Petition for a Writ of Certiorari — Railway Clerks v. Association for Benefit of Noncontract Employees

Supreme Court brief1965

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TABLE OF CONTENTS. |

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Opinions Below ...:....... te aa ed cota eediue ceouston 2

Jurisdiction ..... SEER Cre eee ere eat oanbeeees 2

Questions Presented ........---.++++++ f+ eeeeeeeees 2

Constitutional and Statutory Provisions Invelved;... . 3

nc cinbdhereLwhteinanereeeerened es saweees 4

Reasons St Oh WEEE “hte cn cecanence so ances “12

I. The Employer’s Right to be Heard .......... 13

A. United Has an Interest in the Scope of

* the Bargaining ME daca okey ounce ue sites * 13

B. ‘United Has Judicial Standing to Assert

‘a Denial of Due Process ..............:- -15

€. The Switchmen’s Union Case Does Not

Prevent the Courts from Requiring the

Mediation Board to Provide a Fair. |

NS be sc decane suieWils oan’ 17

D. The Board Was in Error in Denying

- United Administrative Standing and in

Accepting Whatever Bargaining Unit the

Unions Agreed Upon .............. veces. aes

wit The Ballot Question :.... Spe ay Be esac tae

Conclusion ....... Sane wget a | se eeeteeceeeeeeees ‘26

Appendix A, J udgment-of Court of Appeals...... ete.

Appendix B, Opinion of Court of Appeals ...:...... iii

Appendix C, Order of District Court .......... ecu xiii

Appendix D, Constitutional and Statutory Provisions

- Involved ........ OE EET PET Uiwacnisaeesenss -, xiv

CiTaTIONs. |

or Cases. -

Associated Press v. NLRB, 301 U. 8. 103 (1937)...... 25

Association for the Benefit of Non-Contract Employees -

v. National Mediation Board, 218 F. Supp. 114 ..

Col., 1963) ...........- CULES R TERRE Saat TaN teNeaNeee 10

Boire v. The Greyhound Corp., 84 S. Ct. 894 (1964) .. 12

~ Columbia Broadcasting System v. Unitdd States, 316

(U.S. 407 (1942) me per eae Peedha be so pves dentensthaes 15-16

General Committee v. M.-K.-T. RB. Co., 320 U. S. 323 |

MOD ag dover ni sanccs cnigteceoecsvngtensecedeens ae

Interlake Iron Cerpereiinn, 4 NLEB 55 (1937) ...... 5.

. Joint Anti-Fascist Refugee Committee v. McGrath, s41

. U. S. 123 (1951) .... CenUsddenin ice enauedaeeenens 23 -

National Motor Freight Traffic Ass’n v. United States,

.. — 373 U; &. 246 (1968). : 1... cc owese Waespeaeusienin 16

NLRB v. Ideal Laundry & Dry Cleaning Co., 56 LRRM

2036 (C. A. 10, 1964) ..: voewenn Selbeitew att yag ts NIT

- NLBEB v. Jones & Laughlin, 301 U. S.1 (1937) ee 25

Pittsburgh Plate Glass Co. v. NLEB, 7” U. 8. 146

COED cn cvess an Wis ches uauw<sennv gees qeeneesers 17

Southern Pilots Ass’n v. Civil hadeaniiies teak 323

F. 2d ‘288 (c. A. rc, 1963), cert. den. 84 S. Ct.

966 (1964) 2.6... eee e ee bee e eg eee eee erent denne 18

Switehmen’ s Union v. National Mediation “Board, 320

U8, 297 (1943) ........ repens: 17-19, 25, 27 ©

Texas & New Orleans R. Co. v. Brotherhood of Rail-

way Clerks, 281 U.S. 548 SEES ov coweecececcaseca. ‘16

een PO

~ ¢

2 eee eee

iii

UNA Chapter, Flight Engineers International Associa-

tion v. National Mediation Board,.294 F. 2d 905

(C. A. D. C., 1961), cert. den.. 368 U. S. 956 (1962)

Ste el oe at eee eieetenseesiswerers -,...20-21, 22

_ Virginian Railway Co. v. System Federation, 300 U. 8. |

BIB (A987) ose eS scapeca ee +e 18) 16, 98-8

( y , Me ‘Seales.

Federal Fa vitien Act of 1958:

Section 401(k) (4), 76 Stat. 143, 49.U..S. C, § 1371 ol

Railway Labor Act:

Section 2 Fourth, 48 Stat. 1187, 45 U. 8. C. § ae eeu

‘Fourth ...:.. Sams ie ein ae a a Se eee Se 25°

- Section 2, Ninth, 48 Stat. 1188, 45 U. S..C. Len

- Ninth ( Throughout) -

Wagner: Act: :

Section 7, 49 Stat. 452 ........... eee cece ee eeees 25

Section 9(a), 49 Stat. 453 A Aen Orr SP ei ee ° 25

Legislative History :

Hearings on H.R.. 7650, House eS -

state-and foreign Commerce, 73d Cong. 2d—

TG TUE choca bens uadescatseccdhacesak decys 25

Hearings on S. 3266, Sen. Comm. or Interstate.

Commerce, 73d Cong. 2d Sess. 1934 ..........25-26

-House Report 1944, Comm. on Interstate and

Foreign Commerce; bins Cong. 2d Sess. 1934. . 26

NMB Determinations:

Case R-1706, 1 NMB Determinations 423 (1947). 5, 22

Case R-2357, 2 NMB Determinations 66 (1953) .. 5

Case C-2252, 2389, 3 NMB Determinations 16 (1956) 5

' Case R-3639, December 5, 1963 ...... <eyonne see

eco OE A NS ON SORE

IN THE

Supreme | Court of the United States.

ca peetoae Ocroser Term, 1963. \

a No. iiaces ececdocece® ie \

UNITED AIR LINES, INC.,. wes

3 5 ee

vs.

NATIONAL MEDIATION BOARD; ‘LEVERETT ED- a

WARDS, Inprvipv4LLy AND AS Carman OF THE NATIONAL

Mesution Boarp; FRANCIS A. O’NEILL, JR., Ixpr-

‘ VIDUALLY AND AS MEMBER OF THE NATIONAL Mzpirion

Boanp, ;

Re | " Respondents.

_ PETITION FOR A WEIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE.

. DISTRICT OF COLUMBIA ‘CIRCUIT.

Petitioner United ir Saves Inc. ( ‘‘United’’), prays that

‘a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the District of Colum-

bia Circuit, entered on March 12, 1964 in Case No. 17,777,

United Air Lines, Inc. v. National Mediation Board, et al.

(Appendix A, infra), affirming the order of the dis-

trict court dismissing United’s complaint and granting

summary judgment to respondents c Appendix C, rr |

OPINIONS BELOW.

The opinion of the Court of Appeals, printed as: Ap-

pendix B to this petition, is not yet*reported. The order.

of the District Court, printed as Appendix C to this peti- —

tion, is not reported. There was no written opinion by the

District Court. _ r

. JURISDICTION.

The judgment of the Court of Appeals was dated and

entered on March 12, 1964 (Appendix A, infra). Petition for -

rehearing was denied on April 14, 1964 (R. 167). Jurisdic-

tion i is conferred on this Court by 28 U. S: C. Sec. 1254 ( 1).

questions PRESENTED.

1. The National Mediation Board vai to hold a hear-

ing at the request of United on the question of the appro- ~ .

priate craft or class of employees among whom an election

was to be held to determine a representative for bargain- |

_ing under the Railway Labor’Act.. The stated reasons for .

“ the refusal were that the Board did not consider United’

to be a party in interest on the question and that the labor

organizations involved had agreed on the unit. The Board

took no evidence on the craft or class question, and accepted

the agreement of the labor organizations without independ-'

ent inquiry. The —" presented are:

a. Does a’ carrier have a constitutional _due process ;

right to be heard by the Mediation Board on the

craft or class issue?

b. May the Board make a craft or class determination: -

arbitrarily by accepting the division of employees

_ agreed upon by interested labor organizations with-

out consideration of any other relevant criteria?’

ce. Does a carrier have judicial standing to’raise the

foregoing questions?

ACN NE

. .

9. ‘The form of. ballot used in a representation election _

_by the Mediation Board does not permit an eligible em-

ployee to cast a valid ballot. for no representation. The

questions presented are: .

* a. Does:this form of: -ballot violate the mandate of the

; Railway Labor Act that the majority of employees

- in the eraft or class have the right to select the

representative for the craft or. class?

b. Does a carrier have judicial standing to complain |

of the ballot ere

CONSTITUTIONAL AND STATUTORY ‘PROVISIONS

INVOLVED. e

rae are the Fifth Amendment to the United States

- Constitution and Sections 2 Fourth and Ninth of the Rail-

way Labor Act, 48 Stat. 1187-88, 45 U.S. €.§ 152:—These_

provisions are — as Appendix’ D to this petition.

hoe

-” STATEMENT.

In this case the Court of Appeals affirmed an order of

the district court granting defendants’ motion for sum-

mary judgment: The facts as they appear from the uncon-

. tradicted affidavits and the documents atttached thereto are .

as follows:

The Scope of the iakaiiaiies Unit. .

. United is an- air carrier subject.to the Railway Labor

Act. It employs approximately 32,000 persons. Of these,

approximately 4, 500 are office and desea! employees such

as typists, stenographers, file clerk, electronic computer

and office machine operators, receptionists and telephone

operators; approximately 5,100 are: public contact em-

ployees, such as reservation and ticket sales agents, vaca-

tion booking agents, passenger agents, station agents and

. other employees whose duties are performed primarily

'. with and before the public; and. approximately 3,100 are

ramp and stores.employees, who, among other duties, load, .

‘stow, unload, pick-up and.deliver cargo, baggage and food,

on. to and from aircraft at ramps and terminals; clean air-

craft in-‘connection with through service, maintain the

ramp area and equipment; perform storeroom work, in- .

eluding the ‘ receiving, checking, inspecting, shipping, issu-

ing, inventorying and storing -of materials, supplies and

equipment (JA 15-16, 106-08). . 4

The office, clerical and public contact personnel at United

have never organized for collective bargaining purposes. -

However, the ramp and stores employees: have ‘been or-

- ganized as a separate group for over 20 years, and since

* References are to the printed Joint Appendix | in the Court

of Appeals.

1948 have been represented by the International Associa-

tion of Machinists (**IAM’’) (JA 16). On Capital Air-

lines, however, which in 1961 was merged with United, all

three groups of employees had been represented by the

Brotherhood of Railway Clerks (‘‘BRC’’) (JA 103).

Although in 1947, with respect to four airlines, includ-

ing Capital but not United (No. R-1706, 1 NMB Determi-

nations 423), the National Mediation Board found that all

of these groups of employees should be joined in one craft, |

as they were on the railroads, subject to re-examination on’ ~

any. , particular airline when necessary to further the pur-

poses ofthe Act, the Board found in 1953 that ‘‘because

“of the expansion and growth of the-airline industry * * °

as well as the development of representation of airline

employees’’ it would upon proper application ‘‘re-examine

the determination in Case R-1706.”? Case, No. R-2357,

2 NMB Determinations 66, 67 (1953). “In 1956 the Board

made such a re-examination and found that.on only six out ~

of 30 carriers was the R-1706 classification being followed. °

Case Nos. C-2252, C-2389, 3 NMB Determinations 16

(1956). In the cases,last cited, the Board refused to follow

the R-1706 classification, and. separated the stock clerks

from the other groups of employees. “In December, 1963,

the Board again refused to follow its 1947 determination in

a case involving Eastern Air Lines. There the Board

directed a separate election among stock clerks at Eastern

_ over the contention of the IAM (a participant in the case) .

that stock clerks are part of the R- 1706 classification - rocssy a”

- R-3639, December 5, 1963).

On August 24, 1962, after U mited’s merger ‘with Capital,

the BRC invoked the services of the Board to investigate

a representation dispute among United’s ‘‘clerical, office,

- stores, fleet [ramp] and passenger [public contact] serv-

ice’’ employees, excluding, however, those ramp and stores |

- eniployees hited by United prior to August 24, 1962 (JA

. 7 6

31). The BRC was willing to leave the excluded employees

to the IAM, which had represented them as a separate

group since 1948. The BRC application was docketed as

NMB Case No. R-3590.

The IAM objected to the BRC application. As a result

the BRC amended ‘the application to-cover all (a) clerical,

(b) public contact, and (c) ramp and stores employees,

including those represented: by the IAM whether . hired

after August 24, 1962 or before (JA 43, 47). The IAM

did not object to this bargaining unit, and the Board, with-

_out further factual inquiry, aequiesced in the unit to which

the two unions had agreed, although it was also apparently

willing to proceed with an election among only the groups

not previously represented by the IAM if the two unions

would have agreed to that (JA 135, 138, 142). The bargain-

ing unit thus created would have lumped together, United’s

most highly skilled technical white collar employees and.

its least skilled common labor employees, including jani-

tors. United’s skilled blue collar workers—its mechanics

—are members of a separate craft or/elass. »

‘When the BRC first invoked the Board’s services, the

Buard also asked United to submit any statement it cared

to make. In reply,'United noted the BRC’s improper ex-

clusion of employees on the basis of date of hiring and

asked the Board to dismiss the application. United added

that if the Board should not dismiss the application, it

«¢should then hold a public hearing to determine whether

~ or not the proper craft or class is that expressed in prior

determinations by the Board, or ‘whether the proper craft

or class is something other than that seared deter-

mined by the Board’’ (JA. 39).

On January 11, 1963, after the BRC amended its appli-

cation, United again asked the Board to hold a hearing

on the craft or class question. United called attention

to the fact that on most airlines the R-4706 classification of |

all of these groups as a single bargaining unit was inap-

propriate and had not been followed either by the carriers —

or by the Board (JA 55).° The Board denied this request —

and a subsequent request for consideration, noting that

the ‘‘two organizations which are parties to the dispute are

in agreement .. .?’ (JA 71). The reasons —- by we

— for its denial were:

. that the Carrier is not a amas to this matter,

a also ... that neither of the organizations who are

parties to ‘this case [[AM and BRC] have made any

request for a hearing on the question of craft or class.

The Board, therefore, denied the request of uaned

for such a hearing. ig (J A 99). }

The Form of the Ballot.

Concurrently with the correspondence relating to the

matter of a hearing on the craft or class question, United

requested the Board to alter its customary form of ballot

to permit an employee to vote for ‘‘no-union.”? United’s

- request was based on legislative history, which it cited to

the Board, showing’ that Congress intended employees

subject to the Railway Labor Act to be free to vote

for or against representation, and also on the analogy of

the practice under the National Labor Relations Act which

embodies the same statutory scheme (JA 73).

The form of ballot which the Board has used in the past

and which it had planned to use in the United election does

not contain space for a ‘‘no representation’’ vote as does’

the ballot used by the National Labor Relations ‘Board

(JA 101). The Mediation Board’s practice is to provide

space to vote only for the labor organization or organiza-

tions seeking representation rights, and an additional

blank for ‘‘any other organization or individual’? (JA 81).

A Mediation Board election is valid only if a majority

of the eligible voters cast-valid ballots. A majority of the

8°

valid ballots cast is sufficient to elect a representative. : ia

ballot is valid only if cast for a representative. A ballot

upon which is written ‘‘no representative’’ or which is cast

blank by the voter is voided (JA 7), There is no way for an

employee opposed to representation by any union effectively

- to indicate his wishes.* The Board’s form of ballot makes

it possible for a mininium of 25% plus one é6f the em-

ployees‘to elect a bargaining representative for the entire

_ eraft or class, despite the desire of a majority of employees

either to: remain unrepresented or at least not to be rep-

resented by the labor organization so- elected (JA 7-8).

The B rd declined. to: ae its form of ballot, stating

that “‘introduction of a ‘yes’ or ‘no’ ballot would con-.

tribute to, if it did not actually encourage, an attempt to

- circumvent the mandate of Congress that representatives

_ be designated by carriers and their employees. wee (SA

86).

On February 7, 1963, the Board wrote to United: “The

Board will proceed with an election among the employees

““eoncerned in NMB Case No. R-3590. under the Board’s |

usual policies and procedures i in such cases.’’ (JA 98).

Proceedings in the Courts Below.

United filed its complaint four days later, alleging in

the first count, that it had been deprived of its rights under «.

the statute and the due process clause by the Board’s ar--

bitrary and capricious acceptance of whatever craft or

class was agreed upon hy the labor organizations involved,

and by’the Board’s refusal to hold a hearing addressed to |

the craft or class issye in which United as a party could

* He can refuse to vote at all, but the Board refuses to tell the

employees that if they oppose ar anaigeane by a union, they

‘should express their position by staying away. Employees would

otherwise, in ignorance, believe that they ought to vote in order _

~to express their wishes.

i] :

produce evidence demonstrating the inappropriateness of

‘ the Board’s craft or class determination (JA 4). The

_Second count alleged that the form of ballot which the.

Board insisted on using was inconsistent with the. em-

ployer’s statutory duty to treat with the representative

chosen by the majority of a craft or class of its employees,

and invaded” its right not to be required to bargain for a

craft.or class with a representative not favored by the

majority (JA 6).

- The complaint alleged that the compbsition of a craft or

class of employees for collective bargaining purposes af-

fected valuable property rights of an employer in the con-

duct of its business, and that the combining of the 12,700

employees performing work in many different’ and unre-

* * lated classifications, such as electronic computer operators,

ticket agents, and cleaning women, into a single craft or ~

class would have a substantial and adverse impact on the

operations and cost of conducting United’s business (JA 5).

‘The complaint sought to restrain the Board from holding

the election: unless the form of ballot was corrected and .

United was given |a hearing as to the proper scope of the

| bargaining unit., The complaint did not seek judicial re-

view of any substantive determination as to the scope of

the unit, but only to compel the Board to make the ‘eter-

mination in accordance with the requirements of the stat-

ute and of dte process. Federal jurisdiction was er

. on 28 U.S. Cc. '$§ 1831 and 1337.

Following the filing of the complaint, United moved for :

a preliminary injunction (JA 11), and the Board moved to

dismiss the complaint or for summary judgment on the

} grounds that United lacked standing to maintain the ac-

tion; that the complaint failed to state a justiciable con-

troversy avid that United was not entitled to injunctive

relief because the action was premature, irreparable in-

jury was not demonstrated and the action of the Board

. ¢

eae erroneous (JA 110). Affidavits were filed by

both parties in support of their respective motions _

_ 14, 103, 106, 111, 135, 142).

‘ The. District Court (per Judge Matthews) a the .

Board’s motion for summary judgment, and dismissed the

complaint in a brief order w hich did not state any reason

for the court’s action and which foundyonly that ‘‘there

is no genuine issue of material fact.”’ - A 144; peter .

C, infra).

a eR te

Shortly after the. dismissal of United’ s complaint, a_

group of United employees filed-a complaint in ‘the Dis-

trict Court against the Mediation Board which attacked

the form of ballot and the Board’s refusal to grant the

employees a hearing on the craft or class question. The

BRC intervened in support of the position of the Media> |

tion Board. : Judge Youngdahl issued a permanent in-

junction restraining the Board from conducting’ an elec-

tion with u form of ballot which does not perinit a voting

employee to cast a vote against representation, and re-

manded to the Board’ for further consideration the em- :

ployees’ request for — hearing on the question of the

appropriateness of the craft or class. -Assoctation for the

Benefit of Non-Contract Employees v. National Mediation. -

~ Board, 218 F. Supp. 114 (Dist. Col., 1963).°

United appealed from the dismissal of its complaint in

‘ this action, and the Mediation Board and BRC appealed

from the judgment entered by Judge Youngdahl. The

three appeals were consolidated in the Court of Appeals.

In a per curiam opinion,- that Court affirmed the deci- ©

sion of Judge Youngdahl in the employees’ suit, and also -

affirmed the dismissal of United’s complaint in this case

(Appendix B, infra). l

‘The Court of Appeals noted that ‘the grounds for d ‘dis-

— missal of United’s complaint were not stated in the dis-

Petree be Be +, SEND

trict court’s order, but stated that ‘‘as one of the grounds

‘urged was lack of standing on the part of United Air

Lines, we assume it was on this ground that the suit was

~ dismissed.’’ -The Court then stated:

‘¢. . . The close question as to United’s standing, -

about which there is a dearth of authority, causes us ~

’ eoncern. We have decided, however, not to disturb

the District Court’s dismissal, because our decision in

the other two cases affords the relief concerning the

form of the ballot which United 5 at " =? p.

: _V-vi.) ; .

United petitioned for rehearing, wiledine: out that al

‘though the action of the Court of Appeals, in affirming

Judge Youngdahl’s order may have resolved, the ballot

quéstion it left completely unanswered the issues relating.

to United’s right to be heard on the craft or class ques-

tion and the Board’s duty in making such & determination. '

The petition requested the Court, therefore, to decia® the

‘‘close question’’ of United’s standing (R. 157). This \pe-

_ tition was denied on April 14, 1964. (R. 167).

| United has been advised that the BRC intends to wth

tion for a writ .of certiorari to review the affirmance of —

Judge Youngdahl’s order; since that order may be, ‘subject

to further review, this. petition raises thé question ‘of

United’s standing with respect to the ballot issue’ as well

as its standing to complain of the Mediation Board’s method

of determining the appropriate craft or class.* a?

*We have not been advised whether the Natonal Mediation Board

_ will esate for a writ of certiorari.

-REASONS FOR GRANTING THE WRIT.

fs oa

inten

This case presents two questions of importance in the

_ administration of the Railway Labor Act.

The first relates to the interest of an. exaployer. in the

_ procedure by which the National Mediation Board deter-

" mines craft .or class—or bargaining unit—questions.

United’ s position is that it is a violation of its right to

procedural due process and in derogation of the Board’s

statutory duty for the ‘Board to make this determination ae

arbitrarily and without fair hearing. There i is no reason

why an employer whose labor relations are regulated by

‘the Railway Labor Act should be in any different position __ :

- in this respect than an employer under the National Labor | :

Relations Act. Yet the Mediation Board’s contention is.

an employer has no interest in the bargaining unit

and hence has no right to complain if the Board refuses. to

hear it, while the National Labor Relations Board has

- always accorded the employer the right to be ‘heard. This .

_ ease challenges the fairness of the procédure of the Na-

‘ tional Mediation Board. Since Switchmen’s Union vy. Na-

tional Mediation. Board, 320 U. S. 297 (1943), foreclosés

review on the merits of Mediation Board determinations, it

is imperative that the Board‘be required to hear all in-

terested parties. and to exercise its statutory duty fairly

and rationally if due process is to ‘be observed. The

presence of a fair hearing procedure by the National Labor —

Relations Board, and the opportunity for ultimate judicial |

_ review on the merits, distinguishes Boire v. The Greyhound

Corp,; 84 S. Ct. 894 (1964).

The second question relates to the form of ballot. used |

by the Mediation Board in , HB ccentattcn elections. This

question is presented hére conditionally because of the af-

firmance by the Court of Appeals i in the consolidated appeal

below of Judge Youngdahl’s order restraining the Board

from conducting an election unless the ballot permitted an

_eligible employee te cast a valid vote for no representation.

If certiorari to review that judgment is denied, the ques-

tion as to the ballot. becomes academic insofar as this case

is concerned. If the: BRC petition is granted, however,

United respectfully requests that-this petition be granted

as to both questions presented so that it may. be heard

on the ballot question as well as the craft or class issue.

It was because of its .affirmance of Judge Youngdahl’ s

injunction order that the Gourt of Appeals concluded not

to decide the ‘close question’’ of United’s judicial stand-_

ing, finding that its decision. in the companion cases

‘affords the relief concerning the form of ballot which

United sought.’’ Appendix B, infra, pp. v-vi. But this’

conclusion was clearly a non. sequitur since it ignored |

United’s interest in the bargaining unit een, which was

independent of a form of ballot.

LL THE EMPLOYER'S RIGHT TO BE HEARD.

A. United Has an Interest in the Scope of the Bargaining zs

Unit.

The oneiiaaie interest of an employer in the composition ©

, or structure of a collective bargaining unit of its employees

—never. doubted under the National Labor Relations: Act,

which applies to all interstate industry except rail- and

air earriers—entitles it to be heard -administratively on

the effect of a proposed unit and to suggest alternative

_ units.

* The complaint here alleged that the. composition of a -

craft or class of employees for ee arene pur-

: : Pa Ode

14 ; *a,,

poses ‘lets valuable we rights of United in the

* eonduct of its business, and that the combining into one

‘eraft or class 12,700 of United’s employees in such un--

related classifications as electronic computer operators,

ticket agents and cleaning women will have a substantial .

and adverse impact on the operations and cost of conduet-

ing United’s business (JA 5). United’s affidavits detailed -

how such a craft or class is inconsistent with United’s

organizational structure, and the effect such a craft or

. class would ,have on the business : of United, its efficiency

and its ability properly to perform its publie s service fune-

tion (. JA 16-17, 24-26, 106-109).

The purpose of. a bargaining. unit determination is to

provide a-rational, basis of grouping employees for bar:

gaining purposes. ‘In the Mediation Board’s words, it is

intended that the craft or clags will refiect ‘‘the functions,

duties and responsibilities the employees’’ and’ the

“community. of interest existing between jobs’? (JA 28).

The scope of the unit inevitably has impact upon the

manner in which an employer organizes his work force.

- Issues such as seniority, transfers, job posting and bidding

rights tend to be. common to the entire graft or class.

If the craft or class.trulyfrepresents a community of in-

terest, the result is mutuglly advantageous. If not, the

disruptive effect on®the 4 ployer’s business. May have.

serious economic consequence. rn,

This appears. from the affidavit of C. P. “taints vite

was the Director, of Personnel for Capital Airlines prior

to its merger into United. -That affidavit described the

serious impact on Capital resulting from a single collective

bargaining agreement - ‘for the ‘‘clerical” craft or class:

made up- -of so many and diverse job classifications, includ-

ing the cost of employee- retraining and impairment of .

employee morale and efficiency as the result of trans-

‘fers from and - into classifications having no- dunetional

similarity (JA 103-5). :

~ Aside from its impact on “the conduet of United’s sm.

ness, this craft or class determination has obvious impact

on United’s right to freedom of contract.. Here, for ex:

ample, the craft or class determination poses the sub-

stantial probability that United will no longer be able to_

bargain separately-with its ramp and stdres employees—

part of the eraft or class established here—as it has with

the IAM voluntarily since 1948. . For once a representative

for the craft or class is selected, “United will be under an

obligation to bargain with that representative . for that

raft or class, and with no other representative for any of

the employees in that craft or class. Virginian Railway

Co. v. » System Federation, 300 v: ‘S. 515, 548 (1937).

B: United Has J udicial Standing to Assert a Denial of

“Due Process.

*United’s right to carry. on its business free of the re-

straint of an arbitrarily determined craft or class and

cits right to contract freely with its employees in other.

bargaining units unless these rights are limited in accord-

ance with: the pr edural requirements of due process, _

~ gives it standing to~ a judicially of the Mediation ~—

Board’s his aiced

The potential effect on United of the scope of the bar-.

gaining unit is analogous to the effect of the Federal Com-.

munications Commission regulations reviewed in Columbia Sn

Broadcasting System v. United States, 316 U.' 8. 407

(1942). ‘There CBS complained that the FCC regulations

relating to the withdrawal of licenses of radio stations

whose contraets with networks contained certain proscribed

provisions impaired its ability to conduct its business,

‘woeld make its operations more eins d reduce its earnings,

a w ?

2 .

a aXe y 8

OP oe ° 16.

‘ fo X > : 7 ey ; ;

- and render “its property. and business Yess valuable. In °°

reversing the disntissal of the eomplaint for lack of juris-

diction, the Cowrt stated, inter alia:- a ee

“ . “

‘* Appellant's standing..to maintain the present suit

in, équity. is unaffected by the fact that the regula-

tions are not directed to appellant and do not in terms

‘compel action by it or impose penalties npon it because -

‘of its action or failure ‘to act, It is-enough that, ‘by

setting the controlling-Standards.for the Commission’s =

action, the regulations purport to operate to alter and * -

_affect .advérsely ‘appellant’s edntractual rights: and ~~

‘business relations with station owners whose applica-.

. tioas for licenses the regulations will cause to be--re-

‘jegted and- whose’ licenses the regulations may cause

bans evoked.’’ wt 422. °

. The interest of United here is certainly no less sub-

stantial than was that of the association in National Motor

Freight Trafic Ass'n v. United States, 372 U.S. 246. (#83),

where the Court. held that ‘the association had judicial

standing to complain of an I. C. ©, freight regulation

which did not affect it hut only its member carriers. ¢

An employer’s right-to procedural due process itt’ deter-

minations. affectiig its labor relations have always been.

recognized ‘by this Court, and its judicial standing to com-

plain of alleged ‘violations of this right have beens assumed

without question. Constitutional attacks on jegislation in

‘this area have been entertained and disposed of. ip ‘this

Ceyyt not 6x’ the ground thatthe employer had no con- .

, stitutional, right to complain but -because the. legislative

: restriction in issue’ was held not to be: an unreasonable.

restraint on the employer’s right to carry on its busine

% £

Texas & New Orleans R. Co. v, Brotlierhood of Railway -. :

Clerks, 981 U. 8. 548, 570 (1930); Virginian Railway Co.'~

v. System Federation, 300 U. S. 515, 541, 553_ (1937) ;

_ NERB v, Jones & Laughlin, 301 U. 8.-1, 48-44 (1987). <7 ~—w-

‘

nae

- jield that an employer. under the Nat

a’

“In ‘pelieen Plate: Glass ®: v. _ NLRB, 313 U. 8. 146,

154-55°(1941), the employer attacked a bargaining unit de-"

termination of the National Labor Relations Board’en the

ground, among others, that the NLRB procedure denied

due process of law. The contention was disposed of on the

Recently the: Court ‘of .Appeals § r Yhe Tenth Cireult

Act was entitled to a due process ‘heating on the issue of

the appropr iateness 6f the bargaining unit’ ‘determined in

a representation proceeding. ‘The case was ananded to

“the NLRB for redetermination in ‘light of. ee prof-

fered by the emyftoyer but rejected by the B NLRB

v. Ideal. Laundry €& Dry Cleaning Co.. 56 an 2036 (C.

-- A. 10, No. 7381, April 23, 1964). ae

The eniployer | under the Railway Labor Act has the

-*saime interest, since under each statute he is required to

_ bargain w ith the representative chosen by. the majority of

the designated. unit. : be ies

phic “Se Ce me a,

Courts’ from’ Req

. vide a Fair Procedure. :

In support ofits position that, United lacks judicial

standing to-complain of Board pr ocedur es, the Mediation © .

Board places primary reliance on Seditghmen’ s Unjon ~.

- National. Meiliation Board, 590 U: S: 297 (1943), which held

_. that eraft-or class determinations were not ‘subject to. judi- -

cial review.

-Since United does not neck review of the merits. éf the

Board’s determination but only that,the Board be required

to make that dete¥mination on the. Apisis of: evidence ‘and |

in accordanec. with the requirements of the statute and‘ of |

onal Labor Relations

‘ground that the procedure was fair, not that the employer ye

_had no standing to be heard. .

C. The Switchmen’s Ynion Case Does. Not Prevent the ~~

deine the Media-ion meee to Pro- om

2 rn Sn Oo oe are - - ° _—

nia 7 ae | 7

procedural due:process, the reliance on Switchmen’s is mis- i 3 Sy

placed. | ee ere eee

_ In any event, Switchmen’s s did not foreclose ‘review - of

constitytional question , hor did it insulate the Board from.

judicial inquiry as to: Whether it was — the: =

imposed on it by the Railway Labor Act. :

Switchmen’s was ‘initiated bya labor. union which pro-

tested a. determination ‘made affer, ‘hearing by the Board

that a craft or class had to be system-wide atid include

* all employees of the carrier in the classification. The Court

-~ noted that there- was no provi ision for review of craft or’

| class. determinations under the Railway: Labor Act, and

reasoned that since Congress had created the ‘‘right®’ of” :

majority yepresentation, ‘all . ‘constitutional questions

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

—it ereates shall be enforced. 2 390'U. S. at 301. (Emphasis:

added.) : i

But the ‘‘rights”’ which’ ‘Congress vented established . ys

‘vorrelative limitations on the prior rights of carriers; hence

the Railway Labor Act imposed the duty on employers to

“te eat with” or bargain with the ‘‘true yepr esentative’’ of -

the craft or class. This duty. is enforceable hy injunction.

Virginian Railway Co. v. System Federation, 300 U. S. 515

(1987).* © fittiee ae

; =

Thus the or ‘igin of the ight asserted by the labor =a eal

in Sweitchmen’s Ss is not. the same, as that. asserted ' by United

*An air carrier's obligations myer the Railway Labor Act aré

also enforceable through "proceedings before the Civil Aeronautics

B ‘rd under Section 401(k)(4) of the Federal’ Aviation -Aet_ of

958 (49 T. S. C. § 1301, ef seq.). - This section provides that

‘complinnes with the eRailwav Labor Aet is a condition of «the

eee ¥ earrier’s holding its certificate of public convenienc e and necessity.

% gin such a proceeding hefore the C.A.B. the carrier would be -fore-

t closed from raising any, quéstions as to the pronriety of the desig- —

nation of:a bargaining representative by the Mediation Board. See

Southern Pilots Ass’n v. Civgl. Aeronautics Roard.3823 F. 2d 288,

+ 290°(C. A.D. C., 1963), cert. cen. 84 S. Ct. | 966 (1964).

x 19 «= at ; * ?

Vv c al

here. United’s right was not created™by Congress, but

4 .

rather was limited by Congress. Henee evet if this case

sought judicial ‘review of the merits of the Board’s craft -.. -.

_. or elass determination it would not be barred by Switch-

men’s. This case raises, the constitutional question express-

«ly reserved. hee : e,

As a preliminary.step to its holding that Board craft or

class determinations are not reviewable, ‘the Court held in ~

, Switchmen’s that Congress had imposed on the Board the

_ duty to make such determinations. That the Court did not

" intend to foreclose all judicial examination of the exercise

of this duty is apparent from a footnote comment in Gen-

- eral Committee v. M-K.-T. R. Co., 320 U.S. 323, 336 n.12

— (1943), decided thé. same day: - teeta: :

‘¢Whether -judicial power may ever. be exerted to Fe- |

‘quire the Mediation Board to exercise the ‘duty’ im-

posed upon it under ¢ 2, Ninth and, if so, the type or.

* types-of situations in which it may be invoked present: —

questions not involved here.”’ .

2 e : . :

The. instant case involves -the Beard’s obligation under

‘the Constitution and the statute toutilize fair procedure *

in making the craft or class determination. Switchmen’s —

‘s no bar to review of the Board’s failure to exercise this

duty..-

D: The Board Was in Error-in Denying United Admini.

strative Standing and in Accepting Whatever Bargain-

-ing Unit the Unions Agreed Upon. =

This petition raises the question not only of Tnited’s

judiciat standing to complain that the Board procedures

denied’ it procedural due process but the, merits of the .

Board’s position that United lacks administrative stand-

ing as a party in interest on craft or class determinations,

The Court of Appeals’ failure to decide the ‘‘close ques-

rs scape eagle 2 Ao . 4 rat

sf - . 2 : = -

8 ‘ 6 ‘ 20 ‘ R

ton’* of United’s judicial iene has the effect of de-

-. ¢iding adversely to United, without any judicial inquiry, ©

the ‘ultimate question of the Board’ 8 duty and United's

rights before the Board.

The Board's position on the gitimate - quettion is that

United as an employer may_not be a partysto a representa-

tion dispute under Section 2 Ninth of the Railway Labor

Act. Thé implicit assuniption i is that if labor organizations —

which. the Board recognizes as parties in interest are in >

“ agreement on the bargaining unit, then the Board has no

obligation to exercisexits own discretion or r to hear _—

& pire objecting employer. |

3 ») The. Board fails to differentiate between the itciitain

o . ‘Sia of the scope of the bargaining unit and the selection

©. of the representative once the unit is determined. The

former is the Board’s business, as an administrative

agency. Persons having an ecoriomic interest in the mat-

ter have a right to be heard. The selection of the -repre- -

‘sentative for the designated unit is the business of. a

majority of the employees, front? which the employer is |

properly excluded. But his exclusion. from this part of °

the process does not warrant excluding him’ from the deter-

‘: mination’ of the scope of the bargaining unit, in oe he

has a substantial interest. . ‘

The distinction was clearly drawn by the Distriet of

Columbia Court of Appeals in UNA Chapter, Flight Engi-

neers International Association v. National Mediation

Board, 294 F. 2d 905, 908 (1964), cert.’ den. 368° U. . 956 °

( 1962Y, . where the Court stated:

‘‘Under the Railway Labor Act ‘only the NMB (or the

committee designated by it) has the power to make®

craft or class determinations : . . The right given .to _

employees ‘is that of designating, by a majority of

those comprising a ‘eraft or class,’ their representa-

- tives.’’..

The Mediation Board’s view of its power and duty to ~.

‘. make eraft or class determinations on the basis of relevant -

evidence. was-elearly. stated’ to this Court in the Board’s

. . brief in Opposition to, the -Flight ‘Engineers Association

petition for a writ of certiorari in the UNA Chapter case:

‘On the merits; petitioner’s objections are equally

unavailing. In éssence it claims that once a craft or

—~—¢lass-is-recognized it may not change. . Petitioney*¥e-

lies on the fact that it represented the flight engineers _

in past bargaining with the carrier. However, Con:

‘gress has charged the Board (or its Committee) ivith

‘Ya duty to find the eraft or class to be whatever. it ts,

not what it used to be. Where employees—such as

pilots: and flight engineers in this age of jets—change

¢ \ in function, duties, interests, skills and responsibilities

+” ‘asa result of technological development in the industry; .

the. Board must recognize, the change. . Notwithstand-

ing petitioner’s assertions, the Board neither destroyed __>

nor created a‘craft or class. Pursuant to the directive _

of Section 2 Ninth, of the Rajlway Labor Act, it made

a finding that there is today a existing craft or class

of flight deck crew members.’’ (Brief in Opposition

of Natidnal Mediation Board, Supreme Court No. 531,

October Term, 1961, ‘pp. 13-14. Emphasis added,)

‘Nothing in- the Railway Labor: Act or in the .Board’s

statement to this Court of its ‘duty under the Act justifies —

"the failure of the Board to make a rational determination

of the craft.oy class here solely because two competing

labor: organizations agreed on how to split up United’s

employees. It may well have: been that.if the Board had

heatd United’s evidence concerning the impact of elec-

troni¢ computers on reservations systems, record keeping®

and billing, and the resulting ‘¢change in functions, duties,

- interests, skills and responsibilities’’ of its employees, it

-might. have found another craft or class appropriate de-

spite the agreement of the JAM and BRC. ‘As the Board

-has elsewhere acknowledged, ‘‘. . . In the Board’s investi-

——

' was not arbitrarily made, but simply manifested adke

it- must rely on the carrier for information needed jn con-

sidering the dispute:*t-’ Eastern Air Lines: RMB Oe N

R-3639, December 5, 1963. ee :

The Board suggested below that its determination here

ence-to-its 1947 determination in R-1706. Even ii

of the. Board’s statement to this Court in’the UNA Chap-

_ ter case that Congress charged it ‘‘with a duty to’ find the

craft or-class to be whatever it is, not What it used-to be.”’

gation of such matters under Section 2, ehh, ef the Act, _

~were true, decision on such a ground would fly in the face.

We have shown at #. 5, ‘supra, that the Board has not —

‘blindly followed R-1706 in other cases imwhich evidence

Pale are recognized_on. only-one-fifth of the, inegarriers.

was taken. Indeed, the- unit lines wns in that cases

Moreover, affidavits in this proceed ng demonstrate that A

if the two labor organizations had agreed to a different

unit. The record includes a letter from the IAM to the

BRC, sent after the latter amended its application to in-

clude employees“then represented by the TAM, in which

letter the IAM commented on the possibility of the craft

sented employees. This letter statesi.

‘After discussing this: matter further with the Na-

tional Mediation Board, we were assured that if*an

’ agreement, could be reached between your Organiza-

‘tion and our Organization, which would exclude all

employees in the craft or class presently represented

by our Organization, the Beard would conduct an

election among the remaining employees. in ‘the craft

'. or class without establishing..a precedent that could_

be used by any other organizadion on any other prop-

erty.”’ (JA 139). . ok sp Ss

The complaint alleged that the determination was arbi-

- trarily. and capriciously made without any hearing and

. °

_. the Board was prepared to accept a different craft or class -

or class being again amended to exclude the IAM-repre- |

- :

° a»

a .

5 nen % “ ary

: : mt. Live}

s .< ae

CAT:

. Cy

without consideration of its effeet on United. The record” ,

_ clearly supports: the conclusion that:the Board simply ac-

f° eepted the grouping agreed upon by the two unions and

made no independent inquiry or determination. ;

This. Geirt has ‘elsewhere commented upen administra-

_-.___ “tive determinations-arbitrarily and capriciously made: °

i © . “The Exécutive Orggr contains ho express or im-

2 - plied attempt to confer power on anyone to act arbi- .

trarily or capriciously—even assuming a constitutional

power to do so... . An “&ppropriate’ governmental

‘determination’ must be the result of a process of

reasening. Itseannot be an arbitrary fiat contrary to

the known facts. This is inherent in the meaning of

“¢determination.’ It is jniplicit n.a-goverenent of Sve

aes ____and-net-of men.”” Jomt Anti-Fascist Refugee Com-

—<S somittee v. McGrath, 341 U. S. 123, 136 (1951).

: Section, 2 Ninth of the Railway Labor Act establishing

. election proeedures for determining bargaining representa-. |

o@ tives was added by the 1934 améndments to the Act. 48 —

CStat.. 1188, The constitutionnlity of: this section was at-

tacked in Virgintan Railivay Co. v. Susfem Federation,

. 300 U.S. 515 (1937), hy an employer who contended that

the provision. denied it due process since it ‘posed an

obligation on the employey to negatiate with a labor or- ©

ganization authorized to represent its employees and re-

strained it from making agreements with any other labor .

| organization, (at 541). The Court held that the statute

_ imposed the affirmative duty to treat only with the ‘‘true

> representative’? and the negative duty to treat. with no

- other.. The Court concluded that. the “‘limited duties’? im-

posed ‘‘cannot be said to be so.arbitrary or unreasonable

as to infringe due process." (at 548-49, 558-59.) .:

a é

The-employer in- Virginian also®challenged the certifi-

ee ‘ - & ‘ ® : .

eee ' ae :

: 2A: oR

cation. of a particular representative on the basis of ‘ts

having received a tliajority of the votes cast, not a majority © .,

‘of those eligible to participate. The Court held that this ;

procedure was not inconsistent with Section 2 Fourth of

“, the Act which gives to the majority of the employees in a

craft or class the right to determine the bargaining repre- —

~ sentative: The Court held that the non-voter is ‘‘presumed

to assent to. the expressed. will of the tnajority., of .those

voting’ and added that otherwise “an indifferent minority

eould prevent the resolution of a contest.” 300 U. S. at

. 560. > ° ’ 5 3 . .

* The Board’s ballot, by not permitting? an eligible em-

ployee to cast a valid ballot for no representative, enlarges.

thé ‘limited duty”’ imposed by/the Act and does not insure:

that the certified representative. will be or can reasonably

be presumed: to be the. ‘‘true represéntative”’. of the

majority of the employees. For since the Board will con-

‘ . gider an election to be valid if a majority of the’ eligible

voters participate, and will certify on. the basis of &

inajority of those participating, then 25% plus one vote will

be ‘sufficient to select the. representative. The rationale

of Virginian was that the non-voter is presumed to assent —

to the will of the majority of those voting. But if the

represented except by not voting, then the presumption -

_. falls. It can hardly be presumed that he assents to the

choice of those voting, if his very reason for’ not woting

ig that he desires none of the available choices. | | 3

The Board justifies: this illogical résult on the ground

that there is a Congressional mandate that employees desig- -*

nate representatives and that a ballot which permitted em- -

ployees, to vote for no representation would cireumvent |

this mandate (JA 86). Thus the>Board -converts the

‘right’? given employees under Section 2 Fourth of the

—

-. the Wagner Act (Appex#

_ NLRB v. Jones & Lau

of the Railway.. Labor Act.

2a : ; +

* Railway — Act to select a bargaining vepuebniteline

into a ‘‘duty’’ to do so. .

This result is completely contrary v4 the practice of the

\ National Labor Relations Board operating under statutory.

provisions completely analogous’ in ‘this respect to those

VOf. S€etions 2 Fourth: and +

iXct and Sections 7 and 9(a) of .

x D, infra, pp. xiv-xvi). See —

in, 301 U.S. 1, 44 (1937), holding

Section 9(a) of the Wagner Act to be the analogue of Sec-

tion 2 Ninth of the Railway Labor:Act, and Associated Press

v. NLRB, 301 VU. S. 103, 130 (1937), to the same: effect.

Ninth of the Railway Labo

. The National Labor Relations Boartl has always permitted |

var

TAt

- an employee to cast a valid ‘ballot for no representation.

BInterlake/Iron Corporation, 4 NLRB 55 (1937); JA 101.

That the National ‘Labor Relations Board practice, rather

‘thaw ‘that of the ‘National Me@iation Board, conforms _, ee

Congressional intent is clear from the legislative history of

Section 2 Ninth of the Railway Labor Act. The 1934

~ amendments to that Act were drafted by Joseph B. East-

man, and his views on thé amendments have been accepted

as authoritative : by: this Court: Switchmen’s. Union v,

“ National Mediation Board, 320 U. S:-297, 302 (1943). Comz,

missioner Eastman testified beforé-Congress that the bill—

**does not require 5 collective bargainihg on the part of

the employees. .If the employees do not wish a

ganize, prefer to deal individually with the manage-

' ment with regard to these matters, why, that course

~ is left open to them; or it should be.’’? (Hearings on. .

H. R. 7650, House Comm. on Interstate and Foreign -

Commeree, 73rd Cong. 2d Sess. 1934, Py 57.)

Senator Wagner, ‘ifs response to a criticism of: an in-

dustry. witness that the amendments would have the effect .

of compelling employees to join untons, stated :

“eT didn; t weslerstand these. prov isions compelled an

g .

. .

» . od}-

_ employee to join any particular union. — I thought the

purpgse of it was just the qpposite, to see that the

_ then Have absolute liberty to join or not join any union

or to remain unorganized.’’? (Hearings on 5, 3266,

Sen. Comm. ‘on Interstate Commerce, 73rd Cong.- 2d

Sess. 1934, p. 76.) .2 * 3 é

There are additional’examples in committee reports and

- hearings to the same effect. XNéne’ supports t 6 Board’s.

position that it was the intent of Congress, that an employee

be required to seléctca representative. See H. Report

1944, House Comm. on Interstate and Foreign Commerce,

73rd Cong. 2¢ ‘Sess. 1934, p. 2; Hearings on S. 3266, Sen.

Comm. on nterstate Commeree, 73rd ae 9d Sess. 1934;

p. 12. ES ape nehy Bee ets N

‘Since the Board’s ballot does affect and enlarge upon \

‘obligations imposed on United as a carrier under the Rail-"

way Labor,Act, United has judicial standing to complain

that the Board’s ballot is inconsistent with the require-

<gaents of the Act. -Hence if the Court should grant

eertiorari to review ,the affirmance of J dge Youngdahl’s —

order restraining -the use of an improper. ballot: by the

Board, United’s petition respecting ,this point should also

be granted so that it may have an opportunity to, present

its views to the Court: | . aS ER

: ong,

CONCLUSION -

| It was not United’s position below, and it is not its

i position here, ghat this Court or any court should decide

the appropriate craft or class, or that United is not, sub--

ject to regulation in this area. United does not deny the

authority of the Mediation. Board to ‘make craft or class ~

- determinations,,.. United’s position is simply that it has‘the—

_ right to-be heard by the Board and have its position given

serious consideration. ous ia

“nr

.The Board tii cosigininia below:that this itiegatice has

delayed the resolution of a representation dispute, ahd has

frustrated the Congressional intent as expressed i in Switch-

“men’s that once the Board exercised its duty, to determine

the craft or class, ‘“There was to be no drag out of the

‘controversy into other tribunals of Jaw.’’ ©320 U. S. 297 at —

305. Prompt resolution of this dispute is as important to

- United as it is to the ‘interested labor: organizations, its

employees or the public: But promptness is no excuse

ba arbitrary action, or for fa ilure by the Board to exer-

e the duty imposece én it by the Railway Labor Act, or

Be the Houting of United’s” right to be hearde _The im-

portant questions as to whether the. Board’s procedure

was arbitrary, : unfair and’ unlawful and.whether an ag-

grieved earrier has any remedy “against such procedure

should be determined by this Court, so that hereafter |

representation disputes maf. be aetped fairly’ as well as

promptly. ° : 3

United respectfully requests that. for ‘the for egoing rea-_

sons this petition - “he granted.

: ; Respectfully: submitted, eee :

eae 7 pe Maschinen Brown, -

— ~Rosert L. STERN,

oe -.”* Sruarr BERNSTEIN, 20 se

es ees : -- 231 S#La Salle Street,

Chicago, Minois,

ane Counsel .for Petitioner.

Of Counsel: . 8 oe sd

- Mayer, Wanfocaew, Spiess, Freeney,

Brown & Puatrt, |

, 231 S. La Salle. Street, ea .

Chicago, Illinois,

Sabo

“+ 5) AP PBNDEX A.

UniIteD States Court OF APPEALS — | f

~ For the District of Columbia Cireuit.

ee - September ‘Term, 1963. .

peek oaeeas

No. 17,777 ce 3 Jota ee

United Air Lines, Inc.,

-A ellant,

reese

National Mediation Board,. et a.

} : Appellees.

#8618, 068° .

National Mediation Board, et a : "

3 : Appellants, fae. \/

* VS. - A OE

= Civil 973-63 ~.

hssoeiniite for the Benefit of Non- Sg j . ee

Contract Employees,

ee yt Appellee. se

_ Civil 402-63

——y

No. 18,072: 3

Brotherhood of hatteas and Stéam- |.

ship .Clerks; Freight Handlers, |

" Express and: Station Employees, |

. Appellant, ee Mere g ‘

oe Praga , Cwval S02

- Association fot the Benefit .of Non-: oT Fy fe

Contract Employees, = GD,

‘ Appellee. J hee

Aigotale from the United. States District “Court for the

= District of’ Columbia. | i ~ :

~WBefore: Wievr K. Mrz, At and Waicitt, Cir- |

cuit Judges. ;

‘

‘JUDGMENT.

These cases éame on to be heard on ‘the records on appeals

_from the United States District Court for the District of

Columbia, and were argued by counsel. -

On CONSIDERATION MHEREOF, it is s ordered oad adjudged.

by’ this court:

(1) that: the judgment of the District Court ‘ on appeal

in cases Nos. 18,068 and’ 18,072 is hereby affirmed; and

(2) that the judgment of the District Court on appeal

in ease No. 17, 777 is also affirmed.

pain Per a.

Dated: ‘Méech 12, 1964.

. Separate opinion we Circuit Judge Wright concurring in

| affirmance in ease No. 17,777.an dissenting from affirmance

in cas& Nos. 18, 068 and 18, 07

iii

APPENDIX B.

“* Usitep Sratés Court OF APPEALS

For the District ‘of Columbia Circuit.\,

SE Es

United Air Lines, Ines Appellant

vs.

: ~ National sciasuaianks —" gk al., Appellees

= Ps : “ ——

, _

a. No. ° al

National Mediation Board, et al., A bbe slants:

vs.

- Association for the Benefit of Non-Contract

Employees, Appellee .

No: 18 072

Brotherhood” of Raikway and Steamship Clerks, “Freight

Handlers, sap ciauat ‘and Station Emaployeee, Appellant .

vs . : ro

Association for the Benefit of Non-Contract

Employees, Appellee

Neeoeie't from the,U nited States District Court

for the District of Columbia

° —* March 12, 1364

7 2 zie

Reilly was on the brief, for appellant in No. 17,777.

. or P +

. 3 = mes

. .*

a te OE nae

Mr. Milton Kramer, with whom Mr. James L. Highsaw,

Jr., was on the brief, | for appellant in No. 18,072.

Mr. Howard E™Shapiro, Attorney, Department of Jus-

tice, with whom sistant “Attorney ‘General Douglas,

Messrs. David C. Acheson, United’ States Attorney, and ~

Morton Hollander, Attorney, Department of Justice, were

on the brief, for appellees\in No.’ 17,777 and for appel-

lants in No. 18,068.

Mr. Alex L. Arguello, of the bar of the Supreme Court

_of California, pro hac vice, by oni leave of court, with

~ whom Mr. ‘Jerome C. Muys was on the brief, for appellee

in No. 18,068 and No. 18,072. Mr. Davt Booth Beers also

ehtered an appearance for — in No, 18,068 and No,

18,072.

_ Mr. John E. Stephen filed a brief on a cof. Air.

Transport Association of America, as amicus cu)

ing reversal in No. 17,777.

Mr. William G. Mahone: y filed a brief on behalf of

way Labor Executives’ Association. as amicus curt

urging affirmance in No. 17, 777. | aN

Before WILBUR K. Mum, 5 Bastian and Wrron, Cireuit a

Judges.

Per Curiam: These three appeals se been consoli-

dated by this court. In our view Nos. 48068 and 18,072

should be disposed of first, although they are later in their

'-“nufabering. , . ¢ ‘*

' In No. 18,068, the National Mediation Board appeals

-. from an order issued by the District Court which, among

other things, restrains the Board from conducting a rep-

resentation election.

-In No. 18,072, the Brotherhood of Railway pa Steam-

‘ship Clerks, Freight. Handlers, Express and Statioff Em:

ployes appeals from the same order. |

. . oe

" The order appealed from is as follows:

nently: enjoined from conducting any election among

the ‘Clerical, Office, Stores, Fleet and Passenger Serv-

_ jee employees’ of United Air Lines, Inc.,’in: which the

form of the:ballot does not permit a voting employee

’ to cast. a vote against collective bargaining represen-_

~ tation, and it is Naik ee ie i

‘«FP-urtHer Orverep That the ‘plaintiff’s request that

the Board shall conduct a hearing relating to the

question of the appropriateness of-class or craft*of -

employees among whom the election was to be held,

at which hearing the plaintiff could be sheard as a

. remanded to- the Board for further considerafion in.

the light of the Court's conclusion that the Railway

Labor Act, 45 U. S. C. $151 et seq gives.employees a

‘right to‘have a_ ballot on which they may express a

preference for no collective bargaining ‘representa-

tion.””. - :

The opinion of Judge Youngdahl, of the District Court,

‘is found in-218 F. Supp. 114 (1963) and is adopted by us

as the opinion of this court. —Tt follows thatthe: judg-

ment of the District Court in these cases must be af-

firmed. - ;

In No. 17,777, United Air Lines, Inc. appea!s from the

dismissal by the District Court of its action filed to en-

_join -the election proposed by the National Mediation

Board. The grounds for dismissal of the action are not

stated in the ‘court’s order but, as one of the grounds

urged was lack of standing on the part of United Air

Lines, we’ assume it was on this ground that the suit was -

dismissed. The close question as to United’s standing,

about which there is a dearth of authority, causes us con-

cern. We have decided, however, not to disturb the Dis-

trict. Court’s. dismissal, because our decision in the other

two cases affords the relief, concerning the form of the

ballot which ‘United sought. — | ae

——— o

No. 18,068 is affirmed.

; - * No, 18,072 is.affirmed.

' os No, 17,777 is affirmed. -

Waicnt, Circuit Judge, concurring in part and dissent- )

ing in part: In No. 17,777 of this consolidated litigation,

- United Air, Lines appeals from. the Distriet~Court’s re-

fusal to enjoin the National Mediation Board from. con-

ducting a representation élection under Section 2, Ninth,

of the Railway Labor Act. 48 Stat., 1188, 45 U.S. C.\§ 152, ..

Ninth. In Nos. 18,068 and 18,072, the National Mediation

Board and the Brotherhood of Railway and, Steamship *

Clerks appeal from the granting of:an injunction against

the Board, by the same court through a.different judge,

restraining it from conducting the same election which is

the subject of the United Air Lines-suit. The second ‘in-

junction. action was brought! by certain employees of

United Air Lines who claim to want ‘to represent them-

selves individually in their labor negotiations with their»

employer. I agree with the court that in No. 17,777 the.

United Air Lin@ injunction proceeding was properly dis-

missed by the District Court. I respectfully dissent from

its affrmance in: Nos. 18,068 and 18,072 npholding the

issuance of the injunction against the ‘National Mediation

Board. . ike :

-Since the United Air Lines suit and the action brought

by some. of its employees appear; to have a common in-

_spiration as well as common issues, I shall treat them to-

‘gether. Both United and its “appellee ‘employees, here

- called ABNE,’? urge two grounds for enjoining the Board |

1. The employees’ action was brought after United Air Lines’

application for an injunction was denied.

‘ : : vii ore

- from sunning its duty under the Act: (1) The Board

_ jmproperly determined the bargaining unit craft or class

to be ‘‘clerical, office, stores, fleet and passenger service

employees’’; ‘and (2) the Board proposes to use in the

election a form of ballot. which does not provide -a space

~ for the employee to vote against representation.

- The craft or | class _repognized by -the-Board™ as the

_ proper bargaining» unit for the proposed election is the

same as that recognized in its 1947 proceeding. Case No.

R-1706, Determinations of Graft or Class of the National

Mediation Board (1947). There has been no change in

- the classification. since that time. “After considering the

representations by United as to-the need for’ change, the

Board determined that it would follow its prior. ruling.

‘Thus United and-ABNE ‘would have the court: reweigh

these class eonsiderations. and substitute its judgment for

the Board’s.

With reference to ‘te form of ballot, space is ‘provided

to vote for either of the competing unions.* A third blank

space is indicated ‘for voting for a representative not t

named on the ballot. That same blank space may be used

for voting for ‘sno union’”’ or ‘‘no representation.’’ Sec-

‘tion 2, Fourth; of the Railway Labor: Act provides, in

part: ‘‘The majority of any ‘craft or class of employees

shall have the right to determine who ‘shall be the repre- |

sentative of the craft or ‘class for the purposes of this

Act.’ Thus, if a majority of the craft or class actually

votes for representation, a representative may be selected.

If a majority fails to vote, the Board may not certify a

representative. Radio Officers’ U nion v. National Media-

tion Board, 86 U. S. App. D. C. 319, 181 F. 2d: 801 (1950).

In addition, the admitted practice of thé Board is to add the

3. The two competing unions shown on the ballot were the

Brotherhood of Railway and Steamship Clerks and the Interna- O°

tional’ “Association of Machinists.

4. 48 Stat. 1187, 45 U. S. C. $152, Fourth.

‘

viii

number voting ‘‘no union’’ to the number not:voting in

; determining whether a majority of the employees eligible .

to vote. actually voted for representation.

en District Court’s action. enjoining the Board from

conducting the election here is in the teeth of a host of

cases from the Supreme Court, from this court, and from |

the Circuit Courts‘atound the country. In the interest of

economy, I shall sifmply list seriatim the reasons why this

. injunction should not have been issned and briefly com-

ment on each... /.

1. The District Court was without jurisdiction to “

join the. National. Mediation Board from couducting an

election to resolve ‘the - representation dispute at United

Air Lines. Switchmen’s Union v. National Mediation

Board, 320 U. S. 297 (1943). In upholding the action of

Union ‘said, ‘‘-* * if Congress had desired to. implicate

the federal judiciary and to place on the federal courts

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

problem, it would have made its-desire plain.’’ . 320:U. S.

at 303, (Emphasis added.) Unlike the National Labor

- Relations Act,> the Railway Labor Act has no provision -

for judicial review. Switchmen’s Uniow Was. reinforced --

by three.other cases® handed down bythe Supteme Court

‘at the same term, and the force of these decisions has

continued, unmodified by Congress, down to the present

day.’

5. 49 Stat. 453, 29 U.S. C.-§ 159(d).

6. General Committee of Adjustment v. Missouri-Kansas-Texas

R. cher U. §. 323 (1943) ; General Committee of Adjustment v.

Southern) Pacifié-Co., 320 U. S: 338 (1943) ; and Brotherhood of

Railway & Steamship Clerks, etc. v. United Transport Service Em-

ployees, 320'U. S: 715 (1943) (per curiam). : ;

7. Order of Railway Conductors v. National Mediation Bd., 79

(1944) ; Radio Officers’ Union v. National Mediation Board, supra;

Rutas Aereas-Nacionales, S. A. v. Edwards, 100. U.S. App. D. C.

‘® 366, 244 F. 2d 784 (1957) ; Decker vs3V enezolana, 103 U. S. App.

—_

'. 2. The ballot which the Distriet Court has ordered

‘changed before an election can, be conducted has been

used. by the Board and its predecessor, the Railway La-

_ bor Board, since 1921 in over 3,400 élections. In the -43

_years\ since ‘1921, Congress has not indicated the slightest

disapproval of the Board’s election machinery— including

its ballot. Moreover, no,court, except the District Court

here, in the ABNE case but. not in the United case, has

found this ballet.unlawful.’ And this court has approved

its use as a prdéper exercise of the Board’s discretion

within the intendment.of the Act. Decker v, Venezolana,

supra Note 7 (see briefs).” 6

D. C. 301, 258 F. $d 153 (1958); Air Line Stewards &. Steward-

esses Ass’n v. National Mediation Board, 111 U.S. App. D. C. 126,

Chapter, Flight Eng. I. Ass’n v. Natignal Mediation Bd., 11-U. S.

App. D. C. 121, 294 F. 2d 905 (196), cert. denied, 368 UW ae

(1962); WES Chapter, Flight Eng. Int. Ass’n y. National Me ia-

- tion Bd., 114 U.S. App. D. C229, 314 F. 2d 234 (1962). Among’

* decisions from other courts are Brotherhood of Ry. & 8S. Clerks,

etc. v. Virginian Ry. Co., 4 Cir., 125 F. 2d 853 (1942); Rose v:

Brotherhood of Railway and Steamship Clks., 4 Cir., 181 F. 2d 944, |

cert. denied, 340 U. S. 851 (1950) ; Flight Engineers’ Inter. Ass’n

v. Eastern Air Lines, -‘Inc., 2 Cir., 311 F. 2d 745, cert. denied, 373

U. S. 924 (1963) ; Ruby v. American Airlines, Inc., 2 Cie. 333 F. -

2d 248 (1963) }cert. pending. $

- 8. But cf. McNulty v. National Mediation Board, 'N. D. N. Y.+

18 F. Supp. 4% (1936). a ;

9. The Decker case involved the jurisdiction ‘of the - District

Court to review.the action of the Mediation Board. Paragraph

8 of the amended complaint there raised the same issue ‘which is

’ paised here: - Slt hes EI 5:

‘‘TDue process was denied] in that the ballot used in the

election had no space on it for-a vote to the effect that the

employee did not want anyone.. defendant I. A. M. or anyone >

else, to represent him.”’ °

That issue was preserved on appeal, in paragraph 1b of the Ques-

tions Presented : _ 4 Be Pe

4«@ # ® the right*to [due process] was defied by use of a

ballot which gave no way to vote against representation by

JJ, any bargaining agent.’’ : ¢

Affirming the dismissal of the complaint, this court stated, ‘‘We

- hold that the prehibition of the Switehmen’s case applies in the __

circumstances of this case.’’ 103-U. S. App. D. C. at 302, 258

F. 2d at 154. :

; pD nce? §

" “9 "he Board’s craft or class deter: ination is unre-

viewable. This court has so held in’ at least four cases,

ene at the last term of court. WES Chapter,-Flight Eng. _

Int. Ass’n v. National Mediation Bd., supra Note 7; Air, -

Line Stewards é Stewardesses Ass’n'v. National Media-

tion Board, supra Note’7; UNA Chapter, Flight Eng. I.

Ass’n v. National Mediation Bd., supta Note 7; Radio Of-.*

» ficers’? Union v. National Mediation Board, swpra. The

Fourth Circuit, in Rose v. Brotherhood of Railway and

Steamship Clks., supra Note 7, 181 F. 2d at 946, summed

it up-well: & ee: . :

. . . *In'the light of the decisions of the Supreme Court,

‘there can be. no doubt that the effect of this statute

was to vest in the Mediation Board exclusive juris-

‘diction over the certification of. bargaining . agents,

the determination of bargaining units and the classi-

fication of employees for the purposes of bargaining.

And it is equally clear that the exercise of discretion

by the board with respect to such matters is not sub- _

ject to review by the courts. ** *” (Emphasis

added.) re :

4. United Air Lines lacks standing fo challenge the

- Board’s aetion. The purpose of the Railway Labor Act is.

to guarantee employees complete freedom to organize—

freedom from employer interference. This Act was passed,

as the Government asserts, ‘‘to put an end to the harmful

consequences of * * * individual dealing between large car-_

“riers and small employees. Machinists v. Street, 367 U. S.

Texas & N.O. R. Co. v. Brotherhood of Railway and

Steamship Clerks, 281 U.S. 548, 570.” United’s obliga-

tion under the Act is not ‘‘to interfere im any way with

the organization of its employees.”’, Railway Labor Act,

§2, Fourth. (Emphasis added.) And. this obligation in-.

cludes refraining from filing, or inspiring, ‘litigation Ve-

signed to block or delay representation elections «con-

ducted by ‘the National Mediation Board. :

5.. There is no Leedom v. Kyne, 358 U. S. 184 (1958),

question here. It is not even suggested that the Board

has acted contrary to a plainly and expressly: defined

statutory duty, nor has: the Board here ¢onceded that it

has so acted, as in Leedom, This principle has been ex-

pounded recently by this court in a series of cases sé

there should be no doubt ‘about its application.. WES

Chapter, Flight Eng. Int. Ass’n v. National Mediution.Bd.,

supra Note 7; Air Line Stewards & Stewardesses Ass’n Vv.

National Mediation Board, supra Note 7; UNA Chapter, .

Flight Eng. I. Ass’n-v. National Mediation Bd., supra Note |

7. Ty-the UNA case we said (111 U. S. App. D. C. at 124,

$04. Od at 908):

“Appellant urges, however, that jurisdiction exists

- under ‘the« Supreme -Court’s decision in Leedom v.

_ Kyne, 1958, 358° U.S. 184, 79 S. Ct. 180, 3 L. Ed. 2d_

210, We eannot agree. In Leedom the Supreme Couft

carefully differentiated Switchmen’s Union from the

ease before it, pointing out that the latter did not in-

= velve ‘review’ of agency action, but the striking down —

of action in excess of delegated powers, in flat viola-

tion of the controlling statute—there the Labor Man-

agement Relations Act, 29 U.S. C. A. § 14: et se See

358 U. S. at pages 188-190, 79 S. Ct. at pages 969-186

It should be noted, also, that in Leedom v..Kyne the

Nati@hal Labor Relations Board did ‘not deny that it —

had.contravened its governing statute. See 358 US an

at page 187, 79 S. Ct. at page 183. Né such admission

is made here, and appellant has not pointed out any

clear statutory limitation expressed by the. Railway

Labor Act which has been violated by the NMB.

* * *» (Emphasis added.) | Bete.

6: ‘There is a demonstrable lack of equity in the appli-

’- eation for the injunction against holding the election.

ABNE, the no-contract employees’ group, claims it repre-

xii

sents ‘more than half of the employees eligible to vote in |

the election. If so, its remedy is to tell its members either

' ‘not té vote or to vote for. no represegtation._ As shown,

if its membership complies with’ the nstru¢tions, there

will not’ be a majority voting for

representation and, con- —

sequently, no representative will be-certified. As indicated

during oral argument, this was precisely the result of the

yoting—or not voting—in the representation election held

‘recently at Lake Central Airlines. No irfeparable injury

is shown, therefore, if the election here is conducted as

ordered by the Board: = *

This litigation is a throwback

to the early days of the .

1900’s when federal courts were used to deliver individual

‘workmen unrepresented to the bargaining table of their

- employer. See, ¢.9., Adair -v. United States, 208 U. S.:161

(1908); Adkins v. Children’s Hospital, 261 U. 8. 525 (1923). .

_ I thought those days were qver.

I. regret my inability to agree with my distinguished

6 prethren in réspect.to this’ litigation. Respectfully I dis- —

sent from thé court’s ruling\upholding this. injanction.. ’

' Seen

* -Spvarr BERNSTEIN.

APPENDIX 0.

" ‘Unrrep States Distaiér Court

For the District of Columbia. —

United Air Lifes, Inc., ’

ane Plaintif,|, =~ °

. | oe, Civil No. 402-63.

National Mediation Board, et al.,.|'.. s

: an Be Defendants. 2

_ Order.

__: Upon consideration of defendants’ motion to dismiss or

in the alternative for summary judgment, plaintiff’s motion -

Ts for: preliminary -injunction, and -the Court having consid-

ered the pleadings, affidavits and exhibits of record, and

the parties having filed memoranda of points-and authori-

ties in support of and in opposition to said motions, -and

_after hearing oral argument by counsel for the respective

parties in open. court, and the Court having determined

that there is no genuine issue of material fact it is by the

Court this 25th day of March, 1963, cles

Orperep: that defendants’ motion for summary judg- fe

ment be, and the same is, hereby granted ; and the com-

plaint be, and the same hereby is, dismissed with preju-

Fourraer Orperep: that plaintiff’s motion for prelim-

inary injunction be, and-the same hereby is dismissed a8 —

moot. “te awe

]

BurwirA SHELTON MATTHEWS, :

“ United States District Judge.

“xiv.

-; APPENDIX D. Nace

- Constitutional and Statutory Provisions Involved.

~-U. & Constitution, Amend. V:,

“«., [NJoy shall any person . . "be deprived of, life,

liberty, or property, without due process of law; nor .

shall private property be taken for public use, ‘without

_ just compensation.’ — cia eas

- Railway Labor Act: | et en

-Sectio’ 2 Fourth, 48-Stat. 1187, 45,U. 8. C. g152

* Fourth: : ii, egies udexs ska

‘Fourth. Employees shall -have the right to organ- |

ize.and bargain collectively through ‘representatives *

of their own choosing. The majority of any craft or .

class of employees shall liavetthe right to determine

who shall be the representative ‘of the craft.or class

~ for. the: purposes of this Act. No carrier, its officers,

or agents, shall deny or in any way question the

right of its’ employees to join, organize, or assistan |

it shall be unlawful fer any carrier to interfere~ in

any way with the orgahization -of its employees, or -.

to use the funds of the carrier’ in maintaining or:

assisting or” contributing to any labor organization,

labor representative, or other agency of collective

bargaining, or in performing any work therefor,. or

to influence or coerce étaployees in an effort to induce *

them to join or remain¢or not to join or gxemain mem-

bers of any labor organization, or to deduct, from the.

«wages of employees any: dues, fees, assessments, or

other contributions payable to labor organizations,

- or to collect or fo assist in the collection of any such

dues, fees,-assessments, or other ¢ontributions. Pro-

vidéd, That nothing in this Act shall be construed to

prohibit a carrier from permitting an employee, in-'

"RV

| dividually, or local representatives of employees from

conferring with management: during working hours .” :

without loss of time; or tp prohibit a carrier from

furnishing free oe to-its employees ; while

engaged in the, businéss of a labor organization.”’

Section 2 Ninth, 48 Stat. 1188/45 U. 8. C. § 152 Ninth: .

‘‘Ninth. * If any dispute shall arise among a car-

‘yier’s employees as to whe are the represeptatives of

such employees designated and authorized in accord-

ance with the requirements of this Act, it shall be

' the ‘duty of the ‘Mediation Board, upon=request of

either party to the dispute, to investigate such dis-

_- pute and-to eertify to beth parties, in writing, within

‘thirty days after the receipt of the invocation ‘of its

services, the name or names of the individuals or

_ organizations that have been designated and author-:

ized to represent the employees involved in the dis--

pute, and certify the same to the carrier. - Upon re-

the representative so certified as the representative

of the eraft ‘or class for the purposes of this Act.

In -such an investigation, the Mediation Board shall

be authorized.to take a secret ballot of the employees

involved, or to. utilize any other appropriate method"

of aseertaining the names of their duly designated

and authorized representatives in such manner as, shall

‘insure the choice of representatives by the employees

witht interference, influence, or coercion e ‘reised _

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

purposes herein indicated the Board shall designate

who- may. participate in the election and establish the

rules to govern the election, or may appoint a com-—

mittee of three neutral persons who after hearing

-shall within ten days designate the employees who

may participate in the election. . The Board shall have

‘access to and have power to make copies of the books

and records of the carriers to ebtain and utilize such»

information as may be deemed necessary by it to carry

out the purposes and provisions of this paragraph.”’

. Wagner Act:

Beetion 7,. 49 Stat. 452:

‘*Employees shall have” the. right to self-organiza-

tion, to form,’ join, or assist labor organizations, to

- bargain collectively through: representatives of their

own choosing, and to engage in concerted activities,

for the purpose of collective bargaining or other

mutual aid or protection. vd

Section 9(a), 49 Stat. 453:

» ‘Representatives designated or selected for the- .

‘purposes of collective bargaining by the majority of

the employees i in a unit appropriateAgr such purposes, -.

shall be the exclusive representatives of all the em-

ployees in such unit for’ the purposes of. collective

of employment, or other conditions of employment:

- bargaining in respect to cong ‘pay, wages, hours

- Provided, That any individuak/employee or a group

i of employees shall have the right at any time to pre-_

sent. grievances tg their employer.”’

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.