RADIO OFFICERS'UNION v. National Mediation Board

• Decision Date: 10 April 1950
• Docket Number: No. 10197.,10197.
• Citation: 181 F.2d 801
• Parties: RADIO OFFICERS' UNION, C. T. U. — A. F. of L. v. NATIONAL MEDIATION BOARD.
• Court: U.S. Court of Appeals — District of Columbia Circuit

181 F.2d 801 (1950)

RADIO OFFICERS' UNION, C. T. U. — A. F. of L. v. NATIONAL MEDIATION BOARD.

No. 10197.

United States Court of Appeals District of Columbia Circuit.

Argued October 10, 1949.

Decided April 10, 1950.

Mr. Frank Bloom, Washington, D. C., submitted on the brief, for appellant.

Mr. William D. McFarlane, Special Assistant to the Attorney General, submitted on the brief, with whom Assistant Attorney General Herbert A. Bergson, Messrs. Edward Dumbauld, Special Assistant to the Attorney General, and George Morris Fay, United States Attorney, Washington, D. C., were on the brief, for appellee.

Before CLARK and PROCTOR, Circuit Judges, and MORRIS, District Judge, sitting by designation.

CLARK, Circuit Judge.

Appellant union invoked the services of the appellee, National Mediation Board, to determine a dispute concerning the bargaining representative of a certain craft or class of employees employed by the Pan American Airways, Inc., pursuant to the provision of the Railway Labor Act, sec. 2, fourth,¹ which provides that the majority of such craft or class shall have the right to determine who shall be their representative, and sec. 2, ninth² which provides that where a dispute arises among the employees as to who their representatives shall be it is the duty of the appellee Board, on the request of either party, to investigate and certify the name of the representative which has been designated and authorized to be such representative. The Board is given the power to conduct elections.

The Board took jurisdiction over the dispute in question and conducted an election wherein, out of 183 employees eligible to vote, only 86 did so. 17 of these ballots were void. The remaining 69 were in favor of the appellant. Whereupon the appellee indicated its intention to dismiss the appellant's application for certification in accordance with a Board policy of many years standing to decline to certify a representative where less than a majority of the eligible voters participated by casting valid ballots. However, due to the fact that this practice was challenged in this and three other pending cases, the Board requested an opinion of the Attorney General. The Attorney General opined that the Board had the power to certify a representative which receives a majority of the votes cast despite the fact that less than a majority of those eligible voted. But, he went on to say, though the Board has the power, it need not exercise it automatically. It is a discretionary function. On the strength of this opinion and the investigation, the Board refused...