United Air Lines, Inc. v. National Mediation Board, 17777

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtPER CURIAM
Citation117 US App. DC 387,330 F.2d 853
PartiesUNITED AIR LINES, INC., Appellant, v. NATIONAL MEDIATION BOARD et al., Appellees. NATIONAL MEDIATION BOARD et al., Appellants, v. ASSOCIATION FOR the BENEFIT OF NON-CONTRACT EMPLOYEES, Appellee. BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES, Appellant, v. ASSOCIATION FOR the BENEFIT OF NON-CONTRACT EMPLOYEES, Appellee.
Docket NumberNo. 17777,18068,18072.,17777
Decision Date12 March 1964

117 US App. DC 387, 330 F.2d 853 (1964)

UNITED AIR LINES, INC., Appellant,
v.
NATIONAL MEDIATION BOARD et al., Appellees.

NATIONAL MEDIATION BOARD et al., Appellants,
v.
ASSOCIATION FOR the BENEFIT OF NON-CONTRACT EMPLOYEES, Appellee.

BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES, Appellant,
v.
ASSOCIATION FOR the BENEFIT OF NON-CONTRACT EMPLOYEES, Appellee.

Nos. 17777, 18068, 18072.

United States Court of Appeals District of Columbia Circuit.

Argued February 13, 1964.

Decided March 12, 1964.

Petition for Rehearing Denied April 14, 1964.


Mr. Stuart Bernstein, Chicago, Ill., with whom Mr. James Francis Reilly, Washington, D. C., was on the brief, for appellant in No. 17777.

Mr. Milton Kramer, Washington, D. C., with whom Mr. James L. Highsaw, Jr., Washington, D. C., was on the brief, for appellant in No. 18,072.

Mr. Howard E. Shapiro, Atty., Dept. of Justice, with whom Asst. Atty. Gen. John W. Douglas, Messrs. David C. Acheson, U. S. Atty., and Morton Hollander, Atty., Dept. of Justice, were on the brief, for appellees in No. 17,777 and for appellants in No. 18,068.

Mr. Alex L. Arguello, San Francisco, Cal., of the bar of the Supreme Court of California, pro hac vice, by special leave of court, with whom Mr. Jerome C. Muys, Washington, D. C., was on the brief, for appellee in No. 18,068 and No.

330 F.2d 854
18,072. Mr. David Booth Beers, Washington, D. C., also entered an appearance for appellee in No. 18,068 and No. 18,072

Mr. John E. Stephen, Washington, D. C., filed a brief on behalf of Air Transport Association of America, as amicus curiae, urging reversal in No. 17,777.

Mr. William G. Mahoney, Washington, D. C., filed a brief on behalf of Railway Labor Executives' Association, as amicus curiae, urging affirmance in No. 17,777.

Before WILBUR K. MILLER, BASTIAN and WRIGHT, Circuit Judges.

Petition for Rehearing in No. 17777 Denied April 14, 1964.

PER CURIAM.

These three appeals have been consolidated by this court. In our view Nos. 18,068 and 18,072 should be disposed of first, although they are later in their numbering.

In No. 18,068, the National Mediation Board appeals from an order issued by the District Court which, among other things, restrains the Board from conducting a representation election.

In No. 18,072, the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes appeals from the same order.

The order appealed from is as follows:

"* * * ORDERED That the Board is hereby permanently enjoined from conducting any election among the `Clerical, Office, Stores, Fleet and Passenger Service employees\' of United Air Lines, Inc., in which the form of the ballot does not permit a voting employee to cast a vote against collective bargaining representation, and it is
"FURTHER ORDERED That the plaintiff\'s request that the Board shall conduct a hearing relating to the question of the appropriateness of class or craft of employees among whom the election was to be held, at which hearing the plaintiff could be heard as a party in interest, shall be and the same is hereby remanded to the Board for further consideration in the light of the Court\'s conclusion that the Railway Labor Act, 45 U.S.C. § 151 et seq. gives employees a right to have a ballot on which they may express a preference for no collective bargaining representation."

The opinion of Judge Youngdahl, of the District Court, is found in D.C.D.C., 218 F.Supp. 114 (1963) and is adopted by us as the opinion of this court. It follows that the judgment of the District Court in these cases must be affirmed.

In No. 17,777, United Air Lines, Inc. appeals from the dismissal by the District Court of its action filed to enjoin the election proposed by the National Mediation Board. The grounds for dismissal of the action are not stated in the court's order but, 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 dismissed. The close question as to United's standing, about which there is a dearth of authority, causes us concern. We have decided, however, not to disturb the District Court's dismissal, because our decision in the other two cases affords the relief concerning the form of the ballot which United sought.

No. 18,068 is affirmed No. 18,072 is affirmed No. 17,777 is affirmed

WRIGHT, Circuit Judge (concurring in part and dissenting in part).

In No. 17,777 of this consolidated litigation, United Air Lines appeals from the District Court's refusal to enjoin the National Mediation Board from conducting a representation election under Section 2, Ninth, of the Railway Labor Act. 48 Stat. 1188, 45 U.S.C. § 152, Ninth. In Nos. 18,068 and 18,072, the National Mediation Board and the Brotherhood of Railway and Steamship Clerks appeal from the granting of an injunction against the Board, by the same court through a different judge, restraining it from conducting the same election which is the subject of the United Air Lines suit. The second injunction action was

330 F.2d 855
brought1 by certain employees of United Air Lines who claim to want to represent themselves individually in their labor negotiations with their employer. I agree with the court that in No. 17,777 the United Air Lines injunction proceeding was properly dismissed by the District Court. I respectfully dissent from its affirmance in Nos. 18,068 and 18,072 upholding the issuance of the injunction against the National Mediation Board.

Since the United Air Lines suit and the action brought by some of its employees appear to have a common inspiration as well as common issues, I shall treat them together. Both United and its appellee employees, here called ABNE,2 urge two grounds for enjoining the Board from performing its duty under the Act: (1) The Board improperly determined the bargaining unit craft or class to be "clerical, office, stores, fleet and passenger service employees"; and (2) the Board proposes to use in the election a form of ballot which does not provide a space for the employee to vote against representation.

The craft or class recognized by the Board as the proper bargaining unit for the proposed election is the same as that recognized in its 1947 proceeding. Case No. R-1706, Determinations of Craft or Class of the National Mediation Board (1947). There has been no change in the classification since that time. After considering the representations by United as to the need for change, the Board determined that it would follow its prior ruling. Thus United and ABNE would have the court reweigh these class considerations and substitute its judgment for the Board's.

With reference to the form of ballot, space is provided to vote for either of the competing unions.3 A third blank space is indicated for voting for a representative not named on the ballot. That same blank space may be used for voting for "no union" or "no representation." Section 2, Fourth,4 of the Railway Labor Act provides, in part: "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." Thus, if a majority of the craft or class actually votes for representation, a representative may be selected. If a majority fails to vote, the Board may not certify a representative. Radio Officers' Union, C.T.U.-A. F. of L. v. National Mediation Board, 86 U.S.App.D.C. 319, 181 F.2d 801 (1950). In addition, the admitted practice of the Board is to add the number voting "no union" to the number not voting in determining whether...

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4 practice notes
  • National Welfare Rights Organization v. Finch, 23787
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 9, 1970
    ...Mediation Board, 218 F.Supp. 114 (D.D.C.1963), affirmed sub nom. United Air Lines, Inc. v. National Mediation Board, 117 U.S.App.D.C. 387, 330 F.2d 853 (1964), reversed on other grounds sub nom. Brotherhood of Ry. and S. Clerks, Freight Handlers, Exp. and Station Emp. v. Association for Ben......
  • 14 133 Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees v. Association For Benefit Ofemployees United Air Lines, Inc v. National Mediation Board National Mediation Board v. Association For Benefit Ofemployees, N-CONTRACT
    • United States
    • United States Supreme Court
    • April 28, 1965
    ...218 F.Supp. 114. The Court of Appeals affirmed these cases by a divided court and they are here as Nos. 138 and 369. 117 U.S.App.D.C. 387, 330 F.2d 853. Judge Wright, dissenting, thought the District Court was without jurisdiction to enjoin the Board from conducting a representation electio......
  • British Airways Bd. v. National Mediation Bd., 1404
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 4, 1982
    ...85 S.Ct. 1192, 14 L.Ed.2d 133 (1965) ("Railway Clerks"), aff'g in part and rev'g in part United Air Lines v. National Mediation Board, 330 F.2d 853 (D.C.Cir.1964). In Railway Clerks the Court entertained on the merits claims of both a union and a carrier, United Air Lines, that the NMB was ......
  • Edwards v. United States, 17704.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 12, 1964
    ...denied, 368 U.S. 883, 82 S.Ct. 131, 7 L.Ed.2d 83 (1961)." Although Berry finally told the same story on the witness stand in the present 330 F.2d 853 case that he had told when first arrested, and Holman in the Smith and Bowden case did not, we think there is enough similarity between the t......
4 cases

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