BROTHERHOOD OF RY. & S. CLERKS, ETC. v. Virginian Ry. Co.

• Decision Date: 09 February 1942
• Docket Number: No. 4864.,4864.
• Citation: 125 F.2d 853
• Parties: BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES et al v. VIRGINIAN RY. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

125 F.2d 853 (1942)

BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES et al v. VIRGINIAN RY. CO. et al.

No. 4864.

Circuit Court of Appeals, Fourth Circuit.

February 9, 1942.

Willard H. McEwen, of Toledo, Ohio (Moses Ehrenworth, of Norfolk, Va., and Frank L. Mulholland, Clarence M. Mulholland, and Mulholland, Robie & McEwen, all of Toledo, Ohio, on the brief), for appellants.

Tazewell Taylor, of Norfolk, Va., (W. C. Plunkett, of Norfolk, Va., on the brief), for appellee Virginian Ry. Co.

J. L. Broudy, of Norfolk, Va. (M. R. Broudy, of Norfolk, Va., on the brief), for intervenors-appellees.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

On April 29, 1939, the National Mediation Board, acting under the authority of the National Railway Labor Act, 45 U.S. C.A. § 151 et seq., certified that the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, hereafter referred to as the Brotherhood, had been "duly designated and authorized to represent both the clerical and office employees and the freight handlers, station and storehouse employees" of the Virginian Railway Company for the purpose of collective bargaining under the provisions of the act. The Company refused to recognize or bargain with the Brotherhood as the representative of these employees, but recognized and bargained with the "Committee Representing Clerical Employees of the Virginian Railway Company", hereafter referred to as the Committee, or with its successor, the Virginian Clerks Association, hereafter referred to as the Association, as the bargaining representative of its clerical employees. This suit was instituted by the Brotherhood to enjoin the Company from interfering with its clerical, office, station and storehouse employees in the exercise of the right of collective bargaining guaranteed them by the act, and for a mandatory injunction requiring it to recognize and treat with the Brotherhood as the exclusive representative of these employees under the certification of the Board.

The Company filed answer denying interference with the right of collective bargaining on the part of the employees involved and denying that the Brotherhood was the authorized representative of these employees. It averred that the certification by the Board was void because made on representation cards alleged to have been fraudulently obtained by representatives of the Brotherhood, and not as the result of an election, and because it involved an unauthorized classification of freight handlers and station and storehouse employees, hereafter referred to as miscellaneous employees, with the clerical and office employees. The Committee and the Association intervened and answered to substantially the same effect. The judge below heard evidence and filed a memorandum in which he held: (1) that the action of the Board in combining the two groups of employees into a single class was invalid; (2) that the certification upon the authorization cards was invalid; and (3) that the Company had been guilty of acts of interference with respect to the right of self-organization for collective bargaining on the part of the employees involved. No injunction of any sort was granted, but an order was entered setting aside the certification of the Board and dismissing the suit, without prejudice, however, to the right of any party to make further application to the Board, and without limiting the power of the Board to certify the Brotherhood as the representative of the miscellaneous employees, if application to that effect should be made.

The first matter considered by the judge below in his memorandum, i. e. the question of the power of the Board to combine the clerical and office employees with the miscellaneous employees in one class for the purpose of collective bargaining, is one which can be shortly disposed of. The record shows that these employees are so combined on most roads and there would seem to be sound reason for so combining them here; but as a matter of fact they were not so combined here. On the contrary, the certificate of the Board shows unequivocally that the authorization cards presented by the Brotherhood were separately checked as to each of the classes of employees involved against the total number of employees in that class. It shows that, out of a total of 218 clerical and office employees eligible to choose a representative, 117 had authorized representation by the Brotherhood and that, out of 79 miscellaneous employees, 65 had authorized such representation. The final paragraph of the certificate is as follows: "On the basis of the investigation and check of authorizations the National Mediation Board hereby certifies that the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees has been duly designated and authorized to represent both the clerical and office employees and the freight handlers, station and storehouse employees of the Virginian Railway Company for the purposes of the Railway Labor Act." (Italics supplied.)

The fact that the same representative is certified as having been chosen by two groups of employees does not mean that the employees constituting the two groups are placed thereby in the same group or class; for it is perfectly proper for the same person or organization to represent as many different groups as may choose him, so long as their interests do not conflict. There is no reason why a group of employees may not select a union to represent them for purposes of collective bargaining, whether they are members of the union or not; and there is likewise no reason why members of distinct groups may not designate the same union as bargaining agent and still retain their separate identity. This was precisely what was done, and what was approved by us, in the former Virginian Railway case, Virginian R. Co. v. System Federation No. 40, 4 Cir., 84 F.2d 641, 642, where we said: "At this election, System Federation No. 40 of the American Federation of Labor was the choice of the majority of those eligible to vote in four crafts, viz., the sheet metal workers, the machinists, the electrical workers and the boilermakers." The fact that members of the different groups may join the same union does not, of course, preclude the choice of that union as bargaining agent for their respective groups.

On the second question dealt with by the District Judge, the certification on authorization cards, it appears that these cards clearly and unequivocally authorized representation by the Brotherhood. They were in the following form:

"Representation Authorization.

As provided in the Railway Labor Act, approved May 20, 1926, amended June 21, 1934, I hereby designate the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees as my representative in all matters relating to employment, rates of pay, working conditions, etc., which are now or may hereafter be under consideration between my craft or class of employees and the carrier by which I am employed.

The full power and authority to act for the undersigned as described herein supersedes any power or authority heretofore given to any person or persons, labor union or organization, to act for me.

______________________________________ Company by Which Employed ______________________________________ Signature of Employe ______________________________________ Location and Title of Position ______________________________________ Date of Signature _______________________________________ Address at Which U. S. Mail Is Received By Employe".

There was evidence that signatures to these authorization cards were obtained by representatives of the Brotherhood; that they were filed with the mediator representing the Board, together with affidavits of the solicitors of the Brotherhood to the effect that they were duly signed by the persons whose signatures they purported to bear; and that the signatures were checked by the mediator against signatures of the employees on social security cards on file with the Company. There were 218 clerical and office employees of the Company, according to a list on which all parties agreed; and the Brotherhood presented authorization cards from 117 of these, excluding 8 cards bearing names which did not appear on the record cards. There were 79 miscellaneous employees shown by the affidavits of those who obtained the cards; but the Company claimed 96. Which of these figures is correct is immaterial, as authorization cards from 65 were presented. The members of the Committee recommended that the Board conduct an election; but the mediator told them that he did not know what method the Board would follow in discharging its duty. The Board made the certification on the basis of the majority favoring the Brotherhood as bargaining agent, shown by the authorization cards for each of the two groups.

The amendment of June 21, 1934, to the Railway Labor Act, Sec. 2 ninth, 48 Stat. 1188, 45 U.S.C.A. § 152 ninth, provides that, in case of dispute among a carrier's employees as to who are the representatives of the employees for the purposes of collective bargaining contemplated by the act, the Board shall investigate the dispute and certify the names of the "individuals or organizations that have been designated and authorized to represent the employees." That section further 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."

The evidence before the Court shows that the practice of certifying representatives on the basis of authorization cards...