow- ing craft or class of employes of United Air Lines, Inc.: Commonly known as clerical, office, stores (excluding stores employes represented as of August 24, 1962, by’ the International Association of Machinists), fleet ’ we ; : een c 2 , ite Se “(excluding fleet service employes represented as of August 24, 1962, by the International Association of Machinists) and passenger service employes. It is our positjon that all employes of United Air Lines, _ _ Ine., who were formerly in the employ of Capital Airlines. in the craft or class for which our Organization was certi- fied by the National Mediation Board as the collective bar- gaining agent, shall be given the right to vote in any secret . "ballot conducted by the National Mediation Board for sor following reasons: =. 1. In Interpretation No. 93, Case No. 2-6037, the Wie. tional Mediation Board found: », , Ne _ «* * * this Board is of the opinion that the lan- guage of ’ Article 1(b) of. the agreement of August 3, _ 1959, reading ‘all provisions of this agreement shall be binding upon the successors, and assigns of the company’ is clear and unambiguous. In other words, the language means just what it says and we so find.’’ 2. The agreement between the Brotherhood of Railway — Clerks and Capital Airlines has an effective date of Au- gust 3, 1959, and provides in Article 44 that it ‘‘shall con- - tinue in full force and effect until February 1, 1962, and thereafter unless thirty (30) days written notice is served hy either party signatory hereto as provided in the Rail- ‘way Labor Act, amended.’’. Neither Capital prior to the. effectuation of the merger with United, nor United subse- _ quent to the merger, has served a noticé upon our Organi- zation in accordance with the provisions of the Railway Labor. Act, as amended, as provided for in Article 44 of the agreement between our Organization and 3 an lines, mentioned above. 3. Article 3, paragraph (a), of the above-mentioned agreement between Capital Airlines, Inc., and the Brother- hood of Railway Clerks establishes the seniority districts - ‘of the employes of Capital in the craft or class commonly o =33 known as clerical, office, stores, fleet and passenger service employes. Senior\ty “District ‘No. '1, as provided by “Ar- ticle 3; paragraph \(a), of that agreement, is eomposed of ‘*General Offices and Stores.” Employes engaged in the _ performance of Stores work hold seniority on a systemwide clerical roster, known as Seniority District No. 1 Roster, covering all General Office and Stores Department em- ployes, Thus, the employes engaged in the oceupations on that seniority roster for Seniority District No; 1 held seniority which was valid for exercising rights to all po- sitions engaged in the performance of General Office work _ . as well as all clerical positions in the Stores Department ~ not represented by the I. A. M. on United: 4. Article 3, paragraph (a), of the above-mentioned agreement between Capital Airlines, Inc., and the ‘Brother- - hood of Railway Clerks establishes the seniority districts. _ of the employes of Capital in the craft or class commonly known as clerical, office, stores, fleet and passenger service employes. Seniority District No. 2, as provided by Ar- ticle’ 3, paragraph (a), of that agreement, is composed of. ‘All Field Stations.’’ Employees engaged in the per- formance of fleet service held seniority on a systemwide clerical roster, known as Seniority District No. 2 Roster, covering Cargo, Operations, Reservations, Ticketing, Sales, etc. Thus, the employes engaged in the occupations .on.. . that seniority: roster for Seniority District No. 2 held seniority which was valid for exercising rights to all posi- tions engaged in the performance of work of Operations,, Ticketing, Ieservations, Sales, ete.,.which are not repre- sented by I. A.M. on United, in addition to the positions engaged in the work of Cargo Handling and Cabin Service which are represented by the I. A. M. on United. 5. The Civil Aeronautics Board, in Docket 11699, is- sued. Order No. E- 16006—In the matter éf the United-Cap- 34 ital Merger per povided: in Item 2, paragraph : (c), as follows: ‘‘That, inne as noted below, United thall be sub- ject to the labor protective provisions set forth in the appendix to this order.”’ Section 3 of aia A—Labor Protective Provisions —to the Civil Aeronautics Board’s order, reads as follows: ‘Insofar as the merger affects the seniority rights of the garriers’ efnployes, provisions shall be made for the integration of seniority lists in a fair and . equitable manner, including, where applicable,. agree- ment through collective bargaining between the carriers _and the representatives-of the employes affected. * * *’’ This provision requires the retention of all seniority rights for Capital employes under our agreement with that corp- oration. By operation of our agreement. with Capital Airlines, which provides in Article 1(b) that ‘‘all provisions of this agreement shall be binding upon the successors and assigns of the company,’’ and which the National Mediation Board in its Interpretation No. 93,.Case No. A-6037, has found that ‘‘the language means just what it says and we so find,”’ and by reason of the provisions of Section 3 of Appendix A—Labor Protective Provisions—In the’ matter of the ‘ United-Capital Merger case—Civil Aeronautics Board’s Order No. E-16605—which provides that the seniority rights of Capital Airlines’ employes shall be dealt with in an. equitable manner, the seniority rights of the former Capi- ' _ tal employes now in the employ of United, who occupied: : positions with Capital in Seniority Districts Nos. 1 and 2, - meztioned above, and which extended to positions in occupa- tions not now represented by-the I.A.M. on United, should entitle them to voté in the determination of the representa- tive for collective bargaining purposes for the employes EN ty ial Cag Mie ba aa ld ably ey AD 9 hana 35 occupying positions to which their seniority is valid and not now represented by any other organization. : The former Capital employes occupying positions now _ represented by the I.A.M. on United are, in effect, in a furloughed status with regard-to all positions to which. their seniority was valid under our agreement with Capital and not now represented by the I.A.M. Since the former . Capital employes in that status have a valid claim to-the exercise of their seniority to some positions in the craft or class (as limited) designated in our request for certi- fication by the Board as the collective bargaining repre- sentative on United, such employes have a valid right to _ cast a ballot to. determMe ‘such representative. It is re- quested that the Board permit such employes to partici- pate in the vote. eee Very truly yours, in Gro. M. Harrison, ; ’ Grand President. ey ae ee Bandit B ae | Copy . » August 30, 1962 rg . Mr. Charles M. Meson; a _Senior Vice President Personriel, a Rca tay United Air Lines, Inc., | 4 | P. O. Box 8800, -O’Hare International Airport, Chicago 66, Ilinois. : Mr A. J. Hayes, International President, bal International Association of Machinists, New Machinists Building, ; #800 Connecticut Avenue, N. W., —s gust 27, 1962, setting forth additional information pertain-, . men. ; Mr. Mason i is requested to furnish total number. of em- ployees Overed by this aphlication, along with any state- a e may care to make. “ Since the IAM is the current representative for stores and fleet. service employees, Mr. Hayes -is requested; to submit any statement he may care fo make with respect to this application. . : Very truly yours, ! @ s/f EL C. THOMPSON, . 7 d Executive Secretary, ec: Mr. George M. Harrison. | ing to this application i is attached for each: of an ae a P- ae oe " Eshibit ee ie : i, eM P Air LINEs, Inc. The ne only inference to be drawn from Mr. Hayes’ state- ment, as as quoted above from his letter to the Board dated . September 11, is that he i ig of the opinion that our request for the Board’ s services in this. dispute should have in-. ' eluded as well the employees in occupations covered by the agreements between the International Association of Ma- 49 chinists and United Air Lines. I am, therefore, hereby advising the Board of my desire to amend the statement of the craft or class as set out in my request for the Board’s services under date of August 24. Please substitute for - the description of the craft or-class for which the services | of the Board ‘are requested, the following: Commonly known as clerical, office, Biptes, fleet. and passenger service employees. 3 \ ) ew, ‘The National Mediation Board is urged to process our | request of August 24, 1962. as amended herein without i further delay. . dekss ‘truly yours, . /s/ Gzo. M. Harrison, oo Exhibit H NaTIoNAaL Mepario Boarp "Washington 2 oS | October 8, 1962 Mr. George M. Harrison, Grand President, Brotherhood of Railway and ne ica 1015 Vine Street, Cincinnati, Ohio. © Dear Mr. Harrison: Receipt is acknowledged of your letter of October 5 5, 1962 ‘on the subject of ree Air Lines File - 230-449-7,’ ‘We are sending herewith to Mr. C.M. Mason, Senior Vice President of United Air Lines, Ine. and to Mr. A. J. Hayes, President of the International Association of Machinists copy of your letter of October 5, 1962 for their full infor- meen Grand President. j 50 . ? ‘ ; _ mation. Mr. Mason is requested to furnish the Board with the number of employees in the craft or class described in . your letter. Mr. Hayes is requested to furnish any com- ments he may care to make on the subject. We did not fur- nish either the carrier or the I. A. M. with copy of your August 24, 1962 letter since it contaiifed thé number of — authorization cards submitted with your. application. ; _ We are also sending to Messrs. Mason and Hayes copy _ of your letter of August 29, 1962 which has not heretofore been sent them. — Upon: receipt of the information Social from the car- rier -we- will advise you further on the subject. ? — ~— Very truly yours, - . /3/E. C. Tompson, E. C. ‘Thompson, | ; Executive Secretary. 4-etm. 7 on ce-to: C. M. Mason,. \ A J. Hayes. 51 K \Exhibit I ° Copy INTERNATIONAL ASSOCIATION OF Macursists, 1300 Connecticut Avenue, ‘Washington 6, D: C. Office of the International President. 49-United, October 23, 1962. Subj: United Air Lines, Ine. . '. Application Representation | ; . Dispute filed by BRC. - Mr. E. C. Thompson, - ae a , Executive Secretary, National Mediation Board, Washington 25, D. C. Dear Mr. Thompson:, 3 ae bos This will acknowledge receipt of your letter of October 8, 1962 accompanied by copies of letters addressed to your ' Board dated August 29 and October 5, 1962 and signed by Mr. George M. Harrison, Grand President of the Brother- — hood of Railway & Steamship Clerks, both of which-deal* * specifically with the representation application filed with - ‘your Board by the BRC, involving certain groups of em- .. _ ployees on United Air Lines, Ine. _ At the outset, we categorically deny the allegation made ‘by Mr. Harrison in the third paragraph of his letter of October 5, ‘1962, wherein he alleges that our Organization is collaborating with the management of United Air Lities. The statement within itself i is not worthy of purther com- ment. . |. € ae a ' The position of our Organization with réspect to this ‘representation application, as set forth in our letter of ' September 11, 1962, is valid and consistent with the past practices of your Board. In our opinion the application filed . by the BRC at that time was designed to divide or split a craft or class. This within itself is a position that the BRC has vigorously opposed, notwithstanding the facts pertaining thereto in several instances over a — period of years. : . The statement contsined in 1 the fifth paragraph of Mr. 3 Harrison’s letter dated October Sth, wherein he attempts to express the opinion of our Organization with -respect to their application is, again, an opinion of Mr. Harrison and does not direct itself to any opinion expressed by this Or- ganization. We are particularly concerned over the fact that. Mr. Harrison now apparently is requesting your Board-to amend their original petition to include all em- playees of United Air Lines ‘‘Commonly known as clerical, office, stores, fleet and passenger service employees.”’ If this be the case, we then must call Mr: Harrison’s attention to the fact that our Organization has no other choice than _ to consider this action’ yaa part of the BRC as a raid . against the TAM. ; All employees of United Air Lines in the ettagarion of stores and fleet service employees, including those who were formerly. Capital Airlines employees, are now represented | by the IAM and are covered by an agreement with United _ Air Lines, Ince. If Mr. Harrison pursues the course as outlined herein- abeve, then our Organization will have no choice other than to proceed with formal action in ‘accordance with the pro- — cedure of the AFL-CIO Constitution. Respectfully yours, es ' '/8/ A. J. Haves, _ec:G.M. Harrison, - A. J. Hayes, J LL. Reeves. . International Povsidiead, sie SE 58 Exhibit J Granp Lopce Broruennoop or Rat way anv. STEAMSHIP CLERKS, Freight Handlers, Express and Station Employes ° Brotherhood of Railway Clerks Building | Cincinnati 2, Ohio . oh | Geo. M. Harrison | Grand President | - File 230-449-2 Subject : Organization— « : - United Air Lines, Inc. . October 26, 1962 _ Mr. E. C. Thompson, Exee, Secy. (2) - National Mediation Board _ : Washington 25, D, C. Dear Sir:: Please be referred to the letter of Gites 23, 1962, ad- dressed to the National Mediation Board by -Mr. A. J. Hayes, International President of the International Asso- ciation of Machinists, a copy of which he furnished to me. Mr. Hayes’ ‘letter concerned the application filed by our | ‘Organization under date of August 24, 1962, requesting . that the Board investigate a representation dispute among certain employes of United Air Lines, Inc/ In that applica- tion, as well as my letter of August 27 and my. subsequent letter of August 29, both of which were addressed to the Board, I made it®clear that it was not the intent of our Organization to include in the representation dispute any v employe of United Air Lines, Inc.,.who was presently: sub- -. ject to an agreement between the Interuational Association . of Machinists -and that Company. . aye — Mr. Hayes, by. the position he has taken, has. left us no alternative but to include in the representation dispute all. employes of United Air Lines in the entire craft or class. If >. in the light’ of these developments Mr. Hayes chooses to proceed, against our Organization under the’ Constitution of the AFL-CIO, that is his privilege and, under the circum- stances, most certainly is of no concern to the National : Mediation Board. Under date of October 8, 1962, 5 you acknowledged receipt of my letter’ of ‘October 5 amending my request for the ' services of the Board in this representation dispute to in- elude the entire ¢raft or class. You furnished a copy-of . four letter of October 8 to Mr. Charles M. Mason, Senior Vice President, Personnel, United Air Lines, Inc., réquest- ing that he furnish the Board with the number of employes in the craft or class. I am now in receipt of a copy of your - letter of October 24 addressed jointly to Mr. Mason and Mr. Hayes, tracing Mr. Mason for the information -Fequested - in your letter of October. 8, 1962. ; . | May IJ again request the Board to:take action without further delay to resolve the dispute with regard to the rep- _ resentation of the employees of United Air Lines in ac: ” cordance with my application -of August 24," pees, as amended by my letter of October 5,1962. . “~ . _Very truly yours, " /s/ Geo. M. Hinesom, | _ Grand President. 55. Exhibit K" _Unirep Arm Lixzs | os - 1200 Algonquin’Road, oy a . Elk.Grove Township, Illinois Mailing Address: P. O. Box 8800, Chicago 66, Illinois pe Telephone 625- 1400 * ' Ae, January 11, 1963 Executive Offices | Mr. E: C. Thompson, Executive Secretary, National Mediation Board, ’ 1230 Sixteenth Street, N. W., Washington 25, D. C. Re: NMB Case No. R-3590 Dear Mr.. Thompson: Mediator Klatte has requested certain tiitiiindailion from United forthe purpose of holding an election in reference ease. We believe his request is premature in the absence of * 'a ruling from the Mediation Board on the request of - United made September 7, 1962 that a public hearing be’: held to establish the proper crafts and classes on. United. We hereby renew our request that such a public hearing be held and set forth herein at some length the r@isons « necessitating a hearing. We wish to point out to the Board that the group of em- ployees covered in the representation application filed in © the above case does not coincide, either ‘in its original or amended form, with any currently applicable craft or class determination. Further, there are distinguishing features | ’ between the members of the heterogeneous group of em- ployees involv ed in this application which the Board_has . not had the opportunity to fully consider i in any pret ‘pro. é - . A ceedings. “At a “iti hearing, the Board will learn of the . wide variances in the training, skills and responsibilities of the employees, of the absence of cross-training and cross- utilization between them, and of the absence of a community of interest, for example, between the highly skilled office employees and the janitorial and cleaning employees. The | _ lack of unanimity in the air transport industry in g@heral and on United in-particular with reference to the organiza- tion of operations, the selection, training, use, representa- . tion and lack of permanency in respect to these factors in this dynamic and rapidly changing industry ean and should be considered by the Board. In 1946, in R-1706, the Mediation id was asked to — establish for the first time on an airline a craft or class _ grouping of employees ranging from what the Board re- ferred to as janitors and laborers to ‘the highest type of | techinical office employees. The Board attempted in that case to establish a mold to apply to all airlines in the future. Since most of the employees i in this heterogeneous _ grouping were unorganized at the time in the air transport industry, the Board was-forced to treat with the important subject of craft or class in somewhat of a vacuum with the ‘‘hope"’ that its prospective determination would provide a basis for stable labor -relations in the future on airlines. only because such a craft had been found to provide such a basis in the past on. railroads. Although the Board did - avoid a multiplicity. of crafts or classes by its determina- tion in R-1706, the Board simply did not have knowledge at the time of its decision (January 31, 1947) of the changes that would and did later occur in the air =—" in- . dustry: The BRC contended. alten the » public hearing in R- 1706 that because the Railway Labor.Act was amended to cover airlines, the same craft or class treatment on -rail lines ~ should be followed by the Board on airlines. Although this i 57 specific contention was not accepted° by the Board, the Board nevertheless found , eraft or class of airline em- ployees that was the counterpart of the railroad craft or. elass of clerical, office, station and storehouse employees. ‘The IAM, on the other hand, requested a separate craft or class of ramp service and stores employees. This view was rejected by the Board as was the IAM’s later request for a reconsideration of the Board’s findings. , Although the TAM’s request for a reconsideration of the R-1706 findings was denied by the Board in 1947, the Board then stated that its denial did not prevent a re-examination of craft or class as applied to these categories of employees in any future airline representation disputes. This posi- tion was taken in 1947, as the Board later explained in R- | 2783, in ‘‘recognition of the’ fact that the airline industry "was still i in a state of development,’’ and further, ‘‘that the clerical and related employees on many of the major air carriers were then unrepresented.’’ Thus, the Board recognizes that the lack of representation of the bulk of these employees on many of the major air carriers is a ' significant factor to be taken into account in: representation questions. At the invitation of the Biesd. United was present at the public hearing in R-1706 and United’s views on craft or class were received by the Board. Based upon its limited experience and in the interests of avoiding an unknown and possibly undesirable multiplicity of crafts or classes, United had recommended adoption of 2 craft or class substantially _the same as the one edopted by the Board. - . As early as September 20, 1949, however, United Air Lines’ advised the National Mediation Board that develop-- . -ments in organization after R- 1706 had led United to believe - it may have been in error in the position it took before the Mediation Board. United advised the Board that-the or- ganizational development by 1949 among the smaployees ~ ae =e 63 : Company, clearly establish the inappropriateness: of _ R-1706 to present day conditions. A The carrier’s ability to operate efficiently and to have — stability in labor relations would be severely hampered by imposition of the now obsolete determination on United since R-1706 lumps together heterogeneous groups of skilled and unskilled employees in a manner wholly inappropriate to the Company’s present organi<>’ zational structure. ee ‘The Board, as noted above, has committed itself to take ° a fresh look in a public hearing at the appropriateness of a craft or class when appropriateness is questioned in light of changed conditions. | Day Based upon United’s study and experience, as well as observations in the industry~-United believes that the groups of employees under discussion probably logically separate into three large crafts or.classes. At the Board’s hearing, United will be prepared to supply the Board with full historical and present facts upon which the Board can judge the propriety, of what is proper under all the facts. Sincerely yours, /3/.C. M. Mason, - Sentor Vice President-Personnel; — ec* Mr. George Harrison Mr. A. J: Hayes Mediator Klatte - 64 Exhibit L Nationa Meparion Boarp ; Washington _ January i. 1963 a eT NMB Case No. R-3590 Mr. Charles M. Sinaia: Sr. Vice President United Air Lines, Incorporated . P.O. Box 8800 | . Chicago 66, Illinois _ Dear Mr. Mason: Acknowledgement is made of your letter of January ‘11,- 1963 in re NMB Case No. R-3590. You-state you believe the request made by .Mediator Klatte for certain information from United Air Lines, for the purpose of holding an elec- tion in this case, is premature in the absence of a ruling from the National Mediation Board’ on the request of - United Air Lines dated. September 7, 1962 that a public hearing be held to establish the. poupte crafts or classes on | United Air Lines. Reference to your letter ‘of September 7, 1962 shine the ‘specific request you made was as follows: ‘It is United’s position, therefore, that since the Broth erhood’s application requests investigation of a repre-. sentation dispute involving only a part of a group . of employees Which the Board has found to constitute a craft or class, it should be dismissed. In the event - the Board does not see fit to dismiss the Brotherhood’s | * application, the Board should then hold a public hear-_ ing to determine whether or not the proper craft or . lass is that-expressed i in prior determinations by the- | /Board, or whether the proper craft or class is same- “thing other than that previously determiped by the Board in these preyious cases,”’ e 65 The applicatior~fled by the Brotherhood of Railway & Steamship Clerks on-August 24, 1962 was not dismissed, . and was subsequently amended to cover the craft or class _ commonly known as Clerical, Office, Stores, Fleet ‘and Pas- - senger Service Employes. You were:so advised by copy of Mr. Harrison’s letter of October 5, 1962 transmitted with copy of-our letter to Mr. Harrison dated October 8, 1962. In our letter of October 24,1962, addressed to you and - President Hayes of the International Association of Ma- chinists, we inquired whether you were in a position to fur- nish the number of employes - dn this craft or class as requested in the last ‘paragraph of our letter of October 8, . 1962. On November 2, 1962 you replied and stated ‘‘the © “records of United Air Lines indicate there is a total of ' 12,451 employes as of October 15, 1962 in such craft as we understand it.’’ You further stated this figure did not include 339 employes classified as Lead Janitors, Janitors © _ or Cleaning Women as of Qctober 15, 1962. -Your letter of. November 2, 1962 indicated a clear understanding of what is meant by the craft or class commonly known as Clerical, Office, Stores, Fleet and Passenger. Service Employees as — referred to in the Board’s determination issued in NMB Case No. R-1706, ‘et al. o The various comments made in the remainder: of your letter of Jantary 11, 1963 have been given’ careful con- — sideration by the Board. The Board wishes to call your ~ - ‘attention, first, to the fact that the carrier is not a party to this representation dispute. Secondly, no request for a re-— view of the craft or class established by the Board’s deter- _ mination in Case No. R-1706, et al has been receivpd from either organization party to NMB’ Case No. R-3590. The y request contained in your letter of. January 11, 1963 is not. : timely made, since the Board, on December 19, 1962, found that a representation dispute existed among the employees in this craft or * class and has authorized a an. election. - i 7 Rs ‘ge . . 66 eg Gi: me Siease bd sf ° v7 . . : es, we ae Poet Pa — Poe tie whiis Sotenains the Board must iin your request , on, ot January 11, 1963 for a public hearing om the subject of . 4, a review of ‘the. determination made in Case No, R-1706 ra etal, It is; therefore, requested; that you tarnish promptly Mediator Klatte the nécessary information regarding th¢ employees of United Aér Lines, Ine. in the craft or class at . issue, SO he ‘may ‘proceed With plans #0 hold ar eletion among - these employees. ‘Your ‘cooperation in furnishing this in- formation promptly to Mediator Klatte will-be appreciated: . By re of. the National Mediation Board. /s/ E. C. THOMPSON, Y Executive Secretar > ° cc to: G. M. Harrison ie he A. J. Hayes — Rp W. F. Exhibit Mg iy Bie Am toe 1200 Algonquin Road, Elk Grove erndiié. Dllinois a. Mailing Address: P. 0. Box 8800, we 66, Illinois : - Telephone 625-1400, Executive Offices. tu ; mn January 25, 1963. _ Mr. Laverett Edwards, Le. Chairman ; - National Mediation Board _ Washington 25, D. C. Déar Mr. ‘Edwards: oo ie Dae Acknowledgment is made. of the ‘Board’s reply dated ¢f - , Senaty 17, 1963 to United’s. letter of January 11, 1963. Ey - The — in its reply denies United’s request that the a ae pe te e _ United fo a 2 % *- Board hold a public hearing to estabitoh the proper - -erafts and classés on United. The purpose cf this letter is to protest the Board’s re- | fusal and to ask that the Board reconsider United’s request. In support of our request for. reconsideration, I wish bed ) supplement my letter of cary 11, 1963.: | ay We in United are astottish ed that the Board would alte "a decision vitally affecting’ 12,700 employees and which will, have a long lasting and adverse: effect upon: the operating’ efficiency: and economy of United without. obtaining -the _ views of everyoné concerned,. The, yBoard’s denial of — ' United’s request indicates that th ‘is somehow pro- hibited’ from obtaining or éonfidering United’s views on the craft or class question”on the ground th@t United is not a party to this fepresentation dispute. * This is indeed * _. Strange since on a number of previous occasions the Board - ‘has specifically invited United to express its views at public hearings on ‘the question of what constitutes a proper craft ° or class. Indeed, doth of the contesting labor organizations . have at one time or another in the past. complimented — its éxpression of. such views and have urged United to -, i them at subsequent public hearings. : In stating that the carrier is not a party to, this repre- sentation dispute thé Board’ s reply attribdtes to Uniteda ..— : F Agu it has never sought and does not now seek. United 4 * As fully aware that it is nota a’ party to any controversy’ over -; Xthe choice of representatives by the: employees ; indeed, - United has no desire té be such a party and recognizes the legal and proper right of the employees to 10 choose their own répresentative, if they wish one. United: submits, however, _ that it has a legitimate, interest/in the scope of a craft or. ° ' ¢elass..gIn other words, the’ Only issue in which United as- + serts a right to be Heard concerns the scope of the craft or- class—tiot the identity of the represéntative, if any, of the _ employees of such craft ¢ or class in an election. — = . ee es om. ot ene eae ‘The Board’ s failute to recognize United’ s legitintate i in- terest in the scope of.a craft or class will. interfere with the efficient conduct of United’s business. The -rerusa] by an administrative agency of the Federal government to afford United-an opportunity to be heard at a public hearing in a matter which will so seriously affect \United’s ability to _ eortduet its business is in fact a denial of due process. . Further, the Board, on its own initiative and in the exer-" cise of its own discretion, should hold the requested public _ heating. Any rule of the Board that a carrier does not have ~ a ‘status which entitles it to be heard on the breadth of a class or craft is as archaic as the railroad craft or class in “which an election is proposed. The Board. has-a responsi- | bility under the Railway Labor Act to work. for the estab- ‘lishment of stable labor relations in the airline industry. As the Boatd well knows, a craft or class determination can have a serious and disruptive effect on interstate trans- portation. This was clearly shown when President Ken- nedy, on the day of his inauguration, had to. assign the _ Secretary of Labor to mediate airline strikes resulting from. - 8 craft or class determination which was arrived at after lengthy public hearings stretching over many months. It cannot be’ said that. the purposes of the Act are better served when an inappropriate craft 0 or-elass_ determination is imposed upon over 12,000 employees a hearing whatsoever. : You seem to imply in your letter ‘that United’s request 77. tora public hearing is tardy and should have. been repeated at the.time the Brotherhood’ of Railwa¥.Clerks amended its representation application. United had no way of knowing at the: time the Brotherhood amended its application that an election would in fact be held, This was not known until Mediator Kiatte had checked authorization cards and on . approximately. December 19, 1962, advised United that the’ ae Board had authorized an election. Prior to that date, we - oD é ‘ & » the clerical, office, stores, fleet’ _ and passenger service employees craft or clas¢€ Phen, on - November 2; 1962, we advised vou of- the total nimber of United employees in that craft or class. ‘We do not under- stand the significance of this statement The fact that United did advisé you of the fotal number of employees in the group described as the craft or class did not, of course, ' imply¢ that United considered that the grouping was a proper one. Our request for a*publice hearing Was not for .the purpose of being advised by the Board where the boundaries'of that craft or class lie. Our request was based - upon the firth belief that. the Board should review its deter- mination of craft or class i in R-1706, et al, and determine, in light of the lapse of 1 ) years, and the other factors set out in our letter of January 11, whether the R-1706: deter- mination | was still a proper grouping. a = Finally, the imposition by the Board of an inappropriate railroad craft or class upon 12,700 employees of this dy-. namic and changing air transportation industry is illogical. .. The ‘clerical, offit®, station, and storé house employees. craft or class’? grew up out of the’ historical development . of the railroad industry. To say that a craft or class _ springing from the history of the then static and now de- clining railroad industry should be forcibly imposed on the airline industry, which has an entirely different history and is still growing, is illogical and. improper. If the Board restricts air carriers to raiiroad rigidity, United will .not be able to discharge fully the obligation imposed upon it by Congress through the Federal Aviation Act to provide efficient and céchiounical service at reasonable charges to the “710 public. In fact, my personal observations of the operations and organization of Capital Air Lines before Capital had to . be merged into United or face bankruptcy convineed me - - that part of Capital’s difficulties resulted froni.the Board’s action iri 1947 in forcing a vast and heterégeneous g group of _employees into # single craft or class because that craft or | ‘class had been satisfactory on railroads i in the past and the ~ * —— Board ‘‘hoped”’ it would.be in the future on air lines.’ For these reasons, we strongly urge the Board to recon- sider its denial of United’s request for a public hearing. ye Sincerely yours, C.M. Mason, . re , Senior Vice Presitei!— Personnel. 4 ec: G. M. Harrison - © > ee A. J. Hayes : W. F. Klatte, $ j . b Exhibit N a . ‘Narionan MeEpration Boarp — Washington \ February 4, 1963 NMB Case No. R359 Mr. C. L. Mason, Sr. Vice President, . United Air Lings, Incorporated, : P. Q. Box 8800, Chicago 66, illinois. - © Dear Mr. Mason: - Acknowledgement is made of your letter of January 25, > 1963, addressed to Chairman Edwards of this Board, pro- - _ - testing the Board’s refusal to hold a public hearing on the question of craft or class in NMB Case No. R-3590, and asking that the Board ne United’s request. * . " 2 71 | ; s The Board, in executive session on January 31,. 1963, @ave very careful consideration to the various statements made in your January 25th letter. As you are aware, the two organizations which are parties to this dispute are in’ agreement that the craft or class of Clerical, ’ Office, Stores, Fleet _ passenger Service employees established by the ; pinche issued lena 31, 1947,-is the proper and appropriate gronping of these employees for the pur- poses of an election under Case No. R-3590. _ The Board has received a number of letters and tele- grams purporting. to be. from employees of United in this. craft or class, protesting against a vote embracing the en- G tire craft or class, and in some instances, asking that the Board include a space on the ballot for a vote for ‘‘no representation’. A statement of the Board’s position on- these two questions has been prepared, dated J anuary 25, 1963, copies attachéd. A. large number of the communi- cations referred to appear to have been inspired by your ‘* ~“ ot, *” circular létter of January 14, 1963 addressed to all United Employees eligible to vote.in the election under Qase No. - R-3590. The total number of such communications, how- “ever, represents only, a small minority of the approxi- mately 13,000 employees in the overall craft or class which ‘Oo peoyou have reported. The Board is not in position to recog- ' nize these requests as justifying a ae on craft or ; class' in Case Ne. R-3590. Your remarks conceining the carrier ’s interests i inacraft ak or class determination have been given full“onsideration. governing carrier employees in both the railroad and air- -line industries. Accommodations to the crafts or classes - found appropriate by the’ Board: have been made by the carriers concerned, when necessary, and with practically no protest. ‘9, _ Over the years, since the creation of the Board 1934, hun- r “ dreds of determinations: uf craft:or class have heen made OC © Q°° ts i 8 Under all the fee “wry in this Gase,-the § ~— Board cath see no justification, to the class or craft : question’an its own motion. Your 1 r t fér reconsidera- » You are hereby requested to furnish the list of» em- ployees involved in this dispute, in the form requested by - Mediator Klatte on December 19, 1962, and corrected to ‘ January 14, 1963 without further delay. Your prompt advice as. to when this hist may be expected, wes, be ap- preciated. © wis direction of the National, Mediation Henri oni E. &. THOMPSON, ° o> , - Executive Secretary.” ri cc to: @: M. Harrison, 3 - @ ' A.J. Hayes, f te * & Wm. F. J. Klatte. ane é , . EK of sy ~ * Lo See ne iy F - - g 7 ? Exhibit o ; & i: Q. = Usrrep Ai Rae i See, av 4 on 1260. Algonquin Road, Elk Grove Township, Illinois Mailing Poly P. O. Box 8800, Chicago 66, Illinois . Ea Telephone 625-1400. Exedutive Offices & > . | . “ @! ini: 18, 1963 ~ o ” “Mr: Francis J. @’Neill, Sewn a se a Chairman, - | SS eee e.. ne =! eta iain Sead, os Washington 25, D. C. — ‘ “+> fDeer ie. O'Neill: 8 ur oy of) Mediator Klatte has asked iui United Air Lines“. will allow the National’ Mediation Board to hold a ballot. box election on United: Air Lines property at points where fifty (50) or more of. United’ s employees involved. i in Case -R-3590 are located. ‘3 oo 3 _ United Air Lines i is willing to allow a -ballot box election on Company property provided the ballot follows the form . ‘used by the National. Labor Relations Board> in ‘s‘milar union representation “elections held ‘under the National Labor Relations Act. In other words, the ballot would have a space for the employee to vote against representa- tion as well-as space for the employee to vote for repre- sentation by the Brotherhood of Railway Clerks or the In- " » ternational Association of Machinists. The ballot also. 5 .Jeould provide space to vote for ‘‘any other organization or 4 individual’ or not provide such a space, as the Board might _ deem proper in the light of the revision of the ballot. We ‘would also expect that ‘the customary rules would be estab- lished and followed to insure - the election i is conducted ~ i ey : 7 — a _ without any undue influence upon the employees eligible __: to wetes” If the balloting is conducted in this manner, United. _ also would be willing.to have the employees vote ‘during ~ , their working hours.in order to provide the fullest op- - portunity for them to express their decision. Era _ We want to make it:very clear that. United Air Lines recognizes that how a representation election .is con- ' *dueted is the function ‘of the .National Mediation ‘Board. _ ‘We feel-strongly, however, that the ‘employees eligible to ~ vote in the election should know all of: theehoices available to them at the time the voting takes place and how to ex- - press their own free choice. _ The form of ballot customarily _ used by the. Board in electichs does not do this sinee it provides spaces only to vote fora collective. bargaining _ representative. It does not offer.gny way for an employee’ who does not want a collective bargaining representative to express his. choice to remain unrepresented. ; _ We are, of course, aware that. under the Boards rules . the employees can remain unrepresented if less than 51% of the craft or class ‘cast valid ballots in the ‘election. In effect, however, this means that the employée expresses his: choice to remain unrepresented only in a negative maniier— by not ‘voting or by invalidating his ballot in some ‘way.. Further, to the best of our knowledge, neither the Notice + of Election nor any éther instructions on voting issued by the Board make clear to the employees how. they can indi- - eate their desire to remain unrepresented. * : opposite, to seé/that the men have absolute liberty to join.or not join any union: or-to- remain unorganized. -°. >. ‘Mr, Clement: That is the way we hope they wil | =e “read when they are . finally. amended.” eae. oes Bae As you also are aware, the form of the National Mediation‘: __. Board’s ballot was the subject of court review in McNulty v. National Mediation Board, 18 ¥. Supp. 494 (N. D. N.Y., . 1936). Th that case the court decided that the form of the ballot used by the National Mediation Board was improper - . because it did not afford the employees an opportunity. to truly express their will, stating on pp. 504-02 as follows: ‘It is manifest that this ballot, did not present the — issue to the eligible voters, _ ,& ey 78 : ‘*The-issue, of course, as the mediator admittedly _ found, was. whether the men desired to’continue under / . the individual contract method or the National Uniox ““jTepresentation, . ~~. Wee Ls “‘Concerning these two methods, the O. R. T. brief|. ~says: ‘These two methods of employer-employee re- - lationships are diametrically opposite, both in theory and practice. They have nothing in common. - There ean be. no representation under, the first method arid) - 3 representation is essential under the other.’, | \. - . -“But the employees had no opportunity to: express i @ choice between these methods. They were in\ effect - .. fold that they must have ‘representation for collective | — /barggining and were asked to elect’ between the Na-:\ , ‘Unless the statuté in question is‘meant to compel a majority of the employees (not an individual em- ployee) to surrender their constitutional rights to con- tract for their own services, and the defendant O. R. T. does not so contend, then the ballot in question in- no real sense determines whether the employees wish to ‘ ed \ retain the old method of individual bargaining, or pre-—_ , - fer to change o¥er, to collective bargaining: _ ‘In short, the ballot is an artificial thing in no wise disclosing which method of contracting the majority _ _ _,y, Wish, but merely shows’ that, if they must ‘have ¢ol- +" Jective bargaining) they preferred the O. R. T. ‘to some — _ , unknown person. or organization. _ “It'is idle to say that “it was not necessary for the- ‘contract men to affirmatively vote their desire in order _ -. + to win but merely necessary that their vote be against representation by the O. R.T.? vie __ *Bifty‘employees tried to do just that by putting an ~; X mark in the sqtiare opposite the words ‘if you desire / gepresentation by any other organization or individual ‘mark an X\in the sqtare,’ but because they did not write in the name of some organization or individual . as. representative in collective bargaiping, the votes were declared void and not counted. ; a mandate of Congress that employees shall be represented. In short, employees ‘must be represented by a union or — other organization or individual. In other words, it has | been the view of the Board that the purposes of the Act would be defeated by carriers treating separately with in-. dividual employees and that therefore employees are not given freedom to express a-choice in a Mediation Board election between being represented or remaining unrepre- - sented. Rather, the Board has limited employee voting toa determination of who shall be designated as the representa- - tive of the employees in the appropriate class or craft— and not whether there shall be any representative at all. . Please advise us if this does not correctly reflect the Board's policies-and practices. a We appreciate that the Board’s position stems from the’ adoption of the present form of ballot in 1934, well before - the appointment of the present members of the Board. We’ ees diet yy . think, however, that the present Board should re-examine its position to see whether it is based upon a proper inter- pretation of the Railway Labor Act in light of the facts in this case. Stated in another way, irrespective of the type -of ballot used by the. Board in other elections, the facts of this election justify..Mediation Beard action to use a _ ballot ‘which gives employees an opportunity to indicate . whether’ they do or do not want unior representation. In the. forthcoming election, there are approximately 9,700 employees eligible to vote who are not now and never have - - been represented by a labor organization. These employees, © . together with 3,000 of our organized employees, will be - eligible to participate.in the largest single airline employee representation election ever held by the National Mediation | Board since the airlines were placed under the Railway Labor Act. ; pots 3 Meee _ The Board has said that in instances where the employees are not represented, the representation dispute is between .the employees who ‘desire representation on the one hand. .and the employees who do not desire representation or who are indifferent on the other. As the Board stated in its Twenty-Seventh Annual Report,-p. 37: “*... in a dispute where employees are secking to desig- nate a representative for the first time the dispute is ‘between those who favor h ing a-representative as . Opposed to those who are yodifferent or are opposed * to having a representative for the purpose of the act.”’ Especially in this case,-where such a large number of pres-’ ~~ ently unrepresented employees are involved in the election, . it seems entirely appropriate that such employees have an opportunity to indicate a desire to maintain their present - _ status. Contrariwise, it seems entirely improper that the employees who may not want to be represented or who are - indifferent—whom the Board recognizes as one of the parties in a representation dispute among™.unorganized ~ 90° employees—should be offered an election procedure which ‘ fails to provide a way to express a choice, to remain. un- ” represented. vl ‘The Board’s present form of ballot concerns United be- ovause it may thyjatt t the desire of the majority of an .un- represented craft: or class to remain unrepresented, if that ‘is their desire. i The purpose of the Act to promote stable labor relations will not be effectuated by forcing an un- ' willing’ majority - -of employees in a.craft or class to have their rates of pay and working conditions established through a process they do not want. A contrary result saa well be reached. : 7 Section : 2, Fourth, of the Railway pram Act i is the section of the Act which relates directly and specifically to the employees’ right to organize and bargain ro It provides that: : ‘«Employees shall have the right ‘to. organize and _ bargain collectively through representatives of their own choosing. The majority of any craft or elass\of employees shall have the right to determine who shall be the representative of the craft or class for the pur- pose of this Act.’’ (Emphasis. supplied.) a The Board’ s election procedure clearly recognizes the right of a majority of a craft or class to organize and bar- gain collectively if it chooses to exercise that right. There is, however, a large gap between Tecognizing the existence of a right and making the exercise of that- right a manda-. tory requirementwhich is-in_effect-what the Board’s-vot- ’ -ing procedures do; In fact; compelling employées to organ-—— ‘ize and bargain ‘collectively effectively abridges the’ em- ployees’ right granted them in Section 2, Fourth. A right, - ’ «is no longer a right when one is compélled -to exercise it | but is transformed into a duty. Such a transformation ob- : : viously is contrary to the language of the.Act. andthe . a. - Congressional intent. Section 2, Fourth, properly leaves ees | Pane Yee "the initiative in determining whether to organize and bar- gain collectively to the majority of the employees of the - eraft or class. That initiative is improperly removed ‘from — the employees by: election procedures which assume—prior : to an election—that the choice available to them is only a. _ choice betweeri representatives. _ -, The provisions of the Railway Labor Act upon which the’ Board bases its election policy and practices do not sustain the Board’s interpretation. The Boards conclusion that there is a ‘‘mandate of Congregs’’ that representatives -_ ‘be designated by employees appareytly is based on Section - 2, First and Second, quoted in the/Board’s letter. Section 2, First and Second, however, dgfot deal with the question of whether employees shall be represented or, if they do, . how they designate their representative. This function is. Be: performed by Section 2, Fourth, of the Act, which, as we have already shown, clearly contemplates that the employ- ees themselves can choose whether or not they want to be represented. Section) 2; Ninth, which empowers. the Board to establish its-election procedures, merely gives to the _ Board authority to provide the proper mechanics to deter- mine whether the niajority of: the employees desire to | guaranteed to them by Section 2; Fourth. .In other words, exercise the right 4 organize. and. bargain -collectively the Board’s election procedures cannot properly exceed the . scope of Section 2, Fourth, and compel organization. con- trary to the wishes of the majority. . r equire employees 'to be represented; that mandate-would® have appeared in Section “2; Fourth, of the Act, which is specifically concerned with the matter of employee organ- ization and representation. It would be extremely unlikely that a,matter so important as a Congressional mandate that employees shall be represented would be found by implica-_ tion in a section of the Act which does‘not by its language - =o # If the Congress intended that the Railway Labor a 9 ° even refer to the matter of representation. “The language ' of Section 2, Second, also relied on by the Board, is easily. reconcilable with the recognition of a right by employees to deal with a carrier ‘as individuals, rather than through collective bargaining representatives, Obviously, Section 2, — Second, which .proyides that ‘‘ All disputes. between a car- rier... and its vA possible, decided, with all cupetition.| in conference between representatives ‘designated and authorized ‘so to confer, respectively, by the carrier or carriers and by the: employ- ees thereof interested in the dispute’’ becomes applicable only after the employees and the carrier have designated ployees ..... shall be considered, and, if - and authorized representatives. When employees deal ; with a carrier as individuals, the confereffce procedure con- . . templated by Section 2, Second, is simply inapplicable. ‘ us This.is shown by the testimony before the House Commit- _ tee on. Interstate and Foreign Commerce of Commissioner ' Eastman, draftsman of the 1934 Amendments to the Rail- _ way Labor “Act. Commissioner Eastman stated that it was not the purpose of the bill which: was eventually enacted into law te coerce organization or to require col- lective bargaining on the part of the, employees, Rather, as: Commissioner Eastman stated: ‘‘Tf the employees do.not- wigh to organize, prefer to- _ deal individually with the management’ with regard to se matters; why, that course is. left open to them, or ‘it shouldbe.” — - , . i _ The legislative history. of the 1934 Amendments to “the Railway Labor Act shows conclusively the Board’s present procedures are in direct conflict with the intent of the Con- ‘gress. It was for that Feason that we made’ several refer- ences. to the legislative history in our letter of January 18. We know that the Members of the National: Mediation _ Board, like the members of. any other administrative agency, would not wish to continue a policy which i is in con- “ 93 flict with the intent of Congress in the law under which the - agency is established and operates. We would, therefore, _ appreciate the Board’s comments on this history‘since this point wag not answered in the Board’s reply to United ‘dated January 24. -« © 5 °° >. ie The Board’s reply to our letter of January 18 notes that _ the McNulty ease did not order discontinuance of the form of ballot tustomarily sed by the Mediation Board sinee ‘. the Mediation Board was removed as a party to this case . during the court proceedings, We did not cite*the McNiilty _€ase as support for the proposition that the Board was -“orderéd by the court to stop using its customary ballot. Our point in rena the McNulty case, which we believe is clear. from our letter, is that the court, in the McNulty case recog- nized that the form of election ballot presently used by the.. ' National Mediation Board does not permit a true expres- © _ Sion of employee sentiment. In fact, the court in the Mc- Nulty case considered and rejected the interpretation of the Railway [Labor Act that the employees must have rep- resentation /for collective bargaining. Thus, the court ; stated: * “The issue, of course, as the mediator: admittedly _ found, was whether the men desired to continue undsr the individual contract method or the National Union | representation. ; ‘* _ « ee * , “But the employees had 10 opportunity to express a choice between these methods. They were in.effect told that they must have representation for collective bar- ~ -. gaining and were asked to elect between the National _ Union (0. BR. T.) and an unknown. ee « 7% wit “Tn short, the ballot is an artificial thing in no wise ‘dis- closing which method of contracting the majority wish, . _but merely shows that,. if they st have collective ° . bargaining, they preferred the O. R. T. to some. un- «, known person or organization,’’ aA ae Y ‘ w/ 9 94 The fact that the National Mediation was, = consent of the parties, @ismissed from the suit as a party defendant | does not erase the fact that the Board’s form of ballot was _ found by the court to be improper because it did not afford the employees an opportunity to truly express their will. The balloting policies-of the Mediation Board are in striking contrast to those followed: by the National Labor Relations Board: The thrust of these sister statutes—the - Railway Labor Act and the National. Labor Relations _Act—has been judicially found to be the same. ‘The Na- - tional Labor Relations Board, however, has adopted a form — of election. ballot which gives to employees the right to express their choice as to whether they do or do not want - representation. the other hand, the National Mediation Board has adopted a form of election ballot which effec- | tively denies the employees that right. -The completely - contrary election proced res used- under these companion laws cannot be reconciled: United Air Lines renews fhe pleas of. Mr. W. A. Patter- son’s letter of January 22\to the Board. The Mediation- Board is urged to review its election procedures with the * Attorney General of the United States and the Secretary of Labor to determine whether the Board’s present policy and practices are consistent with the intent ef Congress and the national labor poliey. , b Sincerely yours,, aie. | /8/ Cuarues M. Mason,. mht P = ‘Charles M. Mason, : ‘ . _ Senior Vice President— Personnel. ec: Honorable Robert F. Seniedy, \- Attorney General, Honorable W. Willard Wirtz, : : Secretary of Labor. sence, 95 @ “Exhibit T NatioyaL Mepration Boarp Washington February 7, 1963 7 ; Case No. R-3590 Mr. Charles M. Mason, Sr., Vice President United Air Lines, Incorporated P. O. Box 8800° _ Chicago 66, Illinois. Dear Mr. Mason: a tes : * ae Acknowledgement is made of. your letter of February 1, ; 1963, to. Chairman Edwards, on the subject of MMB Case. No. R-3590, ae | The Board sees no useful purpose to be served by con- _ tinuing the exchange of correspondence concerning the views of United Air Lines, Ine., onthe various aspects of the Handling of this case. We.will, however, comment briefly on two points made in your letter. As stated in our letter of January 24, :1963-it is the Board’s view’ that the Congress intended that the purposes of the Railway Labor . Act, expressed in Section 2 ‘1), General Purposes and Sec- tion 2, First and Second, should’ be effectuated through ~ collective bargaining between carriers and their employees, ~ through duly designated and authorized representatives. * - ' Decisions of the United States Supreme Court support this view. — : | In its decision No. 324, October term 1936, in the case of . the Virginian Railway Company vs. System Federation No. 40, Railway Employees Department of. the American 96 Federation of Labor, ete. et al., the Court said, referring to Section 2, Third, of the Railway Labor Act‘ “Under the last mentioned provision this court held, “in the Railway Clerks case, supra that employees were free to organize and make choice of their represen- tatives without the ‘coercive interference’ and ‘pres- sure’ of a company union organized and maintained by the employer; and. that the statute protected the free- dom of choice of representatives, which was an essen- tial part ofthe statutory scheme, with a legal sanction which .it was the duty of courts to enforce by ap- propriate decree’’, (Emphasis supplied) In the same decision, the Court stated: ‘*Petitioner argues thatthe phrase ‘treat with’ must be the equivalent of ‘treat’ in its intransitive sense, as ‘Meaning ‘regard’ or ‘act towards’ so that compliance with its mandate requires the employerto meet with the authorized representative of the employees only if and when he shall elect to negotiate with them’. This suggestion disregards the words of the section and ignores the ‘plain purpose made ‘manifest throughout the numerous provisions of the Act. Its major ob- jective is the avoidance of industrial strife, by confer- ence between the authorized representatives.’of em- ployer and employee.’’ (Emphasis supplied) _ Again, in the Supreme Court’s decision No.'112 and 1023, 1940 term, March 4, 1942, in the case of‘ Williams, ete. et al. v. Jacksonville Terminal Company; Pickett, ete. ve | ‘Union Termina! Company, the court said: ‘*The object of the Act is to avoid interruption to com- merce through the promotion of free association among employees for the purposes of settling disputes between them and the carriers’? * * * **These addi- tions (Section 2, Seventh and Section-6) point square- ly to limiting the barggining provisions of the Railway Labor Act to collective action.’’ (Emphasis supplied) ree. 97 On Page 2 of your letter you state: ‘‘The Board’s present form of ballot.concerns United because it may thwart the desire ‘of the majority of an- ‘unrepresented craft or class to remain unrepresented, if that is their desire.- The purpose of the Act to promote stable labor relations will not be effectuated by forcing am: unwilline majority of employees in a craft or class to have t rates of pay and working conditions established through a process they do not want. A contrary result may well be reached.’’ You apparently do not have a clear understanding of the - Board’s election procedures. Succinctly stated, they are: to have a valid election under Section 2, Ninth of the Act, a majority of the employees in the craft or class must cast valid ballots, i.e., ballots for a recognizable organization or an individual not an officer of the carrier. In such‘a situ- ation, a majority of the valid ballots cast will elect a repre- sentative. If no organization or individual receives a clear majority of valid ballots cast, or if less than a majority of eligibles cast valid ballots, there is no election. In the event a majority of eligibles cast valid ballots, and votes are cast- for three or more organizations or individuals, and no one ° receives a majority of the total valid ballo cast, Rule - 1206.1 of the Board’s rules applies. The situation of ‘‘fore- ing an unwilling majority, ete.’’ is not possible under the above rules and procedures. Ae The comments on the McNulty case.made in our letter of January 24, 1963 need not be restated here. au The laws governing this Poard and the National Labor Relations Board differ in many respects. The form of ballot used by the NLRB is adapted to the law under which » that agency operates. The same applies to the ballot used by the National Mediation Board. We wish to remind you that this Board is an independent agency in the Executive Branch of the Government reporting directly to the Congress. Consultations such as suggested in the last s. 2 98. paragraph of your letter are neither necegsary nor ap- propriate. oe ’ The Board will proceed with an election among the em- ployees concerned in NMB Case No. R-3590 under the’ Board’s usual policies and\procedures in such cases. By direction of the National Mediation Board. = eS ee Srate or Iuuwots, - - Cotnry or Cook. ‘Affidavit . - ©. &. HUTCHENS, ‘being | first duly neue, on oath - deposes and Says: 1. (¥ am the dministrative Assistant to fhe Director of Personnel Field Services, United Air Lines, Ine. _(“United’’). Prior to June 1, 1961, I was wlidlerel by Capital Airlines, Inc. (‘‘Capital’’) in various capacities, © serving from February, 1947 to May, 1951 as. Capital’s Superintendent of Stations; from May, 1951 to March, 1957 as Executive Assistant to Capital’ S Vice President Opera- | tions and .Maintenance; from. Merch, 1957 to N ovember, 1959 as Capital’s Manager of Personnel ; ‘and from Novem- ber, 1959 to June, 1961, at which time Capital merged into United, as Capital’s Director of Personnel. 2. ‘ As Director of Personnel at Capital, Iwas responsi- ” _ble for among other things assisting in administering the collective bargaining agreement -in force between The “Brotherhood - of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees (“Brother- ed and Capital covering employees classified as ‘clerical, office, stores, freight and passenger service em- “ployeés. ”* The duties performed hy such employees at. _ Capital were Substantially similar to the duties performed by the. employees at United designated ‘by the National _Mediation Board in ‘R- 3590 as eligible to participate’ in es, the forthcoming election. 3. The collective bargaining calaliai in force between Capital and the Brotherhood until the merger of Capital into United in June, 1961 contained provisions relating © to er which had .the ‘effect of permitting senio? bee hfige 8s MS. employees, regardless of: job classification, to exercise pro- motional, assignment and displacement rights in other classifications, fitness and ability being sufficient. By vir- ° tue of this provision, it became ‘standard practice at Capital for employees with ‘seniority*to transfer to job classifications, for which they had inadequate ‘experience or qualifications. While Capital had the contract right - to refuse, transfer on, the basis of insufficient, ‘‘fitness and ability,’’ this right became largely’ ineffective because of the interpretation of ‘‘fitness. and ability’? as being the\ minimum ability to perform the work regardless of the . retraining required. as 4. .By'reason of this seniority provision, , Capital was compelled to retrain persons transferring from one ¢lassi-_ fication to another. by virtue of promotion, assignment or displacement. Inthe. period this seniority provision Dig was in effect, Capital incurred great expense in retraining personnel involved in inter-classification. transfers. Addi- tionally, since personnel engaged in public contact and sales work required special personality and .appearance - qualifications; transfers from other classifications by em-. ployees lacking such qualifications must have contributed to | a decline in Capital’s sales? -The constant shifting of personnel into. classifica- tions for which employees were either unsuited or un- trained created administrative problems which were never solved. In the first place, hiring stamdards for public .. contact personnel became meaningless when employees not hired for that purpose exercised promotional or displace- ment ‘rights. Secondly, employee morale and Productive inefficiency became serious problems by reason of seniority promotions and assignments from and into classifications having ne functional similarity. Finally, in each case of promotion, reassignment, lay-off or imcrease ‘in the work force, the possibility had to be considered that the vacancy — . “ a - ’.two or more div 105 on of a. _ thus created seul ak filled by a: person pat meet nt : job standards, ° a er * 6, The problems encountered by Capital in attempting” to administer three separate functional groups as. a single -- unit—aggravated considerably by a seniority system which — ignored functional lines—will inevitably arise cat United. . Experience: at Capital has shown that an improper craft or class determination can have a detrimental impact® upon the operations ‘of ‘the carrier. If United i is to. avoid the detrimental impact suffered ‘by’ Capital, it will-be in - its interest to resist any- effort to impose upon it a seniority _ provision which cuts across functional lines. and gives-rise ‘to the training, hiring, morale and administrative problems: with which: Capital was plagued. In my’: judgment, in order. to preserve efficiency of operations and high service stand- ‘ards, when faded with a single organization representing xse groups of employees, a carrier must take a firm positi respecting seniority rights. This will . — lessen rather thah_contribute to the stable labor relations. -which the Railw ay Labor Act was designed to. maintain. ws at 30" ial si | Hurcnexs. Subscribed: and Sworn To elie me this... day of | itunes 1963. a N otary Public. 106 ° Grate or Iuuiwois ). County or Cook 4 e : 4 Affidavit _ DAVID S. RITNER, -being met duly sworn, on oath © 9 and says: ' Tam Vice President, Employee eciicumd, United : Psa Lines, Ine. (‘‘United’’). .. 2. - The employees of United déscribed as ‘clerical; of- _. fice, stores, fleet and passenger service employees,’’ desig- . ~ nated by the National Mediation Board (‘‘Board’’) as the - employees eligible to participate in a representation elec-. tion (R-3590),° number ‘approximately 12,700 employees. located in approximately 100 cities in 32 states and the District of Columbia. The group embraces employees per- - forming duties in job classification varying from electronic — computer operators to ticket agents, to cleaning women. 3. United: employs . approximately 32,000 persons. A: work force of this size:requires an organizational and ad- ministrative structure geared to resolve difficult problems of supervision, training and productive efficiency.— | heart of United’s organizatiorial and admini tem is a careful classification of employees y job function. 4. The Board’s ‘‘determination’’’ that clerical, - office, - stores, passenger and fleet service employees ‘constitute. a. ‘single craft or class is comy cely inconsistent with United’s system of organization. In my judgment, the absence of - community of interest existing among employees perform-. | ing work in such diverse classifications will disrupt United’s _ organizational flexibility by imposing upon it artificial, rative sys-~~~ ‘non-functional criteria. Administrative efficiency and em- | ployee morale will decline to the great detriment of United and the public it serves. Over one-third of United’s total, 107 work force is involved. The impact, therefore, will be of ‘the most serious nature. eee 5. The 12,700 employees involved are divided along the following functional lines: (1) Office and clerical: These employees perform “duties of an essentially clerical nature and include stenographers, office typists, file clerks, bookkeepers, office machine operators, receptionists, telephone. oper- - ators, record custodians, ticket examiners, timekeep- ‘ers,-record clerks, rate clerks, and i ie clerks, and ’ kindred employees. .(2) Public Contact: This group includes reserva- tion and ticket sales agents, telephone sales agents, _ vacation booking agents, passenger agents, passenger relations correspondent, station agents, air freight . agents, customer services agents and other p sonnel whose duties are performed primarily with and before the public. 7 : | (3) Ramp and Stores Employees: Employees in the | ramp group service aircraft at ramps and terminals -involving-only the loading, stowing, unloading and pick- up and delivery of all cargo including mail, express, baggage, freight, company material, buffet and food supplies. and cabin supplies in accordance with flight loading plans, and the preparation of records in con- _ nection therewith; the cleaning of aircraft in connec- tion with through service and operation of automotive and other ramp equipment for servicing aircraft, and ay include preparing or helping in the preparation of loading plans, maintaining the ramp area and equip- ment in a clean, presentable condition, and other gen- eral ramp service work. Ramp servicemen may be required to refuel, spot, block, stand fire guard and wave off aircraft when mechanic personnel are not available for the assignment. Stores employees per- é 108 form storeroom work including receiving; shipping ; checking; inspecting; classifying; issuing; inventory- ing; storing of supplies, equipment and materials; the operation of stores equipment, including: driving _ of trucks; the preparation and maintenance of required records and reports; the transfer of parts and mate- rials between locations at a Maintenance Base; and other storeroom work. — : | . These groups are separate and distinct, both in their job ° function and supervision. The hiring qualifications differ for each group. Ramp and stores-employees, for example, ‘perform duties of an essentially physical nature, are al- ‘most universally male employees, and need: not have the training and education expected. of elerical or publie con- -tact personnel. The clerical personnel are generally female, perform little physical work and. rarely deal with the public. Public contact personnel are of both sexes, and ~ ‘perform work requiring personality and appearance stand- ards which differ substantially from the others. For these _ -Aeasons, there is little identification by one group with the others and. no community of interest among them. 6. ‘The Board’s announced criteria for craft or class de- | terminations reflect the severe impact an improper deter- mination can have upon a carrier. Thus, the Board em- phasizes the ‘‘qualifications, duties, and responsibilities, of the employees, the nature of their work and their com- munity of interest.’’ In addition, the circumstances of the particular dispute and the relative permanency of em- ployee groupings along craft or class lines on carriers generally are also relevant. The purpose to be served by _ proper craft or class determinations is the promotion and maintenance of harmonious labor and bargaining relations between the employees, their representative, and the car- rier involved. The factors relied on by the Board to de- termine the appropriate craft or class are the very factors ‘ 109 which are most important to United ff#devising a smoothly functioning administrative and organizational system. . 7. The combining of three diverse groups of employees into one craft or class will foree upon United the myriad administrative difficulties which flow from improper em- ployee grouping, and which have a direct impact upon the ~ | ability of United to discharge its obligations as an air car- rier subject to the Federal Aviation Act. From an admin- istrative viewpoint, a craft or class which embraces diverse . groups lacking any cohesive identity of interest raises the . same problems-as a craft or clasé which embraces but a ‘ part of one group, but in either case efficiency and em- ployee morale suffer. 8. United has a vital interest in any craft or class de- termination affecting its employees. An. improper deter- mination, which ignores the qualifications, duties, and re- sponsibilities of the ‘employees, the nature of their work and their identity of interest, has substantial and adverse impact upon United employees, and thereby on the = of — to ecetues in: the most efficient manner. /s/ Davin S. a cone David S. Ritner. Subscribed and sworn to before me this ......................... day of February, 1963. | . ' Notary Public. \ \ \ \ and wv In rue Unrtep States District Court *\ For the District of Columbia a \ \ e United Air Lines, Inc., , Plaintiff, = | na > Civil No. 402-63 Nationa Mediation Board, et al., . De fendants. Motion of Defendants to Dismiss the Complaint or, in the Alternative, For Summary Judgment. Come now defendants, by their attorneys, and move to dismiss the complaint or, in the alternative for summary "judgment, upon the grounds that there is no genuine issue of material fact and that defendants: are — to judg- “ment as a matter of law i in that: 1, The Court is without _ over’ the subject ° ‘ matter; ‘and .2. Plaintiff lacks standing to maintain this action; 3. The complaint fails to state a justiciable controversy and me | ; 4, Plaintiff is not entitled to injunctive relief since (a) the action is premature; (b), plaintiff does not demonstrate irreparable in-. ‘jury; and (c) .the action taken by the National Mediation Board is not erroneous, ° _and in support thereof the Court is referred to. the affidavit of Eugene C. Thompson, Executive Secretary of the Na- . tional Mediation Board, dated March 5, 1963, the exhibits — - attached thereto, and the memorandum of points and au- ' thorities, all attached hereto and made a part hereof. Joun W- DovG.as, — Assistant Attorney General, Dowatp, B. MasQe INEAS; - Attorney, Department of J ustice, ; HaRrLaNb F. LEATHERS, - . Attorney, Department of Justice, -Ricwarp S$. Beatry, Attorney, Department of Ju sik Attorneys for Defendants. Affidavit Ciry or WASHINGTON - ss District or CoLUMBIA EUGENE C. THOMPSON, being first duly viakadee de- . poses and says: Le y I. Iam the Executi e Secretary of the National Media- tion Board, and as a part of my official duties have custody ' of the Board’s files /and records. I have examined the Board’s files and records relating to NMB Case No. R-3590 involving representation of Clerical, Office, Sto es, - Fleet ‘and Passenger Service employees of United Air Lines, Inc. (hereinafter referred to as United), and find the solowing information therein concerving this case. 2. On August 24, 1962, the Brotherhood of Ratiway and Steamship Clerks, Freight Handlers, Express and Station Employes (AFL-CIO), (hereinafter referred to as BRC) , filed application pursuant to Section 2, Ninth, of the Rail- way pater Act, _— (45 U. ws C.A. 152. 9) for investi- se urge nett — 112 gation of a representation dispute among the craft or class of employees of United ‘‘Commonly known as clerical, - office, stores (excluding stores employes represented as of ‘August 24,1962, by the International Association of Ma- chinists), fleet (excluding fleet service employes repre- sented as of August 24, 1962, by the International Associa- tion of Machinists) and passenger service employes.’’: As a result of preliminary examination to which all such ap- plications are subject, the craft or class designation above stated was questioned by the Board in letter dated August : 27, 1962, (copy attached marked Exhibit 1) to Mr. George M. Harrison, Grand President of the Brotherhood of Rail- way and Steamship Clerks. Mr. Harrison’s explanation of the craft or class designation shown in his application was contained in letter to the Board dated August 27, 1962. ‘ (Copy attached to Mr. Mason’s’ affidavit marked . Exhibit A). ere ae : Rn sea ' 3. Om August 30, 1962, United and the International Association of Machinists (hereinafter referred to as IAM) were advised of this application and requested to submit | ’ . their statements in respect thereto. United was also re- quested to furnish the total number of employees covered by this application. (Copy attached to Mr. Mason’s affi- davit as Exhibit B). " 4. On September 7, 1962, United responded to our letter of August 30, 1962, (copy attached to Mr. Mason’s-affidavit ‘as Exhibit C) stating it is the carrier’s position that the BRC application involved only a party of a group of em- _ployees which the Board had ‘found to constitute a craft or class, and it should, therefore, be dismissed. The carrier ‘also advised they would not, at that time, furnish the num- ber of employees involved. On September 11, 1962, the . LAM replied to our letters advising that in their opinion ~ the craft or class covered by the BRC application did not . conform to the Board’s findings, particularly as set forth . a 113 ° in NMB ‘Case No. R-1706, et al., (copy attached to Mr. Mason’s affidavit as Exhibit E). 5. The BRC, on October. 5, 1962, emtaded its applica- tion to cover the craft or class commonly known as Clerical, Office, Stores, Fleet and Passenger Service emplovees (copy attached to Mr. Mason’s affidavit as Exhibit G). After further exchange of correspondence with United and.IAM, the amended application, covering the craft or class of Clerical, Office, Stores, Fleet and Passenger Service: em- ployees, as established in determination issued by this Board in Case No. B-1706, et al., dated January 31, 1947, (copy attached marked Exhibit 2). was docketed as NMB Case No. R-3590, on November 8, 1962. 6. Mediator William F. J. Klatte was assigned to con- duct an investigation of this case commencing November: 19, 1962. This investigation consisted of checking the authorization ecards furnished by the BRC in support of their application against a list of employees furnished by _ the carrier for that purpose. On.December 19, 1962, the National Mediation Board authorized an election be con- ducted among the employees involved based on Mediator’s’ report that his investigation showed- sufficient ‘evidence to warrant finding that a representation dispute’ existed among these employees under the Board’s rules.- {Copy attached marked Exhibit 3. See Part 1206). - | 7 On December 19, 1962, prior. to recessing this case. for the holidays and to allow the Mediator to attend the Board’s Annual staff meeting, the Mediator advised the _ Officers of United that the National Mediation Board had ordered an election among the employees in question and Tequested’* a list of employees involved showing nantes, occupations, locations, and home mailing addresses to be ready when the Mediator returned on January 14, 1963. Upon his return on January 14, 1963, the Mediator inqnired - about the status: of the preparation of this list,-and was / Fi 114 informed the carrier had decided the fequest for this list was premature in the absence of a ruling from the Board on United’s request, dated September 7, 1962, that a public hearing be held to establish the proper craft or class of employees involved in this case. The company rénewed — this request in letter datéd January 11, 1963. (Copy at- tached to Mr. Mason’s affidavit aS Exhibit K). After consideration of this letter the Board replied under date of - January 17, 1963, (copy attached to Mr. Mason’s affidavit as Exhibit L) calling attention to the’ fact that in the Board’s opinion the carrier is not, and cannot be, a party to this representation dispute. This opinion is based on the National Mediation Board’s policy, formulated early ~ in the Board’s history under the 1934 amendments to the Railway Labor Act, which has been enunciated many times in our annual reports and communications. to rail and air _earriers subject to the Act. : ue 8. Our letter of January 17, 1963, also denied the car- rier’s request for{a hearing on the craft or class established under Case No. |R-1706, et al., for the reason that the. carrier is not, in the Board’s view, a party to this repre- sentation dispute. The Board also ealled attention to the fact that no such request had been received from either party to this dispute, namely, the BRC and the IAM. On January 25, 1963, (copy attached to Mr. Mason’s affidavit — as Exhibit M) the carrier addressed a letter to Chairman - Edwards asking the Board to reconsider its denial for a hearing contaimed in our letter of January 17;.1963. In executive session on January 31, 1963, the Board Rave full . ‘consideration to the position of the carrier with respect to the craft or class of employees involved in this dispute, and _ on February 4, 1963, addressed a letter to the earrier fully outlining its reason for again denying their request for a i hearing on the éraft or class (copy attached to Mr. Mason’s affidavit as Exhibit N). . oo 115 9. On January 18, 1963, United addressed a letter (copy . attached to Mr. Mason’s affidavit as Exhibit 0) to Board Member O’Neill taking the position the Board should use a form of ballot which would provide a space for a vote for ‘‘no representation’’. The Board replied on Jan- uary 24, 1963; ‘(copy attached, to Mr. Mason’ 8 affidavit as Exhibit R), advising the Board sees no reason to deviate from its customary-form of ballot in the current dispute. ‘— This form of ballot has been used by the Board in over 3,400 representation elections among various crafts or __ classes of railroad and airline employees since 1934, among which were several elections involving other classes. of United employees, at which. times the company made. no. _ objection to the form of ballot such as they have now raised. On February 1,-1963,-the carrier wrote'Chairman Edwards * (copy attached to Mr. Mason’s affidavit as: Exhibit S) re- ferring to our letter of January 24, 1963, and requesting reconsideration of the decision made in our letter to the carrier of January 24, 1963, supra. This request was again given careful consideration, by the Board and under Wate | of February 7, 1963, the Board replied to the carrier (copy attached to Mr. Mason’s affidavit as Exhibit T) reiterating their reasons for denying the carrier’s request fer-a-change in the form of ballot. - nee, ¢ “ 10. During this exchange of correspondence the Media- tor was in Chicago waiting for the-carrier to furnish the list of employees which would enable him to proceed with plans for conducting the election. On February 4, 1963, the Mediator again inquired about the status of préparation of the eligible list and was advised by the carrier that the task was a large one and the list wou!d not be completed until approximately February 11, 1963. On that date the Mediator further inquired concerning the status of the list and was advised by the carriér’s officers that they had decided to decline to prepare and furnish the list.’ The ~ 116 carrier so notified this office by letter of same date (capy “attached marked Exhibit 4). The list referred to in the second paragraph of the carrier’s letter of February 11, 1963,.is the one furnished the Mediator on November 27, 1962, for checking the authorization cards submitted by the BRC in support of their application and contained only the names, occupations and locations of the. employees, but did not include the mailing addresses which would be re- quired to conduct the election. The list containing the | mailing addresses. is the ore which the carrier has refused to furnish. It will be noted the carrier advised that if the Board wished to exercise its statutory authority to make -eopies of relevant ‘‘books and records”? of the company (Section 2; Ninth, of the Railway Labor Act, copy attached ~marked Exhibit 5), they would make them available to the Board’s representatives at the carrier’s executive offices. On February 12,1963, the Board directed its és Mediator. to secure this information from the carrier’s records, and he is now so engaged. On February 14, -1963, a petition dated February 11, 1963, was ‘received from the — 7 Association for the Benefit of Non-Contract Employees _ purporting to represent 5,100 employees in the Customer Contact and Office and Clerical group of United. The — petitioners applied for leave to intervene in Case R-3590 as a party at interest on behalf of. the employees they pur- port. to: represent, and made’ four ‘specific requests -de- scribed on pages 2 and 3 of the petition, copy of which is. *~ attached marked Exhibit 6. The petitioners d [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0165%3A02. Public record. Not legal advice.