# Petition for a Writ of Certiorari — 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%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1965 - **Citation:** 380 U.S. 650 ## Text ony a CMS LBZ Bes e TABLE OF CONTENTS. | PAGE 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 | 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 - 11 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. * ty i -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 | 13 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, as ee 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- - > . 15 ‘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 2 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). *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- 7. 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.’’.. ee 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 . ° n J _. 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 . 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 © nonsvoter has no way of expressing his desire to be. un- 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 a — -. 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 \e - 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}- 26 _ 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- 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. Yy 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 U. 8. App. D. C. 1, 141 F. 2d 366, cert. dismissed, 323: U. S. 166 © (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. —_ ~~ si 1x ¢ '. 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, 294 F. 2d .910- (1961), cert. denied, 369 U. S. 810 (1962) ; 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. 740, 760; Virginian Ry. v. Federation, 300 U. S. 515, 553; © 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- c @ xi 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.. ’ 4 ae ' 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- dice, and it is © : (eS 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 | organizing the labor organization of their chvice, and © 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-' Ce "RV a | 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- ceipt of such certification -the carrier shall treat with © 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.”’ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0165%3A04. Public record. Not legal advice.