National Federation of Ry. Workers v. National M. Board

• Decision Date: 08 January 1940
• Docket Number: No. 7422.,7422.
• Citation: 110 F.2d 529,71 App. DC 266
• Parties: NATIONAL FEDERATION OF RAILWAY WORKERS v. NATIONAL MEDIATION BOARD et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

71 App. DC 266, 110 F.2d 529 (1940)

NATIONAL FEDERATION OF RAILWAY WORKERS v. NATIONAL MEDIATION BOARD et al.

No. 7422.

United States Court of Appeals for the District of Columbia.

Decided January 8, 1940.

Writ of Certiorari Denied May 6, 1940.

COPYRIGHT MATERIAL OMITTED

James A. Cobb, of Washington, D. C., for appellant.

Robert L. Stern, of the Department of Justice, and William E. Willis, both of Washington, D. C., for appellees.

Before STEPHENS, VINSON, and RUTLEDGE, Associate Justices.

Writ of Certiorari Denied May 6, 1940. See ___ U.S. ___, 60 S.Ct. 975, 84 L.Ed. ___.

VINSON, Associate Justice.

This is an appeal from an order of the district court dismissing appellant's complaint.

The appellant, National Federation of Railway Workers (the Federation), an unincorporated association of colored railway employees, for some time prior to June 1937, represented the craft of coach cleaners employed by the Texas Pacific Railway Company (the carrier) for purposes of collective bargaining.

A contest developed, however, between the Federation and a rival organization, the Brotherhood of Railway Carmen of America, affiliated with the American Federation of Labor (the Brotherhood) as to representation of said employees. Both associations circulated "authorization cards" among the coach cleaners for signature indicating a preference for the particular association as the collective bargaining agency, and the Brotherhood filed an application, dated June 16, 1937, with the National Mediation Board (the Board) asserting that a dispute had arisen as to the proper representative of the craft of coach cleaners, and that a substantial number of the said employees had authorized the Brotherhood to represent them. On June 18, 1937, the Board wrote to one F. W. Washington, General Chairman of the Federation, informing the Federation, through him, of the Brotherhood's application for an election. On June 23, 1937, Washington replied in behalf of the Federation stating that "the majority of the Coach Cleaners employed by * * the carrier * * * choose by their signature the representation of the * * Federation * * *." On June 26, 1937, Washington, in a letter to one C. W. Rice, a Federation organizer, designated the latter to act for the Federation in the case. A copy of that letter was sent the Board.

Section 2 of the Railway Labor Act, 45 U.S.C.A. § 152, authorizes the Board to investigate representation disputes and certify the proper representative after one of the parties to the dispute makes application to it. Pursuant thereto, the Board, on November 24, 1937, notified the Federation that a mediator would be in Dallas, Texas, November 29, 1937, to investigate the dispute. The mediator, Robert F. Cole, there conferred with representatives of each association. The Brotherhood exhibited "authorization cards" bearing the names of 42 coach cleaners indicating that they desired Brotherhood representation, while the Federation presented the argument that no dispute existed since the coach cleaners had negotiated a contract with the carrier respecting their employment through the Federation, and were satisfied with the same. After securing from the carrier information as to the total number of coach cleaners employed, Cole wired the Board that there were 86 employed in all, and that 42 of them had signed "authorization cards" for the Brotherhood. Shortly thereafter, on Dec. 2, 1937, the Board ordered an election. Personal notice of the election and of the right of each association to appoint an election observer was given to F. W. Washington for the Federation. Notices concerning the approaching election were delivered to the carrier to be posted on bulletin boards seen by the coach cleaners over the entire system.

The election, secret ballot in nature, was conducted in two parts. The first, held in Fort Worth, Texas, on Dec. 4, 1937, was personally conducted by Cole assisted by F. W. Washington acting as "election observer" for the Federation, and Edward M. Ware, General Vice-President of the Brotherhood, acting as "election observer" for the Brotherhood. At that election, held at the time and place designated, 35 "boxvotes" were cast. The second part of the election was conducted by mail, and in that "mail election", held in the period December 4-10, 1937, 42 other ballots were received. Of the 77 votes cast, the Brotherhood received 42 and the Federation 35. On December 17, 1937, the Board certified the Brotherhood as the proper representative for the craft.

The Federation, through its officers, made several protests to the Board against the result of the election, charging certain irregularities in its conduct, and discrepancy between the votes actually cast and the announced result.¹ These protests and petitions for a new election were denied, and the Federation, on March 29, 1938, filed this suit in the district court against the Board, as defendant, seeking a declaration that the certification of the Brotherhood was void, and to enjoin the Board from putting such certification into effect. The Brotherhood was permitted to intervene. Upon final hearing of the case the district court dismissed the complaint.

The Federation appeals from that order of the district court and, for purposes of argument, has consolidated its numerous assignments of error into four principal contentions respecting: (1) the Board's determination that a representation dispute existed; (2) the observer representing the Federation at the election; (3) the integrity of the election; (4) the effect of Brotherhood certification on constitutional rights of Federation members.

I. The Board's Determination that a Dispute Existed

The Federation contends that the Board's determination that a representation dispute existed among the coach cleaners was not based upon sufficient evidence and hence the election must be treated as a nullity.

In endeavoring to disprove the existence of a dispute, the Federation pointed out that the coach cleaners had negotiated a contract with the carrier respecting their employment through the Federation, and were satisfied with the same at the time the Board determined that a dispute existed. The fact that employees have amicable relations with their employers does not, however, preclude the existence of a dispute inter se as to the representative for collective bargaining purposes. Indeed, a representation dispute within the meaning of Section 2 of the Railway Labor Act, 45 U.S.C.A. § 152, is a "dispute * * * among a carrier's employees as to who are the representatives of such employees * * *." (Italics supplied.)

We come now to a consideration of the evidence supporting the Board's determination that a representation dispute existed. It appears from the record that at the time the Board made that determination it had before it the following evidence:

(1) The Brotherhood had applied to the Board for an election asserting in their application that a representation dispute existed, and that a substantial number of coach cleaners had signed "authorization cards" indicating that they wished the Brotherhood to act as their representative. It was stated in the application that these cards would be available to the Board's investigator.

(2) The Board had notified F. W. Washington, General Chairman of the craft of coach cleaners in the Federation, of this application, and in response thereto received a letter from him on June 23, 1937, stating that "the majority of the Coach Cleaners employed by the * * * carrier * * * choose by their signatures the representation of the * * * Federation * * *".

(3) The Board had dispatched its own investigator, Cole, to the scene and he, after conferring with representatives of each association, sent a wire to the Board advising them of the number of coach cleaners and the number that had signed "authorization cards" for the Brotherhood.

The Federation argues that the refusal of the Board to divulge the names of the 42 "authorization card" signers, upheld by the district court, necessitates disregard of Cole's telegram to the Board as evidence to support its determination that a dispute existed and cites United States v. Abilene & Southern Railway Co., 265 U.S. 274, 44 S.Ct. 565, 569, 68 L.Ed. 1016, for the proposition that "Nothing can be treated as evidence which is not introduced as such".

In as much as the record clearly shows that, at the time it ordered the election, the Board had before it only the number of those who signed "authorization cards" and not their names, the Board did not "treat as evidence" those names and the Federation's argument battles with a non-existent foe. Nor does the result differ if evidence before Cole is treated as evidence before the Board. The record shows that the Federation has made no charge that the names on the 42 Brotherhood "authorization cards" were forged or the names of men not employed by the carrier as coach cleaners. That being the case, the identity of the signers was irrelevant and immaterial and the district court properly so ruled. Moreover, there are grave reasons of policy favoring non-disclosure of the names of those who sign such "authorization cards". We need not dwell upon the desirability of freedom from coercion for workmen in their choice of representatives. The reasons that demand secrecy in an election of this type are equally cogent in respect to a petition for an election. It has been pointed out that "it is necessary to prove only that a dispute exists among the employees as to the identity of the representative. It is not necessary for the labor organization to prove that its membership constitutes a majority of the employees in the plant."²

It is clear that the district court here ruled correctly in denying the Federation access to the names of the "authorization card" signers.³

The Board determined on the basis of the evidence before it that a dispute existed among the coach cleaners as to whether the...