Nashville, C. & St. L. Ry. v. RAILWAY EMPLOYEES'DEPT., ETC.

• Citation: 93 F.2d 340
• Decision Date: 07 December 1937
• Docket Number: No. 7524.,7524.
• Parties: NASHVILLE, C. & ST. L. RY. v. RAILWAY EMPLOYEES' DEPARTMENT OF AMERICAN FEDERATION OF LABOR et al.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

93 F.2d 340 (1937)

NASHVILLE, C. & ST. L. RY. v. RAILWAY EMPLOYEES' DEPARTMENT OF AMERICAN FEDERATION OF LABOR et al.

No. 7524.

Circuit Court of Appeals, Sixth Circuit.

December 7, 1937.

William H. Swiggart, of Nashville, Tenn. (Seth M. Walker, of Nashville, Tenn., on the brief), for appellant.

Frank L. Mulholland, of Toledo, Ohio (Will R. Manier, Jr., of Nashville, Tenn., and Clarence M. Mulholland and Willard H. McEwen, both of Toledo, Ohio, on the brief), for appellees.

Before HICKS, SIMONS, and ALLEN, Circuit Judges.

SIMONS, Circuit Judge.

The Railway Labor Act, as amended June 21, 1934, U.S.C., title 45, c. 8, 45 U. S.C.A. §§ 151-158, 160-162, establishes the machinery by which collective bargaining between interstate carriers and the several crafts or classes of their employees may be carried on through freely selected representatives of both parties. Section 1, Fifth, of the act, 45 U.S.C.A. § 151(5), defines the term "employee" to include:

"Every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendition of his service) who performs any work defined as that of an employee or subordinate official in the orders of the Interstate Commerce Commission."

Section 2, Fourth, 45 U.S.C.A. § 152(4), provides:

"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 chapter."

Section 2, Ninth, 45 U.S.C.A. § 152(9), provides that if any dispute arises among employees as to who are the representatives designated and authorized to act for them, it shall be the duty of the Mediation Board upon request of either party to the dispute to investigate it and to certify in writing the names of the individuals or organizations designated and authorized to represent the employees and to certify them to the carrier. It also provides:

"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 by the carrier. In the conduct of any election for the purposes herein indicated the Board shall designate who may participate in the election and establish the rules to govern the election, or may appoint a committee of three neutral persons who after hearing shall within ten days designate the employees who may participate in the election."

The appellant is an interstate carrier, subject to the provisions of the Railway Labor Act. The appellees include a group of unincorporated trade unions federated under the title "Railway Employees Department of the American Federation of Labor." A dispute having arisen between the appellees and an organization known as the Association of Shop Employees theretofore recognized by the carrier, as to which organization was entitled to represent the members of the several crafts in treating with the carrier, it was upon proper notice referred to the Mediation Board for decision. In the period October 30, 1935, to November 5, 1935, a secret ballot was taken by the Mediation Board, as a result of which the appellees were certified as having been designated and authorized to represent their several crafts in negotiation with the carrier. The latter refused to recognize the certification of the Board on the ground that the election was contrary to law, whereupon the appellees filed their bill in the court below seeking with other relief a mandatory injunction requiring the carrier to treat with the several appellees as certified by the Board, and a decree was entered granting it.

The appellant justifies its challenge to the certificate of the Board by an interest in the controversy arising out of its duty to act in good faith to all of its employees and their existing representatives, and an obligation to treat only with employee representation authorized and in fact supported by a substantial and real majority of its employees. The interest of the carrier, which translates the original dispute between rival unions into one of actual controversy between the prevailing union and the employer, is not challenged, and we see no occasion to question it.

Upon the list of those eligible to vote in the election prepared by the Mediation Board were placed the names of all employees who had performed active service for the carrier in any of the crafts or classes involved on or after June 1, 1935. This included 140 employees who were not actually working for the carrier upon the date of the election, though carried on the seniority roster subject to recall. Such men are usually referred to as "furloughed employees." In the case of each craft a majority of those eligible to vote did so, and of the vote cast in their respective crafts the appellees received a majority, though not a majority of those eligible to vote.

The election is assailed on the ground, first, that the certificate was issued upon the result of an election participated in by persons in sufficient numbers to affect the result, who are denied the right to vote by the terms of the statute, second, that the representatives certified are the choice of but a minority of the craft since in none of the cases involved in this appeal were they selected by a majority of those entitled to vote, and, third, that the eligibility rules were changed after notice of the election, so that a court of equity ought not to lend its powers to enforce a result brought about by the Board's ex post facto change of rule, but should order a new election.

The first ground presents the greatest difficulty. While it is generally recognized that the intent of the Congress was to clothe the Board with large discretionary powers in the conduct of elections for the appointment of representatives, Brotherhood of Railroad Trainmen v. National Mediation Board, 66 App.D.C. 375, 88 F. 2d 757; and that decisions of the Board should be final and binding upon contending groups of employees and upon the carrier, Brotherhood of Locomotive Firemen & Enginemen v. Kenan, 87 F.2d 651 (C.C. A.5), and while the general rule is that where Congress has appointed an administrative board and it has acted within the scope of its authority, its findings are not subject to review by the court if supported by evidence, if there is no irregularity in the proceedings and if the constitutional rights of persons adversely affected are not violated, Phillips v. Commissioner, 283 U. S. 589, 51 S.Ct. 608, 75 L.Ed. 1289, yet the Congress has here defined the term "employees" with some effort at particularity, and it becomes necessary, we think, to examine such definition with care, for while the act does not require the Mediation Board to hold an election, yet when one is held it is required to be secret, and the ballot to be taken is that of the employees involved.

The primary requirement of the...