# Brief for the Petitioner — Railway Clerks v. Association for Benefit of Noncontract Employees > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0165%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Petitioner - **Published:** January 1, 1965 - **Citation:** 380 U.S. 650 ## Text Se LIBRARY | ee ‘ SUPREME COURT, U, Se | FI LE D ~ ‘ ; 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> _ 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 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 ) 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. “ 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 ; ‘ 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.) »" t's OR Fe Wz -~ : ys ‘y Bh ; &; PA gi. Ee 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 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 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: ; . 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0165%3A13. Public record. Not legal advice.