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

Se LIBRARY |

ee ‘ SUPREME COURT, U, Se |

FI LE D< ‘

ae ie mires =| Jon, DAVIS, CLERK

“ Ocromes — 1964. | |

/ ——_—__ Etee eS

: No. 139 |

icamisabioadon® =.

= oa _° UNITED AIR LINES, INC, :

uietaner” sth he = Petitioner,

Fe id Se MB gg

9 Bs : om

NATIONAL MEDIATION BOARD; LEV ERETT ED: °

_ WARDS, Inprvpatty ann as Cuammaw oF THE Nation at

Merpution Boarp; FRANCIS A. O’NEILL, JR., Inor-

° WIDUALLY AND AS ‘Masur. OF — NationaL Mpiation

ie Bourn, “3 o3

Cen So ae Sa a . Respondents. =

ox a ON WRIT oF. CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT. OF COLUMBIA CIRCUIT.

| BRIEF ce cates . ONER UNITED D AIR LINES, INC.

: : H. TemPLeton ig

aa L. Stern,

’ Sruarr Bernsrery,

° 231 S. La Salle Street,

: Ms. Chicagé, Illinois,

MO tary! eet ee : Counsel for Petitioner. ;

= Of Counsel: See

Mayer, Friepucu, SPIEss, Tierney,

‘Brown & Piarz, . AME i, SR

231 S. La Salle Street, ai ; eee a

Chicago, Illinois. _ aa gd es Eat

.

. e /

- . ;

-° . as .

prewunetennestenedenis =. ° . o

oN . THE GURTHORP-WARREN PRINTING COMPANY, CHICAGO

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~

B. The Arbitrary Exercise of the Board’s

Duty: .../'. an chalewsdeeena ree ceebaul ees ,

(. Carrier Participation in Prior Representa-

oO: OE aos 7. : v

TABLE OF napa:

aoacee sar} '

| | he Sy PM

Opinions Below ..... Greer BR eceeaetenerseeeies oa

gp . ae ‘

Jurisdiction .,......-. le vemn auc lcginerantig ves a soa

Questions Presented .......... {- igveyess a vase nes ~ 2

Constitutional and ‘Statutory. Provi visions Involv ne a . ag:

Statement. ....... 0.000000. faves. ea ducnaaes ewan oe Lag

Case No. R-1796.) ees Se Pp ea ee pone eee eg ees 4 Oi

The Brotherhood oe. ipkg RD get ee \

levsvwwe AM EN eo Ss

a epee eee 9.

Tiacuhevaneeees 13

ane sire oes ot weed Naawne aie ee 20.

eee” AP renee pee PERN yee Vee Pere 20

I. United Has Substantive Interest in thé Com-

position of Unit of ‘Employees. With.Which

It.May Be Required to Bargain Under the, SS:

“Railway Labor Act and: Is Therefore, Entitled }

to Procedural Due Process in the Manner by F

Which’ the Unit Is, Determined ....:...... 42 se 23 ,

A. United’s Intérest in the Craft or Class... 24 - ?

B.- ‘The Conititutional pS ee B......5 B

ll. By Accepting Without Indépendent Inquiry the

- Bargaining Unit. Agreed Upon by Two Unions, a

the’ Mediation Board Failed to Hxercise the

Duty facet Upon’ It Under the Railway

Labor Bets od ddecccvecesesccsetee see eeneeee: 31

A. The Statutory arable tae eeeCeces OE

tion Proceedings ........ kd Caw ehe eres 40.

i . hws ME care ko gibi we

», | Conclusion... . ‘eo Doveeis 43 :

. ea = D ee

areca ncn neato SC am SY A Bs ASS IRRSS igi ARRAS RE IA ABE ABLE 2B MOEA HEREBY GN LBA ROE BBS E DEE ABE RIB DAD PRE LLG SENSI

“ Reg

od °

« «

: eS :

‘ ee

°o . > ~

‘ ; a.

‘ —-+

Ill. The Switchmep’s ‘Union Case Is No Bar to

‘Requiring the Mediation Board to Provide a

Fair Procedure | DGGE ae ines uae eunetusaes

-1V> The Form of the ‘Board Ballot Contravenes ie

i the Express Provision of the Railway Labor

Act That a Majority of the Employees Shall

Have the Right to Determine the Representa-

tive of the Craft or Class ................. oe

Conclusion ......... wevesseverrereotebere Serie

a i eee w 5

ne So. Ld eee eens Pease Si8e wee Co ees

Appenc se eee hep 2

e .

Sn a

s | 7 Vv |

/ ‘iii *-

‘Crrations.

Cases.

Air Line Stewards and Stewardesses Ass’n v. National

_ Mediation Board, 294 F. 2a 910 (C. A. D. C., 1961),

~ eert. den. 369 U. S. 810 (1962) ....... eeGeuweewKs 46

Atchison; Topeka~ faxid Santa Fe Ry. Co. v. Summer-. |

field, 229 F. 3d 777 (C. A. D: C., 1955), cert. den. 351

U.S. 926 (1956) .....6... reese Pet eae bee 21

B. F. Goodrich v. FTC, 208 F. * 829 ay "A. D. Cc. ;

‘5 Saw seca ceeeee tak eebetebucee eet aeeneease 21°

Bowles v. Willingham, 321 U. 8..503 (1944) ....2....3: 27, 30

Carter v. Carter Coal Co., 290 U. 8. 238 (1936)........ 29

City of Chicago v. Atchison, Topeka & Santa. = -Rail-

way Co., 357 U.S. 77 (1958) «0... eee eee te eee 20

Columbia Broadcasting System v. United States, 316 :

U.S. 407 (1942) Scr caeer wets weep eesee ceveererrs 21

Fay v. Douds, 172 F. 2d 720 C. ‘ 21949) : oe vuiye

aL Friend vy. Lee, 221 F. 2d 96 (€. A. D. ©, WE) + .5505-5° 9

_ General Committee v. M. -K.-T. R. Co., "320 U. S.° 323

SIE sacs ha AACN Gee ye

Greene v. McElroy, 360 U. 8. 474 (1959) Lae os a

:* Inland Empire Council v. Millis, 325 U. S. 697 (1945). 30

Interlake Corp., 4 NLRB 55 (1937) pioameaa ; rites

' Joint Anti-Fascist Refugee ‘Committee v. McGrath, 341 ©

_ U.S. 123 [i ) errrerr err rer ere rere ee .16, 21, 40

Jordan v. American Eagle Fire Insurance Co., 169 F.

2d 281 (C, A. D.C., 1948)... 00. eee eee eee ica> <a

“La Cross, Telephone Corp. v. Wisconsin Employment |

Relations Board, ie ee rere 27

5 — 6 aides alia . _ . . . n OT Me cate

Ll Rts DMN LS iA G NS GEL ILO hs SE aha RE ht LE RE: LOSI Beg Ra toh Pree oA nem 2A ESERIES &.

lv

Leedom v. Kyne, 358'U. S. 184 (1958)°........... a ae

MeNulty y. National Mediation Board, 18 F. Supp. 49:

Ce ¢ & a See erererreree Seciekaes wan

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

Se ee Ss «es oe

_NLRBB v. Ideal Laundry and Dry Cleaning Co., 330 F. |

2d 712 (C. A. 10, 1964) ........ pen a. a oe Ye

. NLRB. v. Jones & Laughlin, 301 U.S. 1 (1937) ...... 28, 44

Opp Cotton Mills v. Administrator, 312 U. S. 126 aa 7

Perkins v. Lukens Steel Co., 310 U. S. 113 (1940) .... 27

Pittsburgh Plate Glass Co. v. . NLRB, 313 U. S. 146

ee Des eat AD Miele ck crater oct yee ae

: Premier Peat Moss Corp. v. a States, 147. F.

. Supp. 169 (D. C. N. Y. 1956), aff’d per curiam 355

U.S. 13 (1957) Peeeneis ea aaa pices tase ends ous °21

Shields v. Utah Idaho Central R. Co., 305 U. S. i77

(1938) 3.6.66. Pe nee e ee eee eee ones Artesseteeees 27.-

Southern Pilots Ass’n v. €. A. B., 323 F. 2d 288 (C. A.

D. C., 1963), cert. den. 376 U. S. 954 | Se 30-31

Switchmen’s Union v. National Mediation Board, 320

ee £: | errr 17, 22, 30, 33-4, 44-6, 55-6

Texas & New Orleans R. Co. v. Brotherhood of Railway

Clerks, 281 U. 8. 548 (1930) :.... Papeeiuaveneee aes 28. Ci,

UNA Chapter, FEIA v. National Mediation Board, 294

F. 2d 905 (C. A. D. C., were’ cert. den. 368 U. S. 956

CO ae oo cee era, ub eruaten aa tek 37, 38, 46, 55

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

Sy. Ee nee sees 18, 23, 26, 28, 47, 54

.WES Chapter, FEIA v. . National Mediation Board, 314

F, 2d 234 (C. A. D. C., 1962) eee eens bese etees 46

Pt oe

, - Vv

NMB Determinations.

Case No. R-3639 (December 5,°1963) ........%-...6, 38, 43

Case Nos. R-S712, 3713, 8714 ........0606.0005 we

Case No. R- 1706, 1 NMB Determinations 423. (1947) .

Case No. R-2107, 2 NMB Determinations 19 (1948) . 34

Case No. R-2357, 2 NMB Determinations 66 (1958). 78

Case No. C-2946, 3 NMB Determinations 56 (1961) .... 36-7

Case No. R-3445, 3 NMB Determinations 87 (1960)... 41, 42

Case No: R-3479, 3 NMB Determinations 94 (1961) . 41

File No. (-2098, 3 NMB Determinations 1 (1953) ..... 42

File No, C-2139, 3 NMB Determinations 9 ( 1953). ers 41

File No. ('-2252, 3 NMB Determinations 16 (1956) ....5, 41

File No. C-2380, 3 NMB Determinations 20 (1955) .... 41

. File No. C-2389, 3 NMB Déterminations 16 (1956) ....5, 41

File No. C-2783, 3 NMB Determinations 49 (1959) .... 41

Statutes.

Federal Aviation Act of 1958: G

Section 401(k) (4), 72 Stat. 737, 49 U. S. C. $1371 23 |

Railway Labor Act: ia

Section 2, Fourth, 48 Stat. 1187, 45 U. S. C. § 152

4

Fourth .:..... eR dae eden nen atau 18, 32, 47, 49,54

Section 2, Ninth, 48 Stat. 1188, 45 U. S. C. § 152

ee, cua ead e «ne sts 31, 32, 33, 34, 35, 49

-Wagner Act: :

EE cack cvyanneseeseserscunnss OF

Section 9(a), 49 Stat. 453 ............ esse esse 48-9

vi

Miscellaneous. ©

Administration of the Railway Labor Act by the Na-

tional Mediation Board, 1934-57 (1958) ..-....... 35, 48

First NLRB Annual Report (1936) ..........--.--++5 48

Second NLRB Annual'Repért (1937) .....---.---- i >

_ 29th NMB Annual Report "(1963) .........-.eseeees 35, 52

Majority Vote Under the Railw ay Labor Act, 40..Op.

A. G. 541 (1947) tees, Pew ER err re err "49

Legislative History <_

S. Rep. No. 573 on S. 1958, rath Cong. 1st Sess.

I ee oie hn 6 bo as Whey EEC E RE OR eRE RES 33

H. Rep. No. 969 on H. R. 7978, 74th Cong. Ist Sess.

’ Hearings on H.. R. 7650, House Comm. on. ae

state and Foreigyt Commerce, 73d Cong... a’

ee TOE kg cae 6 adeee 0cs van wep tse a¥25% 32, 50

Hearings on §. 3266, Sen. Comm. on “Interstate

- Commerce, 13a Cong. Od Bees. 1984 ..:....5.... B®.

IN THE

Supreme Court of the United States

Ocroser TERM, 1964.

No. 139.”

__. “. UNETED AIR LINES, INC.,

vs.

NATIONAL MEDIATION BOARD; LEVERETT ED-

- WARDS, InprviDUALEY AND AS CHAIRMAN OF THE NATIONAL

Mepration Boarp; FRANCIS .A. O’NEILL, JR., Inor-

VIDUALLY AND AS MEMBER OF THE NaTIONAL Mepiation

Boarp, * ne

3

ON WRIT OF CERTIORARI TO THE “uitiven STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

. Pi :

‘This case was consolidated for argument and seeay 4

the Court of Appeals with Nos. 138 and 369. The three

2 Petitioner,

Respondents.

- ©

cases were also consolidated in this Court in: the’ ‘orders

granting the petitions for writs of certiorari. The National

Mediation Board and its members are respondents in this

case and petitioners in No.:369. The Board has filed a

consolidated brief in the three cases, and this brief will

stand as the opening and reply brief for petitioner _—

Air Lines. © : ;

jf

BRIEF FOR PETITIONER UNITED AIR LINES, INC. /

Sf

M- -

ator ee PUA NED IC LES 1 IEA TRIS ON ye

9

a

OPINIONS BELOW.

_ The opinion of the Court of Appeals (BR. 146-154)? is

‘- reported at 330 F. 2d 853. The order of the District Court

(R. 144) is not reported. There was no opinion by the .

District Court.

JURISDICTION.

The judgment of ‘the Court of Appeals was dated and

, ‘> éntered on March 12, 1964 (R. 156). Petition for rehearing

was denied on April 14, 1964 (R. 157). The petition for

a writ of certiorari was filed on June 1, 1964, and was

‘granted ‘on October 12, 1964 (R. 158). Jurisdiction is

, conferred on this Court by 28 U. S. C. See. 1254(1).

_- QUESTIONS PRESENTED.

1.: The National Mediation Board refused: to hold a ~

hearing at the request of United on the question of the

appropriate craft or class of United’s employees: among

whom an election was to be held to determine a. representa-

tive for bargaining under the Railway Labor Act: The

stated reasons for the refusai were that the Board did not

consider United to be a party in interest on the question and

that the labor organizations involved had agreed on the.

unit. The: Board took no-evidence on the craft or class

question,.and accepted the agreement of the labor organiza-

tions without independent inquiry. The questions~ pre-

sented are:

‘a. Does a carrier have a constitutional right of due

process to be heard by the Mediation Board on the

craft or class issue? = *' op,

b. May the Board, in the exercise of its duty under

the Railway Labor Act, make a craft or class deter-

1. References are ‘to the record in No. 139. Any reference -

to the separate consolidated record in Nos. 1388 and 369 will

_ be specifically noted. _*

en

creme sume

3

mination arbitrarily by accepting the division of

employees agreed upon by interested labor organi-

zations without consideration of any other criteria?

c. Does a carrier have judicial standing to raise the

foregoing questions?

2. .The form of ballot used in a representation election —

by the Mediation Board does not permit an eligible em-

ployee to east-a valid ballot for no representation:~Does

this form of ballot violate the mandate of the Railway Labor

Act that the majority of employees in the craft or class

have the right to select the representative for the craft

or class? | "3

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED. 4s

_ Involved are the Fifth Amendment to the United States

Constitution and Sections 2 Fourth and Ninth of the Rail-

way Labor Act, 48 Stat. 1187-88, 45 U. S. ©. § 152. These .

- provisions are printed as an Appendix to this brief.

STATEMENT. |

United is a certificated air carrier subject to regulatio

under the Federal Aviation Act of 1958 (72 Stat. 737, 49

U.S. €. § 1301), and the Railway Labor Act (48 Stat. 1185,

_°45 U.S. C. § 151). It employs approximately 32,000 persons.

_ Of these, approximately 4,500 are office and ‘clerical em-

ployees such as typists, stenographers, file clerks, electronic

computer and office. machine operators, receptionists and

telephone operatars ; approximately 5,160 aré public contact’

employees, such as reservation ‘and ticket sales agents, vaca-

tien booking agents, passenger agents and station agents;

and approximately 3,100 are ramp and stores émployees,

who, among-other duties, load, stow, unload, pick-up and .

deliver cargo, baggage and food, on, to and from aircraft at

ramps and terminals, clean aircraft, maintain’ the ramp

s . 5 aie st

ae en ee tea “

beh

area and equipment, and perform storeroom work (R. 15-36," . --_ |

106-08). yey cor |

The office-clerical and public contact personnel at United |

have never been organized for collective bargaining pur-

poses. However, the ramp and stores employees have been on

organized as a separate group for over 20 vears,’and, since

1948 have been represented by the International Association

of Machinists (‘‘IAM’’) (R. 16). On Capital Airlines, how-

ever, which in 1961 was merged into United, all three :

groups of employees had been represented by the Brother- _ a

hood of Railway and Steamship Clerks, Freight Handlers, ~

Express and Station Employees (‘‘Brotherhood’’) in a

single bargaining unit or ‘craft ‘or class.’’ (R. 103.)

Case No. R-1706. +

The combined craft_orClass at Capital arose out of-a————_——

1947 Mediation Béard proceeding in which the Board |

found after hearing. that the ‘‘clerical’’ craft or class of

the railroads ‘(consisting . of all three groups described ©

above) should be extended: to the four air lines—not in-

eluding United—in the case before it” | |

The Board noted in‘its original determination that the

‘‘eommercial airline industry is relatively new . , -”’

and ‘‘while there has been considerable development in

collective bargaining in this field, there is but little uni-

formity among the several. major airlines in the manner

employees in the oecupations here involved have aligned

themselves for collective bargaining purposes.’’ Case No.

R-1706, 1 NMB-Determinations 423, 432 (1947).

_-~2. The airlines were National, Northeast, Mid-Continent, aud

“ Pennsylvania Central, the predecessor of Capital. The NMB

brief correctly notes that United, which participated in the pro-

ceeding, supported that finding in 1947 (pp. _7-8),. but fails to

state that as early as 1949 United advised the Board that because y

of subsequent organizational developments the R-1706 determina-

tion would not be practical at United. R. 29, 57-98.

f?

—_——— growth of the airline industry during this period, as.

f?

\

°

Os

This determination ‘was issued in January 1947, and was

immediately attacked by the IAM and other labor organiza-

tions: The Board then held further hearings and in April,

1947 reaffirmed its original determination with this admoni-

tion :* | a. a

‘“This affirmation should not. be construed to pre-

vent a reexamination of the craft or class provisions of

the Railway Labor Act as applied to these categories

of employees in any future air line representation

~ disputes when, in the judgment of the Board, such re-

examination will further .the purposes of the Ac —

"1 NMB Determinations 445 (1947). a i

| In 1953 the Board, in another craft or class determina-

tion, observed that five years had elapsed since its 1947 -

decision in R-1706 and stated:

‘In view. of this and because of the expansion and

well aS the development of representation, of airline

employees, the Board is of the opinion that upon proper

application for its services under Section 2-Ninth [of

- the Railway Labor Act}, at the appropriate time under

- its rules, it will be advisable to reexamine the deter-:

mination in Case R-1766 et al., with the view of making

. such modifieations as may be found to be justified at”

that time.’’ Case No. R- 2357, 2 NMB Determinations

66, 67 (1953.) are

And in 1956 the Board did reexamine its R-1706 deter-

mination. It found that the entire ‘clerical’? craft or

_class was represented as a single unit on only six airlines,

while on 24 carriers—including American, Eastern, Pan

- American, Northwest, TWA and United—the R-1706 deter-

mination-was not being followed. .The Board then found

‘as appropriate in the cases before it a separate craft or.

class of stock and stores employees, classifications formerly |

included within the catch-all of R-1706. Case Nos. C-2252, .

C-2389; 3 NMB Determinations 16 (1956).

’

?

6

° e “

As recently as December 1963—long after this litigation

was started—the Board again refused to follow the 1947 -

_ R-1706 determination, and directed a separate election

. among a group of. Eastern Air Lines employeesover’ the

contention of the IAM (a participant in the case) thatthe

| employees were part of: the. R-1706: classification. And °

despite the position of the Board in this case that a carrier ©

cannot be a party to a craft or'class proceeding, Eastern

1963.

*

The Brotherhood Application: 7 ost

On August 24, 1962, after ‘the United-Capital merger,

~ the Brotherhood invoked the services of the Board to in-

vestigate a representation dispute among United’s ‘‘cleri-

cal, office, stores, fleet {ramp] and passenger [public con-

tact] service’? employees, excluding, however, those ramp

and stores employees hired by United prior to August 24,

‘fully participated in that casez,.Case R-3639, December 5, ts

1962 (R. 31). The Brotherhood was apparently willing ‘

to leave the excluded employees to the IAM, which: had rep-

resented them,as a separate group since 1948, but wanted

"to include the ramp and stores , employees chired after

August 24, 1962. (who would otherwise be represented by

' the IAM). The Brotherhood application was docketed as

NMB Case No. R-3590. * ros

- The IAM did\not look kindly upon the Brotherhood’s at-

tempt to represent employees ‘whom the IAM eonsidered °

as its own and objected to the Brotherhood’s application

for Board services-on the ground that it did not conform

to the Board’s 1947\ determination. The Brotherhood

ment,” and in turn the IAM claimed the Brotherhood appli-

cation was ‘‘a raid against the IAM.” As a result ‘the

Brotherhood amended its application to cover the entire

. : \ .

“

a.

-. charged that the IAM. was ‘‘eollaborating with the manage- »

‘‘elerical”’ craft or class including all. the ramp and stores

employees represented by: the. IAM, ‘whether hired before

or after August 24, 1962 (R. 43, 47, 51, 138). The IAM

accepted the challenge. » aces . j

The Board, without further factual inquiry, acquiesced

in the unit to which the two unions had agreed, although it —

was also apparently Willing to proceed with an election

among only ‘the groups not previously. represented. by the

- ; 7 IAM if the two unions would have agreed to that (R. 135,

*

138, 142). The bargaining. unit .thus created would have

‘lumpéd together United’s most highly skilled | technical

white collar employees and its least skilled common labor

employees, including janitors. United’s skilled. blue collar

workers—its mechanics—ate members of a separate craft

or class. ‘ eit Sarat

When the Brotherhood first invoked the Board’s services,

the Board also aged United to submit any statement it

cared to make. In reply,’ United noted the Brotherhoed’s —

exclusion of employees represented by the IAM as of the .

- date of the application, and asked the Board to dismiss the:

application. United added that if the Board should rot.

dismiss the application, it ‘‘should then hold a public hear-

ing, to determine whether or not the proper-craft or class

is that expressed in prior determinations by the Board, or

whether the proper craft or class.is something other than

_ that previously determined by the Board’’ .(R. 39). ,

On Janvary 11, 1963, after the Brotherhood amended its

application, United again asked the Board to hold a hear- —

ing on the craft or class question. “United called attention

to the fact that on most airlines the R-1706 determination

that. all of ‘these groups constituted . a, single eraft or

class had. not: been followed either on the’ carriers or by

the Board (R. 55). The Board denied this request and —

a subsequent request for reconsideration, explaining that —

9

ne a Fg a

a at eter be AE «te EO ce

ra & g

the two organizations Ww hich are parties to the dis-

pute are in agreement . . .”’ (R. 71). The reasons assigned

by the Board for its Kalas were:

A) _that the’Carrier {[ United] is not a sad to this

ts matter, and also . . .ethat neither of the organizations

who are parties to this case [IAM and Brotherhood]

have made any request for a hearing on the question

of craft or class. The Board, therefore, denied the

request of United for such a hearing.”’ (B.: 99.)°

The Form of the Ballot.

~ Concurrently with the ocidteaiadainse relating to the

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

requested the Board to alter its customary — of ballot

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

_ requess was based on legislative history, which it cited to

the Board, showing that Congress intended employeessub-

ject to the Railway Labor Act to be tree to. vote

agdinst representation, and also on the analogy ofAfe prac-

_-tice under the National Labor ‘Relations Act which er odies

the same statutory scheme (R. 73). sal

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

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

- not contain space for a “‘no repr esentation’’ vote as does

the ballot used by the National Labor Relations Board (

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

to vote only for the lahor organization or organizati fas

' -geeking representation rights, and an additional space to

vote for ‘‘any other organization or individual’’ (R. 81).

- & Mediation Board election is valid only if a jnajority

of the eligible voters cast valid’ballots. A najity of the

valid ballots cast is sufficient to elect a representative. -A

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

upon which is written ‘‘no. representative”’ or which is

cast blank ed the voter is voided (R. : There i is no way

s r

or or j.:

-

. FA

é i. 5

for an individual employee opposed to _reptesentation by

any unign effectively to indicate hi wishes, since if at

least a majority of employees dgrote, his failure to vote,

simply reduees the itumber of votes needed to elect a rep-

resentative. The Board’s form of ballot makes it possible |

for a minimum of 25% plus one of the employees to elect.

.a bargaining representative forthe entire craft or class, —

despite the desire of a majority: of employees not to be

represented bythe labor organization so elected (R: 7-8).

The Board declined to change its form of ballot, stating

that ‘‘introduction of a ‘ves’ or ‘nd halfot would con-

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

_ circumvent the mandate of Congress that representatives

: be designated by carricrs and their employees. ... .’’ (R.

86)... ;

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

Board will proceed with gn election among the employees

concerned in NMB Case No. R-3590 under the Beard’s usual

policies and procedures in such cases.’’ (R. 98.)*

Proceedings in the Courts Below.

United filed its complaint four days later, alleging in the

first count, that it-had been deprived of its_rights under

_ the Railway Labor Act and the due process clause of the --

Yonstitution by tlie Board’s arbitrary: and capricious ac-

- eeptance of whatever craft or class was agreed upon by the |

labor organizations involved, anf by the Board’s refusal

3... Effective November 23, 1964, the Board changed its form

- of ballot to incliide a legend under the heading ‘Instructions for

Voting,’ that ‘‘No employee is required to vote. If less than a

majority of the employees cast valid ballots, ‘no representative will

be certified.’’. This: change was announced in a memorandum of

November 6, which stated that the change was made ‘‘after con-

sultation with the Solicitor General cf the United States.’’ This -

change does not cure the violation of the Railway Labor Act com- ~

plained of bere. See infra, pp. 47-55. (NMB Brief, 63-65.) «

‘ .

ee ne in ri sit ote enh elie Wine

10

to hold-a hearing addressed to the craft ‘or class issue in

which United as a party. could produce evidence demon-.

strating the inappropriateness of the Board’s craft or class

determination (R. 4). The second count alleged that the

form of ballot which‘the-Board insisted on using was in-—

_consistent with the. employer’s statutory duty: to treat °

with the representative chosen by the majority of a craft

or class of its employees, and invaded its right not to be .

required to bargain for a craft or class with a representa-

tive not desired by the majority (R. 6).

The complaint alleged that the composition of a craft or

class of employees for collective bargaining purposes af-

fected valuable property rights of an employer in thé con-

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

‘employees performing work in many different and unre-

: Jated classifications, such as electronic coynputer opera-

tors, ticket agents, and cleaning women, into a single craft —

or class would have a substantial and adverse impact on the

operations and cost of conducting United’s business (R.

The complaint sought to restrain the Board y holding

- the election unless the form of ballot was corrected and--~ ..

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

‘bargaining unit. The complaint .did not seek. judicial re-

view of any substantive termination as to the scope of the

unit, but only to compel the Board to make the’ determina-

tion in accordance with the requirements of the statute and .

of due process. Federal jurisdiction was based on’ 28

U.S. C. §§ 1331 and 1337. ee

. Following the filing of the complaint, United moved for

8 preliminary injunction (R. 11), and the Board moved °

to dismiss the complaint or for summary judgment (R.

- 110). Affidavits-were filed by both parties in support of

- their respective motions: (R. 14, 103, 106, 141, 135, 142). . *

M1. |

: The District Court (per Judge Matthews) granted the

Board’s motion for summary judgment; and dismissed the

complaint in a brief order which did not state any reason «= |

for the court’s action and which found only that ‘‘there

is ‘no genuine issue of material fact.’’ (R. 144.) _ 2

Shortly after the dismissal of United’s complaint, a

group of United employees filed a complaint in ‘the District

Court against, the Mediation Board which attacked the

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

ployees a hearing on- the craft or class question. The

Brotherhood intervened in support of the position of the

Mediation Board. Judge Youngdahl issued a permanent

injunction, restraining the Board from conducting an, elec-

tion with a form of ballot which does not permit a voting

employee to cast a. yote against representation, and re-

manded to the Board for further consideration the em-

ployees’ request for a hearing on the question of the ap-

propriateness of the craft oy class. Association for the

‘Benefit of Non-Contract Employees ¥. National Mediation

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

United appealed from the dismissal of its complaint in

this action, and the Board and Brotherhood appealed from

the judginent entered by Judge Youngdahl. ‘The three ap-

peals, were. consolidated in the Court of Appeals. In a

per curiam opinion, that Court affirmed the decision of

Judge Youngdahl in the employees’ suit, and also affirmed |

the dismissal of United’s complaint in this case (R. 146).

| The Court of Appeals noted that’ the grounds for dis-

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

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 dis-

‘ missed:??— The Court then stated: . es

«| The close question as to United’s standing,

oe

2

about which there is a dearth of authority, causes US,

concern. We have decided, however, not to disturb the ~

Djstrict Court’s dismissal, because our decision in the

other two cases affords the relief concerning the form

of ballot which United sought.’’ (R. 148.)

United petitioned for rehearing (R. 157), pointing out .

that although the action of the Court of Appeals in af- 3

firming Judge Youngdahl’s order may have resolved the

ballot question it left completely unanswered the issues

relating to United’s right to be heard ‘on the craft or class

question and the Board’s duty in making-such a determina-

tion. The petition requested: the Court, therefore, to de-

_eide the ‘‘close question’’ of United’s standing. This

petition was denied on April 14, 1964 (R. 157).

13 ees

By

s

- SUMMARY OF ARGUMENT.

Although it has been assumed that United’s complaint

was dismissed on the ground that United ‘‘lacks standing

to maintain this action,’” the government brief agrees that

the question whether a carrier has a right to-participate

in National Mediation Board craft or class determination

‘sig presented for decision in this litigation.’ United’s

complaint asserted that the craft or class determination

affected valuable property ‘rights, was made arbitrarily

without hearing, and hence was a denial of its right to

due process; accordingly a clear basis for judicial stand-

-. ing was asserted. | a.

I.

The Railway Labor Act imposes an enforceable obliga- .

tion on a carrier to bargain with a representative chosen

by a-majority of its employees in a craft or class deter-

mined under the statute. Compliance with the Railway

Labor Act is a condition of holding a certificate of public |

convenience and necessity by an air carrier under the -

Federal Aviation Act of 1958. United has a direct and

substantial interest in the scope of the craft or class, and

- js.entitled to protedural due process in the manner by which

it is determined. | |

A. Combining the three diverse classifications of office- —

_-elerical employees, public contact employees, and ramp and

stores employees into a single bargaining unit will have a

- substantial and adverse impact on United’s operations and

cost of doing business. ‘Such a unit would include such

unrelated jobs as computer operators, ticket agents, and

cleaning women. The hiring qualification and duties for

14

'- each of the three general categories differ. There is no

cross-training, cross-utilization or community of interest

among them. Such a unit is inconsistent with the Media-

tion Board’s own statement,that the craft or class should

reflect ‘‘the functions, duties and responsibilities of the

employees’’ and the ‘¢eommunity of interest between jobs.” ©

The manner in which the employees are grouped affects

bidding and transfer rights and where the classifications are

‘unrelated, may require constant retraining and utilization

of employees not hired for or qualified for jobs into which

‘they exercise these rights. The experience of Capital Air-

lines with this diverse craft or class demonstrates that the

potential harmful impact on a carrier is not speculative.

B. Since United does have a substantial property inter-

~ est in the composition of the bargaining unit, and since its

statutory duty to bargain with a representative for such:

a unit is judicially enforceable, United is entitled to pro-

cedural due process an the method by which such bargain-

‘ing unit is determined... rites

Prior decisions of this Court have recognized an employ-

er’s constitutional right in regulations affecting its labor

relations, including determinations of bargaining units.

‘There is no. administrative enforcement procedure in

which this right can be protected, no statutory provision

for judicial review of the craft or class determination, |

and no opportunity to challenge the determination in

an enforcement proceeding before the Civil Aeronautics

- Board under the Federal Aviation Act of 1958. Accord-

ingly, the requisite due process can only be satisfied before

the Mediation Board in the initial proceeding establishing

‘the craft or class. a

A. Although the Railway Labor Act does not define the

phrase ‘‘craft or class,’’ the legislative history of the 1934

amendments which added the election procedures to the

Act, and of the Wagner Act adopted in the following year,.

makes clear that the duty to determine crafts or classes |

was imposed on the Mediation Board. It was not the intent

‘of the Railway Labor Act to give to employees the right to *

~ determine their own bargaining units, but only. the right to

select a representative for the bargaining unit once it was

determined. The government contention that this was a

right given employees is, in any event, irrelevant, since —

agreement here was by opposing labor organizations, which

even together may not represent the agreement of all or a

majority of the employees. The Board was unwilling to

consider: the views of either United. or the unorganized

employees. : }

B. The Board did not make'a determination of craft or

class in this case on the basis ‘of any evidence or findings.

It accepted the craft or class agreed upon between the two

unions and refused United’s request for a hearing for the.

expressly stated reasons that neither of the two competing

labor organizations had requested a hearing and because

in the Board’s opinion United ‘‘is not and cannot be a

party to this representation dispute.”’ Fea

‘The Board position confuses the issue of the breadth

of the craft or class with ‘the identity of the -representa-

‘tive of that class once the unit is determined. The for- —

mer determination is the duty of the Board; the latter

- is the right of the majority of the employees. The courts.

~ have recognized and the Mediation Board has insisted |

upon this distinction in prior eraft or class litigation. _

It has told this Court that Congress has charged the

Board with the ‘‘duty to find_the’craft—or—class_to be

—— eens as —

“=

°

16

whatever it is, not what it used to be.’’ For this reason,

the Board’s claim that it did exercise its independent

judgment and discretion in this case because it adhered to a

1947 craft or class determination does not demonstrate a

discharge of its obligation as it itself has defined it. It

has not in the past adhered to the 1947 determination, and

when it has heard evidence—including that of carriers— -

has modified its position in prior cases. Its non-reliance

on the 1947 determination is further evidenced by the fact.

that the Board was willing, as the record shows, to consider

a different craft or class in this case if the two rival labor.

organizations had agreed to that. The Board’s determina-

tion was, therefore, an ‘‘arbitrary fiat,’’ and not the ‘‘re-

sult of a process of reasoning.”” J oint Anti-Fascist Refugee

Committee v. McGrath, 341 U. S. 123, 136 (1951).

C. The government’s assertion of a’ prior consistent *

construction of the Railway- Labor Act by the Board as

precluding carrier participation is not supported by past

Board action. Employers participated in ten of the eleven

air carrier craft or class determiriations reported by the -

Board from July 1953 to June 1961. In the eleventh case it -

had been stipulated that the result would be the same as in a

companion. case in which the carrier did participate. Ina

number of these cases the only participants were a single

labor organization and the earrier. In others, the Board’

clearly separated the question of craft. or class from that

of identity of the representative of the craft or class, a

. distinction it ignores here. —

D. Employees and labor organizations have no greater

rights under the Railway Labor Act respecting the craft

or class question than does a carrier. There is no statutory

or constitutional basis for the Board’s refusal to hold a

. hearing on that question because the two labor. orgamiza-

tions agreed on the craft or class. .

WV

Ill.

Switchmen’s Union ‘v. National Mediation Board, 320

U. S. 297 (1943), is no bar to the relief sought here. That -

case held that craftsar class determinations of the Media- ,

tion Board are not subject to judicial review. United does

not seek judicial review of the substantive merits of a

Board craft or class determination, but only a declaration

that the Board must make that determination on the basis

of evidence and in accordance with United’s right to ‘pro-

cedural due process. Switchmen’s Union reserved consti-

tutional questions: ‘‘all constitutional questions aside, it

is for Congress to determine how the rights which it creates

shall be enforced.’ 320 U.S. 297, 301. United’s right

was not created by Congress, but rather: was limited by

Congress; hence even if judicial review were sought here

Switchmen ’s Union would, be no bar. This Court also.

stated, the same day it decided Switchmen’s Union, that it

‘was not then deciding whether judicial power may be ex-

erted to require the Mediation ‘Board to exercise its duty

under Section 2 Ninth of the Railway Labor Act—the

statutory provision here involved. General Committee T.

M-K-T. R. Co., 320 U. S. 323, 336 n. 12 (1943). This case

involves the Board’s obligation under the Constitution.and

the statute to exercise its duty to make’ a craft or class

determination and to use fair procedures in so doing. *

Switchmen’s. Union does not prevent the exercise of judi-

cial power to compel the Board to act. -

a

The Mediation Board ballot does not provide a space for

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

The Mediation Board contends that he can express this de-

sire by not voting at all since not voting is equivalent to

volmg no. ~~ . .

/

/ .

/

ee 18

Section 2. Fourth of the Railway Labor Act provides that .

- the majority of any: craft or-class of employees shall have |

the right to determine the representative of the craft or .

class. Certification of a representative on the basis of-a

majority of the votes cast, rather than a majority of the .

total eligible voters, was upheld on the ground that the _

non-voters are ‘‘presumed to assent to the expressed: will

of the majority ef those voting.’’ Virginian Railway Co.

v. System Federation, 300 U. S. 515 ‘(1937). Thus the

Mediation Board contention that not voting is equivalent:

to voting no is completely contrary to the rationale of the

Virginian case that not voting is equivalent to wit

to the will of the majority of those voting.

‘The National LaborsRelations Board has allowed space

‘for a ‘‘no’’ vote since the Virginian case. The relevant

provision of the Wagner Act was modeled after Section 2

Fourth of the Railway Labor Act. The Wagner Act pro-

vision was re-enacted by Congress in 1947 without change

after ten years of consistent NLRB practice of allowing a

‘‘no’’ vote, while Congress has had no occasion. to look at

Section 2 Fourth since 1934. Thé purpose. of the two

statutes is the same—the encouragement of collective bar-

gaining—and the difference in. treatment is not explicable

on that ground. _ ;

The form of ballot was changed by the Mediation Board .

on November 5 23, 1% 4, after consultation with the Solicitor

General, to include on its face .a legend that the employee

need not vote, and that no soppeneielirs will be certified?

unless a majority of the eligible employees participate.

The government brief describes the prior form of ballot

as ‘‘unfair.?’ The change, however, does not cure the basic

defect, since until it is possible for an employee to cast a

ballot for no representation, no valid conclusions about the

desires or presumed desires of a majority of the employees

ean be drawn from the results of a Board- conducted elec-

19

tion. For non-voting cannot at the same time be presumed

to be the equivalent of voting no and of assenting to the ~

will of the majority of those who do‘ vote. If the Board

thinks now that not voting is the equivalent of voting no, :

it should place a space on its ballot for such an expression

and end sa it must think is litigation of a pointless issue.

4

\

“SS ee .

ARGUMENT.

_ INTRODUCTION.

One of the gr ounds asserted by the. Board in its motion

to dismiss United’s complaint was that United “lacks

standing to maintain this action.’ (R. 110.) Although

Judge Matthews’ ‘order dismissing the complaint stated.

no reasons, it. was assumed by the Court of Appeals that

this ground of lack of judicial standing was the basis for

her action (R. 148). Judge -Youingdahl made the same as-

sumption in his memorandum opinion in’support of his ©

order &ranting a preliminary injunction in Nos. 138 and

369.(R. Nos. 138 and 369, 133 Fn. 1).

The courts below accepted the. argument ‘that United’

had no judicial standing to’ challenge the Board’s posi- .

tion that an employer subject to the Railway Labor. Act

‘lacks administrative standing to be heard on the question of

craft or class. This effectively blocked any judicial exam-

ination of the propriety of the Board’ s evaluation of its

_ own obligation: under the Act as well as the merits of

-, United’s complaint that its constitutional right to pro-

cedural due process was being violated by the Board:

_ The judicial standing argument really ‘‘confuse[d] the

‘merits of the controversy with the standing . .. to litigate

them.’’.City of Chicago v. Atchison, Topeka € Santa Fe

Railway Co., 357 U. S. 77,.83 (1958). For how could it

‘ever be determined if the Board was right. or wrong in its

position on. United’s administrative standing—i.¢., United’s :

right to be heard oft craft or class questions—if United

had no judicial standing to litigate the question?»

' United? s complaint alleged that the craft or class deter-

mination by the Board atected valuable property rights

ASS

<—~

21

in the condutt of its business and that it was made arbi-

_ trarily and ‘eapriciously, without hearing or consideration |

‘of its effect on United, and was a denial of United’s right

to due process (R. 3-10). Thus a clear basis for \judicial

standing was stated, Columbia Broadcasting System v.

\ United States, 316 U. 8. 407 (1942) ; National Motor Freight —

Traffic Ass’n. v. United States, 372 U.S. 246 (1968). ,

In its brief to this Court, the government now seers to

agree that United has the right to present to a court the ;

question of its administrative standing. ‘‘. . . We

' with United that the question whether a carrier has a right

to participate in ‘employee representation proceedings under

_ Section 2, ‘Ninth of the Act is presented for decision in=

this litigation.’’ (NMB Brief, 43-44.) The characteriza-

tion ‘‘employee representation proceedings’’ begs the issue

somewhat; since one of the ‘questions here is whether a

craft .or class determination is solely a matter of employee

; interest. The gov ‘ernment states it more accurately in its

Questions Presented as ‘‘whether a carrier has a right to

participate in’a National Mediation Board representation

proceeding.” (NMB Brief,2.) —~ +. ;

On the merits of the issue: of United’ s right to be heard :

before the Board on craft or class questions, the govern-

ment offers two. basic but contradictory arguments. First,

it says that the Railway’Labor Act leaves the determination

of craft or class questions exclusively to the employees, °

hence the employer has-no legally recognized interest which _

entitles it to be heard on the question (NMB Brief, 44-45),

4. See also Greene v. McElroy, 360 U. '§.. 474 (1959) ; Joint

Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) ;

Atchison, Topeka and Santa Fe Ry. Co. v. Summerfield, 229 F. 2d

777 (C. A. D. C., 1955), cert. den. 351 U. S. 926 .(1956).;’ Friend

_ v. Lee, 221 F. 2d 96 (C. A. D. C., 1955) ; B. F. Goodrich v. FTC,

208 F. 2d 829 (C. A.D. C., 1953) ; ; Premier Peat Moss Corp. v.

United States, 147 F. Supp. 1° (D: C. N. Y., 1956), aff’d per

curiam 355 U. S. 13 (1957).

Pee ONT tI, tae atin) <bA/N mivatinesbes WH oe N16 ceili

22

The implicit conclusion, though one which the Board has

never explicitly stated, is that sipee ‘the Brotherhood and

“TAM agreed on a craft or class in this case, the matter is at

an end and the Board itsclf has no function in the process -

and no legal interest of United has been affected. The gov-

ernment argument does not explain, however, why the

agreement of two labor organizations necessarily reflects

- the agreement of the affected employees. .The second argu-

ment is that the Board did in fact meet the obligation

imposed upen it by the Railway Labor Act to make craft.

or class determinations and decided ‘‘to adhere to the

craft lines ‘drawn in 1947.’ (NMB Brief, 60.) The conclu-

sion from this is that such a determination by the Board is

not subject to judicial review under the doctrine of Swiici-

men’s Union v. National Mediation Board, 320.U. S. 297 .-

(1943) (NMB Brief, 60). .

The Board does not discuss the constitutional question

raised in United’s petition.

We shall ar gue with respect to the craft or class ques- .

tion that United has a constitutionally protected. right to

procedural due process in the manner by which its em-

ployeés are grouped for coltective bargaining purposes;

that the Railway Labor Act is consistent with this right in

_ that it does not delegate to employees the power to make

~-eraft or class determinations but imposes that duty on the

National Mediation Board; that the National Mediatior

Board did not exercise its duty here ‘ad that Switchmen’s

Union is no bar since United seeks only the right to have

the Board hear and consider its evidence respecting the

appropriate craft or class of its employees, and is not

seeking judicial review of any substantive determination of

the Board. . | | oa. ee

_ With respect a the ballot issue, we will demonstrate

that the form of ballot used by the Board does not assure

23.

that the desires of a majority of the employees will be,

or can reasonably be presumed to be, reflected in the re- |

‘sults of a Board-conducted election, and. therefore is in- .

" consistent with the majority rule pr inciple established by

the Railway Labor Act. © |

UNITED HAS A SUBSTANTIVE INTEREST IN THE COM.

POSITION OF A UNIT OF EMPLOYEES WITH WHICH IT |

MAY BE REQUIRED TO BARGAIN UNDER THE RAIL-

~WAY LABOR ACT AND IS ORE ENTITLED TO

‘PROCEDURAL DUE PROCESS IN THE MANNER BY

‘WHICH THE UNIT fS DETERMINED:

The federal, labor, relations statutes require that an

eniployer argain with a representative _ chosen by a ma- .

_ jority of its employees in a bargaining unit or craft or .

class determined under the statute, under compulsion of :

Jegal sanctions. This obligation is enforceable under the

- National Labor Relations Act, through a statutory enforce-

‘ment procedure and under the Railway Labor Act through :

the general judicial equity. power. Virginian Railway Co.v.

System Federation, 300 U. S. 515. (1937). A certificated

air carrier—like United—is subject to further sanctions

since compliance with the Railway Labor Act is a condi-

tion of holding a certificate of public conv enience and ne-

_ eessity under Section 401 (k) (4) of the Federal Av iation Act

’ of 1958. 72 Stat. 756-7, 49 U.S. C. § 1371(k).

United’s position is that the direct and substantial in-

terest of an employer in the composition or structure of |.

a collective bargaining unit of its employees entitles the ;

employer to procedural due process in the manner by which ©

the. anit is determined.” This right has always been ac-

corded to employers subject to the National Labor Re-

lations Act and, as we will show, there is no inherent differ-~

ence between that statute and the Railway. Labor Act in

,

t

‘ :_-

' 24-

this ecaient. The source of this right is not statutory but :

constitutional since an employer—like ‘any person—has

the tight to be free of arbitrary ‘restraint in the pursuit

‘of its business and in its freedom of contract.

This is not to argue—nor do we—that, United is not’

subject to federal regulation of its labor relations, nor

that it*may not be required to bargain with a representa-

_ tive selected bya majority of its employees in a craft or

- class determined under the Railway Labor Act. We do.

- contend that such regulation must be consistent | with pro- ~7

cedural due process, and that the Mediation Board may -

not -impose a eraft or class upon United arbitiprily or

capriciously.

A. United’s Interest in the Craft or Class.

United’s substantial interest in the craft or class is

“clearly established: by the record here. The complaint and

affidavits are- unchallenged, and Judge Matthews found

there was no genuine issue of material fact (R. 144).

United’s complaint alleged that the composition of a

craft or class of employees for collective bargaining pur-

poses affects valuable property rights..of United in ‘the

conduct of its business, and that the combining of employees

in such unrelated classifications as electronic computer

operators, ticket agents and cleahing women into one craft

or class will have a substantial and adverse impact on

the operations and- cost of conducting United’s business

(R. 5). United’s- affidavits detailed how such a craft or |

class is inconsistent with its organizational structure, and.

the effect such a craft or class would have on the busi-

ness .of United, its efficiency and. its ability properly to.

perform its public service function. oh

‘There are different hiring qualifications for each of the

groups. Ramp and stores employees are primarily male,

i ° :

a ae af

‘*

—?*

25

their. dutiés involving | essentially physical labor ; they need

. not have the training and education required of: clerical

or public contact employees. ‘The clerical personnel are

primarily female, perform little physical work and rarely

dea] with the public. Public contact employees are of’

éither sex and their work requires personality and appear-

ance standards which are not relevant to .the clerical or

ramp and stores, employees. There is little inter-group -

- identification and no community of interest, cross-training,

or cross-utilization aniong them. Combining these diverse

' ‘elassifications—totaling 12,700 employees located in 100.

cities throughout the country—into a single bargaining

‘unit tends to impair the morale of the higher rated em-

" ployees, and disrupts the company’s ofganizational -effici- *

ency (R. 16-17, 24-26, 106- 108); Such a unit conflicts with

the Mediation: Board’s own statement that the craft and

class should reflect ‘‘the functions, duties. and responsi-

bilities of the employees,’’ and the ‘‘community of interest

existing between jobs.’’ (R. 28. )

In the courts below, the Board did not deny the existence

7 of these problems or attempt to minimize them. It acknowl-

“edged that. United would be ‘‘exposed to hard bargain-

ihg which may increase its labor costs and complicate

its personnel problems.’’ NMB Brief in Court of Appeals,

33. It suggested that United could solve these problems

through the manner in which it negotiated a collective .

bargaining agreement. But the obligation to bargain

collectively with the entire craft or class as a single unit

makes remote the possibility that the employer can pre-

serve a rational personnel structure. For the very concept —

of ‘‘craft or class’’ implies Community of interest among

the employees in the unit, Its effect is to make the em-

ployer’s organizational structure conform to the ‘‘craft

or class’’ rather than the reverse. Issues such as seniority,

"- transfers, job posting and. bidding rights tend to be common ~

°o

26

to the entire craft or class; and if the craft or class does

not reflect a rational basis of classifieation the result may

have serious economic consequences.

That this is not a speculative result apncars from the

affidavit of C. P.. Hutchens, who was the Director of Per-

sonnel for Capital Airlines prior to its merger into United

_ That affidavit described the serious impact on Capitat re-

sulting from a single collective -bargaining agreenient for

the ‘‘clerical’’ craft or class made up of so any and di-

verse job ¢lassifications, including the cost-of employee re- ’

training and impairment of employee morale and efficiency

as the result of transfers from and jnto classifications hav-_

ing no functional similarity (R. 103-5).

Aside from its impact on the conduct of United's’ busi-

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 substan-

tial probability that United will no longer be able to bar-

gain separately with its ramp and stores employees—part

of the craft or class ‘established here—as it has with the

IAM 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- craft or class,

and with no other representative for any of the employees

in that craft or class, Virginian Railway Co. v. System

Federation, 300 U. 8.515, 548 (1937).

'B. The Constitutional Right.

United does not contend that these factors preclude the

Board from imposing a craft or class upon it. But since

United does have a substantial interest in the composition

of the craft or class, the determination must be rationally

made and United must be accorded procedural due process - |

in the method by which it is made. Its-eoncern in this ad-

27

ministrative decision is of no differeiit order from the con-

cert of a regulated party in administrative decisions estab-

lishing the rent he may charge his tenant, or the minimum

, wage he must pay his employees, or the rates he may charge .

for fire insirance. All of these ‘interests are entitled to

due process protection in the manner in which they are

regulated.,. Opp Cotton Mills v. Administrator, 312 U. S. 126

~ (1941) ; Bowles v. Willingham, 321 U.S. 503 (1944); Jordan —

v. American Eagle Fire Insurance Co., 169 F. 2d 281 (C. A

D. C., 1948). See also La Cross Telephoue Corp. v. Wiscon-

sin Employment Relations Board, 336 U.S. 18 (1949).5 Such ,

‘regulation acts directli and-through the force of federal

‘sanction, unlike the indirect competitive effect complained

of in cases such as Perkins v. Lukens Steel Co.,-310 U.S.

113 (1940). |

United, being ‘affected by the determination of an a

ministrative body,’’ is ‘‘entitled to insist’? upon compliance

‘‘with the requirements of due process.’’ Shields v. Utah

Idaho Central R. Co., 305 U. S. 177, 182 (1938).** —

5. In La Cross the interest of an employer in a bargaining unit

determination was clearly recognized. The Court ‘held that the

' power given employees under the Wisconsin act to designate their ,

own collective bargaining units conflicted with the federal statute

which left that issue to the National Labor Relations Board. The

Court held that the certification ‘‘established legal rights and re-

lationships,’’ and ‘‘told the employer, subject to judicial review,

with whom he could not refuse to negotiate without risk of

sanctions.’ The. Court held that the character of the certifica-

tion was, therefore, reviewable at. the instance of an employer

even though the certification was enforceable only through another

. proceeding. 336 U.S. 18, 23-24.

5a. The determination considered in Shields’ was that of the

~ Interstat¢é Commerce Commission in finding that the respondent

‘railroad was not an interurban electric railway. The consequence

of this determination. was that the railroad became subject to

regulation under the Railway Labor Act, electric interurban rail-

ways being excepted from the cov erage of that statute. The [CC

was authorized to make such a determination, after hearing, upon

application of the Mediation Board. The Court held that the ICC

determination was within the agency’s authority, and that the rail-

-

aii anata st Late | acm Lge an ets

98

The constitutional interest of an employer in regulations -

affecting its. labor relations has’ always been recognized

by this Courf, and in fact, has been assumed without: ques-

tion. Constitutional attacks in this area have been enter-

tained and disposed of not on: the ground that no constitu: ,

~~. tional right was involved but rather that the limitation im-

* posed was not an unreasonable restraint on the employer’s

right to carry on its business. Texas & New Orleans R. Co.

v. Brotherhood of Railwar y Clerks, 281 U.S. 548, 570 (1930) ;

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

515, 541, 557-8 (1937) ; NLRB v. Jones & Laughlin, 301 U. S.

1, 43-44 (1937). .

That this constitutional interest .includes the right to.

due process in bargaining unit determinations is estab-

lished by Pittsburgh Plate Glass Co. v. NLRB, 313 W. S.

146 (1941), a case arising under the, Wagner Act. prior

to the 1947 Taft-Hartley amendments referred to in the

_Board’s brief (NMB Brief, 50). There the employer ob-—

jected on constitutional groynds to a decision of the Na-

tional. Labor Relations ‘Board which included one of its

plants in a-larger collective bargaining unit which the

NLRB had found appropriate - after ‘‘extensive hearings.’’- —

The basis of the employer attack was that the NLRB

procedure denied due process of law, that there. was no

substantial evidence to justify the ruling, and that the au-,

thority granted the NLRB to make such determinations’

was an unconstitutional orca * of legislative power.

road was not entitled to a trial dé novo in the district court. In

commenting on the Congressional requirement | of .a hearing, the

_ Court stated: ‘‘And the manifest purpose in: requiring a hearing

is to comply with the requirements of due process upon which the

parties affected by the determination of an administrative body.are

entitled to insist.*’ 305 U. 8. 177, 182. The Shields case was dis-

tinguished in Switchmen’s Union v. National. Mediation: Board, 320

U. 8, 297, 306-7 (1943), but Switchmen’s\ Union. reserved con-

stitutional questions. See infra, pp. 44-6. .°

e

29

This Court gave full and serious consideration to every

constitutional argument faised by the employer. it exam-

‘ined in detail the charges: that the NLRB hearing deprived

the employer of a “full and fair hearing as guaranteed by

the Fifth Amendment”? because of the refusal to admit

certain tendered evidence (313 U. S. 146, 154-163), and

concluded that the excluded evidence, even if admitted,

could not have a‘fected the outcome of the unit question.

The Court, at the instance of the employer, examined the

- legislative standards imposed on the NLRB. as a guide to

‘its administrative action respecting unit determinations

and found them to be adequate and not an unconstitutional

delegation of legislative authority. The Pittsburgh Plate

‘Glass case clearly established that an employer has an.

interest in fair procedures and adherence to constitutional

standards ‘in bargaining unit proceedings.

If the Congressional delegation i in Pittsbur gh had been to

_ private parties—such as labor organizations or groups of

"employees—with no standards other than their voluntary

act, then certainly serious doubt about the constitutionality

of the statute. would have been raised. This is precisely

what the Board brief says Congress did under the Railway

Labor Act. If the Board ‘were correct in this view, we

would suggest that the Railway Labor Act was to this ex-_

~ tent invalid as an improper delegation of legislative power.*. —

However, as we show below, the power to determine crafts

or Glasses was not delegated to private parties under the

Railway Labor Act.

Due process requires that United is entitled to a hearing

at some point on the question of the sited bt of the

6. Carter v. Carter Coal. Co., 298 U. S. 238, 311,318 (1936).

The holding in Carter, that it was-an dich Bev Nate delegation of ©

legislative power to give mine/operators and employees the right

to establish maximum hours and minimum swages which then be-

came binding with the force of law on other employers, has not —

been overruled despite the fate of other aspects of that decision.

ga deri He —

ye &

“> ) 30

scope of the unit of its employees for which it is required |

to bargain under threat of legal sanction, including the |

. possible loss of its certificate of public convenience and _

necessity. There is no’administrative enforcement pro-

cedure under the Railway Labor Aét in which the requisite

hearing could take place, as there is under the National

_ Labor Relations Act. See NLRB v. Ideal Laundry and

‘Dry Cleanixg Co., 330 F. 2d 712 (C.. A. 10, 1964).7 In

Switchmen/s Union v. National Mediation Board, 320 U. 8.

297 (1943), this Court. held that craft or class determina-

tions of the Board were not subject to judicial review;

hence due process cannot be satisfied through a subsequent

judicial hearing as in Bowles v. Willingham; 321 U. S. 503,

519-21 ‘(1944).8. And if proceedings were started against

United before the Civil Aerdnautics Board under the Fed-

eral Aviation Act for failure to comply with the Railway

Labor Act, United could not defend on the ground that

its dué process had been violated by the Mediation Board

‘ because: the propriety of the designation of a bargaining

representative by the Mediation “Board is not open to

question by the C..A. B. in such a proceeding. See South- .

7. ‘‘The. appropriateness of the bargaining unit is the salient

issue in this unfair labor practice proceedings, and respondent [em-

ployer] is, to be sure, entitled to a due process hearing on that

issue. And, if an opportunity for a full hearing on the critical

issue was not afforded in the representation proceedings, respond-

ent is entitled to be heard in this unfair labor practice proceed-

ings.’’ 330 F. 2d 712, 715. ‘See also Inland Empire Council v.

Millis, 325 U. S. 697, 710 (1945): ‘*The demands of due process

do not require a hearing, at the initial stage or at any-.particular~

point or at more than one point in an administrative proceeding So

_ long as the requisite hearing is beld before the final order becomes

effective.’’ ° rig

A. In Bowles, the delay of due process until after administrative -

action became effective was justified on the grounds of the ex-

. / igeneies of war. ‘‘. .. Where Congress has provided for judicial

‘ review after ‘the regulations or-orders have been made effective it

has done.all that. due process under the war emergency requires.”’

321 U. S. 503, 521. ze, .

x 31 ©

ern Pilots Ass’n v. C. A. B., 323 F. 2d 288, 290 (C. A. D.C,

1963), cert. den. 376 U. S. 954 (1964). | |

Thus the only time and place at which United’s right

to procedural due process in the determination of the appro-

_ priate craft or class can be satisfied is before.the Mediation

Board in its proceedings under Section 2 Ninth of the

Railway Labor Act. Consequently, the Board’s position

that United cannot become a party to such a proceeding is

constitutionally in error.

If the Railway Labor Act compelled sucht a result it

would to this extent be unconstitutional. But.as we shall

demonstrate in the next section of this argument, Congress °

did not intend ‘that the craft or class issue would be dele- |

gated to labor organizations.or could be arbitrarily dgter-

mined by the Mediation Board. _ | ;

| ecaarss /

on, II.

~

a

BY ACCEPTING WITHOUT INDEPENDENT INQUIRY THE

BARGAINING UNIT AGREED UPON BY TWO UNIONS,

THE MEDIATION BOARD FAILED TO EXERCISE THE

DUTY IMPOSED UPON IT UNDER THE RAILWAY LABOR

i ;

A. The Statutory Plan, | y

The Railway Labor Act was substantially amended in

1934—the year before the passage of the Wagner Act—by

the addition, inter alia, of the election procedures of. Sec-

tion 2 Ninth. 48 Stat. 1188. ye

9. For this reason, among others, United’s action here is not

premature, for once the Mediation Board proceeding is concluded

; , United can resist’ only at the risk of jeopardizing ‘its certificate

of public convenience and necessity under the Federal Aviation _— .

_ Act. The prematurity argument, raised by the Board in the dis-

trict court, has been abahdoned here. .

7 é : 32

Section 2 Fourth of the Act provided, in part, that:

‘‘Employees shall have the right to organize and bar-

gain collectively through representatives of their own —

choosing. The majority of any craft or class of em-

ployees shall have the right to determine who shall be

the representative of the craft or class for the purposes

of this Act.’’ :

" Machinery, for determining the pepvesiatitivs of the craft

or class is established in Section 2 Ninth, which does not

further elaborate an the meaning of the phrase, but pro-

vides that upon. certification ‘of a representative by the ©

- Mediation Board, ‘‘the carrier shall treat with the repre-

sentative so certified as the epee? of the craft or

class.”’ j ‘

\

The amendments contain no definition of craft or class. :

Commissioner Eastman, their draftsman,” testified: during

thg Congressional hearings that some thought had. been

gigen to this but he felt ‘there would be no difficulty in ”

determining what is a craft or class of employees,’’ and if

there were any question it would be decided’ by the Media-.

tion Board. . Hearings on H. R. 7650,*House Comm.‘on ~”

Interstate and Foreign Commerce. 73d Cong. 2d Sess.

1934, pp. 45, 57-58. wer:

The following year, during consideration of. the Dill

_ leading to the Wagner Act, the subject of: bargaining unit

determination was again raised. -The Wagner Act .pro-

vided specifically that the National Labor Relations Board

was to make unit determinations. In commenting. on this:

section of the bill, the House Report stated :

“Section 9(b) provides that the [N ational | Labor

Relations] Board shall determine whether, in order to -

_ effectuate the policy of the bill ( as expressed in Sec- /

10. Commissioner Eastman’s views = been accepted as au-

thoritative.. Switchmen’s Union v. _ National Mediation Board, 320

U. §S, 297; 302 (a90?).

oe.

a2 e

tion 1), the unit pe a for the purposes of. col-

lective bargaining shall be the craft unit, plant unit,

employer unit, or other unit. The matter is ob-

viously one for determination in each individual case,

and the only possible workable arrangement is to au-

’ thorize the siapestial ‘governmental agency, the Board,

to make that determination. There is a similar provi-

sion in the Railway Labor Act of 1934 (Sec. 2(9)

2(4)).’’ H. Rep. No. 969 on H. R. 7978, 74th Cong. 1st

Sess. 1935, p. 20. (Emphasis added.) —

The Senate Report pointed out that employees ocala not °

choose their own bargaining units, since this determination

had to precede a determination of what employees could

participate in any kind of choice. And in this respect, the

Railway Labor Act was considered to be similar to tle

National Labor Relations Act.

“<Qbviously there can be no choice of’ representatives

and no bargaining unless units for such purposes are

first ‘determined. And employees themselves cannot

choose these units, because the units must be deter-

mined before it can be known what employe ees are

> eligible to ‘participate in a choice of any kind.

‘“‘This provision ‘is similar to Section 2 of 1934

amendments to the Railway Labor Act (48 Stat. 1185),

which states that—

‘* «Tn the conduct of any pens for. the purpose

herein indicated the Board shall designate who

may participate in the election and establish the __

‘rules to govern the election.’ ’’ S. Rep. No. 573 op |

S. 1958, 74th Cong: 1st Sess. 1935, p. 14. ee

added. ) ;

Thus the legislative history clearly establishes that pn

~ is the duty of the ‘Mediation Board—not- the right of em- —

‘ . ployees—to establish crafts and classes. This duty was.

confirmed in Switchmen’s Union: “‘.. .. The authority of

the Mediation Board iii election disputes to interpret ‘the

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

Sie ell kbl. 4S ee bie > iis. ‘Selah’

we

34.8 oe.

and no less cusuatio’ to the performance of its duty. 7 390

U. S. 297, 305 (1943). :

The government suggests in its brief that if employees

- agree on the craft or class this must be accepted, and in that

circumstance the duty of the. Mediation Board under See:

tion 2 Ninth does not come into play unless there is dis-

agreement as to the identity of the representative. (NMB .

Brief, 44.) This argument, interestingly enough, was first.

made by a carrier in a Mediation: Board proceeding under

Section.2 Ninth who saw that if this were so then it could

not be compelled to treat with the representative for such -

a craft or class. For the cafrier’s duty to treat with a

certified ‘represéntative only arises under. Section: 2 Ninth

of the Act, and if there is no dispute under that section then

_ there can be no certificatio#fmand hence no enforceable duty.

. The Board rejected this ingenious argument :

Pg . If the theory advanced by the carrier were

doped the more nearly employees were unanimous

in their choice of representatives the more powerless

the -Board would become to certify the fact of their

choice. In order far the employees to secure repre-—

sentation rights in guch.a situation it would be neces- -

‘sary for them to @rtificially create a dispute by in-

jecting anothe? confender for representation to secure

services of the Board and:a certification. This clearly

is contrary to the Act which was enacted to proniote |

peaceful settlements not foment disputes.’’. North-

west Airlines, Case No. ‘R-2107, 2 NMB Determine

- tions 19, 22-23 (1948). .

In any ‘event, the government’ 8 argument is. irrelevant.

Here there’ was no agreement among employees as to the

craft or class, bit. agreement among labor organizations—

which may or may not reflect the agreement of the’em-

ployees. The Mediation Board recognizes the distinction.

* Thus if representation is being sought for the first time

! by a single labor organization, the Board does not assume

t

. 54-56) is now the chief executive officer of Brotherhood: ~

mse,

there is agreement among the employees because no other

labor organization seeks representation rights, but assumes

rather that ‘‘the dispute is between those who favor having

i representative as, ‘opposed to thos¢\who are ¢ither in-

different or are opposed to having a representative for the

purposes of the act. ” ashen NMB Anpual sata (1963),

p. 35.4 ;

It is not surprising, therefore, that the -government’s

brief does not draw the conclusion its argument implies:

that since two labor organi#ations agreed on the craft or

class the Mediation Board has no craft or class. determina-

tion function under Section 2 Ninth.” Rather the govern-

ment subsequently argues that thé Mediation Board did in

fact exercise its’ statutory duty to make a craft or class de-.

a ea: (NMB Brief, 60).-

* 2. . Why the employees “‘opposed to having a representative’’

are not also parties to the dispute when more than one Jabor

organization seeks representation rights—as do the [AM and the.

Brotherhood in this case—is not apparent. Yet the meee seems

to draw this distinction and has .expressly denied any rights to

such employees i in Nos. 138 and‘ 369. - rs ;

12...The government réfers to the proviso to the definition of ;

‘‘employees”’. in- Section 1 Fifth of. the Railway’ Labor Act ‘that.

no occupational classification by order of the ICC ‘shall: be eoi=/

strued to ‘define crafts or classes aecordig to which railway em~-

ployees may be organized by their voluritary action ’’

of its argument (NMB Brief, 46). The purpose of the - proviso

wascobviously to make possible the preservation of bargaining _

arrangements already entered into between labor organizations

and carriers on a voluntary basis. The proviso implies no limita-

tion_on the power of the Board itself. This view is supported by

the Board. ‘‘So far as possible the Board has followed the past

practice of the employees in grouping themselves for representa-

tion purposes and of the carriers in making agreements with such

representatives. But these practices have not always been uniform

and claims are often made that the Railway Laber Act requires

changes in existing practices."’ Administration of ‘the Railway

Labor Act by the National Mediation Board, 1934-57 (1958), p. 20.

Neither, Brotherhood, in its Brief in No. 138, nor the Railway

‘ Labor Executives Association, which filed an. amicus brief in

* Nos. 138, 139 and 369, claims the right for employees whieh the

government suggests, although Mr. "George M. Ilarrison whose

testimiony is quoted by the government to this point (N ‘Brief;

*

in’ support ee

. B. the Arttraiy Bere of the Board's Det

_ The veaeet clearly establishes that the Board conducted

no investigation, held no hearing, accepted no evidence and.

" made -né findings respecting the appropriateness of the .

raft or class at United. It acce the-unif on which the

two unions had drawn the battle lines and r efused United ’s

request for a hearing. The: reasons for - is “denial were

‘clearly and repeatedly” stated by the Board: ‘neither the |

~ TAM nor “the Bretherhood ‘‘have, made’ any request for a

hearing» on ti uestion of craft or class,’’ and ‘‘in the

- Board’s opini e carrier is not, and cannot be, a party

“to this representation dispute. = — 99; 114; see also R. 65,

71, 85.) -

This position simply confuses the issue of craft or class

| - with the issue of the identity of the representative of that -

_’..- lass once. the unit is determined. The former is ‘the

“Weees Board’ s business—as the: ‘preceding section clearly. shows.

‘The selection of the representative for, the designated unit Q -

is the business of a majority of the employees from: which’

- " the’ eniployer is’ properly excluded. But excluding the,

ay. employer from the selection. of the representative does pot

- warrant excluding him from ‘the eran a8 ol the seqpe

of the bargaining unit in-which he has 2 substantial interest.

‘The distinction which the Board fails to draw heré*was

clearly seen by it-and the courts in the“litigation arising"|

out of the succéssful effort of the. Air Line Pilots Associa-

tion to extend its bargaining rights at United to include

“flight engineers as well-as pilots. The flight engineers

had been separately represented since 1949, and by the

same union—Flight Engineers International Association—

oon

a committee appointed under Section 2 Ninth, held, after

extensive hearings in which United participated, that the

\

Re,

combined unit“ was appropriate and shouldbe voted __ :

—— on oné ballot. Cas No. C-2946, 3 NMB Deter-

e: : s

‘ / : .

gre .

. a ; < °

\, . ad 2 ~

\ ° ° . ae

. + . s bad we

‘ : 5

. “° . : d .

* a o °

. -) . * ‘ . Ps bd -

we

continuously, since 1951. The Mediation Board acting through ~~ —

*

_ only to the selection of the representative and not A

determination of the eraft or class. - - ” am

8 ”

\ oe

karan : .* S “ a . phi . a nen is

-minations 56 (1961). Singe. the pilots “outnumbered the.

flight engineers by more than two to one, it was apparent ~

that the Air Line Pilots Association wonld win the elec-

tion with no difficulty. The Flight Engineers: sought an:

injunction ‘to prevent the holding of the election, on the

‘ground, among others, that the Mediation Board had ‘no

authority to change the: craft ‘or class hich the flight

>

‘ engineers themfelves had organized and ; hi h had been

recognized for over ten years. _ .

The Court of Appeals, in affirming the dismissal gy the

‘complaint, agreed that the right of the employees extended

a P J ,

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

the committee designated by it) has the power to make

eraft or class determinations . . .. The right given to

employees is ‘that of designating, by a majority of those

2 ‘comprising a ‘craft or class,’ their representatives.”’

UNA Chapter, FEIA v. National Mediation Board,

994 F. 2d 905, 908 (C. A. D. @., 1961), cert. den. 368) ’

U.S. 956 (1962).

The Mediation Board’s aw of its power and duty to

make craf¢ or class determinations on the basis of relevant

evidence was. clearly, stated to this Court in the Board’s

brief in opposition to the Flight Engimeers Associations).

petition for a wht of certiorari in the UN Chapter case ty

“On themerits, petitiondr’s ‘objections are equally

-. ynavailing, In essence it claims that once a craft or--

- elass‘is recognized it may not change. Petitioner re-

‘lies on the fact: that it represented the flight engineers ~~ |

in past bargaining ‘with the’carrier. However, Con:

gress-has charged the Board (or tts Committee) with

a duty to find theqcraft or class to he-whatever it is,

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

P in function, duties, interests, ‘ski

*

w

pilots and flight ‘engineers. in thig age of jets—change .

iis and responsibilities

‘as a result of teclindlogical development i ini the. industry,

the Board must recognize the change. Notwithstanding. -

petitioner’s assertions, the Board neither destroyed —

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

. of Section 2, Ninth, of the Railway Labor, Act, it made |

a finding that there is today an existing crafb or

élass of flight deck crew members.’’ (Brief in Opposi-

tion of National 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 determina- |

ie . tion Sof the- eraft or class, here solely: because two com-

peting labor. organizations agreed on. how to split up

+ United’s employees: ‘It may well have been that if the

Board had heard United’s evidence eoncerning the impact |

of électronic computers on reservations sy stems, record

keeping and billing and the resulting ‘“‘change in funetions,

duties, | interests, skills amd responsibilities”’ of its em-

ployees, it might have found another: craft or class ap-

propriate despite the. agreement of the IAM and the Broth- °

. erhood. As the Board has elsewhere acknowledged, ‘“.. ft

the Board’s: investigation of such matters under Section

2, Ninth of the Act, it must rely on the carrier in-

i formation needed in considering the dispute. " Eastern ian

_ Lines, NMB Case No, R-3639, p: 3, December 5, 1963.

The government suggests in its. brief that the Board

. did exercise its power by its ‘‘decision to adhere to the

aft lines drawn in 1947.’? (NMB Brief, 60). Even: if that

_ were true, decision on that ground would .fly in the face |

of the Board’s statement to this Court in the U 1NA Chapter

‘ ease ‘that: Congress’ charged it ‘‘with a duty to find - .

craft or ‘class to be whatever it is, not what it used to he.’

: As* we have shown, supra,-pp. 4-6, the Board has_ not fol-

lowed R-1706 blindly in other cases in ‘which it has heard

evidence —* circumstances at the carrier Sauirep, and ,

\

ie)

oe: . 8 Oe a oe,

. has refused. to follow that classification as. recently as De-

cember 1963 in the Eastern Air ‘Lines case. The Board

has attempted to explain its deviation ftom R-1706 on the

unds of ‘‘ unique cireumstances”’ in these other cases (R.

_ 118). Perhaps if.the Board had held a craft or class hear-

ing in this case it niight have’ discovered, that here, too,

the circumstances were ‘‘unique.”’ *

Seah ; ware . 7

‘The fact is ‘the Board did not rely on R-1706 in this ~ i

“ease. Affidavits in this‘ proceeding: demonstrate “that: the

Boayd was prepared to accept ‘a different craft or ¢lass

if the two labor organizations hac agreed*to a different

unit. ‘Included as an exhibit to one of these affidavits is

a letter from the TAM to the Brotherhood. sent after the

latter amended its application to include employees then ~«

represented by the IAM. In this letter the IAM commented ..

- on the possibility of the craft or class heing again amended.

to exclude: the. TAM-represented employees. The letter = *-

states : cys es

a

“ ‘After discussing this matter.further with the Na-

_ tional Mediation Board, we were assured that if an

agreement: could be reached between your Organiza-

fion and our Organization, which would exclude all 7

employees .in the, craft or class presently represented”

by our Organization, the Board would conduct: an

. election among the remainjng employees ‘in, the craft

or class without establishing a precedent thaf; could

be used by any other organization on any other prop:

e. ‘erty.’ (R. 139.): "

The affidavit of Board Member O'Neill filed in opposi-

tion to. this affidavit concedes that a discussion did -take

place between Mr. ONeill and the writer of the IAM let-

ter, and states that he ‘advised the IAM representative

‘that if the two unions agreed to exclude the ramp and

stores employees from the craft or class, ‘‘the Board would ©

give consideration to that situation . . ? (R. 142.)

»"

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OR Fe

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ys ‘y Bh

; &; PA

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40:

Mr. O’Neill’s ‘affidavit is a frank admission that- the

’ Board was prepared to act on the basis of any agrée-

ment between the two’ unions, without regard to B-1708,

or to the exercise a of its own Judgment,and certainly ‘with-

out regard'to any objective criteria. m

‘The complaint alleged that thie determination, was arbi--

trarily and” capriciously made without any hearing and -

without consideration of its effect on United. The record

clearly supports the conclusion that the’ Board simply ac-

cepted the grouping agreed upon by: the two unions and -

made no independent inquiry or determination. ae

This Court has elsewhere commented upon administra-

“tive determinations arbitrarily and capr i¢iously made:

: “The Executive Order contains no express-or-im-

plied aitempt to-confer ’ ‘power. on anyone to act arbi-

trarily or capriciously—even assuming a constitutional

_ power to do so... Ar ‘appropriate’ governmental —

‘determination’ must bejthe result of a process of

reasoning. It cannot ‘be an arbitrary fiat contrary

to the known faets. This ig:inherent in. the meaning

‘of ‘determination.’ It is implicit, in a government of

laws and not of men.’’ Joint Anti-Fascist acelin

Committee v. McGrath, 341 U.S. 123, 13 36 (1951).

C. Carrier ae in Prior Representation Pro-

The government: aout ‘that since 1935 the Board has

consistently construed the 1934 amendments to the Rail-

way Labor Act as precluding carrier participation i inm-repre-

sentation proceedings, and urges this as a. reasow for

supporting the Board’s position here (NMB Brief, 57- 58).

The fact is we know of no other major airline case in

. e which the Board has not permitted, carrier participation in

. craft or class proceedings. - Carriers have participated in

ten of the eleven airline craft or classi determinations re-

we

/ ; 4

41 :

ey

a A eae , ee

ported ia the last published volume of the Determinations Phe

of (Craft or Class of the National Mediation Board. See

3/NMB Determinations 1,9, 16; 20, 31, 35, 49, 56, 87, 94.

In the one instance in which no carrier participation is

“indicated, it was stipulated that the ‘result would be the

. same as that im a. companion case in which. the carrier

did. participate. 3 NMB Determinations-6.——_¢" 2

; In four of these cases, the only participants in the -hear-

ing were the carrier and.’ a single labor organization.

Anierican Airlines, File No. C-2380, 3 NMB Determinations

20 (1955); American Airlines, File No. C-2783, 3 NMB

Determinations . 49- (1959) ; Northeast Airlines, Case No.

R-3445, 3 NMB Determinations 87 (1960); Trans-World

Airlines, Case No. R-3479, 3 NMB Determinations 94 (1961).

8 \

* farricae- eapraaeeaian

“The determinative evidence in many of these craft or.

class hearings was furnished by the carrier. See for, ex-

ample, United Air Lines, FitsNo, C-2139, 3 NMB Deter-

minations 9, 11 (1953). |

‘The’ distinction betayeen the craft or. class issue and the°

selection of the representative for the craft or class has

been recognized by the Board. in eraft or class determina-

tions in which the carrier has participated.

i. In Trans-Pexas. Airways and. North Central Airlines,

File Lf apart C-2389, 3° NMB Determinations 16.

(1956), “the: International Association of Machinists in-

(yoked the services of the’ Board to investigate a dispute

“among the-stock and storeroom employees of the two car-

riers. The Air Line Agents Association ‘took the position

unless the Board has determined that stock and storeroom

employees are a separate craft or class for representa-

that’ the applications of the IAM shculd not be docketed .

tion purposes under the Railway Labor-Act.”’ The;Board

thereupon held a hearing on the craft or class issue—a hear-

ing in which both carriers participated—and only after

“the IAM would be docketed.

concluding thet the ‘stock and storéroo

stituted an appropriate craft or class of e

__— far Northeast Airlines, Inc., ainsi )

minations 87 (1960); the airline protested job titles listed

- in the labor organization’s -applieation- ‘‘and requested

. a hearing on. the subject of this application.”” The labor

organization also requésted a hearing. A hearing was ‘la.

at which ‘‘beth the Carrier and [the union] were repre-

sented by counsel, were given full epportunity to: be heard,

to examine and -cross-examine, ep esses, and i filed

e findings respecting the

sentation question were separated and the carrier was”

heard on the former. eer Eh

.— briefs _in_ support of their ee @ positions.”’ me: $3.) @

‘After ‘the Board made _ spe ;

various contested classifications, the application“was dock- x

.eted. Here again, the craft or class dispute and the repre-

B.

_-An earlier Board case involving the ‘aerial craft or class _

presents an. ironical ‘note an light of the Board’s. position

in this case. In KLM, File Né:C-2098, 3 NMB Determina-

(TWU) invoked the Board’s services to investigate a rep-

resentation dispute among what it described as-the Ln ge

"ating clerical employees of KLM Royal Dutch Airlines.”’

A hearing was held on the appropriateness of*the requested

_eraft or class at which the carrier and other labor. organiza-

‘ tions appeared and opposed'the T'WU. The Board, in dis-

‘missing the applichtion, | held that. the TWU “had “not

tions 1 (1953), the Transport. Workers Union of America

presented any evidence. in, support of its position. The, ;

Cry ec!

Board cited from the brief of KLM: + TS |

“As well.stated: in the brief filed on behalf of KEM?

‘it. is a fundamental principle of administrative law:

that decisions of administrative tribunals must be beset

upon evidence in the transcrip of the proceedings

fore them.*’’ at p. 4..

PO RR G Remo ee

= in x °

we

ad . : Ky

oe ‘ : : ta >

gee L :

43 rota “Gat

‘ ON

Although the ‘Board continues to give lip service to Its

view that a carrier cannot: be a party in a representation

proceeding, it nonetheless accepts the carriér.as a de facto

,

—————————— rr tst~——

\ e =

« ° Eastern Air Lines case, No. R.” 3639, p- 3, December 5,

1963, the Board statetts |

‘«Bagtern Air Lines, that

eontends for a grouping of employeés contrary to

AOL DL AL ALA OOM

See ete

- that under the Railway Labor Act, a*carrier is not

© ° a party in represéntation disputes. However, in- the

AAA SB ast

| -____-_+~—_Ninth, of the it must -rely on the carrier for in-

Board’s investi; ation of such matters nnder Seetion 2,

‘ “n patty since the carrier peculiarly possesses the knowledge . .

* __ needed to-determine‘the-eraft-or-class issues. “Thus in the ~

[sic] carrier here involved, —

. either of the contestitig unions. It should be observed |

Be Oe. formation needed in considering the dispute. Ac-.

. © sordingly, the yiews of the carrier onomatters of this

nature have been received and °takén <into Gecount.””

(Emphasis added.) :

e Thus the government 's assertion of.a consistent Board

ors construction of the Railway Labor Act as precluding carrier

©» _ participation in proceedings under Section 2 Ninth'is simply

not supported by Board practice, ‘APhich has eonsistently, :

except for this case, heen to the-eontrary.'?

<? .O . ~ os a be

~ D. Conclusion. | .

: % or _/ SS =O

The Railway Labor Act—like the National Labor Re-

lations Act—imposes the power and duty on the admin-

__* istrative agency to determine craft or class or bargaining

. unit questions. : Although the Railway Labor Act does not

" B, The Mediation Board, through a committee designated

a

O°

pa Section 2 Ninth, is currently conducting a hearing relating |

__.to the composition of the mechanics craft or class of employees at

’ United, Eastern Air Lines and Seaboard World Airline. The

three carriers are participating in the hearing and the committee -

<=yhas requested the carriérs to be the first parties to present eVidence.

. The hearing was convened oh December 4, 1964, and formal pres- — .

entation is scheduled to*stakt on January 7, 1965. NMB Case’

Nos. R-3712, 3713, 3714. \

¥ %

A oe °

specifically require a hearing, it does require an ‘““investi- © |

_ gation’? and designation: by the Mediation Board of. —

- employees entitled.to participate in the election. Employers — me

~ under the National Labor Relations ‘Act—under statutory

_ provisions held to’ be analogous to those of the Railway ;

_ ‘Labor ‘Aet"t—have always been accorded the right to~be

_ heard orf bargaining unit determinations.and this right has,

“ peen necorded due process ptotection, NLRB yx, Ideal Lawn-

dry & Dry Cleaning Co., 330 F. 2d 712 (C. A. 10, 1964). See

also Pittsburgh’ Plate Glass Co. v. NLRB, 313 U. S. 146.

(Wal). < a ae ‘hues.

Eniployees and labor organizations have no greater rights aes

/ under the Railway Labor Act respécting’ the craft or. class ,

question than does the carrier. The Mediation Board has’

in fact recognized the carrier interest in this issue by per-

mitting full carrier participation in numerous admi istra-

- tive hearings on craft or class determinations. Ther¥is ‘no

statutory or constitutional basis for refusing ‘to*hold ‘such

ei hearing in this case solely because two labor organizations

have agrped on the craft or A ene e.

“THE SWITCHMEN’S UNION CASE IS NO BAR TO REQUIE- -

ING THE MEDIATION BOARD TO PROVIDE A FAIR

_"The government contends that the ‘‘decision’”’ of the

Mediation Board to adhere to its 1947 craft or class. de-

~* ‘termination is not reviewable under the doctrine of Switch-

men’s Union v. National Mediation Board, 320 U. S. 297

(1943) (NMB Brief, 60), ease

As we have shown, the Board made no such ‘‘decision,’’ —

and if it had, such a decision would not be consistent with

: 7 — fo ; $ , ? ‘

"14. NLRB v. Jones & Laughlin, 301 U. 8. 1, 44 (1937).

: ae ; , : hy

OF,

Neer

a

the duty as the Board itself: pees’ it to ‘‘find the. craft. or,

‘class to be- what it is, not wh it used to be.’’.

a

| \\procedural due

- .” tested a determination made after hearing by thé Board that .

Since United.does not seek review of the merits of the

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

+o make that determimation©on the ‘basis of evidence and.

e requirements “of the statuté and of .

ocess, the reliance on Switchrien’s is,

in accordance wi

misplaced. Swihhmen’s involved no such questions.

” Clearly, Switchmen’s did. not foreclose review of con- |

» stitutional questions, nor did it insulate the Board from. ~ °

e Bacar inquiry as to.whether it was exercising the duty.

imposed on it by the Railway Labor Act:

Y Switchmen’s was initiated by a labor union. which. pro-

a craft or class had tobe system-wide and include all em-

ployees of the carrier in the classification. The; Court

noted that there was ‘no. provision for review of craft or

class determjnations under, the Railway Labor Act, and

- yeasoned that since Congress had created the ‘‘right’’ of

majority © representation, ‘fall constitutional questions —

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

‘it creates shall be enforced.’’ 320 U. S. at 301. (Emphasis

added.) - @

5 ‘The origin of the right asserted by eoPted py Uni in

Switchmen’s is not the same as: that asserted py United.

here. ~The ‘privilege of becoming an ‘exelusive bargain-~

ing’ agent : -. is a creature of Congress to whose grant ©

Congress was therefore free to.attach such conditions as

it saw fit.” Fay v.,Douds,-172F. 2d 720, 724 (C. A.-2,

1949). Unfited’s right, however, was not created by Con-

gress, but rather was limited. by Congress. Hence even if

this case sought judicial review of the merits of the Board’s

craft or class determination ‘it would fot be barred ‘by

R

“Shes

foes

—

234, 238.

46

\ Switchmen’s. "This cage raises the constitutional ques- ° i

tion to which Switchmen’s does not apply.” | “ |

As a preliminary step’to its holding that Board craft

or class determinations are not revjewable, the Court held

"in Switchmen;s that Congress had imposed on the Board the

duty to make sucl'detgrminations. That the Court did-not —

. _ intend to- foreclose all judicial examination of the exercise

of this duty is apparent from a feotnote comment in General

Committee v' M.-K.-T. R..Co., 820 U.S. 323, 336 n. 12 (1943),

decided the same day: ‘-

., -“ Whether judicial power may ever be exerted to re ~

* ‘quire the.Mediation Board i exercise the ‘duty’ im-

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

types of situations in which it may bé invoked present - :

questions not involved here.”.. eo re

> The instant case involves the Board’s obligation under

the Constitution and the sfatute to utilize fair procedure in

> making the craft or class determination. - Switchmen’s is

no bar togreview of the Board’s failure to exercise this

duty. ~

v 8

; °

15. Alleged constitutidnal defects in Board, proceedings, have -

"been consistently: reviewed? UNA Chapter, FEIA v. National

Mediation Board, 294 F. 2d 905 (C. A. D. C., 1961), cert. den.

-. 368 U.S. 956 (1962) ; Air Line Stewards and Stewardesses Ass’n

v. Nationa] Mediation Board, 294 F. 2d 910 (C. A. D. C., 1961), 2

cert. den. 369 U. 8, 810 (1962); WES Chapter, FEIA v. National -

Med&ation Board, 314 F. 2d 234 (C. A. D. C.,.1962). Although

the action of the Board was upheld in each of tliese cases, the

court recognized that the Board was not exempt from constitutional ©

limitations of due process. In the WES Chapter case it was

charged that the Board deprived the appellant union of.due process ~

in not fully investigating charges that.a rival: jnion was employer

‘domifiaited. The Board had held a hearing on the charges; but

- declined to compel the attendance of certain. witnesses. .The Court

held that ‘‘Due process of law would not appear to require more

im: the circumstances than was accorded appellant.’’ 314 F. 2d.

41

THE FORM OF THE BDARD BALLOT CONTRAVENES THE

: EXPRESS PROVISION OF THE RAILWAY LABOR ACT’.

i. - ‘THAT A MAJORITY OF THE EMPLOYEES SHALL HAVE

|. | THE RIGHT TO DETERMINE THE REPRESENTATIVE OF

4 THE CRAFT OF CLASS. , Seat

In Virginian Railway Co. v. System Fed&ation, 300-U. S.

a (1937), an employer challenged the validity of a. Media-

-de.2 . | tion Board certification of a union as the representative of

| 7 the blacksmith craft or ¢lass because the: union did not

: "receive a majority of all eligible votes®but only a majority

Vi SN ee those participating in the election. The.carrier relied’ ©

-/. "on Seetion 2 Fourth of he Railway Labor Act—the source

“of the emiployees’ right to select a representative—which _

provides: ‘‘The majority of any craft.or class of employees

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

o sentative of the craft or class for the purposes of this Act.””

In upholding the validity of the certification, the Court

Mem: «Fn

‘‘Election laws providing for.approval of a proposal by

- a specified majority of an electorate have been gen- ©

erally construed as requiring only the consent ‘of the

. ‘Specified majority of those participating in the election.

’ + Feitations.] Those: who do not participate “are pre-..

of. sumed to assent to the expressed wilt of the majority ;

Sie: of those voting.’ . .”?-300-U.'S. 515, 560. Emphasis -

*e added.”® | ‘ ; . 2 !

_° 16. Thecited cases all related to elections on: bond or. other

fipancing propositions—elections in which the choice was either

Yo. - ‘“ves” or ‘‘po.’” «It is significant that the Court did not cite elec-

-tions involving public office. where somebody must be, ‘elected and

the voter is given a choice only: among alternative candidates.

. In the Court.of Appeals the Brotherhood (petitioner in No: 138) .

contended that a répresentative has to be designated. in a Media-.

= tion Board election, just as 3 governor or president has to be

4 ‘elected. This argument is not urged by the Brotherhood here. |

‘ ‘ ~ |

ey | i: ears @!

:

as soe anc RO SPLEEN MEN BL EIEN Ne ba FOES LET ROLLIE

ai Case ¥ ‘ " eae 7 -

By male: , : ae ' soauers fn fen

: wf g | s f- . Re 1? ; j

. ¢ . - 3 2 ; % . “2 .

mp oe . 2 3 oN 4 Os re Ae

- : |

48

- phe Virginian case was decided in “March 1937, ,In -

July 1937, the National Labor Relations Board began

. to provide space on its ballots for a ‘no’? vote.

Second. NLRB Annual Report (1937), p. 114 n. 16. This

policy. of: the- NLRB was attacked in Interlake Corp., 4.

NLRB 55 (1937): ‘A union there contended that allowing ~

- employees to vote fex no representation ‘‘was placing too

much emphasis on the rights of a minofity.”, The union.

-also ° nt that employees’ desiring, -no +Spresentation

could simp refrain. from voting.

~The NLRB responded by stating: that the Wagner Act

did not require an ‘unwilling majority, to bargain through .

representatives but rather guaranteed the tight of a ma-

jority if it chose te exercise it.

-4<The policy adopted by the Board [NLRB] is designed

merely t6 make sure that the votes recorded for a par-.

_ ticular representative express a free choice rather than

a choice in default\of’ the possibility of expressing dis- . .

approval of both or all proposed representatives.’’

’ With respect to the union’s contention that the anwilling

employee could simply not vote, the Board answered:

‘< Phose not voting would be presumed.to acquiesce

in the choice of the majority who do vote,.and thus the. .

'- employee who does not desire to. be represented by

either designated uiiion would not express this pre-

ference by refraining ‘from voting.” 4 NLRB 55, 61.

Since that.time the National Labor Relations Board has’.

consistently provided a space’on its ballot for employees to.

vote for no representation:”*. Although Section,9(a) of the

17. Prior to the 1937 change by: the National Labor Relations .

- Board in the form of its ballot, it certified only a/union receiving

the vote-of a majority of those eligible to participate. First NLRB

_ ‘Annual Report (1936), p. 108. For a brief period after it was

created, the Mediation Board followed the same policy. Adiinis-

".: Gration of the Railway Labor Act by the National Mediation Board,

1934-1957 (1958), p. 16. Under age policy, ndn-voting was an .

effective expression of a desire. for * representation ‘since non-

“

@s

-

s

sy ie a TNR A Nit ats wap athe

sapien

~~

ctr |

Pe ened S

ae tenets

cp pe oin fone rena

te ”

hie |

re ee

. ° >

re Sent is.

+

eterno! gr ae

me ‘explicable on. the

. quired. & place for a;‘‘no’’ vote, the Mediation. Board continued

its practice of allowing a. choice only among alternative’ repre- .

Cio eas Pate gir ere

° . . . a -

* Wagner Act, which ‘provided the right of the majority -to wish | i

vote for a collectivebargaining representative, was modeled

after Section 2 Fourth of the Railway Labor: Act,"* the Na-- .

tional Mediation Board has consistently refused to allow

an employee to vote for. no representation.” ]

Section 9(a), of the Wagner Act was readopted by Con-

.

5 : gress in 1947 as part of the Taft-Hartley amendments (6+

‘Stat. 143), but Congress has had no occasion to look at Fe 0

Section 2 Fourth of the Railway Labor Act since 1934." -

* ‘The difference in\treatment/under the two statutes is not

und of a difference in their purposes.

that Seetion 2.Ninth of the Rajlway, ~

Congressional policy of ama’ |

The governmeilt sa

Labor Act ‘‘reflects

the development of |collective bargaining.’’ (NMB Brief,

33.) But the policy-of the Wagner Act was expressly stated

to be the ‘‘encouraging: [of] the practice and procedure of

collective bargaining.’’ Section 1,'49 Stat. M9, Ei!

voting’ did not affect the size of the absolute majority of all

. - eligibles which was needed for certificdfion. This policy was changed

by both Boards in recognitiqn’ of the fact that eligibles ‘may have

failed to vote out of indifference as well as a: desire for no repre-

sentation. But while\the NLRB recognized. that this change. re- .

sentatives. * pres d Le

18. Seé Majority Vote under the Railway Labor Act, Opinion - - |

of Attorney General Tom C. Clark, 40 Op. A. G. 541, 543 '(1947). 3

19. The government’s brief refers to thé 1947 amendment of = -

Section 7 of the Wagner Act to provide that employees had ‘the “

s,

right to refrain from as well as engage in protected activities ©

' (NMB Brief, 36). The right to refrain from the exercise of the

‘ rights contained in- Section 7 was implicitrin the Wagner Act and

was specifically added in 1947 to correlate with the) addition of -

prohibitions against coercive acts of unions against 'employees— ‘

‘a provision not found in the original Wagner Act. See. 8(b) (1),

99 U.S. C, § 158, 61 Stat. 141. See Analysis by Senator Taft.

93 Cong. Rec. 7001 (1947). .The Section 7 amendment had no ap-

plication to the electionof representatives by the majority of the

employees provided in Section’ 9(a), which section was simply re-

adopted in relevant part in the same language in which it appeared. °°

in the Wagner Act. Sections. 7 and 9(a) of the. Waele. end Taft-

Hartley Acts are set out in the Appendix to this brief.

, a

50

When the Mediation Board practice of not permitting

an employeg/ to vote against representation was challenged

-in this litigation, the Board responded that an. employee

‘

: . under the-Railway Labor Act had the duty—not merely

- the right—to designate a bargaining representative (R.

Nos. 138 and 369, 144-45). The Board contended that there:

_-was'a ‘‘mandate of Congress that representatives be desig-

nated.”” (R. 86.) hate ey

The legislative history of the 1934 Railway Labor Act

Amendments does not support this view. — v4 Grraa

Commissioner Eastman testified that the bill— —

‘‘does not require collective bargaining on the part of

the employees. If the employees do not wish to organ-

ize prefer to deal —— with the management’

with regard to these matt¥rs, why, that course is-left

open to thetn, or it should be.’’ (Hearings on H. R.

merce, 73rd Cong. 2d Sess. 1934, p. wa

7650, House’ Comm. on Interstate and Foreign Com- -

Senator Wagner, in response‘to a criticism

‘‘]. didn’t- understand these provisions compelled an

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

- purpose of it was just the opposite, to see that the

men have absolute liberty:to. join or not join any union. :

or to remain unorganjzed.’’ (Hearings on S. 3266, Sen.

Comm.‘on Interstate Commerce, 73rd Cong..2d_ Sess.

1934, p. 76.) — % |

_- The government now acknowledges that employees have

_no duty to select a representative, and that its assertions

to this effect in the district court-do not reflect its current

views (NMB Brief, 32, 33 n. 9). eo

Instead, the government now argues that not voting is the

‘‘equivalent of a vote against representatjon,”’ and that an

- employee. desiring no representation can therefore express

° ; wy ee

e-ce } te ‘ w :

é f an industry

witness that the amendments would have theeffect of com-° —

~ pelling-employees to join unions, stated: ;

<= Or ta

- 51 orake ntsc.

- his will by simply not voting (NMB Brief, 30-32). The only ~

: groutd fer criticism of the form of ballot has now been

>. removed, tlaims the government, by the recent Mediation _

. Bgard change which adds to the face of the ballot the advice - i

that ‘‘no employee is required to vote. If less than a,

fi majority of the employees cast‘valid ballots, no representa-

tive will be elected.’? .(NMB Brief,.30, 64.) ©

But not voting i& simply not the equivalent ‘of voting — ;

‘¢no.’’. \ ‘ = ae ie .

That a majority of eligible voters may not ‘participate

- and lence may thereby frustrate thie selection of a hargain-

ing representative does not insure the converse of the

proposition : that the bargaining @gent selected does in fact

represent the désires of a majority of the employees. A

simple example illustrates. that the results of an‘election

may differ substantially depending on the form of ballot.

; Assume a eraft or-class of 43 employees, 6. of whom

desire no representation, 4 desire Union A and no other,

-and 3 desire Union B and xo other. The fact that an em-

ployee may. prefer no representation rather ,than repre-

sentation by a union to which lie has heen opposed in a <

hotly contested campaign is neither unrealistic nor unusual.

" Under the new Mediation Board form. of ballot, as well as

the old, the 6 who desire no representation ean manifest this

20. The govérnment argues that for over 30 years and in over.

3400 elections the Mediation Board has used a form of ballot:

which did not provide'a space for a ‘“no’’-vote, and that this prac-

tice is entitled to great weight as an exercise of ‘‘expert judgment,”’ ..

which has been unquestioned by Congress (NMB Brief, 25-30).

But for these same 30 years the ballot failed‘to advise employees~

that they were not required to vote, or what percentage of total

votes would constitute a valid election. This ‘‘old ballof was un-

fair,”’ in the pinion of the Solicitor General, and for that réason

- the Mediation Boars placed on it the above quoted legend effective

November 23, 1964 (NMB Brief, 30, 63-65). This hardly spells out

a very persuasive case for administrative expertise. In any event,

whatever consistent practice ‘there had been for 30 years cer-

tajnly eame to an ‘end on November 23, 1964. —

.

| 52

desire only by not participating in the election. The remain-

ng 7 employees will then cast4 valid ballots for Union A and

_ 9 valid-ballots for Union B. Since 7 employees—or a ma- -

jority: of the 13—have participated in the election, the

election is valid under the Board’s procedures. A majority

- of those participating, or 4, will then determine the repre-

sentative. Henée Union A will be the representative for all

13 employees, although it was the choice of only 4.

If: under the same circumstances the National Labor .

Relations Board. were to conduct the election the results

would: be different. The 6 employees who wanted no repre-

sentation could cast valid ballots for ‘‘no union ;”’ 4 would .

vote for Union A and 3 for Union B. Since no choice would.

have a majority of ‘the total votes cast, under run-off, pro-

cedures, Union B; having the lowest number of votes, would.

be dropped and a run-off election: would be held between

the choices of Union A and ‘‘no union.’? Now the 6 em- <

ployees would be joined by the 3 who voted for Union B-

and preferred no representation rather than Union A, and

the vote would be the,same 4 for Union A and 9 for ‘‘no

union.’ Soa ges Pi.

The government’s answer to this_example—which was

set out in United’s complaint (R. 7jy—and a similar one

used by Judge Yqungdahl in his opinion (R. Nos. 138

21. The run-off a gpg of the National “Labor Rela-

tions Board have varied, as the government states ¢NMB Brief, |

30.n.8). However, at* all times since the~‘‘no’’ has appeared

on the NLRB ballot, the ‘no’? choice would. appear on the

run-off ballot if it received a plurality of the ‘votes cast. The

Mediation Board run-off rules provide that the two highest choices

will appear on the run-off ballot (29th NMB Anrmual Report

(1963), p. 36). The Mediation Board does not tell we whether

it would allow a ‘‘no’”’ choice to appear on a Fr n-off ‘ballot

if a majority participated in the election, but the number not .

participating exceeded « the number voting for any one choice—

as in the example cited above. Such a run-off should be allowed if

not voting is ‘‘treated as the equivalent of a. vote against repre-

~ gentation.’’ (NMB Brief, 30.) .

53 -

and 369, 152), is that the example argues conclusions from

facts. An equally valid assumption might be made, sug-—

gests the government, that the supporters of Union B

might prefer Union A to no union, (NMB Brief, 30 n.8):

But this answer pinpoints the, vice *, the Board’s fail-

ure to allow a chance for a ‘‘no”’ vote to be east. There is

no possible way of knowing whether the non-voters were

motivated by indifference or by. a desire to have no repre-

sentation; and neither is it possible: to know how ‘those

who voted for Union B would vote in a run-off between

Union A and 10 union. : $ |

The fact is that unless a ‘representative receives an ‘ab-

solute majority of the®total_ eligible to vote tlere is no

valid conclusion that can be drawn from the- Board’s elec-

tion. We do not argue that a representative must get

such a vote for the election to meet the statutory require-

- ment that the representative be determined by a majority

of the employees. We yould not even contend that an

election. is invalid simply because a majority of those

eligible to vote did not participate. We do say that un-

less the choice of casting a valid ballot against representa- .

tion is available then no valid conclusions.can- be-drawn

about: the desires or presumed desires of a majority of

the employees.” 7 | .

The result of the Board’s position is a perfect caret *

the certification of a union receiving less ‘than a majority

of the number, eligible to vote is justified ori the ground that

22. Significantly, in the only judicial examination of the Media-.

‘tion. Board’s form of ballot prior to this litigation, the district

court for the Northern District of New York held, in McNulty Vv.

_ National Mediation Board, 18 F: Supp. 494 (N. D. N. Y., 1936),

that the Mediation Board’s failure to provide space in ‘its ballot for

a ‘‘no” union vote precluded a clear expression of majority will ,

and that, therefore, a certification resulting from an election ©

based upon that form of ballet was not entitled to judicial enforce-

ment. The Board ‘does not consider the McNulty case as binding ~

on it since it was’not a party to the suit (R. 86-87).

/

,

54 °

—P. ‘ -

the non-voter is presumed to assent to the will of the’ ma-

jority of the voters (Virginian Railway case, 300 U.S. 515, —

560); yet the employee who wants no representation is

told the only way he can manifest that desire is by not

voting; but under the initial presumption, by not voting

he binds himself to the choice of the majority of those

who do vote for representation.

If tlie Mediation’ Board really means’ that not voting

is the equivalent of voting ‘‘no’’, then the quéstion put

by Judge Youngdahl to government counsel should be an-

swered::“‘If you say that it is the same, why aren’t you

willing to agreeeto itt’? (R. Nos. 138 and 369, 144.)

It is not the same. The Board practice does not meet. k

the requirements of Section 2 Fourth of the Railway Labor ~”

Act that “The majority of any craft or class of ‘employees

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

sentative of the craft or class for the purposes of this 3

Act.”? This statutory command is no less explicit than

the requirement of the National Labor Relations Act that

1, professional employees shall not be included in a unit with

- nonprofessgpnals ‘‘unless a majority of such professional

- employees vote for inclusion in such unit.”” NLRA Sec.

9(b)(1), 29 U.S.C. § 159. The practice of the Media-

‘tion Board here in not allowing ‘a true expression of the

desires of a majority of the employees in the craft or

class is of no different order than that of the NLRA—

condemned in Leedom v. Kyne, 358 U. S. 184 (1958)—in

not allowing a separate vote among the professional em-

ployees. ~ ‘* aaah ) :

The Railway Labor Act imposes on United ‘‘the affirma- .

tive duty to treat only with the true representative, and

hence the negative duty to treat with no other.’’ Virginian

Railway Co-v-System ederation, 300 U. 8. 515, 548-(1987.)

The Mediation Board practice enlarges upo his limited

Ne

2

55.

duty and increases United’s sbtigntion without statutory:

warrant, - Thus if the ballot question were not otherwise

before this-Court in this consolidated proceeding, United

nonetheless would be entitled pected on ‘this question.

- # ee ees

er eas marca ip Tae ae

~ CONCLUSION.

United does not chaHenge the ‘power of Congress to SY

regulate its labor relations, or the power of the National

Mediation Board to make craft ‘or .class determinations.

We are not-seeking a review of the merits of ae = or

class determination on this litigation.

' Rather our plea is that the Mediation Board be held to

some objective standards of conduct in ‘its regulation of

an employer’s labor relations. For certainly basic property

interests are affected bx the manner in which an employer

must deal with its employees under compulsion of legal

sanction, including possible loss. of its license to’ do busi- _

- ness. The Board should not be permitted to hide behind —

u

B .Switchmen’s Umon to justify such unpredictable and in-

* eonsistent action as this record discloses. Here the Board

says that employees have the right to select ‘their own crafts

_ or classes; when faced with this claim in the GNA Chap-

ter, FEIA litigation, the Board.argued that it was its duty a

to make this determination—not the right of the employees.

In this case the Board says it relied on a 1947 determina-

tion in adhering to the same craft or class; yet in prior

cases the Board has said the 1947 determination needed

re-examination and, in fact, on re-examination refused to.

follow it. It now says that was because of unique circim-

stances in the other cases, yet it has refused to hold any

kind of hearing i in this case to determine whether the im-

ts posing of the largest single bargaining unit in the’ history —

. of the air line industry will not also present unique cir-

cumstances. And despite its claimed reliance on the 1947

“

_right and not unpredictable sufferance to all affected parties ~

“eo: SS

“7

determination, ‘the casei _disclosés that, the Board. was

roe ready. to accept ‘another craft or class if the labor organiza-

tions agreed to that. The Board says it consistently has

interpreted, the Railway Labor Act as precluding employer *

pertitpstiys in a craft or class determination ; yet the-

_ Board practice has been precisely the contrary. It con-

~ tends that its form of: ballot has been used for thirty years

in over 3400 elections; ; yet after. certiorari was granted in

this case, the Board changed that form, admitting now that: ¢

“ its prior form had ‘been ‘‘unfair,”’ awl then claims here

. its, ““expert>judgment’’ should ‘not be disturbed. But the

change it made does not reach ‘the primary. defect of the |

hallot in not allowing the election to reflect a true expres- :

/sion of the desires. of the affected employees. —

Switchmen’ s Union cannot be réad as ‘immunizing the :

Board from any: kind of accounting for this erratic be-

havior. Perhaps if the Board were required to allow par-

ticipation in craft or class determination“as a matter of

—not only to labor organizations tseeking represepiation

rights—then some reasoned consideration of these issues

might develop. ie

For the foregoing reasons, we: respectfully request that

the Court find that a carrier has the right to be heard -

‘before the National Mediation Board on the question of

the appropriate craft or class of its employees just as an ~

- employer regulated by the National Labor Relations Act

has ‘a right to be heard on che question of an: appropriate _

bargaining unit; that the National Mediation Board may

not determine craft or class questions arbitrarily and ca-

priciously ; and that the form of ballot to be used in Board

. elections be such as to asonably Teflect the desires of a-

majority of the pot

;in the craft or class.

.™

ay”

tS.

sro

‘ s

a

- The judgment of the Cofirt of — should therefore be °

reversed i in No. 139 bias affirmed in Nos. 138 and 369.

G Respectfully ‘submitted, ees

ae ign ane a * TemptzTox Brows,

ro) RoBERT L. Sreey,

rn _ Stuart BeRNsterx,”

Dan tlie 231: S. La Salle Street,

ade Chicago, Illinois, .

( ‘ounsel {or Petitioner.

Of Counsel :

* Maver, Frrepuicu, Spress, TIERNEY, =,

Brown & Puatt, :* ' ¢* g

231 S. La Salle Street, ens. ea

> ee. : .

“Januaty 4, 1965.

ca - ,

x i

>

Lad

Ss}

Sea a BE a Wg

.

_ ee:

8

&

APPENDIX. |

-' Constitutional and Statutory Provisions ‘Involved.

U.S. Constitution, Amend. V:° oo

>... [NJor shall any person .. . be deprived of life, |

liberty, or property, without dué proeess of law; nor

shall private property.be taken for public use, without

just compensation.”’ : : ae

Railway Labor Act: Ss ase

_ Seetion 2 Fourth, 48 Stat. 1187, 45 U. S. C. § 152

Fourth:>s ~~. bee 7 |

_ “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 have the right to determine

- who’ shall be the representative of the craft or class

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

or agents, shall deny or in any way ‘question the

right of its employees to join, organize, or assist in

- organizing the labor organization of their choice, and

it shall be unlawful for any carrjer to interfere in

‘any way with the organization of its employees, or

to wsé 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 employees in an éffort to induce ©

them to join or remain or not to join or remain 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 to. assist’ in the collection of any such

dues, fees, assessments, or other contributions. Pro-

vided, That nothing in this Act shall be construed to

. =

. 6

prohibit a carrier from permitting an employee, in-

diyidually, or. loc representatives of employees from

“conferring with pnagerent during working hours

without loss of time, or to prohibit a carrier from:

‘furnishing free transportation to its employees while:

engaged in the business 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-

rier’s employees as to who are the representatives, of -

. such employees designated and authorized in accord-

nace with the requirements of this Act, it’ shall be.

the duty of ‘the Mediation Board, upon request of

either party té the dispute, to investigate such dis- .

pute and to certify to both parties, in writing, within

thirty days after the receipt of the invocation, of its

services, the. name “or: names of the individuals or

organizations that have been: designated and 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 craft 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 ascertaining ‘the names of their duly. designated .

and.authorized representatives in such manner as shall

insure the choice of representatives by the employees

without interference, influence, ‘or coercion exercised sy

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

c 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 obtain and utilize such |

- information as may be deemed necessary by it to carry

out the purposes and provisions of this paragraph.’’

co S 4 ¥ .

a

61

Wagner Act: * _

Section 7, 49 Stat.352: |

“Employees shall’ have the right to self-organiza-,

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

_ bargain collectively through representatives of their

_gwn choosing, and to engage in concerted activities,

Section 9(a), 49 Stat. 453:

-* ployees in such unit for the purposes of collective . -

- bargaining in-respect to rates of pay, wages, hours’

. Taf

for’ the purpose of collective .bargaining or other

mutual aid or protection.’’ ' :

; a

~ “Representatives. designated or/ selected for the

purposes of collective bargaining fy the majority of

the employees in a unit approprigte for such purposes,

shall be the exclusive representatives of all the em-

of employment, or other conditions. of employment: -

Provided, That any individual employee or a group

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

-sent grievances to their emplayer.’’ :

t-Hartley Act:

. Section 7, 61 Stat. 140:

‘‘Employees shall have the right to self-organization,

to form, join, or assist labor. organizations, to bargain

collectively through representatives of their own choos-

ing, and to engage in other concerted activities for the

-purpose of collective bargaining or other mutual aid

or protection, and shall also have’ the right to refrain

from any or all of stich activities except to the extent:

~—that such right may be affected by an agreement requir- j

Section 9(a) f 61 Stat. 143 :

ing membership in a labor organization as a condition

of employment as authorizéd in section 8 (a) (3).”’

‘‘Representatives. designated or selected for the pur-

poses of collective bargaining by the majority of the

employees in’a unit appropriate for such purposes, shall _

be the exclusive representatives of all the employees in

\ °

| 62

such unit for. the ,purposes of: collective bargaining in ay

- respect to rates of pay, wages, hours of employment, |

or other conditions of pmployment: Provided, That~. .

. | any individual employee or a group of employees shall

have the right #f any time to present grievances to

their employer and to have such grievances adjusted, ,

without the intervention of the bargaining representa-

tive, as long ‘as the adjustment is not incensistent with:

- the terms of a collective-bargaining contract or agree-

ment titen in effect: Provided further, That the bargain-

ing representative has been given opportunity to be

u present at such adjustment.’’ : vf

2

A