United Transport Serv. v. National Mediation Board, 10010.

• Citation: 179 F.2d 446
• Decision Date: 17 October 1949
• Docket Number: No. 10010.,10010.
• Parties: UNITED TRANSPORT SERVICE EMPLOYEES OF AMERICA, CIO, ex rel. WASHINGTON et al. v. NATIONAL MEDIATION BOARD et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

179 F.2d 446 (1949)

UNITED TRANSPORT SERVICE EMPLOYEES OF AMERICA, CIO, ex rel. WASHINGTON et al. v. NATIONAL MEDIATION BOARD et al.

No. 10010.

United States Court of Appeals District of Columbia Circuit.

Argued December 16, 1948.

Decided October 17, 1949.

Mr. James A. Cobb, Washington, D. C., with whom Mr. George E. C. Hayes, Washington, D. C., who entered an appearance, was on the brief, for appellants.

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

Mr. Willard H. McEwen, Toledo, Ohio, with whom Mr. Clarence M. Mulholland, Toledo, Ohio, who entered an appearance, was on the brief, for appellees Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees, International Association of Machinists. Mr. Linton M. Collins and Mr. H. Donald Kistler, Washington, D. C., also entered appearances for appellees Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees, International Association of Machinists.

Mr. Robert B. Hankins, Washington, D. C., entered an appearance for appellee Pennsylvania Central Airlines Corp.

Before STEPHENS, Chief Judge, and WILBUR K. MILLER and PROCTOR, Circuit Judges.

STEPHENS, Chief Judge.

The appellants, plaintiffs below, are the United Transport Service Employees of America, CIO, hereafter sometimes referred to as United, or as one of the plaintiffs, and James A. Washington and James E. Edmonds in their own behalf and on behalf of others alleged to be similarly situated, to wit, Negro janitor employees of Pennsylvania Central Airlines Corporation. The appellants James A. Washington and James E. Edmonds are sometimes hereafter referred to as the individual plaintiffs. The appellees, defendants below, are the National Mediation Board; the Pennsylvania Central Airlines Corporation; the Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees; and the International Association of Machinists. The appellees are sometimes hereafter referred to respectively as the Board, Pennsylvania, Brotherhood, and Machinists, or as the defendants.

The appeal is from a summary judgment entered by the District Court of the United States for the District of Columbia (now the United States District Court for the District of Columbia) against the appellants on motions of the appellees. The District Court filed no opinion but was apparently of the view that there was no genuine issue of material fact between the parties and that as a matter of law, on the undisputed facts, the appellees were entitled to judgment. In addition to the motions for summary judgment, there were two motions to dismiss the appellants' complaint, each of them upon the grounds that the District Court had no jurisdiction to entertain the action and that the complaint stated no cause of action. One of these motions was filed by the Board alone, the other by the Brotherhood and the Machinists jointly. Pennsylvania filed an answer in which as a first defense it asserted that the appellants' complaint stated no cause of action against Pennsylvania. This first defense was in effect a motion to dismiss the complaint, Rule 12(b) Federal Rules of Civil Procedure, 28 U.S.C.A., and it is hereafter referred to as such. In a second and third defense Pennsylvania admitted some of the allegations of the complaint, asserted that it was without information sufficient to form a belief as to the truth of certain others, and alleged that it had acted in full compliance with the law as administered by the Board. The District Court did not act upon the motions to dismiss and it also took no action upon the issues joined by the complaint and the assertions of Pennsylvania — in respect of certain of the allegations of the complaint — that Pennsylvania was without information sufficient to form a belief in respect thereof.

For reasons which will appear below we think that the motions to dismiss should have been granted and that the District Court ought not to have ruled upon the motions for summary judgment. We think also that this court should consider only the motions to dismiss and not rule upon the question of the correctness of the summary judgment.

Stated in summary form, the allegations of the appellants' complaint were that:

On July 17, 1945, a collective bargaining agreement was entered into between Pennsylvania and its janitor employees as represented by United, their bargaining agent. This agreement was filed with the Board and tended to show that the janitor employees of Pennsylvania had unanimously voted for United as their bargaining agent. The Board had, by certification or through knowledge of executed agreements with fifty railroads and airline companies, "accepted and recognized" the qualifications of United as a craft or class organization representing redcaps, dining car waiters, Pullman and laundry workers on railroads, and redcaps, janitors, and porters on airlines. On January 31, 1947, the Board, without regard to the contract of July 17, 1945, and without notice to United or to the individual plaintiffs, made a new determination of craft or class. This determination violated and rendered ineffective the agreement of July 17, 1945, and, without their consent, relegated the individual plaintiffs to representation by the Brotherhood and the Machinists, membership in which was denied the individual plaintiffs solely because of color, and in which organizations the individual plaintiffs had no voice. By the terms of the craft or class determination of January 31, 1947, Pennsylvania is forced, for purposes of collective bargaining representation, to divide its employees between the Brotherhood and the Machinists and to refuse to recognize the terms of the bargaining agreement of July 17, 1945, and is compelled to look to the Brotherhood and the Machinists as bargaining agents for the individual Negro janitor plaintiffs and those of like situation for whom such individual plaintiffs sue.

The action of the Board as described above "in its representative capacity under authority of the Government" was in violation of "the contract clause" of the Constitution, was an abridgement of the privileges and immunities of the individual plaintiffs as citizens of the United States, and was a denial to the individual plaintiffs of due process of law and of the equal protection of the laws, as guaranteed by the Fifth and Fourteenth Amendments to the Constitution.

The appellants prayed that the District Court require all of the defendants to answer; that the Board be required pendente lite and permanently to set aside so much of its determination of January 31, 1947, as purported to designate the Brotherhood and/or the Machinists as bargaining agents for the individual plaintiffs; that upon final hearing of the cause the court require the reinstatement of the agreement of July 17, 1945, between United and Pennsylvania; that the court enjoin the Brotherhood and the Machinists from exercising any jurisdiction over the individual plaintiffs and from attempting to act as bargaining agents for them; and that such other relief as might be required be granted.

The appellants invoked in their complaint, in addition to the provisions of the Constitution above referred to, 28 U.S.C. § 41(8) (1946), which gives the United States district courts "original jurisdiction" of all "suits and proceedings arising under any law regulating commerce,"¹ and invoked also the Railway Labor Act, Act of May 20, 1926, 44 Stat. 577, as amended by Act of June 7, 1934, 48 Stat. 926; Act of June 21, 1934, 48 Stat. 1185; Act of June 25, 1936, 49 Stat. 1921; and Act of Aug. 13, 1940, 54 Stat. 785, 786; 45 U.S.C. §§ 151-188 (1946).

The Railway Labor Act in Section 2 Fourth (45 U.S.C. § 152 Fourth (1946)) provides:

Employees shall have the right to organize and bargain collectively through representatives of their own choosing. 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. . . .

The right thus conferred is protected by Section 2 Ninth of the Act (45 U.S.C. § 152 Ninth (1946)), which reads as follows:

If any dispute shall arise among a carrier's employees as to who are the representatives of such employees designated and authorized in accordance with the requirements of this Act, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier. Upon receipt of such certification the carrier shall treat with the representative so certified as the representative of the craft or class for the purposes of this Act. 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 Board shall have access to and have power to make...