Brief for the Petitioner — Railway Clerks v. Association for Benefit of Noncontract Employees

Supreme Court brief1965

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TABLE OF CONTENTS |

Opinions Below ..........- ey se ae es eee we See

Juriediction ..¢.......ceereedeceeee Pesieedsyentes ae

Questions Presented ...... scdelusepeapoubcuntiakye 2

| Statutes Involved: ..:......eeeeee ees deree ree esee es 3

Statement .2.....cceyieeteeeeereeeenees piee ddan 4

Summary of Argument ........ San pe eRe usanexs 19.

Argument - |

I. The Determinations of. the National Mediation

~ Board With Respect to the Composition of the

‘Craft or Class of Employees of United Air Lines®

- Among Whom a Representation Election Should ~

_.Be Held and the Form of Ballot to be Used in ~

- Such Election Are Not Subject to J udicial Review 22

Il. The A%tions of the National Mediation Board

Constituted a Reasonable Exercise of Its Discre- -

tion of the Manner in Which the Board Should »

_ Perform ‘Its-Functions Under Section 2, Ninth

_. of the Railway Labor Act in the Furtherance of ~

the Purposes of That Statute and. Do Not Vio-

late Any Statutory Command ..........-----> 33

paper NOE Oe eee paeuees oer 36

_ Appendix A ..... uv etueceunebeas tests ary as 37

@ — —. + "INDEX TO CITATIONS

“Cases: ~-

Airline Dispatchers Association, et al. v. National Me-

diation Board, et al., 189 F, 2d 685, 687, 688 (D.C.

Cir., 1951), cert. den, 342 U.S. 849 .......--; . 26, 27, 30.

Airline Stewards and Stewardesses Association .v.

. National Mediation Board, et al., 2% F. 2d 911

(D.C. Cir., 1961), cert. den. 369 US. De tistexeuss 26

Brotherhood of Railway and EE Clerks, Ete.

v. Atlantic Coast Line R. Co., 201 F. d 36 (4th Cir.,

OAS eS Gy DE aE Lea

Zeke

’

. ; Table of Contents Continued

Brotherhood of Railway and Steamship Clerks, et al.

- y, United Trahsport Service Employees of Amer- —

ica, et al., 1387 F. 2d 817, 320 U.S..715 (1943) .... 24

Decker, et al. v. Linea Aeropostal Venezolana, et al., 258

F. 2d 153 (D.C. Cir., 1958) ....4..-.2 +2 eee ee ees 26, 27

General Committee, BLE v. Missouri-K.-T. R. Co., 320

- * US. 323, 337 (1943) ........ eacheawakeee des © . .24, 25

Leedom v. Kyne, 358 U.S. 184, 189-190 (1958) ©... -. .28,30

National Federation of Railway Workers, et al. v.

(D.C. Cir., 1944) 02,2... c cece eee greet tener nee

Rose, et al. v. Brotherhood of Railway and Steamship

Clerks, 181-F. 2d 944 (4th Cir., 1950) ......-...-.

Page

Pn ie I ots od urea cvs Casveee 26

_ United Transport Service Employees of America, et al.

v. National Mediation Board, et al., 179 F. 2d 446

LO, Cle, IDED) inc ccccdesvccsocessvectcsecses 26

Virginian Railway Co. v. System Federation No. 40,

> “300 U.S. 515, 548, 553, 560 (1937) ...... 20, 21,.32, 34, 35

WES Chapter, Flight Engineers’ nternational Asso-

- eiation v. National- Mediation Board, et al., 314

W, 2d 284 (DO. Cir. 1962)... 002 ciecccccees eee,

SvaTurTEs: | oe : :

Federal Rules of Civil Procedure, Rule 73 .......:... 18

National Labor Relations Act (29 U.S.C.A., Section

HO(b){1)) ...- mececcess <Cieuewentaceene et eess

Railway Labor Act (45 U.S.C.A., Section 151 et seq.)

oe ye 2, 3, 4, 5, 7, 12, 19, 20, 22, 23,

24, 25, 26, 27, 29, 30, 31, 33, 34, 35

‘Transportation Act of 1920 (49 U.8.C.A., Section 204) 24

United States Code, Title 28, Section 1254(1) ..... ee

. United States Constitution .....0......-++-eeee seks

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eee eases .

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‘Supreme Court of the Auited States

—————

—— nl ——

_ No: 138

| ‘BROTHERHOOD or RAILWAY AND STEAMSHIP . CLERKS,

-FreicHt: HANDLERS, Express AND STATION Em- .

. PLOYES, Petitioner, eae ny A :

: 4 —¥. 27 pe

AssoctATIOy FoR THE BENEFIT oF Non-OoNTRACT ae

On Writ of Certiorari to the United States Court of Appeals:

for the District of Columbia Circuit _

_ BRIEF FOR PETITIONER

. OPINIONS BELOW

_ The opinion of the Court of Appeals (R. 175-183). 1

reported at 330 F.2d 853. The opinion of the United

-- States District Court for the District-of Columbia (R.

133-156) and the District Court’s supplemental opinion

(R. 166-170) are reported at 218 F. Supp: 114.

2 . emo wae .

_. JURISDICTION’ . . | ‘

‘The judgment of the Court of Appeals (R. 184,185) . _-

was entered on March 12; 1964. The petition for a

_.__-writ of certiorari was filed on June 1, 1964, and was

granted on October 12, 1964 (R. 188). The jurisdic. _ a tf

_ _ tion of this Court rests on Title 28, United States Code, -- Bey

_ c@Section 1254(1), Sa ae

«J. QUESTIONS PRESENTED ‘

"In the opinion of the petitioner, the following ques-

- (tions are presented: PON eins Sore eset

1. Are determinations. of the N ational Mediation

"Board in the conduct of a*representation investigation

_ (pursuant to the provisions of Section 2, Ninth of the

Railway Labor Act (a) refusing to hold a hearing for—

_ the purpose of redetermining the composition of an

already established craft or class of employees among

' ¢ whom a representation election-shall be held, and (b)

refusing to revise a long established form of ballot to |

~ be used in such an election to include thereon a spaée

for employees to affirmatively:vote against any repre-

sentation, subject to judicial review?’. |

2. If such determinations are subject:to judicial re-

“view, did the National Mediation Board violate any

_ Statutory command or abuse the discretion committed

to it by Section 2, Ninth of the Railway Labor- Act

in the conduct of a representation dispute by (a) .

refusing to hold a hearing for the purpose of ‘rede-.

termining the composition of an already established

_eraft or class of employees among whom a representa- —

*., tion election shall be held, and (b) refusing to revise

_ a long established form ‘of ballot to be used in such an

election to include thereon a space for employee$ to — ~

affirmatively vote against any representation?

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_ STATUTES INVOLVED ; j

The pringipal statutory provision involved hang .

tion 2, Ninth of the Railway Labor Act, (45 U.S

Section 152, Ninth). This Section reads as ni soa

* “Tf any dispute shall°arise among:a carriers sg

, rene as to who are the representatives of ©

employ ees designated and authorized in_ac-

a with the requirements of this chapter, it

‘shall. be the duty of the Mediation Board, upon

request of either to the dispute, to investi-

- gate such dispute and to certify to both parties,

in writing, within thirty days after the receipt of -

the invocation of its serVices, the name of names .— |

. of the individuals or organizations that have been

_ designated and authorized to represent the em-

_ployees involved in the core and certify the

_same 6. the carrier. U eiptof such certifi-

‘eation the carrier shall with the répresenta-

tive so certified‘as the representative of the craft

or class for the purposes of this chapter. In such

an investigation, the Mediation Board shall be au-

thorized to take a secret ballot of the employees

involved, or to utilize. any other appropriate

method of ascertaining ‘the names of their duly

designated and authorized representatives jn such

manner as shall insure the choice of representa-

tives by the employees without. interference, in-. ~

fluence, or coercion exercised by the carrier. In

-~ the conduct of any election for the pu herein -

indicated the Board shall designate who may: par-

ticipate in the election and establish the rules to

govern the election, or ‘may appoint a eommittee

' of three neutral persons who after hearing shal

within ten days designate the employees who may:

participate in the election. The Board shall have - -

aecess to and have power to make copies of the

books and ‘records of the carriers to obtain and

utilize such information as may be deemed. neces-

‘e . 4.

ae pa: Bary by it to carry out the purposes and provisions °

of this paragraph.” _.

Other statutory provisions cited are quoted in full in

_Appendix A‘hereto.

simee STATEMENT ee.

> This litigation had its origins in an application filed

- by the Brotherhood of Railway and Steamship Clerks

with the National Mediation, Board on August 24, 1962,

requesting a certification of the Brotherhood by. the

Mediation Board to represent, under the Railway

Labor Act (45 U.S.C.A., Section 151 et. seq.) the follow-

~~ ing eraft or class of employees of United Air Lines, .

_ Ine: (R. 36).

‘‘Commonly known as clerical, office; stores, (ex- -

cluding stores em ni represented as of Au- /

gust , 1962, by the International Association of’

hinists), fleet (excluding fleet service em-

_ . + ployees represented as of August 24, 1962 by the

ternational Association’ of Machinists) and

passenger service employees”... =

This application stated that there were 12,000 em-

ployees involved and there were submitted with the ap-*

plication 6,606 authorization cards of such group of

employees, stating their desire to be represented by

the Brotherhood. The ‘application further stated that

these employees were not now represénted by any or-

ganization-for purposes of the Railway Labor Act.

(R. 6, 36, 50.)! + |

‘The application was filed pursuant to the provisions

of Section 2, Ninth, of the Railway Labor Act (45

‘The Brotherhood was.the duly authorized representative un-

der the Railway Labor Act of the craft or class involved on Capital, . .

Airlines prior to the merger of that airline into United Air Lines.

_ on or about June 1, 1961. (R. 50.) :

| | 5 3

U.8.C.A., Section 152, Ninth), quoted in full page 3, ~

SUPTOp. » j ; ‘

~ On August 27, 1962, Mr. E. C. Thompson, Executive -

Secretary of the National Mediation Board, wrote to-

the President of the Brotherhood, acknowledging the °

application. ‘This letter also. contained the following -

statement: (R.48) °° a TP

“We observe from the craft description that oy

' .* stores employees represepted as of August 24,1962, ©,

by the International Association of Machinists, °

and fleet service ores represented by the

. game associatior as of the same date, are excluded

from the application. — . he Nae

‘Please advise us of the significance of the date

contained therein. . Is it the position of your or-

‘ganization that. employees hired in the excluded

a after August 24, 1962 would be covered

_ by the application?” 28 «= ida Sarg

In a letter, dated August 29, 1962, the President of -

the Brotherhood replied to Mr. Thompson. This letter

contained the following statement as to the reasons for

the Brotherhood’s application excluding certain em- ..

. ployees represented by’ the International Association.

- Of Machinists: (hereindfter called ‘‘IAM’’). -.

> ‘‘The meaning of our exclusion ‘was simply that

we did not intend { include in our application the

incumbent of any occupation or position repre-.

sented by the International Association of Ma-_ .

chinists on August 24, 1962, but we did intend to —

include the incumbents of all occupations in .those

categories if they were represented by the Inter-

» national Association of Machinists. by reason of. an'

agreement with the United Air Lines, Inc., entered

into at a date subsequent to August 24, 1962. Any”

., employe hired sas Air Lines susequent to

° ° G :

eet ae |

August 24, 1962, in the excluded categories,

- namely, those positions for. which the Interna-.. .

tional Association of reas on nT

pared mrp | agent as of August 24, , is to be ©

excluded from the representation dispute. __

_ “In other words, and to state it simply, we wish ._

-. to e it clear that our request for the services

of tlie Board is not intended to include the incum-

bent of any position for which the International

Association of Machinists was the collective bar-

. gaining agent on August 24, 1962, or the persons.

_ occupying those ‘positions subsequent thereto.

6T hope I have made it quite clear that we are

-not contending in our application to the Board

. + for the representation rights’of the occupant of ."

any position for which. the International Associ-

ation of Machinists had representation .rights on

- August 24,1962.% = = |

On. August 30, 1962, Mr. Thompson, by letter, ad-

vised United and the IAM of the Brotherhood applica-

tion. (R. 53.) : Ree tanger

On September 7, 1962, ‘United, in a letter signed by

Mr. Charles M. Mason, Senior Vice President, Per-

\ q

; Ke X

sonnel, advised the Mediation Board that, in its view,

the Brotherhood application ‘‘is inconsistent. with the

National Mediation Board’s determination of craft or

class in Case No. R-1706 ét al.’’ United, therefore, 7

. took the position that the application involved only a

_part of a group of employees which. the Board had.

- found to constitute a’craft or class and should be. dis-

missed. (R. 55.) In addition, United’s letter requested

that, in the event the Mediation Board-did not dismiss

the Brotherhood’s application; it should hold a public

hearing to determine ‘whether or not the proper craft

or class was that cieenh's in pee determinations of

the Media’ ard. 2

On September 11, 1962, the TAM, by letter, advised

’ the Mediation Board that “‘it is our considered opinion

that the craft or class of employees as requested by

the Brotherhood does not conform to the findings of |

your Board, particularly with reference to the craft,

- of class determination as set forth in Case R-1706

et al.”? (R.57.) |

Case No: R-1706 et ee which United ad the IAM .

cited, was a formal ision is#ied by the. Mediation —

| ; Board on January 31,\1947, identified as ‘‘In the Mat- |

ter of Representati of Employees of the National .

Airlines, Inc., Northgast Airlines, Inc.,,Pan American -

Airways, Ine., Perfnsylvania-Central “Airlines Corp.; ;

Radio Operators and: Teletype Operators; Clerical, _

- Office, Stores, Fleet and Passenger Service Employees. -

. —Determination of Craft or Class’’.? . In-this decision,

. the Mediation Board, upon the basis of extensive. find- .

ings of fact with respe spect to airline operations, and. the

duites of employees“involved .in such operations, de- ——-

_ termined that, for purposes of representation under

the Railway Labor Act, clerical and office employees,

including office attendants, stores employees, fleet serv-

‘ice employees and passenger service employees consti-

ae | tuted a craft or class.

On October 5, 1962, the Brotherhood, in the light of

the United and IAM objectives, amended its applica- .

tion to include the entire craft or class of clerical office,

stores, fleet and passenger service employees of United, ~

as described i in Mediation Board. determination R-1706.

-2 The case. savalvea Mediation Board Dockets “Nos. R-1706;

- -'R-1708; R-1719; R-1720; R-1721; R-1729; R-1735.. (R. 37. y

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-“(R. 59.) ‘The ‘amended application we dona as

NMB Case ‘No. R-3590 on November 8, 196

2. (R. 37.).

‘On November 19, 1962, the Mediation Board assigned

"a mediator to check the authorization cards furnished

by, the. Brdtherhood:-in support .of its application

against a list of employees of the carrier (R. 37). On

‘ December 19, 1962, the Mediation Board authorized —

that an eéction be conducted among the employees in- |

‘volved based on the mediator’s report. that his investi-. “

gation showed sufficient evidence to warrant a finding

_ that a representation dispute existed-among these em- |

" ployees under the Board’s rules. (R. 37.) On the —

same day, the mediator requested United to furnish,

by January 14, 1963, for the purposes of such election,

a list of the employees involved, showing names,.occu- --

pations, locations, and home mfailing address. (RB. 37.)

’ On January 11, 1963, United advised the Mediation

Board by letter that the mediator’s request for the'list

° a :

Seana

> ~ _—

: ..

of employees to conduct ‘an election “‘is premature in — :

th@absence of a ruling from the Mediation “Board on

- the request of United made September 7, .1962 that a

public hearing be held to establish the proper crafts

and classes on United.’’ The letter further stated that :

United renewed its request that such a public. hearing

be held. ‘(R. 61.) In fact, United, by its letter of

September 7, 1962, had requested“a hearing for such a,

redetermination of the craft or class only’ in the event

that the Board did not’ dismiss the Brotherhegd’s

original application because it did not cofer the who

_eraft or class set forth in the Mediation Board’s de-

termination identified as R-1706. (R. 56.) When. the.

Brotherhood amended the application on. October 5,

1962 to’ embrace the whole craft or class covered by

that detertnination, that objection was eliminated, and’.

©.

‘ \ er eee a

- United did not

"_. — supply a list of the employees for the purpose of hold-

ing an election on the Brotherhood’s amended. applica-

tion to ask for a hearing to rédetermine the scope of

, the craft or class. :

On January 17, 1963, Mr. Thompson, by direction

ofthe Mediation Board, advised United that its request

for a hearing was denied. Mr. Thompson’s letter read,

* in pertinent part, as follows: (R. 70)

_. “The/ application filed by the Brotherhood of

_ Railway and Steamship Clerks on August 24, 1962

was not.dismissed, and wis Subsequently amended

to cover-the craft or class commonly known as

Clerical, Office, Stores, Fleet and Passenger Serv-'

ice Employees. You were so advised by copy of

Mr. Harrison’s letter of October 5,- 1962 trans-

mitted with copy -of our letter to Mr. Harrison

. dated .October 8, 1962. © aap

“In our letter of October 24, 1962, addressed to

you and President Hayes of the International As- .

‘sociation of Machinists, we inquired whether you

were in a position to furnish the number of em-

ployees in this craft or class as requested in the

‘last paragraph*of our letter of October. 8; 1962.

On November 2, 1962. you replied and stated ‘the

records of United Air Lines indiéate there is a

total of 12,451 employees as of October 15, 1962 in

such craft as we understand it’. You further

stated this figure did not inchide 339 employees |

_ classified as Lead Janitors or Cleaning Women as

of October 15, 1962. Your letter of November 2,

1962 indicated-a-clear understanding of what. is

meant by the craft or class commonly known as

ey cs Office, Stores, Fleet and Passenger Serv-

gs)

make another ‘request for a hearitig. <.

~ It waited until January 11,1963, or more thanthree

weeks after the mediator had requested the carrier to —

ot,

ss oy

| | ice Employees as refefred to in the ‘Board’s de-

termination issued in NMB Case No. R-1706, et al. —

fe . : , z

The various comments made in the remainder

"of your letter of January 11, 1963 have been given .

careful consideration by the Board. The Board

wishes to call your attention, first, to the fact that

the carrier is not a party to this representation .

dispute. Secondly, no request for a review of the

eraft or class established by the Board’s determi-

nation in Case No. R-1706, et al. has been received -

from either organization party to NMB Case No...

R-3590:~. The request contamed in your letter of.

January 11, 1963 is not timely made, since the

Board, on December 19, 1962, found that a repre-

sentation dispute existed among the employees in

this craft,or class, and, uthorized am election.

-., -° Bor the above reasons, the Board must deny:

- your request of January 11, 1963 for a public hear-

* «ing on the subject of a review of the determination

made in Pase No. R-1706, et al.’’ (Emphasis added)

The. letter cbncluded by requesting United to furnish

- promptly to.the mediator the necessary information

regarding the employees involved, so that an election

could be held. ee niet ne poe

‘On January 18, 1963, United addressed a letter to

' the Chairman of the Mediation Board, stating that it

was ‘‘willing”’ to allow a ballot box election on the com-

pany property, provided.that the Board should use a -

form.of ballot which would provide a space for “‘no

representation’’. This letter also stated that“‘we want

to make it: very clear that United Air Lines recognizes _

that how a representation election is conducted is the ~

* function of the National Mediation Board’’. The letter

stated, however, that the.carrier strongly felt that the

ballot previously used by the Board was not adequate

~ because it did not provide a space for the employee

to vote ‘‘no representation”. (R..39.)

On January 24, 1963, the Executive Secretary of: the

Mediation Board, at the direction.of the Board, re-

plied to United’s letter, advising the carrier that it

saw ‘‘no reason to deviate from its customary form of —

ballot in the current dispute, and it will be used by the

-niediator in conducting the election in Case No. R--

3590”. (R. 86.) This letter read, in pertinent part,

as follows: ie : a 7

. ~

_ Ag you state in your letter, the form of ballot

presently used was adopted by the Board in 1934

and has been used since that time as the form best

designated to ascertain the representation desires

of a carrier’s employees for the purpose of collec-

tive — The blank line appearing on’ the

fy)

present form of ballot affords an opportunity to the.

voter to vote for some organization or individual

other than those named on the ballot,. or he may

refrain from voting at all if he so chooses. There

is no compulsion that he vote for a contestant for

representation. Introduction of a-‘‘yes’’ or “‘no”’

_ ballot would contribute to, if it did not actually

encourage, an attempt to circumvent the mandate

of Congress that representatives be designated by

earriers and their employees for the purposes de-

scribed in Seetion 2, First and Seco d.

“way Labor Act * * *.” |

‘The form of ballot to which the Mediation Board’s

letter refers as having been in use since 1934, provides

a square in which the voting employee may mark an.

“6X? if he wishes to vote to be represented by any of

the organizations or ‘individuals whose names are

listed thereon. It also has an additional space in which

, the employee may insert the name of any other organi-

nce >

of the Rail-.

sation ¢ or individual whom he desires to represent him.

ee 87, 112.) ‘

The background and reason for this traditional form

of ballot used by the Mediation Board in somé 3,400

representation elections under the Railway Labor Act

since 1934 is stated - the Board as follows: (R. 162, —

163) :

< Qecnsliasiity, it is < paula that the ballot ;

used .by the National Mediation Board’ does ‘not

+ permit a clear expression by a majority of eligible

voters of the representation preference. The —

Mediation Board adopted, among the first rules

issued by it, its present form of ballot and it has

. been used consistently since’that time.

“The pertinent part of the ballot. provides a

space to vote for the contending organizations and,

in addition thereto, the following: :

_ If you desite to -be represented by any other

organization or individual.write. the name of

iw. organization « or ae 2 in the space be-

° Ww. is , .

| And ae an ax in this’ square oO:

“The form of ballot used is based on the general

purpose of the Railway Labor Act as contained in.

section 2, which provides, among other purposes,

for the complete independence of carriers and of

employees in the matter of self organization; and,

‘to provide for the prompt and orderly settlement

of all disputes concerning rates of pay, rules of

working conditions.’ In the furtherance of these

general purposes, section 2, second, of the act

makes it the duty of ‘the carriers ‘and their em-

ployees . to consider and, if possible, decide, all dis-

putes, ‘in conference between representatives des-

ignated and authorized so to confer, ne

13 F

this act, shall be designated by the respective par-

ties without interference, influence, or coercion by -

either party after\the designation of representa-

tives by the other * we pects Seas

‘The above-quoted exeerpts from the act show

_—tlearly that it was the.intent of Congress in fram-

. ing the 1934 amendments to the original Railway .

Labor Act of 1926, that both the carriers and em-

ployees separately designate representatives for

the purposes of collective bargaining. To effectu-

ate this mandate of the Congress, the «National.

Mediation Board, in 1934, designed the form of

ballot which has been used without material

change tothe present time. This ballot was drafted

to permit the employees to secure some form of

representation, as contemplated in the sections of

the law quoted above. It leaves to the majority

of the employees of any craft or class full freedom

_ to determine who shall be their representative for

the purposes of the act.”’ : .

On January 25, 1963, United wrote to the Mediation

Board, asking the Board to reconsider the Board’s re-

fusal to hold a publi¢ hearing to redetermine the se@pe -

~ of the class or craft involved, as requested in United’s .

letter of January 11, 1963. .(R. 72.) On February 4,

1963, the Mediation Board denied United’s request for

_ reconsideration of the Board’s ‘earlier decision not to —

“redetermine the cfaft or class involved. (R. 76.)

_« On February 1, 1963, United requested reconsidera-

~ tion of the Mediation Board’s decision of January 24,

- 1963 with respect to the form of ballot to be used in the

impending representation election upon the property

of the carrier. (R. 89.) This request was denied by

the Mediation Board on February 6, 1963, on the basis |

of the reasons previously given. (R. | See :

On: February 4, 1963, the mediator inquired of

United as to the status ‘of its list. of the employees

. eligible to vote in the;representation election and was

. advised by the carrier that the list would be completed

by approximately February 11, 1963. (R. 39.) On that ~

date, the mediator made further inquiry concerning

the status of the list and was advised that the. carrier

had Weécided to refuse to furnish the list. The carrier =

formally notified the Board of its refusal: by letter of

the same date. (R. 40.) . Pais

Also on February 12, 1963, United filed a complaint

. in the United States District Court for _the District of

Columbia, United Air Limes, Inc., v. National Media-

a et al. (Civil Action 402-63), in which

nited asked the District Court to enjoin the Media- .

tion Board from eonducting any election among the

earrier’s employees or certifying any representation

with respect thereto upon the Brotherhood’s applica- -

_ tion in Case No. R-3590 without first conducting a

hearing, and according United an opportunity to be

heard as a party in interest, on the question: of the

appropriateness of the class or craft of employees -

among whom the election should be held. In addition,

, the complaint asked the Court to erijoin the Mediation

Board from conducting the election unless the form of —

ballot used permitted an eligible employee affirmatively

to vote against representation..

On March 25, 1963, the ‘District Court ‘lulled a

motion of the National Mediation Board to dismiss the

complaint. Thereafter, United appealed this judgment

and .order to the Court of Appeals. Such appeal was

designated as Case No. 17,777. _

15.

In the meantime, on February 14,1963, the Assoica-

tion for the Benefit of Non-Contract Employees filed a

petition with the National Mediation Board, asking |

leave to intervene in the representation proceedings

before that Board in Case No. R-3590. This petition

also requested (1) a redetermination of the eraft or

class grouping involved in the election, either with or

without a hearing, and (2) that the form of ballot to ©

be-used in the representation election be changed to

provide a place for employees to vote affirmatively

for ‘no representation. (R. 43, 102.)° On February .

24, 1963, the Association advised the Board that it

did not seek recognition as a bargaining agent and did

not want its name on the election ballot, and would be

‘dissolved after it had served its: purpose. (R. 111.)

- . On March 27, 1963, the Mediation Board denied the

petition of the Association. (R. 14, 26, 44.) On April

5, 1963, such Association requested reconsideration of

this action, which the Mediation Board denied on April

- 12, 1963. (R. 44, 49, 111.) a .

-The Mediation Board completed the formulation of

an eligible list of voters and the representation election

‘was scheduled to be conducted by mail ballot-et April

99, 1963. (R. 26, 27.) On April 13, 1963, the Associ-

ation filed a complaint in the United States District

Court for the District of Columbia, asking that Court

to enjoin the Mediation Board from conducting such

‘election among the class or craft involved unless the

Board should (1) first conduct a hearing relative to

the appropriateness of the class or craft designated ;

- (2) grant the Association status as a party in said

hearing; and (3) offer a ballot-upon which voting em-

ployees could vote for or against representation. (R.

— 4-9.) : |

- +

The Association also filed a motion fora preliminary |

injunction on April 13, 1963 (R. 2,22), which was op- —

posed by the National Mediation Board. (R. 35.)

On .April 18, 1963, the District Court issued a tem-

porary: restraining order prohibiting the Mediation

Board from conducting ‘the “representation - election

_ scheduled for April 22, 1963. (R. 2, 33.)

On May 3, 1963, the District Court granted a pre- —

; liminary injunction which read as follows: (R. 132)

~~ ~"“6ORDERED That the plaintiff’s motion for.a pre-

‘liminary injunction enjoining the defendant from

_ conducting any election among the ‘Clerical, Office,

- ‘Stores, Fleet.and Passenger Service employees’ of

United Air. Lines, Ine., in which the form of ballot

‘ does not pérmit a voting employee to cast a vote

against collective bargaining representation shall

be and the same is‘hereby granted, and it is

‘‘FURTHER ORDERED. That the defendant shall

have one week from today’s date to, show cause

why -the preliminary injunction above . granted

shall not be made permanent, and it is.

‘“ FURTHER OxpERED That the plaintiff’s request

that the Board shall pb wh a hearing relating to

the. question of the appropriateness of class or

eraft of employees among whom the election was

. to be held, at which hearing the plaintiff could be -

heard as a party in interest, shall be and the same

‘is hereby remanded to the Board for further con- .

sideration 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 col- -

lective bargaining representation.” —

This preliminary injunction was accompanied by find-

ings of fact and conclusions of law. -(R..129-156.)

‘17

- On May 10, 1963, the Mediation. Board filed « motion

_ to dismiss the complaint, or in the alternative for sum-

mary judgment. (R. 159.) At the same time the Board

responded to the District Court’s order of May 3, 1963, —

to show cause why the preliminary injunction should

not be made permanent, opposing a permanent injunc-

tion and requesting:that the preliminary injunction be

vacated or stayedto permit the Mediation Board to

conduct the proposed election. (R. 158.) |

- On May 8, 1963, the Brotherhood filed a petition to

intervene asa party defendant in the case and tendered

to the District Court an answer to the complaint. (R.

3, 157.) By order dated May 29, 1963, the District

Court granted the BrotHerhood’s motion to intervene.

(R. 171.) ' ees

On May 29, 1963, the District Court also entered its

final judgment and order, which enjoined the National

Mediation Board in the conduct of an investigation of

the representation dispute on the property of United

as follows: (R. 170) 2 Deets eo:

‘‘FURTHER ORDERED That the Board is hereby

permanently enjoined from conducting any elec-

tion among the ‘Clerical, Office, Stores, Fleet and

Passenger Service employees’ of United Air Lines,

Ine., in which the form of the ballot does not per-.

mit a voting employee to cast a vote against collec-

tive bargaining representation, and it is

: ¢PorTHER OrpERED 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

_ heard as a party in interest, sh be and the same

is hereby remanded to the Board for further-con-

sideration 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 representation.”’

On July 16, 1963, the Brotherhood ‘appealed the

judgment of the District Court by. filing a notice of

-appeal in accordance with the provisions of Rule 73

of the Federal Rules.of Civil Procedure. (R. 172.)

This appeal was designated as Case No. 18,072.. On

_ July 26, 1963, the National Mediation Board filed a

notice of appeal from the judgment of the District

Court. (R.173.) This‘appeal was designated as Case

- No. 18,068. | o

The Court of Appeals consolidated United’s appeal

from the District Court order dismissing its Com-

plaint in Case No. 17,777 with Cases Nos. 18,068 and

18,072 for hearing and decision. On March 12, 1964,

the Court of Appeals issued its opinion in the consoli-

‘ dated cases. (R. 175-177.) In this opinion, the Court -

of Appeals affirmed the judgment of the District Court

dismissing the complaint of United on the grounds that

’ the carrier lacked standing to sue. The opinion affirmed

the judgment of the District Court on the appeals of

the Brotherhood and the National Mediation Board in ©

Cases Nos. 18,068 and 18,072. ;

- Circuit Judge Wright filed a separate concurring»

and dissenting opinion. (R. 178-183.) In this opinion,

‘Judge Wright concurred in the decision to affirm the

! District Court’s dismissal of the complaint by United,

put dissented from the majority opinion affirming: the

District Court’s judgment on the appeals of the Broth-

erhood and the National. Mediation Board. —

The majority opinion affirming the District Court’s .

judgment on the appeals of the Brotherhood and the

National’Mediation Board adopted the opinion of the

District Court. (R. 177.) nas :

SUMMARY OF ARGUMENT

Sectiof 2, Ninth of the Railway Labor Act plgces -

a duty upon the National Mediation Board at the re-

quest of employees of a carrier parties to a representa-

' tion dispute on the property. of a carrier to investigate

the dispute and certify the name or names of the indi-

viduals or organizations designated and authorized to

represent the employees involved.‘ The statute does. —

not require the National Mediation Board to follow

any designated procedure in the conduct of such in-

vestigation. It specifically authorizes the Board to

take a secret ballot of the employees involved or. ‘‘to

— utilize any other appropriate method’’ of ascertaining

the duly designated and authorized representatives of

the carrier’s employees in such manner as to insure a

choice without interference, influence, or coercion ex-.

ercised by the carrier. If the Board ‘determines to

conduct an election the statute provides that it shall

designate who may participate and establish the rules

to govern such election. The Brotherhood requested

the Board under this statutory provision to investigate

and determine the representatives of a craft or class”

of employees of United Air Lines known as clerical,’

office, stores, and passenger service employees. A

determination of the composition of this craft or class

on the property of United among whom a representa-

tion-election should be held is committed to the ‘Na-

tional Mediation Board by Congress and such determi-

nation is not subject to judicial review. Likewise, a

determination by the Mediation Board as to the form .

“$

—

_ wise, a determination by the Board that it would not .

. . _ F _ . «

. . A ° / i

° e yf f

ty ge

exercise of,discretion by the Mediation Board as to the

rules to govern such election which is not subject to

| judicial review. Switchmen’s Union of North Amer-

ica} et al. v. National M ediation Board, et al.,320 U.S. -

* Re decision of the Mediation Board not to hold a

‘- hearing for the purpose of redetermining*the compo- .

S sition of the craft or class among whom the representa- ~-

tion election should be held’does not violate any right

granted to United Air Lines or to any of the employees

- Of that carrier by Section 2, Ninth of the Railway

Labor Act or by the United States Constitution. Like-

revise the form of ballot to be used ‘in ‘such representa-

tion élection so as to include thereon a place for em-

ployees to affirmatively vote ‘‘no union” does not vio- .

late any right given to the carrier or to its employees _..

by either the United States Constitution or Section 2, | ,

Ninth or any other provision of the Railway Labor ‘é

Act. These determinations constitute decisions as to

the manner in which the Mediation Board shall carry

out its functions under Section 2; Ninth and are not

_ thus subject to judicial review.: The decision below

that the Mediation Board’s determinatfon' violates the

" stated policy of the Railway Labor Act of majority

determination isin érror since the Board requires a

majority of the craft\or class to vote in an election

before it will certify a representative. Virginian

Railway Co. v. System Federation No. 40, 300 US. 515, -

The basic purpose of the Railway Labor Act ..(45

U.S.C.A., Sections 151 et seq.) is to avoid interrup-

20 é : P ; * x ) 7 ms)

of balk to be used in such an election constitutes an

&»

tions to commerce or to the opetation of carriers en- °

gaged therein and to provide for/the prompt and

orderly settlement of disputes between employees and —

carriers. ‘The statute is aimed at accomplishing this "

purpose by inducing collective bargaining between

representatives of the employees and carriers to settle

labor disputes. This basic purpose of the statute was |

recognized by this Court in Virginian Railway Co. v.

System Federation No. 40; 300. U.S. 515. oa

The determinations made by the Mediation Board

“with respect to the composition of the craft or class in

this case reasonably contribute. to such purpose with-

~out depriving either United Air Lines or any of. its

employees of any constitutional or statutory right. In

_ refusing to conduct a hearing to redetermine the-pre-

_ viously established compositiomof the craft or class of

United’s employees among whom a representation elec-

- tion would be held, the Mediation Board was simply .

exercising its disctetiqn to maintain the stability. of —

existing eollective bargaining agreements and em-

ployee-employer relationships in the airline industry.

The Board’s decision to continue in use a form of bal-

‘ot which it has successfully used for more than 30

years in some 3400 representation elections was based

’ upon a long standing and publicly stated belief that

such forth of ballot contributed to the statutory scheme

while a revision of the ballot as requested would con-

tribute to, if not actually encourage, the circumvention

of the Congressional purpose. ‘This is a reasonable

and valid judgment, There is no compulsion upon any

employee to vote for any representative or to Vote in

the representation election at all. If the employee

- does not wish to have a representative, he may refrain

from voting for any one of those seeking eertification

asa representative. If a majority of the employees:

do not wish to vote for aorepresentative, then none

ig the subject of this litigation, was taken in the course

‘of that Board’s conduct of an investigation to deter-

Clerks to the Board under Section 2, Ninth of the Rail-

way Labor Act. The cited statutory provision (quoted

‘and authorized representative of the employees in

volved. It further requires the carrier ‘involved to

treat with the representative so certified. The statute

does not direct that the Mediation Board shall conduct

its investigation in any particular manner. Indeed, -

the statute specifically authorizes the Board to conduct

. a representation election among the employees involved

or to utilize “‘any other appropriate method’’ of ascer-

taining the authorized rep! ntative. The only limita-

tion is that the method used shall insure the choice of

_ representatives ‘‘without interference, influence or

}

a ey,

9°

coercion exercised by the earrier.’’ The statute spe-

F ae

aes 23

. Gifieally provides that if the Board does decide-to hold

a rep tation election it shall designate the par-

ticipants “ it shall establish the rules to govern the

Saat cas Wa ge |

nt ease, the Nationa}Mediation Board

decided in the. conduct the investigation required of :it

2, Ninth of the statute to hold a

representation )

Air Lines. For this-purpose, it exercised its statutory

authority to designate the employees who would par-

ticipate in such representation éléction. ‘This designa-

tion embraced the long established craft or class of

elerical, office, stores, and fleet and enger service .

employees as such craft or class had previously been

determined by the Board. (R. 37.) The Board re-

fused the request of both United and the Association

‘ for the Benefit of on-Contract Employees to either

"change the craft or \class or conduct a hearing for the

purpose of redeternii ing such craft or class. (R. 70,

e Board also exercised its statu-

blish’ the rules governing such

election, including the form of ballot to be used there-

in. In so doing, it refused the request of both United.

and.the Association for the Benefit of Non-Contract

Employees to revise the form of ballot to be' used to

specifically provide thereon a place for the employees

_ to affirmatively vote ‘‘no union”. (R. 86, 89, 111.)

The Brotherhood, submits that these actions of the

Mediation Board constituted. determinations of the

. Board as to the manner in which it should conduct its

-- duties’ under Section 2, Ninth of the Railway Labor °

- Act and are not subject to judicial review.

_ In 1943, this Court held that determinations of the

National Mediation Board with respect to matters com-

& *

election on the property of United -

EEE eens——

mitted to the Board’s judgment under Section 2, Ninth

of the Railway Labor Act were not subject to. judicial

review. Switchmen’s Union-of North America, et al..

v. National Mediation Board, et al., 320 U.S. 297

(1943) ; General Committee, BLE v. Missouri-K.-T. R-

Co., 320 .U.S. 323 (1943) ; Brotherhood of Railway and

Steamship Clerks, et al. v.cUnited. Transport Service

Employees of. America, et al., 320 U.S. 715 (1943).*

- In the Switchmen’s Union case, this Court referred to

. the extreme eare which Congress. had taken in the en-

actment of Section 2, Ninth to protect’ the Mediation’ ~

- Board in the handling of representation problems |

(pages 302, 303). The Court then observed as follows:

‘‘Where Congress took such great pains to protect —

the Mediation Board in its handling of an explo-

sive problem, we cannot help but believe that if -

Congress had desired to implicate the federal judi-

ciary and to place on the federal courts the burden

of. having the final say on any aspect of the prob-

lem, it would have made its desire plain.’’ "

This Court also compared the authority of the Medi- —

_ ation Board under Section 2, Ninth to that of the Inter-

.* state Commerce Commission under Section 204 of the

. Transportation Act of 1920, the exercise of which was.

‘not subject to judicial review whether the Commission —

s ° : -

een

8 In the latter case, this Court reversed.a judgment of the United

States Court of Appeals for the District of Columbia Circuit sub- ~

_ jeeting to judicial review a determination of the National Media-

tion Board to dismiss an application’ for invesitgation of a repre- -

sentation dispute. Brotherhood of Railway and Steamship Clerks,

‘et al..v. United Transport Service Employees of America, 137. F. 2d

817 (1943). a be ae

-“

ry 4 | 25

-nade‘s an error of fact or of. law, and set forth ne fol-

lowing conclusion: (page 305) |

“

‘*In the present-case the satiie of the Media-

tion Board i in election disputes to interpret the

meaning of ‘craft’ as used in the statute is no less

clear and no less essential to the performance of

its duty. The statutory command that the deci-

sion of the Board shall be obeyed is no less explicit.

Under this Act?Congress did not give the Board

discretion to. take or - withhold action, to grant or

deny relief. . It gave it no enforcement functions.

It was-to find the fact and then cease. Congress

prescribed the command. Like the command in the

Butte A. & P. R. Co. Case it contained no excep-

tion. Here as in that case the intent seems plain— —

the dispute was to reach its last terminal point

when the administrative finding was made. There

was to be no dragging out of the controversy into

other tribunals of law.’’

In the’ General Committee case, decided on the same

day, this Court likewise refused to review a decision

of the National Mediation Board in a controversy be-

tween two unions as to which was the proper collective

bargaining representative under the Railway Labor

Act. In its opinion in that case, the Court stated as

- follows: (page 337)

“In view of the pattern of this leaiilition and -

its history the command of the Act should be ‘ex-

. plicit and the purpose to afford a judicial remedy

plain before an obligation enforcible in the courts

should: be implied. Unless that test is met the

assumption must be that Congress fashioned a

remedy available only in other tribunals. There .-

may be as a result many areas in this field where

neither the administrative nor the judicial. func-

tion can be utilized. But that is only to be expected

‘

- 26

where Congress still places sucli great reliance on

the voluntary process of conciliation, mediation —

and arbitration.”’

These decisions have been the established law with

‘ respect to detefminations of the National Mediation

Board in the performance of its functions under Sec-

tion 2, Ninth for more than two decades. During this

- period of time, the lower Federal courts have consist-

ently refused to review determinations of the National

Mediation Board as to the manner in which it shall

conduct its investigation under Section 2, Ninth and

the decisions which it has made in the conduct of such

investigations. WES Chapter, Flight Engineers’

- International Association v. National Mediation Board,

et al., 314 F.2d 234 (D.C. Cir., 1962); UNA Chapter,

Flight Engineers’ International Association v. National

Mediation Board, et al., 294 F.2d 905 (D.C. Cir., 1961) ;

Airline Stewards and Stewardesses Association v. Na-

tional Mediation Board, et al., 294 F.2d 911 (D.C. Cir.,

1961), cert. den. 369 U.S. 810; Decker, et al. v. Linea

, Aeropostal Venezolana, et al., 258 F.2d 153 (D.C. Cir.,

1958); Airline Dispatchers Association, et al. v. Na-

tional Mediation Board, et al., 189 F.2d 685 (D.C. Cir.,

1951), cert. den. 342 U.S. 849; United Transport Serv-

ice Employees of America, et al. v. National M ediation

- Board, et al., 179 F.2d 446 (D.C. Cir., 1949) ; United

Transport Service Employees of America, et al. V. Na-

tional Mediation Board, et al., 141 F.2d.724 (D.C. Cir.,- .

1944) ; National Federation of Railway Workers, et al.

v. National Mediation Board, et al., 141 F.2d 725 (D.C.

Cir.,-1944) ; Brotherhood of Railway and Steamship

Clerks, Etc. v. Atlantic Coast Line R. Co., 201 F.2d 36 .

(Ath. Cir., 1953) ; Rose, et’ al: v. Brothérhood of Ratl-

way and Steamship Clerks, 181 F.2d 944 (4th Cir.,

1950). :

on:

These decisions included the decision of the Court of

Appeals for the District of ColumbiewWircuit in the

Decker case, supra,.in which that court sustained a dis-

missal of a complaint alleging that the Mediation Board

chad denied a right to vote of certain employees in a

representation election and made the precise challenge -

to the form of ballot used by the Mediation Board as

is made in the present case.

The one case in which a determination of the Na-

tional Mediation Board under Section 2, Ninth was

subjected to review during this period was the decision

in Airline Dispatchers Association; et al. v. National

Mediation Board, et al., 189 F.2d 685 (D.C. Cir., 1951),

cert. den. 342 U.S. 849. In that case the Mediation

Board had made a determination that it did not have

any power to act under Section 2, Ninth with respect.

to a representation dispute involving employees of

United States air carriers employed outside of the

United States. The question presented for judicial re-

view was whether or not the Board’s interpretation of

the statute was correct. In holding that the decision

of the Board with respect to such a question was sub-

ject to judicial review, the Court of Appeals drew a

sharp distinction between such an issue and cases con-

cerning issues of the manner in which the Board has _

performed its functions under Section 2, Ninth. It

pointed out that decisions of the Mediation Board in — |

the latter category were not subject to judicial review. .

That Court’s statement on this point read as follows:

(pages. 687-688)

‘In’ each of these cases‘ the Board had chosen _

between alternate methods of settling a dispute |

‘The reference was to cases in-which judicial review of Media- |

tion Board determinations had been rejected.

PADRES SIE IN, CC A BE OE Pa eae LED im GAIA OE AEE LAD I LAA RE SLE T BS OLA) SER EESTI NO a RR

{

-over representation under Section-2, Ninth, of the

Act. The question was not as to the power of the ..

Board to resolve the dispute but whether it had

done so in‘an erroneous manner. The case now

before us is quite different. Here there has been ~

‘a refusal to take any action to resolve the dispute,

upon the view that Congress has not extended the.

powers of the Board to an employer and its em-

ployees geographically situated as are these. dis-

putants; that is, outside the continental United -

States and its territories. This in no sense is Board

action within the framework of Section 2, Ninth,

or, indeed, within any other of the provisions of

the Act for administrative resolution of industrial-

labor disputes. This is a different ‘type of prob- |

lem’ (320 U.S. at page 301, 64 S.Ct. at page 97, 88

_ L.Ed. 61).”’ aap

Similarly, in the case of Leedom v. Kyne, 358 U.S.

- 184 (1958), this Court held that a decision of the Na-

_ tional Labor Relations Board, which was in dire¢t vio-

* lation of a specific statutory: command of Section 9

(b)(1) of the National Laber Relations Act (29 U.S.-

C.A., Section 159(b)(1)), was. subject to judicial-re-

view. . This Court explained the ‘difference between

such situation and that involved in the Switchmen’s

Union case in the following language. (pages 189-190)

‘In Switchmen’s Union v, National Mediation

Court held that the District Court did not have

jurisdiction of an original suit to review an order

of the National Mediation Board determining that

all yardmen of the rail lines operated by the New

York Central System constituted an appropriate

bargaining unit, because the Railway Labor Board

had acted within its delegated powers. Btt in the

course of that opinion the Court announced prin-

ciples that are controlling here. ‘If.the absence

of jurisdiction of the federal courts meant a sacri-

’ < fice or obliteration of a right which Congress had.

’ ereated, the inference would be strong that Con-

gress intended the statutory provisions governin

the general jurisdiction of those courts to control.

That was the purport of the decisions of this Court .

in Texas & N. O. R. Co. v. Brotherhood of R. & S.

S. Clerks, 281 US 548, 74 L ed 1034, 50 S Ct 427,

and .Virginian R. Co. v. System Federation, |

R. E. D. 300 US 515, 81 L ed 789, 57 S Ct. 592.

In those’ cases it was apparent that but for the -

general jurisdiction of the federal courts there .

would be no remedy to, enforce the statutory com-

mands which Congress had written into the Rail-

way Labor Act. The: result would have been that

the ‘“‘right’”’ of collective bargaining was unsup-

ported by any legal sanction. That would. have

_ robbed the Act of its vitality and thwarted its pur-

pose.’ Id. 320 US at 300. |

‘‘Here, differently from the Switchmen’s Case, -

‘absence of jurisdiction of the federal courts’ would

mean ‘a sacrifice or obliteration of a right which —

Congress” has given professional employees, for

there is no other means, within their control (A. F.

of L. v. NLRB, 308 US 401, 84 L ed 347, 60 S Ct

300, supra), to protect and enforce that right.” °

The present inquiry, therefore, must clearly be di-

rected to the question of whether or.not the action of

the National Mediation Board here involved violated

a direct statutory command. Ae

The opinion of the District Court, adopted by the

Court of Appeals, states that ‘The. basic question is

whether the Railway Labor Act denies to voters certi-

fied as eligible to’vote in an election held pursuant to

45 U.S.C. Section 152, Ninth, for the selection of a col-

lective bargaining representative, the chance to vote for

‘no representation at all.’’ (R. 144.) This statement

of the problem completely reverses the nature of the in-

quiry to be made to determine whether there is present

a case for judicial review, as set forth in this Court’s de-

cisions quoted above. Instead of an examination of the

statute to determine whether the Mediation Board has

violated any commands thereof or obliterated any

_ yights. provided therein, the decision below substitutes

an inquiry into whether the statute prohibits the form

of ballot sought by United and the respondent. The

- Brotherhood submits that this approach is erroneous. -

ction 2, Ninth authorizes the Mediation Board to

_ establish rules governing a representation election.

Under this Court’s decisions discussed above, the

Board determination to use a particular form of ballot

is not open to judicial review unless it violates a direct

statutory command. —

, ‘The District Court did hold that the action of the.

~ Mediatio Board with respect to the form of ballot to

struction bly rising to constitutional dimensions

District Court. \ (R. 177.) Neither the District Court

. nor the Court of Appeals.cited any specific provision

of Section 2, Ninth or of any other provision of the

Railway Labor Act which the Mediation Board’s deci-

sion violated. Rather their conclusion was based

upon a finding that the Board’s use of its present ballot

in a representation election on the property of United

‘¢would obliterate the right to vote for no collective. bar-

_ gaining representation and would thus be contrary to

_ the Railway Labor Act’s sta icy of wea cad

ee ee ae ee re

determination.” .(R. 169.) The Courts below there-

_ ‘fore; concluded that the Mediation Board’s action with

respect to the form of ballot to be used raised a ques-

tion of statutory construction which is subject to judi-

cial review.

_ However, the fornrof ballot which has been used by

the National Mediation Board for some 30 years (R.

161) does not violate any stated policy of the Railway

Labor Act of majority determination. If less than a .

majority of eligible employees of a craft of class par-

~ ticipate in a representation election, then the Mediation

Board will not certify a representative under Section.

2, Ninth. (R. 122.) Its form of ballot does not, there-

fore, violate atiy statutory policy of majority deter- _

‘mination unless the statute is read as requiring a ma-

_ jority of the craft or class ‘to vote for a particular rep-

resentative in order for that representative to be desig- |

nated under Section 2, Ninth. ‘There is no such require-

- ment in the statute. Section 2, Ninth leaves to the

Board the designation of those who may participate in

the election and the establishment of rules to govern

the election. Section 2, Fourth of the statute (45 US.-

C.A., Section 152, Fourth) provides that a “‘majority

of any craft or class of employees shall have the right .

to determine who shall be the representative of the

eraft or class for the purposes of this chapter.’’ How- .

ever, this provision does not require that a representa-

tive secure a majority of the votes of the-craft or class

in order to be designated as a statutory representative.

Virginian Railway Co. v. System Federation No. 40,

300 U.S. 515, 560. (1937). In that case this Court spok

as follows on the point: (page 560) . . ;

Ri rgrog assails the certification of the Federa-

ion as the representative of the blacksmiths be-

Slt a Awe i TC! “Sd ce oe ae a a ee ee .)

RSPR ee LP EE BW iS Pe See ee ee ee ee ee ee ee ee ne eee eee -_ «

oy, . .

eause less than'a majority of that craft, although

a majority of those voting, voted for the. Federa- .

ee | Eras

- Section 2, Fourth, of the Railway Labor Act .

-- provides: ‘The majority of any craft or class of

ee shall have the right to determine who

| be the representative of the craft or class for

the purposes of this Act.’ Petitioner construes ~

this section as requiring that a representative be

selected by the votes of a majority of eligible

+ voters. It is to be noted that the words of the sec-

- tion confer the right of determination upon a ma-

_ jority of those eligible to vote, but is silent as to —

the manner in which that right shall be exercised. —

Election laws providing for approval of a proposal

by a specified majority of an electorate have been

generally construed as requiring only the consent

of the specified majority of those participating in

‘the election. * * *

‘‘We see no reason for supposing that §2,

Fourth, was intended to adopt a different rule.

If, in addition to participation by a majority of a

craft, a vote of the majority of those eligible is_ .

necessary for a choice, an indifferent minority —

could prevent the resolution of. a contest, and

thwart the purpose of the Act, which is dependent

for its operation upon the selection of representa-

tives. .There is the added danger that the absence

of eligible voters may be due less to their indif-

_ ference than to coercion by the émployer.”’

The’ present form of ballot used by the Board and

the rules and regulations of the Board meet the statu- -

tory requirement as thus interpreted. Indeed, ‘the

‘mere use of the form of ballot required by the District

Court’s order would not insure that the representative

receive a vote of the majority of the craft or class since

it would still be possible for a majority of the craft or

: |

| an /

class to vote and the representative designated to re-

ceive only a majority of such votes.

Thus, the judgment below. errs when it reviews and.

reverses the action of the Mediation Board in deter- —

mining the form of ballot to be used in a representa- -

~ tion deetion under Section 2, Ninth, == .

Nor does\there appear any justification for review-

ing the eres Board’s detérmination not to review |

the composition of the craft or class of employees

among whom the representation election shall be held.

This Court’s decisions eited above establish that this-

is a matter committed by Congress to the judgment of

_ the Mediation Board. ae Se ee

pat

‘The Actions of the National Mediation Board Constituted a

Reasonable Exercise of Its Discretion of the Manner in

Which the Board Should Perform. Its Functions Under

Section 2, Ninth of the Railway Labor Act in the Further-

ance of the Purposes of That Statute and Do Not Violate

Any Statutory Command. ‘

The basic puyposé of the Railway Labor Act is to -

avoid interruption to interstate commerce by provid-

ing for the prompt and orderly settlement ‘of disputes

between employees and carriers subject to that statute.

The statute is aimed at accomplishing this purpose by

inducing collective bargaining between representatives

of employees and carriers. Thus, Section 2, First of

the Act (45.U.8.C:A., Section 152, First) makes it the

duty. of all carriers and employees to exert every rea-

sonable effort to make and maintain agreements and to

. settle disputes in order to avoid interruptions to com-

merce; Section 2, Second requires that all such dis-

putes ‘‘shall be considered, and, if possible, decided, .

with all expedition, in conference between representa-

———_—~-—————

tes D tiem ee ee Se iF is “ »

BeOS Nore s tee hs ME EE - — EE OT LE Ne ee Te pe OO ee SE SS eae

tives designated and authorized'so,to confer * * * by |

the carrier * *.* and by the employees thereof * * * *;’’

Section 2, Sixth makes it a duty of designated repre-

sentatives and the carrier to meet and confer with

respect to grievances or disputes growing out of the

interpretation or application of agreements ; Section 6

provides that carriers and ‘‘representatives of the em-

_ ployees”’ shall give written notice of intended changes

in agreements and for conferences ‘‘between the repre-

sentatives of the parties interested’’. in such changes

for the purpose of negotiation and mediation, if neces-

sary, thereon ; Section 7 provides~that when a contro--

versy arises between a carrier and its employees which

is not settled either in conference ‘‘between represent-.

atives of the parties’’ or by.mediation or. by the ad-

justment board, such parties may submit the issue to

arbitration. foe eee

This Court in its decision in Virginia Railway Com-,. -

pany v. System Federation No.’ 40, 300 U.S. 515 (1937),

specifically recognized that this statutory scheme was | ~

aimed at the settlement of disputes between -carriers

and employees through a process of collective bargain--

_ ing between representatives of the parties. Thus, the

__ Court stated (page 548) that the statute is “aimed

-. at securing settlement of labor disputes by inducing

‘collective bargaining ‘with the true representative of

the employees and by preventing such bargaining with

any who do not represent them.’”’ In the same opinion

‘ the Court stated (page 553) that ‘‘What has been said

indicates clearly that its provisions are aimed at the

settlement of industrial disputes by the promotion of

collective’ bargaining between employers and the jau-

thorized representative of their employees, *.* *.”

- Finally, the Court stated. (page 560) that the Act ‘‘is

aapendent for its operation upon the selection « of repre-

sentatives.””

It was to effectuate this purpose that the National

Mediation Board, in 1934, designed the form of ballot

which has been used in more than 3400 representation

elections -without material change to the present time.

(R. 161-163.) It was the view of the Board in refusing

: the proposals to change the ballot which it had success-

‘fully used for some three decades so as to provide a.

place for an employee. to affirmatively vote ‘‘no union”

such change would contribute to, if it actually did not —

encourge, an effort to defeat the statutory pur ses.

(R. 86.) :

This view of the statute, the form of ballot rae “id

. the reasons therefore have been set forth in the offiical

es veneuer of the Mediation Board. (R. 161-163.)

“It is respectfully submitted that this decision ‘of the

_ Mediation Board constituted a reasonable exercise of

_. its discretion in administering Section 2, Ninth of the

‘Railway Labor Act and does not violate any command

_of that statute. The form of ballot used recognizes

the basic framework of the statute as encouraging

~ eollective bargaining, but at the same time does ‘not

require any employee to vote for any particular repre-

sentative or, indeed, to vote for any representative at

all. An employee who does not desire representation

may simply decline to vote and, if a majority of the .

employees of the craft or class are in this category, no

representative will be elected or certified. (R: 46, 121;

122.) No statutory provision gives an employee the

- _ right to be provided a form of ballot on which to record

a no representation vote.

EAM IAN ALI OLS OLLI GGA NL PI GAR IER ES SAILOR SELINA OS REYES SH TITERS Bl MPT

Of Counsel:

Thus, even if the action of the Mediation Board were

subject to judicial review, the record .discloses that »

the Board has- performed its functions in a reasonable

manner within the framework .of the statute involved

_ and has not violated any rights granted by the statute.

CONCLUSION

For the reasons statéd, it is respectfully submitted

that the judgment of the court below. should be reversed.

Respectfully ‘submitted,

‘Miuton KRAMER

-1625-K Street, N. W.

Washington 6, D. C.

James L. HicHsaw, JR.

620 Tower Building

Washington 5, D. C. ya

Attorneys for Petitioner .

Writes J. Dowton, General Cownsel -

"Brotherhood of Railway and

Steamship Clerks, Freight

Handlers, Express and

Station Employes +

~ 1015 Vine Street

. Cincinnati 2, Ohio -

(J)

37 4

APPENDIX A

PROVISIONS OF RAILWAY LABOR ACT

Section 2, First (45 U:S.C.A., Section 152, First) :

‘Tt shall be the duty of all carriers, their officers,

- agents, and employees to exert.every reasonable effort

to make and maintain agreements concerning rates of

pay, rules, and working conditions, and .to settle all

- disputes, whether arising out of the application of such -

agreements or otherwise, in order to avoid any inter-

ruption to commerce or to the operation of any carrier

growing out of any dispute between the carrier and

the employees thereof.’’ — x6

- . Section 2, Second (45 U.S.C.A., Section 152, Second) :

‘¢ All disputes between a carrier or carriers and its —

or théir employees shall be considered, and, if possible,

decided, with all expedition, in~conference between

representatives desiguated and authorized so to con-

- fer, respectively, by the carrier or carriers and by the

employees thereof interested in the dispute.”’

Section 2, Fourth (45 U.S.C.A., Section 152, Fourth) Bs te.

_ | «*Bmployees shall have the right to organize and

bargain collectively through representatives of their -

own choosing. The majority of any craft or class of

employees shall have the right to determine who shall

be the representative of the craft or class for the pur-

poses of this, chapter. No carrier, its officers, or |

agents shall deny or in any way question the right of its

eniployees to join, organizg, or assist in organizing

the: labor organization of their choice, and. it shall be

- ynlawful for any carrier to interfere in any way with

the organization of its employees, or. to use the funds .

of the carrier in maintaining or assisting or eontribut-

—ing to any labor organization, labor. representative,,

_. or other agency of collective bargaining; or. in per-

‘forming any work therefor, or to influence or coerce .

employees in an effort to induce them to join or remain

or not to join or remain members of any labor organi-

zation, or to deduct from the wages, of employees any

dues, fees, assessments, or other contributions payable ;

to labor organizations, or to collect or to assist in the

collection. of any such dues, fees, assessments, or other

. eontributions: Provided, That nothing in this chapter

‘shall be*construed to prohibit a carrier from per-

' mitting an employee, individually, or local represen-

_tatives of employees from conferring with management

during working hours without loss of time, or to, pro-

‘hibit a carrier from furnishing free transportation to

~ its employees while-engaged in the business of a labor

organization.’’ ie Naas ; ! ay

— Section 2, Sixth (45 U.S.C.A., Section 152, Sixth):

. “Tn ease of a dispute between a carrier or carriers

‘and its or their employees, arising out of -grievances

or out of the interpretation or application of agree-

: ments concerning rates of pay, rules, or working con-

~~... ditions, it shall be the duty of the designated repre-

sentative.or representatives of such carrier or cafriers ' .

and of such employees, within ten days after - receipt

of notice of a desire on the part of either party to con-

fer in respect to such dispute, to specify a time and

place at which such conference shall be held:

Provided, (1) That’ the place so specified shall be situ-

wise mutually agreed upon; and (2) that the time so

specified shall allow the designated onferees reason-

able opportunity to reach’such place of conference, but -

shall not exceed twenty days from the receipt of such

notice: - : |

And provided further, That nothing in this chapter

shall be construed to supersede the provisions of any

agreement (as to conferences) then in effect between .

‘the parties.”

aoa .

Section 6 (45 U.8.C.A., Section 156) :

t aha

«Carriers and representatives of the employees shall

give at least thirty days’ written notice of an intended

change in agreements affecting rates of pay, rules, or.

working conditions, and the time. and place for the .

beginning of conference between the representatives of

- the parties interested in such intended changes shail be

agreed upon within ten days after the teceipt of said

notice, anf said time shall be within the: thirty days

é ided.‘in_ th®fiotice. In every case where such

notice of intended change has been given, or ‘confer-

ences are being held with reference thereto, or the

services of the Mediation Board have been requested by

either party, or said Board has proffered its, services, .

_” yates of pay, rules, or working conditions shall not be

altered by the carrier until the controversy has been

finally acted upon, as required by section 155 of this

‘title, by the- Mediation Board, unless a period of ten

days has elapsed after termination of conferences with-

out request for or proffer of the services of the Media-

tion Board.”’ bas

‘Section 7, First (45 US.C.A., Section 157, First) :

‘Whenever a controversy shall arise between a car- °

rier.or carriers and its or their employees which is

not settled either in conference, between representa-

tives of the parties or by the appropriate adjustment

board or through mediation, in the manner provided-

in sections 151-156 of this title, such controversy may,

by agreement of the parties to such controversy, be |

submitted to the arbitration of a board of three (or, if

the parties to the controversy so stipulate, of six) per-

sons: Provided, however, That the failure or refusal

of either party to submit a controversy to arbitration

shall not be construed as.a violation of any legal obli-

gation imposed upon such party by the terms of this

chapter or otherwise:”’ s fo:

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.